caselaw

Bad Law (Appeal For Justice)

IODPA Admin caselaw, Regulation 33, Regulation 37, selected medical practitioner
Bad Law (Appeal For Justice)

Bad law, or a bad law, or bad laws may refer to:
– A law that is oppressive
– A law that causes injustice
– Dumb laws, those laws which are particularly bizarre

 

Appeal for Justice

Please support our appeal for crowdfunding for this very important cause.

Make NO mistake, this ruling affects EVERY force in England, Scotland, Wales and Northern Ireland, every pensioner in receipt of an injury award, and EVERY serving officer who may find themselves, being injured on duty.

This appeal is for all serving police officers, all retired officers (with or without an injury pension), the families, friends and supporters of the police service and for anyone else that recognises the dangers that officers face on a daily basis. It is also for those, in the legal profession who recognise bad law, and the implications of allowing such law to remain unchallenged.

A recent court ruling places thousands of police officers up and down the country forced to retire through injury in a position where they have no option to consent on a regular basis to their forces trawling through their personal or private medical data from birth, or risk having their pensions reduced their lowest level. Those injured officers are now leading the fight on behalf of ALL future injured officers and those who are currently retired.

Police officers, on a daily basis, selflessly put themselves in harms way to protect life and property. We have all heard the expression of police officers running into danger when everyone is running away from it. They do this regularly without thinking of the personal consequences to themselves, and thankfully in the vast majority of cases they escape without any serious harm. We know all too well from the news, that on some very sad occasions, officers lose their lives, and there can be a fine line between these officers and those, who survive but end up with life changing injuries.

Many, having dedicated their entire lives to policing, will be forced to retire early with ill-health retirement as they are no longer able to perform operational duties. If their permanent injures affect their future earning capacity, they may be granted an additional injury pension to compensate for their inability to earn what they may have been able to, were it not for those injuries.

This additional pension is paid under the The Police (Injury Benefit) Regulations 2006 (‘The Regulations’), and is only awarded after careful scrutiny by a doctor. There are four bands within The Regulations, with highest band being awarded to the most affected, and which in turn attracts a higher pension.

Once awarded, The Regulations allow police forces in England, Wales, Scotland and Northern Ireland to periodically review these pensions to ensure that the correct level of award is maintained. We’ve yet to meet an injured pensioner who disagrees with being reviewed to ensure that they are given the correct level of award as long as the review is conducted properly, fairly and impartially. Sadly this is not generally the case and injured officers are mostly treated with contempt by the doctors.

The decision when to review is discretionary and down to each Chief Constable who act in a secondary role called the Police Pension Authority (‘PPA’). They appoint a doctor with a title of Selected Medical Practitioner (‘SMP’) to carry out a medical examination who have to determine whether there has been a ‘substantial change’ in the condition of the pensioner since their last examination. This period for consideration is already set out in existing case law.

We have, in recent years, seen a number of forces conduct a worrying trend of what can only be described as an unrelenting assault on these pensioners with review programs designed for only one purpose, and that is to reduce the pensions of these courageous officers in order to save money from their budgets.

There is notably a handful of Chief Constables, HR mangers, solicitors and SMPs who are constantly dreaming up inventive new ways to interpret, (or misinterpret we should say) The Regulations for no other reason than to reduce these pensions. How they sleep at night, we just don’t know.

We believe that members of the public would be shocked and disgusted, if they knew about some the way in which some of these unscrupulous individuals operate. The public seem to have this preconceived idea that police officers are well looked after by their forces should the worst happen to them and ‘they look after their own’. It causes us much dismay to shatter this illusion.

Whilst it is true that some pensioners, when no longer exposed to the policing environment may, to a degree recover, these are in the minority, and many have to battle with the scars of their physical and mental disabilities for the rest of their lives.

At the moment, it is a small number of forces that appear to have no respect for their former officers and one such force is Staffordshire. In April 2017, they sent out letters to every pensioner in receipt of an injury award, informing them that they were all to under go reviews. Despite this decision predating the appointment of a new Chief Constable it coincided with Gareth Morgan arriving at the force from the Avon and Somerset Constabulary who had themselves been conducting reviews for the previous three years. Was it any coincidence that as Gareth Morgan left Avon & Somerset, the new Chief Constable, Andy Marsh, brought reviews to a halt?

