Author: iodpa

Ms Doubtfire & Mr Williams

iodpa caselaw, Causation, selected medical practitioner, smp
Ms Doubtfire & Mr Williams

“And what physicians say about consumptive illnesses is applicable here: that at the beginning, such an illness is easy to cure but difficult to diagnose; but as time passes, not having been recognized or treated at the outset, it becomes easy to diagnose but difficult to cure.”
― Niccolò Machiavelli, The Prince

A 2010 judicial review had far-reaching implications for former officers in receipt of an injury on duty pension on the distinction between a diagnosis and a disability. We will take a look at it in this blog, but apropos of nothing more than amusement, note that the surnames of the two disabled former police officers appellants give the real name and character identity of the actor in a film which combines slapstick comedy with a poignant look at a broken marriage.  Hmmm? There is a fair bit of comedy in the pathetic efforts of some HR managers, who love to pretend they are something they most certainly are not. As Mrs Doubtfire (the character) might say, ‘Well my dear, they puff and pout and blather in a vain effort to appear professional, but they consistently fail to live up to their own low standards.’

Doubtfire & Williams, R (on the application of) v West Mercia Police Authority & Merseyside [2010] EWHC 980 (Admin) (14 May 2010)

This case changed how ill-health retirements and injury awards are conducted.

Doubtfire & Williams supplanted another judicial review which occurred just prior to it – that was the one where, in a ridiculously bizarre situation, Northumbria Police’s in-house solicitor Nicholas Wirz took his own doctor, Dr Jon Broome, to the High Court. (That case is Dr Broome (Industrial and Organisational Health) v Northumbria Police Authority – 2010).  You won’t find the Broome transcript on the bailli.org database (British and Irish Legal Information Institute) which is helpful as Doubtfire & Williams rubbished the point Wirz was trying to prove anyway.

In Broome v Northumbria, Northumbria conducted the legal equivalent of playing a game of shinty with itself.  Shinty is that rough-house where two teams of people hit each other with sticks whilst aiming for a ball. Wirz hired Sam Green QC to sue Northumbria’s own SMP, but despite his best efforts, this judicial review confirmed that when a review of degree of disablement is held a SMP cannot introduce into the assessment new medical conditions caused by police duties.   “Impuissant” means  powerless, ineffectual, feeble, or impotent – rather sums up this Wirz v Broome judicial review that even bailli.org doesn’t want show.

Anyway, bailli.org does have our Doubtfire judicial review in all it’s glory.  It post-dates, therefore over-rides, the Broome one and clarifies that the Regulations are concerned with the disability not the medical condition itself. The Doubtfire & Williams case had more to say about the diagnosis of the medical condition.

Appellant Ms Doubtfire served as a police officer with the West Mercia Police from 23rd October 1989 until she was retired by reason of ill health on 6th September 2008.  Even though her employers knew Ms Doubtfire had a history of underlying depressive illness she was posted to an extremely stressful and public-facing hate crime unit.  The stress of the role and a perceived level of insensitivity from her superior officers together with a lack of adequate line management at senior level aggravated her condition. There was a suicide attempt in 2004. She took sick leave in October 2005 and never returned to work. West Mercia, perhaps to their credit, or perhaps out of complete indifference, did not see fit to retire her on grounds of ill health until 2008.

The SMP in that process was a Dr Jackson who decided that her diagnosis was Social Phobia. Which is a condition classified in the International Statistical Classification of Diseases and Related Health Problems (ICD), a medical classification list by the World Health Organization (WHO).  The classification reference number is: (ICD10 F40.1)

The second jointly heard case involved Merseyside.  Northumbria & Merseyside are the panto villains of the IOD world.  It would be trivialising the subject matter and profound life-changing damning effects these forces have on the injured officers they attack to say this.  To imply a ‘panto‘ where villain is hissed and the poor victims “awwwww’d” would be improper.  But still, it’s always the same named employees salaried by the public purse that continually​ do this evil in a frequency beyond parody.

Appellant Mr Williams joined Merseyside Police in July 1991 and served with that force until he was required to retire by SMP Dr Smith because of Bipolar Affective Disorder (ICD10 F31.6), a condition which arose as a result of the refusal and repeated failings of Merseyside to help him with support and retraining. Mr Williams retired on the 4th September 2006.

After their ill-health retirement, both Ms Doubtfire and Mr Williams applied for an injury award.

Although the SMP for Ms Doubtfire, Dr Jackson, had signed-off the social phobia as a permanent disablement for the ill-health retirement, when he came to assess her for the injury award he performed a complete u-turn.  He decided that what he had diagnosed as Social Phobia was questionable. In his words, “should not be completely discounted”, but discount it he did.  He decided it was not the result of an injury in the execution of duty and that in any case the permanent disability was more to do with the depressive illness.

A similar example of the mercurial minds of SMPs was experienced by Mr Williams.  For his injury award he was put in front of a new SMP, Dr Vincenti, who brazenly over-ruled over-ruled Dr Smith, by claiming that he could find:

“. . . no evidence whatsoever from the history, examination of the documentary evidence, and from my examination of Mr Williams as well as my conversation with his wife, that he ever suffered from a bipolar affective disorder.”

But Dr Vincenti none-the-less approved the injury award, stating that his opinion was Mr Williams’s depressive illness had a precipitating cause linked to his work and in particular the lack of support. Dr Vincenti therefore concluded that the permanent condition from which the Claimant suffered, namely depression, was

“the result of an injury received in the execution of his duty”

True to form, Merseyside didn’t like this one bit and started judicial review proceedings against Dr Vincenti.  The case never went before the court as a compromise agreement was put into place for Mr Williams to be referred to a new SMP.  This time a Dr Staley of West Midlands Service for Police Psychiatry was asked to consider the regulatory questions.

After having his award approved by one doctor, it was now effectively taken from him by another.

Dr Staley stated in his 2009 report that:

“Mr Williams’ reaction to the alleged bullying should not be considered an injury on duty in that if an injury did occur it happened as a result of his status as a police officer rather than as a result of his carrying out his duties as an officer.”

As might well be expected, Mr Williams appealed to a PMAB.  One of the board members, Dr Nehaul, changed the diagnosis yet again – this time to moderate depressive illness.

The PMAB all agreed that the moderate depressive illness was an injury on duty and therefore there was eligibility to an injury award.  But in a twist, they went on to say he suffered from a psychological impairment as a result of an injury on duty and this was a depressive disorder not Bi-Polar Affective Disorder, as diagnosed by the original SMP, Dr Smith.

The Board considered that as Dr Smith had, in its opinion, certified the wrong diagnosis then it could not decide Mr Williams was entitled to an injury award!

In other words, his permanent disablement that necessitated his ill-health retirement was, in their view, wrong and even though he had been injured on duty then they could not give him what he was entitled to, due their interpretation of a point of law.

These events led both Ms Doubtfire and Mr Williams to a judicial review as a joint appellants, to be heard before His Honour Judge Pelling, QC.

Of course a cynical mind might say that the SMPs involved were quick to decide upon permanent disablement when there are no cost implications to the force, but become truculent in such matters when financial exposure means it’s in their employer’s interest to refuse to grant injury awards.  An ill health retirement is funded by the contributions made by all officers during their service. An injury pension stands to be paid out of the force budget.

The experiences of Doubtfire and Williams is closely reminiscent of the previous history of forces using medical retirement as a personnel management tool when central Government funds picked up the tab and has similarities with the current trend of nowadays never medically retiring anyone and keeping ill and damaged serving officers in limbo.

The Doubtfire & Williams case shows the problems which can be caused to injured officers when doctors argue between themselves over medical opinion.  It shows the farcical potential of the injury award procedure in glaring detail – a process where officers injured in the line of duty in certain forces can now expect to be royally done over if they apply for an injury award.

Merseyside and West Mercia lost this judicial review.  The former officers got the injury award they deserved and were entitled to.

Justice Pelling quashed both PMAB verdicts.  For Ms Doubtfire he said:

“In relation to Ms Doubtfire, it is clear from the defendant’s report that it asked itself the wrong question namely whether “workplace events” might have led to Social Phobia. That was not the correct question. The correct question was whether her permanent disablement had been caused by an injury in the execution of duty.”

And for Mr Williams,

“In relation to Mr Williams, exactly similar conclusions follow – the Defendant asked itself whether Bi Polar Affective Disorder was the result of an injury on duty. This was not the correct question as I have explained. The correct question involved asking whether Mr William’s permanent disablement was the result of (a) an injury, which (b) was received in the execution of duty.”

The judge’s explanation on why the wrong question was asked hinges on the Regulations.  The wording of Regulation 30(2) taken as a whole makes clear that the reference is to “…the disablement …”.  The diagnosis doesn’t feature.

Let us take a closer look at this Regulation.

30.—(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—
(a) whether the person concerned is disabled;
(b) whether the disablement is likely to be permanent,

except that, in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations shall be binding for the purposes of these Regulations;
and, if they are further considering whether to grant an injury pension, shall so refer the following questions—
(c) whether the disablement is the result of an injury received in the execution of duty,
 and
(d) the degree of the person’s disablement;

The questions have to be answered sequentially at each stage in the process. The decision made are required to be final, (subject only to appeal or reconsideration).

Paragraph (c), the question of whether it is an on duty injury, is to the disablement in respect of which either the disablement questions identified in (a) and (b) have been answered affirmatively or the disablement is one to which the proviso applies.