Despite The Regulations placing no obligation on the former officers under review to provide personal and private medical notes, Staffordshire Police demanded that they hand over a complete set of their doctors notes from birth. They also demanded that other personal and private information be disclosed in the form of a questionnaire.

The officers contested that these demands were wholly excessive and breached their human rights as they weren’t measured or proportionate to the purpose of the review. The only obligation that the regulations placed upon the pensioners was that they ‘submit [themself] to such medical examination or to attend such interviews’, which they all did by attending a prearranged medical appointment with a SMP. They also volunteered a letter from their own doctor stating that there had been NO change in their medical condition.

During the appointments, the SMPs (Dr’s Vivian, Yarnley and Nightingale) made NO attempt to medically examine the pensioners. They asked NO questions about their condition and for those with physical disabilities, made NO physical examination. All they demanded was access to full and non redacted medical records since birth. The reasons for this, we believe are three fold,

  • Firstly, Staffordshire police have LOST the medical records of many of these pensioners over a period of time, therefore they desperately need to obtain a replacement set, otherwise they knew nothing of the background and history of the pensioner.
  • Secondly, it has been common practice for some unscrupulous SMPs to forensically examine the entire patient history with to view to finding ‘something’ else that may allow them to reduce the pension.
  • Lastly, we believe that these SMPs were setting these pensioners up to fail.

In April 2009, the Home Office released a paper entitled ‘Review of police injury benefits government proposals’. Para 6.6. states,

Although this requirement ensures that the applicant must provide the police authority with an opportunity to have him or her examined and interviewed as necessary, it does not provide the authority with any express power to require the disclosure of relevant documents and medical records. Although it is not suggested that a police authority should be given such a power, it is clear that refusal to comply with such a request will oblige the police authority or the SMP, as the case may be, to consider the case on the available facts, and it is also reasonable for them to conclude in such circumstances that the claimant has something to hide which would damage his or her case.

 

The Home Office, further acknowledged this fact, when in 2011 they drafted a new set of regulations which suggested replacing this section,

Refusal to be medically examined

33. If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then—

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

with this,

Refusal to co-operate in medical examination

32.—(1) This regulation applies where a relevant medical question is referred to a medical authority under regulation 29, 30 or 31 and the person concerned wilfully or negligently fails to—
(a) submit himself to a medical examination;
(b) attend an interview; or
(c) consent to the disclosure of medical records
which the medical authority considers necessary in order to enable him to make his decision.

 

It’s worth pointing out here, that Staffordshire Police, have acknowledged that there is no legal obligation for these pensioners to hand over their most personal and private of medical notes. They wrote to one of the pensioners solicitors with the following,

“It has been explained to your client that he does not have to give consent for access to his medical records the consent form states “you can refuse to give consent if you wish”

 

In addition to this the ICO also had a view on this stating,

20th April 2018 and the 5th September 2018 – “Although consent is not defined by the DPA, it should be freely given. Where an individual has no option but to consent to the processing of their personal data, it is unlikely that consent has been freely given. This therefore raises fairness concerns and in our view we do not believe that consent is an appropriate condition to rely on for the processing of sensitive personal data.”

 

It is probably worth noting here, that in May 2018, the Information Commissioners Office (‘ICO’), became involved in Staffordshire Police’s poor handling of data, and made the following number of recommendations for corrective action,

Urgent Priority recommendations – 5

High Priority recommendations – 52

Medium Priority recommendations – 37

Low Priority recommendations – 7

 

Despite the forces seeming inability to securely retain sensitive personal data, one of the pensioners even took a set of their doctors notes along to the appointment for the SMP to read, but unsurprisingly, the SMP refused to read them.

With this background in mind, what pensioner in their right mind would voluntarily hand over the medical history to a force that clearly had no right to demand it, and had a dreadful history of failing to secure or protect the integrity of sensitive information? It also became clear following numerous correspondence with the force that some medical data that had been submitted to the force was being trawled through the by HR staff, who had no right to do so. This is a serious data protection breach.

Mr Morgan wrote to the pensioners involved with a view to having a meeting. He withdrew from that meeting when the pensioners requested that their legal representative be allowed to attend. Such a strange decision if Mr Morgan was acting in good faith throughout the process.

Despite all the pensioners complying with the letter of the law, the Chief Constable deemed that the pensioners had failed to comply with The Regulations and invoked punitive measures under a different regulation, this being 33, thereby dropping every pensioner that had a physical disability to the lowest band, and those with mental disabilities by one band. Some pensioners have lost over £1,400 per month.

Whilst regulation 33 allows the PPA to make a decision, it has to be made ‘on such evidence and medical advice as they in their discretion think necessary’. NO evidence has been provided by the PPA to support the punitive decision that they’ve made. The decision to reduce still falls under regulation 37(1) where a ‘substantial alteration’ has to be found, and there is no such evidence to support the reductions. Instead, the reductions seemed to follow a pattern rather than looking at each case individually, and the PPA decided that many of the pensioners could perform the same full time role within the force.

With the assistance of IODPA and the Police Federation, the pensioners challenged the decision, which was heard on 15th and 16th July 2020 by Mr Justice Linden in the Administrative Court of England and Wales. His judgment was handed down on 16th September 2020.

You can read a copy of the judgment here –
Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 (Admin) (16 September 2020)

Unfortunately, the case was lost and the consequence of the judgment provides all police forces the ability to make unrestricted demands from all officers undergoing a review or they may face an incontestable financial penalty without the right of appeal.

We feel as though the judge in this case has ignored all the evidence, that there is no obligation in law for these pensioners to hand over their medical records. Had the judge applied the letter of the law, he would have come to the same conclusion that this is the case. We accept that this may cause a dilemma for the force, but this is for the legislators to resolve.

If this judgment, which we consider as ‘bad law’ is allowed to stand, ALL those in receipt of an injury pension will be at risk in the future, even if your force is not currently reviewing, although we are aware that a number of forces are looking at commencing reviews following this case being eventually finalised.

As a result of this, we have decided that we have no option, but to appeal this decision on behalf of all injured police officers around the UK. We understand that the Police Federation will not be financially supporting this appeal, although we would ask them to please urgently reconsider their position.

To give those in receipt of an injury pension an idea as to what they may lose, if this new ruling is applied across every force in the country we need to look at the impact upon their injury pension. The monetary awards in each band is not linear i.e. a band 4 pension is not exactly four times that of a band 1, but this method of calculation is a pretty good guide.

So if you’re on a band 2, your pension would be reduced by half, if you’re on a band 3, your pension would be reduced by two thirds, and if you’re on a band 4 your pension would be reduced by three quarters.

Now compare that huge reduction each and every month, for the rest of your life, with trying to get this decision overturned?

This ruling may even affect those on band 1 and whose condition worsens, as we believe that they will find it more difficult to secure an increase in their banding. Ironically Staffordshire Police had initially decided not to review those in receipt of a band 1 award. The cynical amongst us would believe that it it not possible to reduce them any further, and therefore it was a pointless exercise. It was apparent that this would have been unlawful not treat everyone with a disability the same, and so the policy changed, and they embarked on reviewing the band 1’s. Strange though it may seem, when Staffordshire wrote to the band 1’s they and asked if there had been any change in their condition, they accepted their word for it, when they said that there was none. However, they wouldn’t accept the word of anyone in bands 2, 3 or 4. Draw your own conclusions.

As a result, we  have launched an appeal to raise £75,000 to cover the legal costs of taking this dreadful decision to appeal.

We have created a donation page, which we would encourage you to use and also, where possible, please indicate, if applicable that we can claim gift aid on your donation, which means that HMRC will give us another 25% on top of what you donate.

The page can be found here – https://iodpa.org/appeal-for-justice/

Please support our appeal, and more importantly please support all those officers that had to leave their much loved career end through no fault of their own. If serving officers were fully aware of the way in which some forces consider their former officers are merely a financial burden, they may think twice before putting themselves in harms way.

Court rules that there are two sides to every story

IODPA Admin caselaw, newsflash, pmab, police injury award
Court rules that there are two sides to every story

IODPA would like to congratulate David Lock QC and Ron Thompson of Haven Solicitors for another successful judgement that was handed down last week by the High Court in the case of R (Michaelides) v Police Medical Appeal Board [2019] EWHC 1434 (Admin).

We have included the full judgement at the bottom of the article for you to read.

Robin Michaelides moved to Scotland in 2001 from South Africa where he was a police officer, and joined a Scottish force. He did well there, and passed the promotion exam for the rank of Sergeant, before transferring to Merseyside Police.