The Regulations do not call for a diagnosis.

In the Doubtfire and Williams case we have seen the sorry mess that medically qualified, but largely legally ignorant doctors can make of what is a very simple matter. Of course, permanent disablement has to be of a qualified medical condition (affirmed in the Clementson & Doyle judicial review – Northumbria AGAIN!), but even if a doctor is unable to give it a classification or is uncertain as to exactly what the condition is, that does not prevent them from deciding that it is an injury on duty which is likely to be permanent.  It is a medical question after-all that needs to be answered.  But this is only for the purpose of demonstrating that the relevant disablement has been caused by an ” … infirmity of mind or body“.

Once that test has been passed it is only the answer to the question whether the officer is permanently disabled that is final and the causation to it that is binding.

Justice Pelling clarifies this point with an example.  If a former officer is refused an injury award on the basis of a flawed diagnosis then he has the avenue to appeal the decision to a PMAB.

Imagine though if the former officer is given an injury award, the permanent disablement is obvious but the diagnosis is factually incorrect as the SMP has little experience in such a specialism.  The former officer has no incentive to appeal as he has the end result he applied for, notwithstanding the diagnosis is a bit topsy-turvy.

This position is affirmed in Regulation 31 – the power to appeal a decision to a police medical appeals board.  A former police officer has the power to appeal when they are “… dissatisfied with the decision of the [SMP] as set out in a report under Regulation 30(6) …”.  They do not necessarily have the same right to appeal with regards to the contents of the report other than the decision.  Mistakes in the content of a medical report can be remedied by withdrawing consent until the errors are rectified by use of the Access to Medical Reports Act (AMRA).

Parts (a), the disability and (b), the permanence of Regulation 30(2) can not be revisited if the question of the injury award is not decided concurrently with the question of ill-health retirement.

The arguments Merseyside and West Mercia presented to the court, if they had won, would lead to the absurd situation Mr Williams found himself in – a purgatory where someone could be permanently disabled and medically retired but not disabled permanently enough for an injury award.  Just because two medical practitioners have a difference of opinion.  Too ill to be recalled to duty but now not having a disablement sufficient for the ill-health retirement just given – a limbo position existing nowhere but upon the borders of Hell.

Justice Pelling put this into legal speak:

“If the analysis identified above is adopted then the absurdity that so concerned the Defendant Board in relation to Mr William’s case – that is that the permanent disability of the Claimant was caused by an injury and was caused in the execution of duty but the Defendant was precluded from answering the causation case in favour of the Claimant because it did not agree with the original diagnosis – cannot arise.”

So it is the disablement that matters, not the diagnosis.  And if the disablement for the ill-health retirement is the same as those applied for in the injury award then the questions of permanency and disablement are answered and can not be revisited.

But what happens if someone is retired on a medical grounds for a non-duty injury and after retirement applies for an injury award?

Justice Pelling covers this succinctly and says no paradox is caused.

When an officer suffers a permanent disability otherwise than in execution of his duty but sustains another disability thereafter then his or her permanently disability will have been established for retirement purposes and does not have to be established again.
However, in relation to any claim for injury benefit by reference to the subsequent duty injury all three questions (the disablement questions and the causation question) identified in Regulation 30(2) will have to be answered.
This is not because it is relevant to the retirement decision but because on this hypothesis all three will be relevant to the question whether injury benefit should be paid by reference to the permanent disability alleged to have been caused by the duty injury.

Justice Pelling says that this way the absurdity of Merseyside and West Mercia  is solved,

“Thus as I see it there is no risk of the sort of absurdity that the Claimant prays in aid arising, nor do I see this issue as assisting in the question that arises one way or the other.”

We can only hope that common sense prevails and that the sort of unnecessary trauma Ms Doubtfire and Mr Williams went through stops for good and the legal services of certain police forces stop this ‘gamesmanship’ interpretation of statute.

Until forces like Merseyside and Northumbria start to understand the harm they cause to disabled people and chose to take a more humane path, there’s always the possibility that they will continue to drag injured officers before the courts, only to lose.

We have said it before, and we will say it again. It’s all about the money. Some forces, like Northumbria and Merseyside have Chief Constables who fail to make proper differentiation between their duties in that office with their duty as a police pension authority. When acting as the former, they quite rightly must be prudent with their budget. When acting as the latter they must not take any account of the cost of decisions made in the grant of injury awards.

And on the matter of costs. It seems that 38 out of the 43 police forces in England and Wales have seen the light. They realise that it is illusory to think that reviews of degree of disablement will result in savings. The opposite is true. Unless the regulations are applied honestly, fairly, and properly, then about-to-be-retired officers and IOD pensioners will mount very effective challenges which will create unjustifiable costs to the forces concerned. SMPs, HR managers, and in-force legal advisors have proved time and time again they are not competent to administer the Regulations properly. The most ignorant keep thrashing around with their shinty sticks.

The sensible ones have stepped off the field.

Comparisons

iodpa caselaw, Degree of Disablement, earning capacity
Comparisons

“Comparisons are odious.”
Attr. to John Lydgate in his Debate between the horse, goose, and sheep, circa 1440.

In this blog we will be looking briefly at the inconsistencies, irrelevancies and plain old deliberate contrivances used by some HR people and some SMPs in their desperate and immoral attempts to swindle retiring injured police officers out of their correct level of injury pension.

It has become common practice in certain force areas for horses to be compared to geese and sheep. By which we mean that when a police pension authority sets out to retire an officer due to disabling injury on duty, they must assess the individual’s degree of disablement. To do this, some engage in an arcane and entirely invented process of comparing what the individual might be able to earn as a disabled former officer, with some other wage.

The ultimate idea is that if the individual could earn as much, or more, after leaving the job, then they would not disabled at all. However, even the most corrupt HR and SMPs tend to be wary of killing the goose which lays the golden eggs, so content themselves with merely manipulating the figures so that the result is a lower injury pension.

Of course, such an approach completely discounts the fact of the injury and the physical and/or mental disablement that the individual has suffered – and will continue to suffer. It has to be remembered that an injury award is only payable where the disablement is determined to be likely to be permanent.

What is at issue is how degree of disablement is arrived at. How HR and SMP collude to come up with a percentage figure.

A quick look at the Police (Injury Benefit) Regulations 2006 might help understanding.

7-(5) Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.

Clearly, most officers apply for an injury pension either shortly before or shortly after they are cast from their force. Equally obvious is the fact that all of them will be have lost their police salary, and it is fair to say that most of them will not have yet actually found a new job, and new earnings.

So, what HR and SMP do is to speculate about an uncertain future, and dream up a scenario where the individual because of their skills, qualifications and experience, might be hired to do a certain job, which pays a certain salary. None of this is reality. It is all maybe and perhaps. Nor is it grounded in practicality. Instead, it is simply assumed, on the thinnest of grounds, that the individual will get a job paying the amount selected.

That in itself is such an unfair and woolly way of looking at earning capacity that it is surprising that it has gained such a foothold in some quarters. We should not be surprised though, because the whole idea of this kind of speculation is to arrive at a degree of disablement which is less than the real circumstances of the injury would otherwise dictate.

If that approach is not bad enough, HR and SMP further collude to ignore the fact that police officers’ pay varies according to where they work. There is a national pay scale, but it is subject to local variation.

Workers in the capital are usually paid higher wages than they would earn elsewhere, as employers have to take account of housing costs and/or commuting costs.

There is increasing concern that the high cost of working in London, and in particular the high cost of housing, makes it difficult to recruit enough staff for the essential services, because people cannot afford to live within a reasonable distance of their work.

A police constable with five years service currently earns a basic salary of £28,098 plus ‘London Weighting’ of £2,373 – that’s some 8.5% more than a colleague in, say, Staffordshire, Merseyside or Northumberland.

The effects of the high cost of working in London spread a considerable way outside the encircling M25. Police officers in Essex, Hertfordshire, Kent, Surrey, Thames Valley, Bedfordshire, Hampshire and Sussex all see more in their pay packets than do colleagues in other forces due to something called the South East Allowance. This was introduced in 2001 in recognition of the additional cost of living in the SE of England. Its purpose was to ease issues of recruitment and retention in those forces to which it applied.

So, if HR and SMP chose to compare a high potential wage which they claim the disabled individual could so, in some far-off city, with their former police wage, why do they not take the pay of Metropolitan police officer as the baseline for comparison? And why are overtime payments, which certainly most officers achieve, not added to the calculation?

Some HR and SMPs don’t even use a police wage. They select a nominal figure drawn from data collected by the Office of National Statistics. They seize on an average national wage, which is itself a fantasy, being the result of a 1% sample of the population taken two year’s previously. You don’t need to be a statistician to grasp that an average is pretty meaningless, for in any sample of earnings of a large population, the overwhelming majority will be earning more or less than the average.

What have the HR minions and tame SMPs been doing wrong when they use a heavy dose of wishful thinking to invent the uninjured earning capacity comparator?  Justice Garnham, in Fisher v Northumbria sums up their deliberate mistake nicely:

Since all the claimants appearing before the Board previously worked as police officers, and since the precondition for a claim to an injury award is the fact that the Claimant suffered an injury on duty, the previous police earnings must, it seems to me, at least feature in the Board’s analysis.