He was promised by Merseyside that his promotion qualification would be accepted, but that promise was soon broken. Robin also faced numerous incidents of racial abuse and discrimination from his fellow officers in Merseyside. Senior officers did nothing to address the concerns he raised and seem to have instead viewed him as a troublemaker.

Robin was given no assistance in getting up to speed with English law, and was posted to CID without any appropriate training.

His health suffered under the persistent abuse, and eventually in 2015 after several periods of sick leave he was made subject to an Unsatisfactory Attendance Procedure, the stress of which only served to worsen his mental health. Robin was retired from Merseyside by the Chief Constable in August 2015.

His application for an injury award was rejected, and Robin appealed the decision to a Police Medical Appeal Board, where it was again refused.

The matter was successfully challenged, and the decision of the court is that the matter should be remitted back to a (preferably new) PMAB.

 

David Lock QC had the following to say about the case –

“The court affirmed (albeit on an obiter basis) the approach of the Court of Appeal in Boskovic to the Evans/Doubtfire point.  That, of course, may or may not remain good law depending on the outcome of the application for permission to appeal in Boskovic to the Supreme Court (which awaits a decision).

However, perhaps more significantly, the claim was successful because the Court affirmed the need for the PMAB to act as a proper fact finding tribunal where there are disputed facts.  Thus a PMAB which fails to act as a proper fact finding tribunal before exercising its medical decision making function will act unlawfully.”

 

This is an important case because there are often two version of events presented to an SMP or a PMAB, one from the officer, and one from the force. What it instructs the medical authorities to do is to consider all the evidence available regardless of the source and give sufficient consideration before dismissing one version or the other.

 

A Tale Of Two Forces

IODPA Admin caselaw, Police Pension Authority, regulation 32
A Tale Of Two Forces

‘In my judgement, Mr Lock’s submission is correct . . . ‘

— Her Honour Judge Belcher

We have two judicial review cases to report on. One resulted in a decision in favour of the pensioner  and the other did not.

Both cases will have considerable effect on the future behaviour of Police Pension Authorities (‘PPA’) across the country. However, it is becoming increasingly obvious that two or three PPAs are likely to continue attempts to thwart the intentions and purposes of The Police Injury Benefit Regulations 2006, whilst the vast majority remain rightly very cautious about breaking the law. IODPA hopes the lessons learned from these two recent judicial reviews will result in positive improvements in the administration of police injury awards.

For legal reasons, IODPA cannot comment on the merits of the case which was lost, but we can talk about the principles involved, as they apply universally.

In a hearing in the Administrative Court, the Chief Constable of Staffordshire Police was the respondent to an action taken by a former police officer, Colene Boskovic. The claimant argued that a decision by the PPA to refuse agreement to arrange a regulation 32(3) or 32(3) reconsideration was,

 

. . . unlawful on its face for inadequate reasons and/or a failure to address the primary purpose of a Regulation  32(2) reconsideration.

 

The case report of Boskovic is available for scrutiny here.

 

We should explain that the Regulations make provision for any decision taken by a police pension authority to be reconsidered, provided that both parties, the individual concerned and the police pension authority, agree to a reconsideration process being held.

The concept of reconsideration is a sound one, in that it allows errors of law or fact to be readily and inexpensively revisited and for corrective action to be taken. The concept is a necessary one, for awareness there may have been errors might not surface for some time after a flawed decision was made. The concept is a positive one for disabled pensioners may be unable, for various compelling reasons, to act within the strict time limits which control when a formal appeal to a police medical appeal board must be made.

For many years it seems the reconsideration provision was little used. This may have been because pensioners, and those who represent them, were unaware decisions could be reconsidered, or were unsure how to approach this provision. Another factor undoubtedly has been the all too common practice of forces failing to properly inform officers and former officers of their rights.

We have the 2012 cases of Haworth v. Northumbria Police  Authority and Crudace v. Northumbria Police Authority to thank for illuminating the detail of regulations 32(2) and 32(3) – especially in informing all concerned there is no regulatory time limit on holding a reconsideration. Since 2012 pensioners have turned to the reconsideration provision to correct old errors, much to the dismay of some police pension authorities.