Northumbria’s blameworthy brainwave was, as the uninjured Mr Fisher would’ve reached his thirty years, the police salary shall not be the comparator .  They thought wrong.  Those behind the NAMF/NWEF orthodoxy that saw fit to reduce Mr Fisher’s injury pension to a 0% band one never once did justify their position on what Mr Fisher would be earning had he not been injured.  The judge quashed the reduction to the injury pension and surmised that the PMAB:

[…] did not refer to anything evidencing a change in his uninjured earning capacity

The question which still taxes many minds is why their eagerness to find injured comparator jobs in cities with high wages reflecting the inflated cost of living but their consistent unwillingness to look at geographic differences in the uninjured comparator?

“We think you can do an immigration job in Heathrow airport”, they say, “but we will use the comparator final salary you had when you retired from Devon & Cornwall Police”.

Justice Garnham continued:

The concept of “earning capacity” in the regulations imports no element of earning prospects and warrants no allowance for market conditions.

In other words, in matters not where the job is – what matters is the person’s ability to do the work.

But if HR are selecting well-paid city jobs and saying the injured officer can perform them in their disabled state, why aren’t they considering higher allowances for non-South East retirees for their uninjured state?

Just because they never served in London or the South East, doesn’t mean they never had the capacity to serve in London or the South East. Police officers can, and do, transfer between forces.  Likewise, if the SMP thinks there is no medical reason why a job in Cardiff can be performed when the former officer resides in Northumberland, where is the medical reason that the alternative uninjured officer couldn’t have progressed up the ranks had the disability not occurred.

This is the realism of the Fisher judicial review.  No longer can the uninjured comparator be, as Justice Garnham put it, based upon vagueness where the:

reasoning on the issue of uninjured earnings capacity is thin in the extreme

The next time a HR minion says you should commute a 600 mile round trip to work in the centre of Cardiff, put to them the question of why they are using a city wage for the job they claim you can do when they aren’t using the South East police salary for the job you can’t do now – but were fully capable of doing when fully fit.

We in IODPA must wonder how many injured and disabled officers were robbed of being paid an injury pension at the highest level – for being totally disabled – at the point of retirement. Surely if an individual has not found work, because they are physically and/or mentally unable to work, then it is wrong to speculate that they could work and earn at some unspecified point in the future?

The Regulations allow for changing circumstances, so if the disabling effects of an individual’s injury substantially improves a year or so after retirement, then the degree of disablement can be put  under review and the amount of pension paid revised accordingly.

The mathematical gymnastics performed with such poor grace but evident crafty nimbleness by HR and SMP are intended to produce a result giving degree of disablement a whole band lower than it should be, and in an increasing number of cases, to deny the grant of an injury award altogether.

Merseyside take contortions of the maths to the extreme with the physics breaking ‘Cirque du Soleil’ manipulations of Peter Owens.  Their questionnaire has the evil voodoo powers of prescience by incomprehensibly figuring out earning capacity in a handful of loaded questions.  When these words of Justice Garnham were read by Merseyside:

The Board simply did not address what the Claimant’s earning capacity would now be if he had not been injured. Even when addressing the possibility that he was suffering from PTSD or his loss of skills, it did so in the context of seeking to determine his injured, not his uninjured, capacity

… their so-called medical retirement officer must have fainted.  Most, if not all, of their degree of disablement calculations are now arguably unlawful and open to a reconsideration.

It’s about time HR minions and give-me-the-money SMPs are made to justify their back-of-the-fag- packet sums. We look forward to further judicial reviews which will build on the case law established in Fisher.

We fully expect that the odious comparisons used by HR and SMPs will be inevitably debunked and demolished. Horse, geese or sheep – their chickens will come home to roost.

The Fisher Judgement & Uninjured Earning Capacity

iodpa caselaw, Degree of Disablement, earning capacity
The Fisher Judgement & Uninjured Earning Capacity

Monsters are real, and ghosts are real too. They live inside us, and sometimes, they win.”~Stephen King

In the Autumn 2000 issue of the The Independent Review, Hans Sherrer published an article called The Inhumanity of Government Bureaucracies.

The article can be heavy going but the conclusion pithily sums up the ‘the whys and the hows’ which lead an institution like Northumbria Police to treat injured officers so voraciously.

Sherrer concludes that bureaucracies:

“are the institutional equivalent of a psychopathic individual”

And when you have psychopathic individuals in a psychotic institution, well – you can guess where this is going!  We have recently seen the result of what happens when an officer medically retired because of an injury on duty gets his degree of disablement unlawfully reviewed and his injury pension reduced. Then to be threatened with backdating of the changes so as to claim the individual has been overpaid his pension, by a huge amount.

Only a warped and vindictive mind can think it right to chase a person for something never owed and think they can claw back invented over-payments totalling £19,567 – to be recovered by deduction of £250 per month from the injury pension which had been unlawfully reduced from the highest to the lowest possible level.

The inevitable consequence of such insanity it that you end up with yet another judicial review.

Fortunately, in the world we are inhabiting the monsters do not win.  In this blog we are going to try to demystify the judgement where a certain monster was slain … Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455

The real importance of this case lies in Justice Garnham’s decision to quash a PMAB’s decision which had hinged on the uninjured comparator used by the Board.  But first we are going to explain why the judge declared that backdating the PMAB decision was unlawful.

The Backdating

Does the decision of a Police Medical Appeals Board to reduce a former officer’s pension banding takes effect from the date of that decision or from the date of the SMP’s decision being appealed, which in this case was 18 months earlier?

Although there are observations on this issue in decisions of the Pension Ombudsman (Henderson and Beale being two of many), there has been no case law precisely on the point.

There is now, thanks to the Fisher judgement.

In February 2015 Mr Fisher’s injury pension was reduced by Northumbria’s SMP Dr Broome from a band four to band three. Mr Fisher decided to appeal.

Eighteen months later a PMAB quashed the decision of Dr Broome.  The panel said Broome was wrong and then, incredibly, further reduced the former officer’s injury pension from a band three to a band one.

The key here is that the PMAB overturned the decision of Broome.  They didn’t uphold or modify the SMP’s decision.  Maybe if they had decided Dr Broome was quite correct then the decision would be affected from February 2015, but they didn’t (and this was not touched on by the judge), they said the opposite – that they disagreed with the SMP and they used new evidence to make that conclusion.

Justice Garnham concluded that,

‘It would be odd in the extreme if an appeal were to be decided on the basis of evidence of recent change in disability, yet the altered pension were to run from some earlier date.’

This does not effect other decisions, say a reconsideration decision made under Regulation 32.  Such a decision can be backdated as the heart of a reconsideration is as a mechanism to fix a previous wrong.  The decision is re-made ‘as if’ it was historic  – the reconsideration puts the decision maker’s scope in a narrow limit to the original available evidence (or evidence that should have been considered at the time but for reason was failed to be considered).

So, the lesson to be drawn is that if a PMAB reaches a new decision, then it can not be backdated to be effective from the time of the last decision, made by the SMP.  The corollary on any revision under Regulation 37 is when the PMAB quashes a previous SMP decision and the PMAB decision is not appealed the interim decison is the last final unchallenged SMP decision – in other words, the original decision or previous unappealed review, whatever the later.

This wholly consistent with the Pension Ombudsman decisions where he declares no revision to the injury award shall be made until all avenues of appeals are exhausted.

Uninjured Earning Capacity

Imagine a writer with literary aspirations who has never quite found any success writing popular fiction.  This writer just hasn’t quite ‘got the Midas touch‘. What he doesn’t realise is that he has a brain tumour.  It is this tumour, embedded in his frontal lobes, that means the spark, the x-factor, in his writing just isn’t there and his books never sell.

Remove this author’s tumour and the writer could be a number one best-seller.  The writer is disabled because of the tumour, which makes him a writer of only average success; the uninjured alter-ego is a writer of wondrous success; but both are the same person.

Stephen King once wrote some books under the pen name Richard Bachman, but the gag was blown by a book store clerk in 1985.  King immediately  killed off Bachman with “cancer of the pseudonym”. In his 1989 book The Dark Half,  he tells a story about a writer using a pen name  – it is the pen name that actually writes the great books, the author himself is just a journeyman – who is exposed and a murderous rampage occurs as a result.

How does this tale relate to the uninjured earning capacity of a medically retired police officer?  Ask yourself this question, how could the earning capacity of the uninjured author – perhaps a potential best-seller writer – be quantified?

Unless he comes into being, as the author of successful novels, it will remain an unknown. The same principle applies were he to be a potential employee of the year in a MacDonalds or top salesman in a used car dealership, or a successful security consultant. Unless he or she were to actually achieve those things then there is no point speculating about whether the capacity to achieve them is present.

But if there is evidence that the talent is there then the picture changes.  As any police officer will know, it is impossible to find evidence without looking. Once the ‘looking’ has finished there is then a need to evidence the justification on  whether nothing or something was found. Just telling the senior investigating  officer  that you did this or that enquiry or search is meaningless without a contemporaneous corroboratation; but this is exactly what Northumbria and the PMAB failed to do – thereby they tripped up.

Would you say anyone’s earning capacity is national average earnings?  If you are Northumbria police pension authority you would.  Bear in mind that national average earnings is not a real thing. Only a tiny number of people in the country will actually be earning that precise figure. As it is an average it shouts to us that the vast majority of workers earn more, or less, than that figure. To Northumbria police pension authority it is a real figure, worthy of being used as a yardstick for comparison purposes.