From all the evidence, both statistical and anecdotal, it is easy to conclude many errors remain undiscovered and uncorrected. Putting matters right would be an expensive business impacting on the hard-pressed finances of some forces. It comes as no surprise then that Staffordshire would seek to close off this opportunity.

As with Haworth and Crudace, Colene Boskovic sought agreement from her police pension authority to arrange a reconsideration of a decision. In her case, the decision was that she did not qualify for grant of an injury award. The court heard argument from the respondent which essentially presented the view that a reconsideration could not be held ‘fairly’, due in part to the passage of time – being some 14 years – since the disputed decision was made, and also the unavailability of the original decision-making SMP.

The Chief Constable explained her refusal thus:

I do not agree to a further reference to a medical authority for reconsideration of the original refusal of an injury award. This is because I believe the request is frivolous and vexatious: the delay of 14 years from the original assessment is such that I conclude no reconsideration is possible. Dr. Gandham, the selected medical practitioner who made the original decision to not make an injury award is no longer licensed to practice in the United Kingdom, and neither is Dr. Srinivasan upon whose report Dr. Gandham relied. I do not believe the underlying merits of having the case reconsidered have sufficient strength to justify it

 

The court’s decision in this case appears to bring new elements for a PPA to consider when deciding whether or not to agree to holding a reconsideration. All we can say for now, is that each case is different, and is determined on the individual circumstances and the merit of the arguments presented. Pensioners, and serving officers seeking grant of an injury award need not be disheartened by the outcome in this case. There will be other cases and IODPA is confident that understanding of regulation 32(2) and 32(3) will continue to expand and clarify in favour of disabled individuals.

We can turn now to the more uplifting result of the case brought by our member Angie McLoughlin.

The case report has earlier been published on this web site – https://iodpa.org/2019/04/10/injured-pensioner-wins-court-case-over-back-payment-of-pension/

Angie appealed by way of judicial review the decision by the Chief Constable of West Yorkshire Police to refuse to fully backdate payment of an increased injury pension award.

Angie was severely injured by a burglary suspect and was retired on an injury pension in 1983, which was set at 25% disability. This is categorised in the Regulations as ‘slight disablement’ and attracts the lowest possible level of pension payment. It also meant that Angie was due much less in the way of the one-off gratuity. With only six years service, she qualified for a gratuity of 30% of average yearly pensionable pay, whereas if she had been assessed as very severely disabled she would have been due for an 85% gratuity and a much bigger pension.

Angie became embroiled in lengthy dispute with West Yorkshire Police. There was good reason to suspect that some records had been altered, so as to change what was 75% to 25%.  The issue of fraud has still not been brought to a conclusion. We don’t want to in any way give the appearance of glossing over the huge problems Angie faced in attempting to secure justice, but for reasons of space and focus, we need to leap ahead to 2004 and then to 2019, being the dates of pivotal events.

In 2004, some 21 years after Angie retired, a review was finally held regarding her degree of disablement, though the decision on that review was not produced until 2007. Meanwhile, Angie continued to be paid the lowest possible injury pension, despite the fact she was totally incapable of engaging in paid employment. The 2004 review led on, after much delay and complications, to Angie appealing to a police medical appeal board in 2009. The board assessed her degree of disablement as 88%, thus placing her in the highest of the four bands set out in the Regulations and confirming she suffered ‘very serious disablement.’

In August 2017, the police pension authority – none other than the Chief Constable – agreed to arranging a regulation 32 reconsideration of the original decision that had set her degree of disablement at 25%. Dr Iqbal was tasked with making the reconsideration as the original decision maker was no longer available.

Dr Iqbal concluded in April 2018,

In my opinion, based on the assessment carried out today as well as the evidence to hand, it is my opinion that at the time of the original decision in January 1984, a band 4 degree of disablement was appropriate.

 

The PPA continued to reject its liability to make complete restitution, with arguments over the period to be covered, so the matter was taken to judicial review in 2019, with the issues summarised by the court as,

The Appellant’s case is that Dr Iqbal’s fresh report, being by way of a re- consideration under Regulation 32(2), replaces Dr Anderson’s report of January 1984, and, as a consequence, the payment obligations owed by the Chief Constable are substituted for the payment obligations owing by the Chief Constable arising as a consequence of the previous report.  In other words, the Appellant asserts that the Regulations mandate back payments to cover the period from December 1983 to 2007.  The Respondent’s case is that the payment obligation is affected only from the date of Dr Iqbal’s report, that is from April 2018, and that the Appellant is not entitled to any backdated payments.

 

Angie won her case, and West Yorkshire Police became obliged to pay her all monies claimed, plus interest.

There are themes common to both cases, not least the effects of the passage of time on rights, liabilities and the practicality of securing a fair reconsideration through the application of regulation 32. These are weighty issues and it is likely they will figure again in other cases. IODPA would prefer to focus for now on highlighting and praising the immense courage and determination displayed by Angie and Colene. Pensioners and serving officers across the country owe them both a debt of gratitude. The history of the long-running ‘injury pension war’ as it has been dubbed, shows that it is only when individuals bring matters to court will errant police pension authorities mend their ways.

In the Boskovic case, we see the deputy head of the force’s legal services writing,

As a keeper of the public purse, it is right that the Chief Constable (as the Police Pensions Authority) considers her position carefully.

 

This implies the PPA was concerned about the costs which might result should they lose the case, and thus be liable, through reconsiderations, to make good injury pensions underpaid through years of maladministration and flawed decisions.

However, the judge took the view that it was appropriate for a PPA to take into account the cost of the process of reconsideration when deciding whether to agree to one or not. We can only but wonder at the logic of a PPA balking at spending the few hundreds of pounds a reconsideration would cost, yet happily spend many thousands of pounds of public money on contesting matters brought to judicial review. In the Boskovic case, the PPA may well be feeling the expense was justified, but is sure to find that any financial advantage apparently gained will be short lived.

The lesson from these two cases is that neither of them would need to have been brought if only the authorities involved had acted with decency and respect to its injured officers.

David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

IODPA Admin caselaw, newsflash
David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

David Lock QC has released a paper – “Police Ill-health and Injury Pensions: A guide through part of the maze”.

The original article can be viewed here – https://www.linkedin.com/pulse/police-ill-health-injury-pensions-guide-through-part-maze-lock-qc

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

Tully – Revisited

IODPA Admin caselaw
Tully – Revisited

Neither are we impressed by the so-called floodgates argument advanced by the respondent. We consider this to be an irrelevant factor to our considerations.

― His Honour Judge D Morris

 

IODPA membership continues to grow. Membership is open to all former officers who are in receipt of an injury pension. We also are very happy to include serving officers who are at any stage of retirement because of ill health through injury.

Injury on duty pensioners and serving officers are turning to IODPA for one reason only – they need support and advice to deal with ongoing attacks on their pension rights.

It is a sad fact that some forces have shifted their money-saving focus in respect of pensions. They now try to deny ill or injured serving officers their pension rights. We hear of officers who are signed off sick, then reduced to half pay, or even no pay. The intention is, we fear, to pressure them into resigning. Which means they do not qualify for an enhanced ordinary pension. We hear of lengthy and essentially pointless processes designed to force ill officers back to work – with ‘reasonable adjustments’ made to working conditions which turn out to be completely unreasonable and in many cases actually further damage the individual’s health.

We can perhaps highlight some of these abuses in future blogs, but for now we want to look back to 2006 and at the appeal case brought by Phillip Tully, a former North Wales Police officer.

This case is important for it illustrates two aspects which remain relevant today.

Firstly, it exposes the lengths some forces go to in the ironic and self-defeating costly pursuit of saving pensions money. Secondly, it reveals the misplaced and utterly inappropriate attitude towards their duties and responsibilities of, in this case, the North Wales police pension scheme managers. Those attitudes remain entrenched in some other forces to this day.

Mr Tully served from 1991 to 2001. He ceased to serve due to physical disability. However, for reasons which the appeal case does not make clear North Wales Police did not offer to assess him for a deferred pension, or Mr Tully did not apply for one.

On 19th March 2005 Mr Tully applied for early payment of pension on grounds of permanent disability. A deferred pension is payable under regulation B5 of the Police Pensions Regulations 1987.

North Wales Police received the letter on the 14th March.

As is so often the situation, North Wales then proceeded very slowly. Mr Tully was required to see two doctors appointed by the force, and some eleven months after his application the pension authority indicated he qualified for a deferred pension.