They quite happily spent hours and hours searching the job websites for jobs they thought Mr Fisher could not do (the injured earning capacity) and conveniently forgot (or deliberately ignored) to do any work on investigating Mr Fisher’s uninjured earning capacity – what the man could have done if he wasn’t injured.

Mr Fisher’s uninjured alter-ego (think of the injured writer’s uninjured pseudonym) could have worked as a police constable up until his 65th birthday in a force that has never effected A19.  This was a choice that injury took from him.  Instead of a Gatwick security guard, why didn’t Northumbria provide the highest salary available for a police officer of the same rank Mr Fisher had on his retirement?  Why didn’t they test whether, uninjured, he could have risen through the ranks?  Or left the police to become a city lawyer?

Currently the top police constable salary is £38,001.  This should’ve been the starting point.  Northumbria flatly, without due consideration, said £25,146.

Justice Garnham said the PMAB blithely, unquestioningly and unlawfully accepted the figure provided to them by Northumbria police:

‘Although the Board’s reasoning on the issue of uninjured earnings capacity is thin in the extreme, it is apparent from the single sentence at the end of its detailed case discussion, that the Board was accepting the Defendant’s figures for the appropriate uninjured earnings comparator.’

So the injured capacity to earn was weighted higher and higher upwards towards mid-range salary scales and jobs in thriving cities (and not where Mr Fisher actually lived) and the uninjured earning capacity was an arbitrarily, plucked out the air – an unreal average figure derived from two jobs plucked out the air by a faceless Chief Inspector, namely a job in Gloucester City Council and a detainee custody officer for G4S at Gatwick.  Only a shiny-bottomed Chief Inspector working in HR department could choose jobs not only lower in pay than the injured comparator mean but also a 670 mile round trip commute.

A bloated injured earnings number compared to, and higher than, a low uninjured earnings number will always equal a zero percent band one.  And that’s exactly what they did to Mr Fisher.  Northumbria weighted their scales of pension justice on the injured side with large rocks and the uninjured side with a bag of feathers.

Let us return to our example of the damaged author.  What happens if the injured side is dull, routine, Mills &  Boon, silk pillows and lace – damned to never sell in quantity – and the tumour-less comparator is a Tom Clancy-esque colossus made of heavy-weight gold?

Of course, it’s plain to see that now the task of a SMP, or a PMAB, when deciding degree of disablement in relation to injury awards is to make the proper comparison between what a person’s earning capacity is when uninjured, with what it is given the disabling effects of the duty injury.

In Mr Fisher’s circumstances the start, the base, the floor must now be the police salary.  It may be higher – there is no ceiling.

Police pension authorities need to return to the reality of things and to stop speculating about an individual’s earning capacity as it might be if he got a job which they randomly think he is qualified to do.

The take home from this case is that the work of police pension authorities will now have risen exponentially whenever they attempt to calculate the degree of disablement. They will need to be more grounded in reality, and to provide real, provable evidence of what an IOD pensioner is capable of doing and earning.

The Fisher judgement had common ground agreed by both parties.  It was accepted that there had been substantial change to the degree of disablement and the Regulation 37 test to allow quantum changes in R (Metropolitan Police Authority) v Laws [2010] EWCA Civ 1099 had been passed.

The PMAB decision was quashed because they chose the lowest figure they could to represent the uninjured earning capacity, and because of this, they could not give reason to it.  Justice Garnham was more scathing:

‘. . . the reasoning given must be sufficient to identify, at least, the basis for the Board’s conclusion. Even taking into account its interim report, the Board fails to give any explanation at all as to what it is about the Claimant’s condition or circumstances which mean that his uninjured earnings capacity is now fairly to be represented by the earnings for the two jobs suggested by the Defendant.’

When a police officer is given an injury award the original decision uses the current police final salary as the starting point. But then this judgement is saying only half the work is done.  By all means use the final salary as the starting point, but investigate and reason with justification why this injured person could have had a higher earning capacity than their uninjured earning capacity.

An invented example may be appropriate to illustrate the point.

Take an Oral and Maxillofacial surgeon who, after 10 years in the NHS, wants to join the police.  They excel in their police role but after ten years become injured on duty and are medically retired.  Like the successful author, this person had an uninjured earning capacity without a ceiling.  Private work, plastic surgery on Hollywood stars … the world, before the police and his injury, was his oyster.

Would it be fair to use his police salary as his uninjured earning capacity?  Only if you are a Nicholas Wirz. The surgeon has given up a career of healing the sick for one where he catches criminals, only to come up against a Wirz-trained SMP who has emulated the surgeon, but lacking the second part – for which he has substituted a willingness to abuse the Regulations.

This injured qualified surgeon and ex-police officer can’t return to his Harley Street office due to his injury but his uninjured earning capacity is still the money his surgeon-peers, the ones he idealistically left behind to join the police, are able to charge their rich patients.

Using a one-size-fits-all uninjured comparator is no longer good enough.  This is the take-home from the Fisher judgment.

‘The Board’s focus throughout its determination was on the Claimant’s injured capabilities and capacity, not on his uninjured state. The Board simply did not address what the Claimant’s earning capacity would now be if he had not been injured. Even when addressing the possibility that he was suffering from PTSD or his loss of skills, it did so in the context of seeking to determine his injured, not his uninjured, capacity. It did not refer to anything evidencing a change in his uninjured earning capacity.’

Anyone whose injury pension has been reduced on review by use of any sort of average earnings figure, or by use of the ridiculous Police Earnings Assessment Matrix (PEAM) which is favoured in some unhinged recesses of the police HR world, or any universally vindictive device that artificially replaces what disabled former officers could’ve earned uninjured with an ‘average’ have now the grounds to demand a reconsideration.

Did the police pension authority, via the delegate SMP, ‘do your legs’ by spending hours loading the comparison towards high injured jobs and low uninjured capacity?  If they did, then demand answers. Get hold of the figures they used. Ask how they selected them. If no acceptable answers are forthcoming, then hand matters to a specialist solicitor.

This essence of the case brought by Mr Fisher is that reviews are all about the individual.  The judgement declares that SMPs and PMABs can not just pull something out of thin air on wages and earning capacity and then hide behind their proclamation.  They have to be able to justify the reasoning.

The workload of HR departments and SMPs has just been catapulted into the stratosphere, and it is time they faced the monsters and ghosts which inhabit their twisted minds.

 

 

 

 

 

Wirz loses High Court challenge

iodpa caselaw, earning capacity, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, newsflash, Regulation 37
Wirz loses High Court challenge

BREAKING: Northumbria and PMAB’s Regulation 37 methodology DEFEATED in a judicial review.
Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455 (Admin) (08 March 2017)

Nicholas Wirz, Northumbria Police’s principal solicitor as well as the National Wellbeing & Engagement Forum’s (NWEF/NAMF) self-declared legal advisor, has suffered a humiliating legal defeat over his unlawful interpretation of comparators used by many SMPs and PMABs to calculate earning capacity.

A feature length blog on the implications of the Fisher v Northumbria judgement will follow soon.  This judicial review quashes the decision of a PMAB panel that, in 2016, reduced him from a band 3 to a band 1.  It is the culmination of a 11 year battle fought against Wirz and Northumbria police.

Shockingly this isn’t the first time Mr Fisher has had his injury pension unlawfully reduced.  The Journal (along with The Chronicle, it is part of the North East’s most popular newspaper group) printed in 2008 a feature concerning the odious vendetta of Wirz against this former officer.

In March 1998 The Journal reported that his injury pension had been reduced before, by £1200, only to be restored on appeal.  The article described how Mr Fisher was medically retired from Northumbria police after being called to the Kirkley Hall mink farm on the outskirts of Ponteland, Northumberland, to police an animal rights demonstration, when a cross-breed Rottweiler sank his teeth into his lower right arm. The animal had been fed on the remains of dead minks and Mr Fisher spent five days in hospital undergoing numerous emergency surgeries when the wound became infected.

He needed almost 40 stitches to the gash and his injuries were so severe he lost full control of the fingers in his hand.  This incident was the culmination of fighting the symptoms of PTSD after being injured in an on-duty knife attack in 1992.

The Chronicle recently published that on Wednesday 8th March, Mr Justice Garnham allowed Mr Fisher’s challenge against the Chief Constable of Northumbria and the PMAB:
Bitten policeman battles off bid to slash his pension

The grounds lost by Northumbria have implications on any SMP or PMAB decision where the earning capacity was based on comparative earnings as well as where the decision made fails to give sufficient reasoning to identify, at least, the basis for the medical authority’s conclusion on uninjured comparators.

We will keep our readers up to date on the ramifications and discuss how a reconsideration, or the Pension Ombudsman, can be used to relook at unsafe historical revisions to injury awards.

The decision of the PMAB has been quashed by Justice Garnham.  Points 1 & 4 (below) were won in favour of Mr Fisher and the PMAB decision has been overturned.  Points 2 & 3 failed but the judge made it clear in his judgment that a reasoned decision of uninjured earning capacity has to be made by the decision maker.  The corollary is that picking random jobs has to be justified and reasoned.

The PMAB, as a delegated decision maker on behalf Of the Chief Constable, made the following errors in reaching this decision:

  • The PMAB erred because it failed to use the Claimant’s potential police earnings as the uninjured earnings comparator;
  • Further the Chief Constable erred in back-dating the effect of the decision to 27 February 2015 and thus claiming that the Chief Constable had overpaid the Claimant when, in law, the decision only took effect at the date that it was made by the PMAB and so there no back-dating.