However, the pension authority decided that it would become payable not from the date of Mr Tully’s retirement in 2001, nor from the date of his application for a deferred pension in 2005, but from the 16th February 2006, when a Dr Entwistle decided Mr Tully was permanently disabled from performing the ordinary duties of a police officer.

We need not go into the detail of the legal arguments advanced by North Wales, as it is sufficient to say the court found no merit in them. Mr Tully won his appeal.

The court decided,

First, we are satisfied that Parliament intended that, generally speaking, pension entitlements under these regulations should be payable from the date of an officer’s retirement unless or until that was limited or excluded by operation of an express provision to that effect elsewhere in the same regulations.

Here is a copy of the court ruling –

 

Mr Tully won his appeal. The Court decided his deferred pension should be paid from the 1st October 2001, the date of his retirement.

The first lesson from this case then is that former officers, and those about to retire due to disabling ill health or injury need to seek professional advice so as to be fully made aware of their pension rights and entitlements. It is never wise to rely on a police force having sufficiently well qualified and knowledgeable staff who will always ‘do the right thing’ and act within the Regulations. Even with the best of intentions, HR and Occupational Health staff make far too many mistakes.

The second lesson concerns the darkness which lays behind some decisions made by pension scheme managers. It seems that North Wales Police thought it appropriate to try to convince the court that Mr Tully’s appeal should be rejected because a successful appeal would bring forth a flood of other former officers who had been paid their pensions from an incorrect start date.

We have at the head of this blog quoted the Court’s response to this distasteful argument.

IODPA’s response is to remind police pension authorities they have a duty to administer the pension regulations in a way which is compatible with the intentions of Parliament. The various pension entitlements were put in place in recognition that police work can be dangerous, and wearing. The  Metropolitan Police introduced the very first pension scheme in 1829.  Benefits were provided on disablement for London officers “worn out by length of service”.

Not much has changed in that respect. Officers earn their pensions and it is not for misguided scheme managers to frustrate the intentions of Parliament by devising endless variations of ways to deny them their pension rights.

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

IODPA Admin caselaw, newsflash, Police Pension Authority, smp
David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

Court holds that Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP for IOD assessment on retirement if the officer “may” have an entitlement to a police injury pension.

In a ruling on 20th July 2018, that may have significance for many other disabled former police officers, HHJ Moore has decided that Chief Constables who require a police officer to retire on the grounds of permanent disablement can be under a legal duty to refer the officer to an SMP to decide whether the officer is entitled to a police injury pension.  The Judge decided the legal duty will arise in a case where the SMP report contains information which indicates that that the officer may have a right to a police injury pension.  This positive duty means that the Chief Constable is required to take the initiative by making an SMP referral in appropriate cases, and cannot just wait until the officer makes a request.

This important principle was decided in the case of former Sergeant Lloyd Kelly who was serving with the South Yorkshire Force.  After a long career of public service, Sgt Kelly was required to retire after developing a permanent medical condition in 2005.  The SMP report showed his condition was clearly duty related, but no referral was made by the Chief Constable to an SMP to make a decision whether he was entitled to an enhanced police injury  pension.  Police pension rights are complex and, as with many officers, Sgt Kelly was unaware that he may have been entitled to an IOD award as well as his standard ill-health pension and so did not request an SMP referral.

In 2016, Sgt Kelly learned that he may be entitled to an injury award and so applied to West Yorkshire Police to have his case considered by an SMP for the first time.  He was assessed by a new SMP and awarded a substantial police injury pension.  But contrary to Regulation 43(1) of the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”), the Chief Constable refused to pay a backdated award from the date of his retirement.  Sgt Kelly, supported by the Police Federation and Slater and Gordon Lawyers, appealed that refusal to the Sheffield Crown Court under Regulation 34 of the 2006 Regulations.

On 20th July 2017, HHJ Moore held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the Chief Constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension.  The Judge held that the scheme of the Regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement.  Hence, he directed the Chief Constable to pay the backdated pay in full and with interest from the date of the award.

However the case has wider significance because the Judge also decided a Chief Constable has a positive duty to refer disabled police officers into the IOD system if they may have a right to a pension, and cannot simply wait until the officer makes a request.  He reached this decision based on:

  1. the duty on the Chief Constable to make a decision as to what pensions were owing to the former officer under Regulation 30(1) of the 2006 Regulations,
  2. the common law duty the Chief Constable owes to police officers,
  3. the requirement to make reasonable adjustments in favour of disabled officers (now under the Equality Act 2010), and
  4. to give effect to the officer’s rights under Article 1 of Protocol 1 of the ECHR.