 

ESA & Kier’s Cataclysmic Communication

iodpa ESA
ESA & Kier’s Cataclysmic Communication

“It is easier to get forgiveness than permission.”
Stuart’s Law of Retroaction

Let’s talk about Kier and ESA – no, they are not a comedy act on some obscure daytime TV channel, but they might as well be given the custard pie that Kier has recently thrown at disabled former officers.

Kier is a huge public company, noted primarily for major civil engineering construction projects, house building, commercial property development and for providing a range of services to businesses such as asset management, energy saving solutions, logistics, fleet management, highway and waterway management, and now, the administration of police injury pensions.

ESA is a State benefit – employment support allowance – which is intended to provide financial help to people who have an illness, health condition or disability that makes it difficult or impossible to work.

Several forces have signed contracts with Kier to take over the role of the traditional County Hall payroll department and to do the admin work involved with police injury pensions. We assume they also handle the admin on other police and civilian employee pensions, but here we are only concerned with injury pensions.

Some bright spark, perhaps within Kier, or more probably someone sat at a desk in Northumbria, has come up with what they think is a corking good plan. They have noticed that the Police (Injury Benefit) Regulations 2006 were recently amended. This is what the relevant regulation used to say, (and I will paraphrase for the sake of simplicity):

If you are entitled to incapacity benefit, then your police pension authority will deduct from your injury pension an amount equal to that of the incapacity benefit.

The amendment merely substitutes employment support allowance for incapacity benefit.

The bright spark, or as time will tell, the not so bright spark, has not thought things through, for Kier have been asked (or decided themselves) to send out letters to all injury pensioners who they administer.

Here is the letter:

And here is the form which accompanied it:

The gist of all this is that the police pension authority would like the Government to pay out ESA to all who qualify so they can trim a wodge of cash off the injury pension budget, and spend the savings on things like refurbishing the CC’s private loo, or buying a shiny new car with hidden blue lights and siren for the force’s solicitor.

You can see their point. As always the smell of money drives completely out the window all common sense and all semblance of decency, and all considerations of the needs and feelings of vulnerable disabled folk. And the Regulations do say that the PPA ‘shall’ make these deductions. Looks like a slam dunk case – if you have not taken the trouble to think things through, and have relied on the expectation that IOD pensioners will do as they are told, without question.

But, there are flaws in the plan. Kier write that, ‘Whether you are in receipt of payment of contribution-based ESA or not is irrelevant: it is whether you are entitled to a contribution-based ESA which determines whether a deduction needs to be made.’

Legally, this is a correct statement. It is its implications which need examining. We know this letter has caused a lot of head-scratching amongst IOD pensioners, and we also know that unfortunately it has caused a lot of raised anxiety levels and other unwelcome and harmful reactions – and that’s putting it mildly.

Pensioners who are in receipt of ESA – and we think there will be very few – have no immediate problem. They know where they stand. All they have to worry about is whether Kier will take the actual equivalent amount from their injury pension, or will take a gross amount, thus leaving them out of pocket.

It is pensioners who don’t receive ESA, and who thus don’t know whether they are entitled to it who are being upset.

They can’t know whether they are entitled to ESA without actually making application to the DWP for it. They rightly and understandably are querying why they should be put to this trouble. Some have made tentative enquiries with the DWP and are told that they probably would not qualify. We won’t go into the detail here, but it seems more likely that more IOD pensioners will not be entitled than those who would be.

The issue here is that there is no duty, no requirement, no legal imperative for any person to claim any State benefit. If their choice is not to make a claim, then that is up to them. Nobody can tell them to make application for ESA. Why would anyone see any reason to place themselves in the hands of the DWP, nice people that they are, purely for the benefit of the police pension authority?

The letter from Kier turns a bit nasty. It sets a deadline for a response from pensioners. It is an unreasonable deadline as nobody could complete an application for ESA and get a result in the time allowed. Worse, it is an unenforceable deadline. There is no legal authority behind it.

Kier than get even more nasty. There is a veiled and rather vague threat:

‘Failure to respond (by the deadline) will mean that we are unable to correctly assess your level of injury pension.’

To which the response which immediately forms in our heads is, ‘So what?’ What are Kier going to do?

Well, the answer is, to quote our American cousins, diddly-squat.

Logically, Kier were happily paying your injury pension at the correct level before they sent out the letter, and the absence of knowing whether you are entitled to claim ESA or not does not alter that situation. If you were to chuck the letter in the bin Kier would have no option but to continue paying your pension as normal. Kier could not deduct an ESA equivalent because it is legally bound to only do that when it knows, for certain, with evidence of proof, that an individual is ‘entitled’ to ESA.

In their own words, ‘Whether you are in receipt of payment of contribution-based ESA or not is irrelevant:  it is whether you are entitled to a contribution-based ESA which determines whether a deduction needs to be made’

If Kier doesn’t know, and the pensioner doesn’t know, and the DWP doesn’t know, then Kier can not be in a position to deduct anything.

Now we come to the attached form, which Kier call the ‘authorisation’.

We fully appreciate that pensioners ought to let Kier know if there are changes in respect of relevant benefits received. Nobody is suggesting that IOD pensioners should get more than is their right, and equally none should be paid less than is their right.  However, there is a broad river of difference between an actual change, and an entitlement. If you don’t know whether you are entitled to ESA and don’t care to be bothered to find out, then that is not a foul.

Kier wants pensioners to give permission, via Kier, to the DWP for the DWP to tell Kier details, ‘of any benefits which I am entitled to receive wholly or partly (whether in payment or not) in respect of the relevant injury.’

Well, we are sorry to say to Kier that the DWP won’t have that information. The DWP can’t possibly know whether anyone is entitled to any benefit until and unless they actually apply for it. On that basis, the request for permission is a fishing expedition, and amounts to asking for unlimited, unrestricted access to every detail of all benefits, whether specified in the Regulations or not, for the full lifetime of the individual. Anyone who gives such permission would be unwise in the extreme to do so.

The letter, and the ‘authorisation’ form are poorly worded, capable of causing confusion, logically inconsistent and are coloured with poorly-disguised threats. It does not reflect well on the standards of this multi-million pound industrial company and smacks of being a letter they have cobbled together with little thought.

Kier are hoping for quiet acquiescence, and are trusting that pensioners will do what they are told. As evidence of this, we report the experience of more than one pensioner who have rung Kier to query the letter and the ‘authorisation’ only to be told, and we quote verbatim, ‘Don’t worry about it. Just tick the top box and send the form back to us.’

Amazing!  Kier are saying that they don’t care a jot whether you lie on your form. Just fill in that you don’t get ESA and they will leave you alone. Never mind that would be lie, which would be fraud. It might even be conspiracy to defraud by you and by Kier.

We don’t think Kier’s heart is in this custard pie fight. They have thrown the first pie, and must realise that quite a storm of pies will be flying back at them.

IODPA says to any IOD pensioner who has concerns about these letters and forms: seek professional advice from an independent expert, such as a solicitor. Don’t rely on local NARPO or Federation to give you sound advice, for with the best will in the world they won’t know how to deal with this unusual situation. If you are unsure what to do about the form, then the best course of action is to do nothing. Wait until the custard pies have hit the fan and see what Kier do next.

We anticipate that nothing bad will happen, and, to extend what Stuart says, “It is easier to get forgiveness for not filling in a stupid form than to sign that permission and regret doing so.”

Independent report published into allegations regarding former police doctor – Avon & Somerset Police

iodpa newsflash
Independent report published into allegations regarding former police doctor – Avon & Somerset Police

“Anyone requiring a police medical examination held on police premises by a police doctor should have had an expectation of being safe. It is clear that the conduct of some of these medical examinations fell well below this standard.~Deputy Chief Constable Gareth Morgan

Operation Hay Independent Investigation Report
Operation Hay Avon & Somerset Police Response
Independent report published into allegations regarding former police doctor – Avon & Somerset Police

Reviews are just like painting the Forth Bridge, claim Merseyside

iodpa Equality Act 2010, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, NWEF
Reviews are just like painting the Forth Bridge, claim Merseyside

“Painting the Forth Bridge” is a colloquial expression for a never-ending task, coined on the erroneous belief that at one time in the history of the bridge repainting was required and commenced immediately upon completion of the previous repaint.  Such a practice never existed, as weathered areas were given more attention, but there was a permanent maintenance crew.https://en.wikipedia.org/wiki/Forth_Bridge

We have to laugh at the brass neck of Merseyside Police. According to Supernintendo Markay & Peter Owens the purpose of injury award reviews is to save money. That’s the stated, written into policy objective of the terrible-twosome who perform the dubious role of Merseyside’s medical retirement officers (MRO). They no doubt think that as soon as they have gone through the list and attempted to tar all IOD pensioners with the same band-one-brush, then hey-ho, it’s time to start up again to continue the misery, until everyone damn lot of them is whittled down to a band one.

The hypothetical question we have to ask is: once all are band one, will they wash the brush with white spirit, put the tar bucket in the shed and then leave the pensioners to peel and blister without applying any new coats ever again?  Will a single disabled former officer be left in peace, or will Merseyside ensure they all are reviewed regularly for the rest of their lives?

Both Markay and Owens are guilty of unleashing a form of barbarism against those injured on duty from this force, on the basis of a misconceived grasp of the Regulations, alternative truth, and spin. They intend, by their review policy to interfere in disabled people’s lives, to maintain them in a state of financial uncertainty, and to subject them to regular intrusive inquisitions, all in the name of their perverted and utterly unsupportable view of what the Regulations require.

They are determined, indeed, required by the force’s policy, which they seem to see as more important that the rule of law, to regularly demand that IOD pensioners declare any 10% increase in earnings. In the strange world occupied by Markay and Owens there is the belief that if someone sees a 10% increase in earnings then their degree of disablement will probably have altered substantially. However, they, very tellingly, have decided not to ask IOD pensioners to report a 10% decrease in earnings. They are not bothered by that inconsistency as fairness is not part of their game plan.

Do you remember this, below excerpt, from a letter penned by Owens to a person with an IOD award?  The bit about a salary increase is in red.  Note well that there’s nothing about a salary decrease.  In Owens’s world it’s a one-way-street with skills, and earnings dictating the degree of disablement. Leaving aside that the Regulations speak of the capacity to earn, not what might result from that capacity, we see again the one-sided, biased, money-saving objective. Gain a skill and your degree of disablement must have increased. No mention of skills eroding over time due to lack of opportunity to keep them honed and current. On this one way street, there is no traffic in the other direction. Skills can be acquired but never lost, earnings can increase but never decrease, co-morbidity can overtake the index injury never the opposite.

During the EU referendum campaign, there were many spurious overblown claims by leavers and remainers which ran fast and loose with the truth. Those scare tactics were but small fry, infinitesimally small fry, in comparison with the guff Markay and Owens are coming out with. For Peter Owens to create a policy to review injury awards and then to crow about the money he saved, whilst neglecting the laws broken and lives ruined, is an affront to truth and decency and reason.  It will cause suicides.  It may have already, we just don’t know all what happens after ‘they’ fire the gun at their target. No self-respecting citizen should put up with it.

We have a copy of Merseyside’s processes for the review of injury awards and it apparently relies heavily on a devoutly orthodox take on NAMF (now NWEF) guidance

(3 pages – hover cursor & navigate with bottom left arrows)

Advised not to have an age limit for holding reviews by a weasily solicitor plying his trade in Northern police force?  Don’t worry – have a limit anyway.   How can someone who has evidently heard of the word ‘discrimination’, even uttered by someone else, write such tosh?

The advice from the author of the NAMF guidance is that no upper limit should be used due to age discrimination. I have noted that some forces have considered using seventy years of age as an upper limit and to date Merseyside have used a ceiling of 65 years.

For the rolling review program, Merseyside policy ignores band one and focuses it’s attention more forcibly on those that cost the most.  Discrimination incarnate.

As previously reported injury award reviews have been prioritised with Band 4 reviews being undertaken first then Band 3 awards and finally Band 2. Band 1 awards are not subject of this review.

Of course, we regularly say that anything written by Nicholas Wirz automatically disqualifies itself. But it seems Merseyside take the spoutings of NAMF/NFEW that much further.  Take this rotten festering sore of a sentence found in page two:

When considering the implications of example 4 it is inevitable that a large proportion of ex-officers would have their injury awards reduced to Band 1.

Let us translate the above quote lifted from the policy.  They are saying if someone’s index injury has not improved, that if there are no jobs available that were not available or if no new skills are evident, but the former officer has developed cancer, then Merseyside are happy to reduce them to a band one.  Sod the consequences.

What about our more likely, real-life example that avoids Merseyside’s cliff-edge.  A former officer retired with physical injuries who developed a mental illness due to the adverse psychological effects resulting from being physically injured and disabled.  Over the years their injuries got somewhat better but their mental illness progressively worsened.  Should they be reduced to a band one by Merseyside?  Their disability is still a duty injury – they wouldn’t have mental health problems if they had not been injured on duty. It would be unlawful to reduce someone in such a situation, just as it is morally corrupt to reduce an injury pension because a person has cancer or Parkinson’s disease.  Why would Markay and Owens take a different position? … because they are delusional about the Regulations and blinded by their objective to save money, that’s why.

The 2010 Doubtfire (& Williams) judicial review sheds light on the truth that the focus is always on the disability, not the diagnosis.  We will return to Doubtfire & Williams (a dual hearing involving West Mercia and, quelle surprise, Merseyside) in another blog post.

What about the acquisition of skills being a two-way street?  As we mentioned above, Merseyside states that new skills can improve job prospects and thus earnings but nowhere does it say that the loss of skills, by being out of the job market, can reduce earning capacity.  Why is this?  Rhetorical question, of course.  It isn’t mentioned as this doesn’t allow Owens & Markay to work towards reducing all IOD pensioners to a band one.

Is anyone still in any doubt about the Mersyside’s nefarious position that reviews of degree of disablement are a cash-cow to recoup money? Look the last paragraph on page two.

In summary ten per cent of questionnaires sent out at this time have produced ongoing savings of approximately £30,000 per annum. [Exempt information section 40(2) Freedom of information Act, 2000, the personal data exemption].

We haven’t missed the stated implication that the questionnaire has led to the reduction, not the medical decision of a SMP.  Why employ a gun-for-hire SMP when a poxy and fallacious questionnaire combined with the stroke of Owens’s pen can do the dirty deed?

The policy sums up the elitism and arrogance and contempt for Regulations of those who just cannot accept that deserving people were given injury awards.

Wirz, Markay and Owens, and their coterie within the NFEW can’t get their heads around this. They are riddled with prejudice and are dismissive of the rights of disabled folk. They have produced policies and guidance which contravene the Regulations, and have done this not out of simple stupidity, but from a misplaced and wholly erroneous conviction that IOD pensioners need to be continually harassed in an attempt to reduce the impact of injury pensions on forces’ budgets.

Anyone with a brain can see that only a small minority of the people involved must actually believe the tripe that Merseyside uses to justify their position. They go along with it, for the sake of not poking their heads above the parapet. They value their jobs more than their conscience. Nor do those who are the named targets of our criticisms care to attempt a defence. They remain silent and acquiescent, for they dare not do otherwise. Our blogs remain unchallenged, for there is no riposte to the truth.

How can anyone with any knowledge of the Equality Act and the legal requirement for reasonable adjustments think that, just like the idiom of painting the Forth bridge, a future review can be scheduled immediately after the current one has finished?

Merseyside is disdainful of the law, and of the rights of disabled people:

On completion of this initial phase of injury award reviews the process will recommence and will be ongoing with new cases that have received awards in the preceding two years and also the reviews conducted at the start of this process will be due their next review.

Hogwash.

We now must speak in the language of revolution.  We must ‘rise up’. There is need for a ‘revolt’, by ‘force of argument’, against the dangerous madness of the policy espoused by Merseyside.

NARPO and the Police Federation need to take Merseyside to task and join with IODPA in condemning the concept of regular, repeated reviews.

IODPA’s advice to any IOD pensioner caught up in a revolving review program is they should seek redress in an Employment Tribunal for post-employment disability discrimination and subsequent victimisation.

Natural Justice: The Rule Against Bias

iodpa caselaw, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, NWEF, selected medical practitioner
Natural Justice: The Rule Against Bias

Injustice anywhere is a threat to justice everywhere. ~Martin Luther King, Jr.

British justice, the sense of fair play and the British Police Service have been the envy of the world. It is somewhat ironic that injured Police officers who have lost their police careers have to fight to be treated fairly, and be treated in keeping with the scope and intentions of the Regulations, which are there to compensate them for their injury and consequent loss of earning capacity.

The fight over the 15 years has culminated in over 22 High Court Judicial reviews and 43 Pension Ombudsman decisions regarding  maladministration of Police Injury Awards. British Justice still lives within our Courts and arbiters. It is of little surprise that the decisions overwhelmingly remedy the injustices former injured officers have endured.

The rules of natural justice

The rules of Natural Justice require all trials and hearings to be rooted in fairness . Following the case of Re HK (an infant) (1967)  the phrase “act fairly” was established making it incumbent on all  decision makers to act fairly. There are two parts to the rule:

  1. Audi alteram partem – “hear the other side” or “let the other side be heard as well.”
  2. Nemo judex in res sua – “no one  should be a judge in his own cause” – A pecuniary interest in the outcome of the decision gives rise to automatic disqualification. Also known as the rule against bias.

Following on from our blog “The Judicial Fallacy” we need to explain that the term judex (simply translated as judge) within Nemo judex in res sua  extends beyond judges to all statutory decision makers. This, just in case some SMPs and Mr Wirz start to believe their own hype that they are judges.

Notwithstanding copious direction from the Courts, some scheme managers and SMPs have shown themselves unable, or perhaps unwilling, to apply the Regulations. It is because of this entrenched mindset we at IODPA thought it would be of benefit for decision makers to be educated in respect of their responsibilities.

Whilst the Home Office guidance 46/2004 has been deemed unlawful and withdrawn following the High Court decisions in Laws and Simpson it demonstrates   how the Audi alteram parterm rule can apply.

Some Police Pensions Authorities (Chief Constables), HR, and SMPs  fervidly embraced the unlawful aspects of this guidance and some still do. Despite a legion of in-house lawyers and CIPD qualified HR personnel, no one thought that guidance is unnecessary if the Regulations are followed.  Guidance only becomes a thing if the intention is to bend the rules.  Just as Al Qaeda’s Management of Savagery is a manual for how to wage war by creating religious resentment and violence, guidance has historically been used to square a circle, to give excuses to override Holy text and provide bureaucrats a means to blindly follow orders.

The law is the form of the Police Injury Benefit Regulations and case law.  This simplicity had to be spelled out in the Simpson case ruling that PPAs can’t usurp the law through guidance !!! Luckily, it wasn’t all 43 Police Pension authorities that wandered, zombie like, into the trap.

So with the advent of the Home Office guidance and a stroke of a pen many pensioners were dropped to Band 1. The decision makers’ minds were closed, the poor pensioners weren’t allowed to make representation or even have their voices heard… Audi alteram partem. This struck to the heart of fairness, our Courts and Judges world renowned for their sense of justice did not allow this dreadful state of affairs to triumph.

We at IODPA have raised previously concerns about guidance emanating from the National Attendance Management Forum. (Now re-branded as the National Well-Being and Engagement Forum – NWEF). We regard it as yet another crude attempt to usurp the Police Injury Benefit Regulations and case law. We regard the NAMF guidance as a resurrection of the unlawful Home Office guidance. The NAMF guidance does not operate in a vacuum: understanding the context in which it operates is necessary. Re-branded, but with the same people at the helm, NWEF still holds regular meetings, but the fact that not all 43 forces subscribe to this forum or attend its meetings should tell the organisers something.

During NWEF events Nicholas Wirz tells the force Solicitors, FMAs, SMPs and HR minions that a pensioners doctor’s opinion cannot be relied on.

…It is also not uncommon for that specialist to be provided with the incorrect legal test, in which case their conclusions need to be treated with caution.[…] This can often be the case with reports produced by a treating physician in support of their patient…[]

A common occurrence is for the treating physician to “fudge” the issue(SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

This is nothing more than a shameful attempt to uniformly denigrate  good, honest, hardworking GPs who have witnessed the physical and mental health of their patients deteriorate, been involved in treatment plans and best placed to comment on the efficacy of them. These practitioners are always best placed to provide the definitive medical opinion.

However, Mr Wirz believes they are prone to provide false opinion. Really? So honest hard-working practitioners of medicine who are not paid by the PPA or the pensioner and who are bound by professional ethics are not to be relied on? What is it which drives Witz and his followers’ false belief that it is only the opinion of SMP’s which is sacrosanct or unbiased? That Wirz saw fit to make such a telling observation reveals that his mind is crammed full of both conscious and unconscious bias.

The SMPs are being paid for by the PPA and are being trained by Wirz. Anecdotal evidence and feedback we’ve had from members is that SMPs have quoted Home Office guidance as well as NAMF guidance. Well, if they are approaching the assessment with a closed mind then we would say that the pensioner will not be heard as the SMP has closed his/her mind to any other view than that of the NAMF guidance.

 Now turning to the rule against bias  nemo judex in res sua Lord Denning summarised this rule in Metropolitan Properties Ltd v Lannon [1969] CA.

“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

The term judge incorporates decision makers such as SMP’s and PMAB members, just in case you missed it earlier decision makers and not Judges in the Judicial sense. So if we surveyed right-minded people, would they think that pensioners were not only treated fairly but seen to have been treated fairly?

We think not for the following reasons :-

NAMF training and guidance – So the delegates consist of FMAs, SMPs, PMAB members,  force Solicitors and HR personnel. We’ve made it plain that the NAMF guidance has no basis in law, yet the principles incorporated within this document are being mis-sold as the lawful regulatory framework to SMPs. We also believe it is inappropriate for  SMPs who are meant to act as independent decision makers  to attend such events and then apply these principles. What if the Police Federation held such events and invited medical experts they instruct, how would you feel about that Mr Wirz?

The fact is not lost on us that HML, the company who manage the PMAB process, no longer attends NAMF meetings, why not? Has the penny dropped that such conduct is not acceptable ?

Some PMAB members far from being fair and open minded are in fact closed-minded acolytes of Mr Wirz and NAMF. Did they think that if HML just slipped out no-one would notice? Especially not the injured pensioners who have been experienced and trained investigators.

SMPs  and the  HR partnership – The late Dr Sampson and Mr Steven Mitchell from Nottinghamshire HR have jointly given presentations. We would invite you to have a look.  Both are eager to  convey how much money can be saved.

No onlooker would conclude that this appropriate. What if Dr Sampson hadn’t saved Nottinghamshire Police money, would he have lost his lucrative contract? Well we need to go to Avon and Somerset to show what happens when SMPs can’t be tamed.

The Avon and Somerset PCC’s Agenda – Mountstevens thinks those that have lost their Police careers and their health by putting themselves in harms way are a financial burden. She does not care about the moral or legal obligations enshrined in the Police Injury Benefit Regulations.

Don’t take our word for it,  she has been caught out writing to the Policing minister,  take a peek. The then Policing Minister (Damian Green) has pointed out the obligations of police pension scheme managers are enshrined in law, and gives his direct opinion that it is right there should be provision for police officers injured in the line of duty. His letter can easily be read as a coded message to scheme managers: don’t approach the administration of injury awards from the viewpoint of looking to save money.

Selection and Deselection –We at IODPA do not believe it coincidental that honest SMPs, such as the fair and just Dr Jo Judge (now retired Dyfed Powys FMA used briefly by Avon and Somerset) who have retained officers on Band 4, i.e. the most disabled and thus the most costly, are no longer engaged as SMPs by forces who want to reduce their financial commitments.

Those that can be enticed to adopt the PCC’s mantra are handsomely awarded such as FMA Dr Bullpitt as well as Dr Johnson SMP. Dr Bullpitt has also lobbied the GMC and Home Office to be exempted from GMC guidance. Really??

Dr Bullpitt’s devious wish to remove the protections of GMC guidance for a hand-picked and specially chosen disabled few, just because they are members of the public in receipt of injury awards, is of serious concern.  It goes against equality law, human rights legislation and codes of conduct. All professions are subject to regulation be it Police Officers through the Conduct Regulations, Solicitors via the Solicitors Regulatory authority, even Judges and MP’s are not exempt, that’s what you expect in a fair minded democracy, no one is above oversight. Yet Dr Bullpitt wants this exemption… why ?

So would the right-minded think police pensioners are treated fairly ? We think not.

The rule against bias compels decision makers to  leave aside prejudices and preconceptions In the case of  R v Bingham Justices ex p Jowitt (1974) QBD a  magistrate said

“My principle in such cases has always been to believe the evidence of the police officer.”

We believe this is no difference to SMPs approaching their duties under the influence of NAMF guidance, for example dismissing the pensioner’s specialist’s or GP’s opinion.

The test of apparent bias has  developed through  case law. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers’ Association [1960], Devlin LJ recognised:

“Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so”.

Lord Denning MR, in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] recognised:

“The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . . “

In R v Sussex Justices Ex parte McCarthy (1924) KBD the Defendant  appeared before the justices on a charge of dangerous driving, the clerk to the court was acting in parallel civil proceedings for  the other party.  This case led to the  celebrated maxim:

 “it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

During the inquest of “The Marchioness” disaster, the coroner was heard to have  described some of the victims relatives in attendance as “unhinged” and “mentally unwell” indicating  the presence  of unconscious bias. A different  coroner was required to resume the decision making process R v Inner West London Coroner ex parte Dallaglio (1994) “The Marchioness.”

We know through anecdotal evidence and having seen the SMP reports first hand of such bias. Comments such as ill-health retirement being a tactic purely in pursuance of a favourable exit packages, physical injuries being psychosomatic and ignoring specialist medical evidence are not uncommon. Dr Nightingale and Dr Willy Cheng are particularly adept at this malevolent projection. Dr Cheng goes the extra mile and repeats these attacks in PMAB hearings seemingly without challenge.

In R v Gough [1993], Lord Goff  formulated the test for apparent bias in the following terms:

 “the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias . . .”.

The accepted test for apparent bias is from Porter v Magill [2001] HL, para 103:

“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

We at IODPA have been asked to demystify some of the hocus-pocus which some police pension authorities rely on. We hope that by showing how, through the resurrection in the form of NAMF guidance, erroneous Home Office guidance 46/2004 has, brought about a fresh wave of pension maladministration. Lazy, incompetent, HR managers with only scant knowledge of the Regulations, and no familiarity with the basic concepts of justice within the law, as have been briefly set out here, are tempted to turn to the chocolate teapot uselessness of guidance issued by people who seem to be incapable of freeing themselves of the most pernicious forms of bias.

We hope that this whistle-stop tour through the law will help in the demystification. The Chief architect of the NAMF guidance, Mr Wirz, is a lawyer (albeit not a very good one) and he more than most will come to realise that it is through the protections which the law provides to the victims of malpractice, we will continue to forcibly remind him and the NAMF acolytes of their shortcomings.

Mr Wirz we would like to remind you of another  legal maxim:

 “The law is a shield and not a sword”.

Whilst you wrongly quote and twist law to use it as a sword against police pensioners we will use the law as a shield. Natural Justice underpins Judicial Review and at present count it’s the Police Pensioners who are winning countless Judicial Reviews.  Does that not tell you something, Mr Wirz?

We will continue to educate and enlighten police pensioners to their rights and point out your wrongs, in right is might!

 

 

 

 

 

Toxicity travels: NAMF rebrands as NWEF

iodpa NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, newsflash, NWEF
Toxicity travels: NAMF rebrands as NWEF

It takes a lot more than a change of name to restore the reputation of a damaged brand…

Suppose you are eager to move forward with your determined but illegal mission to undermine secondary legislation but your plans have been hit by a series of serious high court losses.

Not only illegality, but also  a spectacular juxtaposition of incompetence and malevolence on your part, mixed with gross lack of judgement. Plus hubris. And arrogance. And sheer bloody-mindedness.

What are your options here?  Do you:

a) Learn from your errors and seek to quietly, but determinedly, rebuild your group’s reputation?
b) Put your group’s  ambitions on hold and invest in some capability-development training?
c) Simply change the name of your clandestine organisation?

But … a successful rebranding involves overhauling the goals, message, and culture – not just changing a name.

Unfortunately, it seems like Lesley Ann Knowles, the chair of NAMF  NWEF didn’t get the memo.

The Chair announced she had chosen the new title for the group from suggestions previously discussed and provided to her. The new name of the group being National Wellbeing and Engagement Forum (NWEF). A discussion was held around whether using the word engagement in the title of the forum may cause confusion. However it was agreed by the group that without engagement wellbeing may not be achieved, since effective engagement being important to receive and act upon the voice of the workforce.

‘Wellbeing‘ & ‘Engagement‘… Blurgh!!

Should be ill-being & alienate. NAMF has chosen to rebrand themselves with a new acronym, the words of which mean the opposite to their true objective.  Words they’ve pulled straight out of the psychobabble and buzzwords prevalent in HR jargon.

Read their December 2016 minutes here:  [toggle pages with bottom left arrows]

The Judicial Fallacy

iodpa NAMF, National Attendance Management Forum
The Judicial Fallacy

“All the fallacies of human reason had to be exhausted, before the light of a high truth could meet with ready acceptance.”
― Friedrich Max Müller

Here at IODPA we are seeing regular references, made by people who should know better, to the Selected Medical Practitioner (SMP) having standing  akin to a Coroner or a Judge with case management powers. Indeed some SMPs have referred to themselves as being involved in a judicial process and acting as judges  (not only have we had anecdotal feedback incorporating these common themes, we have seen the reports containing such fallacious proclamations firsthand).

Before we look at the veracity of these claims  and their origins a brief understanding of the law is required. So lets test the proposition; is the claim of an SMP being a Judicial Office Holder valid or a convenient  invention?

Origins

The doctrine of Parliamentary Sovereignty is the cornerstone of our democracy. This legal doctrine means that parliament makes the law in the form of Statutes and gives authority to the provision of secondary legislation such as the Police Injury Benefit Regulations.

The Brexit debate and recent Miller case has brought this sharply into focus. In the Simpson High Court Judgement it was ruled that the attempt by a Home Office Civil Servant to issue guidance undermined Regulations and Case law. You cannot usurp Parliamentary Sovereignty and import meaning or intention which does not exist. The Home Office withdrew its guidance and directed Chief Constables to legislation and case law as referenced in the Simpson Judgement.

NAMF

The rule of law is another fundamental concept in our legal traditions. As Police Officers we had to accept the decisions of the courts after all we were servants of the law. The Home Office had no choice but to rightly recognise their errors when they were ruled to have acted unlawfully by Mr Justice Supperstone, and (with rapped knuckles and burnt fingers) withdrew their guidance as not to prolong their humiliation.

This unlawful guidance was much, much more than just a costly mistake.  Arguably it was pursued voraciously by some forces with eyes wide open.  It made many injured former Police officers face financial ruin including homelessness as well as the emotional trauma.  The costs to the taxpayer were enormous and the only winners would appear to have been the SMP’s paid to conduct these reviews and the Barristers acting for the Police.

Lessons were learnt by some, unlawful reviews were suspended.  The country’s largest force, The Metropolitan Police, does not undertake reviews unless requested by the former officer. However, there were those who couldn’t accept the rule of law; after-all, they parochially thought, why should those who were unable to work or have their earning capacity reduced, having put themselves in harms way and lost their careers and become disabled, receive an injury award?

Well, we have yet to meet a HR minion who has walked a mile in our  shoes, or any distance for that matter. The award is deserved both morally and legally. Parliamentary intention was to recompense Police officers who could no longer serve due to their injuries, the bands reflected the loss in earning capacity. The explanatory memorandum to the Police (Injury Benefit) Regulation was prepared by the Home Office and had been laid before Parliament by Command of Her Majesty; it says without ambiguity that police injury awards:

“…[] are in effect compensation for work-related injuries”7. Policy background EXPLANATORY MEMORANDUM 2006 No.932

The void created by the Home Office withdrawing from providing any central guidance was filled by the National Attendance Management Forum ( NAMF ).  Perhaps the Home Office considered that having a proxy would avoid them again facing the wrath of the High Court.

Interestingly not all 43 forces are involved in NAMF. That speaks volumes itself. NAMF is now chaired by the Head of Human Resources at Northumbria Police, Leslie-Ann Knowles, and it’s chief legal advisor is Nicholas Wirz – Solicitor of Northumbria Police. NAMF delegates  have included FMAs, SMPs, PMAB members, HR managers and Force Solicitors  as well as Mr Trevor Forbes who represents Police Forces at PMAB.

Naturally, we at IODPA are concerned about this as it would appear to breach the rule against bias. We’ll leave that issue for another blog and a High Court case submission.

NAMF has devised its own guidance , section 4.3 Case Management Powers of an SMP, there is reference to a quasi-judicial process. Some SMPs have been told they have powers similar to those of a Coroner or a Judge at NAMF training events. The SMPs have repeated this erroneous view in their assessments.  A recurring theme in some reports made by SMPs who have attended courses presented by Wirz, is that they claim the position of ‘SMP’ empowers them to be able to make any direction or demand.  No matter how unreasonable, discriminatory or contrary to primary legislation that demand actually is.

Serving and retired Police officer’s have told us about their assessments, the SMP likening themselves to a judge is a recurring theme.  So the phoenix has risen from the ashes and the Home Office Guidance has been resurrected in the form of NAMF guidance. Our members have repeatedly, and wrongly, been told by SMPs and HR staff that NAMF guidance is mandatory and must be followed.

There is a direct correlation to those forces involved in NAMF, unlawful reviews PMABS and JRs.  Mr Wirz, whose zealousness is not diminished by losing previous High Court cases, continues to spread his views which have no anchor in law.

Compare and contrast

The role of SMP is cited in the regulations. They are medically qualified doctors (or should be, we have encountered a physiotherapist). NAMF have introduced the mandatory requirement that membership of the Faculty of Occupational Medicine is required. SMPs are selected by individual  Police Forces. Coroners on the other hand are experienced lawyers or medical professionals whose appointment is approved by the Chief Coroner and the Lord Chancellor.

Coroners are Judicial Officer holders and must take the judicial oath. Judges are recruited via the Judicial Appointments Commission, their appointment must be approved by the Lord Chancellor, again they are Judicial Officer holders and must take the judicial oath.

Training is organised by the Judicial College, similarly, a formal disciplinary framework exists for the judiciary.  So when did the foundations of constitutional law that has central importance to the maintenance of judicial independence fracture and rip to such an extent to allow SMPs become quasi-Judges and Mr Wirz and NAMF the judiciaries’ training provider?  Of course, in the real world, there has been no such rupture.  The foundations of judicial appointment are still wholly intact.  Only Wirz thinks differently.  The edicts of NAMF cannot stand scrutiny.

The Simpson case should have acted as a warning. The Pensions Ombudsman case in Lightfoot v West Yorkshire Police at paragraph 33 encapsulates how innovation is occurring:

“….As has been found by my office in other cases (for example, Ayres 27979/2 and Sharp 80008/1) it is not appropriate to try and impose a meaning on the relevant Regulations which they do not hold simply because the Home Office (or the WYPA) think that logically they should. This was an error of law, albeit that WYPA was following Home Office guidance and was acting in good faith.”

The status of the SMP has been pushed by NAMF from that of a Doctor to that of a Judge.  This leap has no basis in law.  Legal chicanery as a description does a disservice because this goes far beyond that into the realms of a fantasist.

Powers conferred on police officers by primary legislation, such as those defined by Police and Criminal Evidence Act, are a statutory licence that do not empower any judicial functions onto an Inspector, say, authorising a search.  Can that Inspector forgo the need to reasonably believe the premises may contain evidence linked to the offence in question?  Of course not.  Taking the illogical thinking of Wirz to the extreme, if the Inspector thought the same as a SMP, and considered they were a judge, they could ignore PACE and sign their own warrant of entry.

The SMP is not a judicial office holder but a doctor  – a medical authority asked to answer a statutory question based on available medical evidence, in the same manner as a power of entry and search under s18 cannot be exercised without the statutory requirement of prior written authorisation of an officer of the rank of inspector or above.

A SMP can’t invent evidence.  He isn’t a judge in an inquisitorial system –  a legal system where the court or a part of the court is actively involved in investigating the facts of the case.  He is a doctor; simply asked a medical question that statute demands a referral to him or her by a police pension authority.  Statute does not gift any magical power to answer the question – only to use his medical training to make sense of the medical information presented to him.

To suggest otherwise is a fallacy.

 

 

 

 

 

 

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...