The Judge also followed the cases of Tully and Schilling in deciding that the police pension system provided for back-dated pensions payable from the date of retirement for officers who were permanently disabled on retirement, even if the pension award decision was taken at a later date.

The Court ordered the Chief Constable to pay all of the former officer’s legal costs.

David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

IODPA Admin caselaw, newsflash
David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

David Lock QC has released a paper following his highly successful win at the high court in a Judicial Review against Cheshire Constabulary in the Manchester Administrative Court on the 14th March 2018.

The original article can be viewed here – https://www.linkedin.com/pulse/implications-police-injury-pension-scheme-decision-r-evans-lock-qc/

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

Breaking News: Judicial Review confirms that final decisions are final

IODPA Admin caselaw, newsflash, pmab
Breaking News: Judicial Review confirms that final decisions are final

Our congratulations to David Lock QC and Ron Thompson of Haven Solicitors who have won another very important Judicial Review against Cheshire Constabulary in the Manchester Administrative Court on the 14th March 2018. It centres around whether an SMP who is considering an injury award can revisit the same questions already answered during the ill-health retirement process. IODPA receives a lot of correspondence over this issue, and the judgement reinforces the rights of injured officers and should provide some certainty to those who have been ill-health retired and are seeking an injury award.

The case involved Mark Evans an officer from Cheshire Constabulary, who in 2007 following a number of on duty incidents was deemed to be disabled by reason of (i) mechanical back pain, and (ii) post-traumatic stress disorder, and that that disablement was likely to be permanent. Evans was not ill-health retired, but retained on non-operational clerical roles.

In 2015, the force reconsidered whether that state of affairs should continue and an assessment by Dr Pilkington, a new SMP concluded that he was permanently disabled on the basis of “significant degenerative changes in his right shoulder“, but that his PTSD “would not be expected to constitute a permanent incapacity“. He was required to retire on the grounds of permanent disablement.

Evans then applied for an injury on duty award, and his case was referred to a third SMP, Dr Walsh. Dr Walsh concluded the claimant had a permanent disability as a result of “significant degenerative changes in his right shoulder joint“, but again rejected the claim of PTSD. Evans was awarded band 1.

Evans appealed the decision to the PMAB, who disagreed that he had any permanent disablement at all, and therefore he did not qualify for an injury award.

The case hinged on whether following the initial determination of Dr Hutton, the PMAB were entitled to reconsider under the Police (Injury Benefit) Regulations 2006, the following questions that had already been decided under the Police Pension Regulations 1987,

(a) whether the person concerned is disabled
(b) whether the disablement is likely to be permanent

Mr Justice LANE quashed the decision of the PMAB stating “police officers who are required to retire on the grounds of permanent disablement are entitled to a degree of finality in respect of their entitlement to pensions. A police officer who has to retire as a result of what is then considered to be permanent disablement caused in the line of duty should not be at the mercy of a subsequent medical assessment, that he or she was not, in fact, permanently disabled“.

You can read the full judgement here – http://www.bailii.org/ew/cases/EWHC/Admin/2018/952.html

Ron Thompson from Haven Solicitors has provided the following press release.

 

 

 

“Round One” to Staffordshire Police

IODPA Admin caselaw, newsflash, regulation 32
“Round One” to Staffordshire Police

Mr Justice KERR recently handed down a judgement in the case of BOSKOVIC v. Chief Constable of Staffordshire Police. The matter was heard in Manchester Administrative Court on the 31st October 2017.

The claimant, now 42, left the employment of Staffordshire Police in 2002 with an ill health pension by reason of permanent disablement consisting of psychiatric injuries. An application was made for an injury on duty award, which was refused by Staffordshire Police following a number of psychiatric reports. The claimant was so unwell that she withdrew her application before it reached PMAB. She left the UK, returning in 2006.

In 2015, after reading an article by IODPA, she submitted an application to Staffordshire Police to have her application reconsidered under Regulation 32(2). In Haworth v. Northumbria Police Authority, regulation 32(2) was described as follows,

 

96. I am persuaded that Mr Lock must be correct in his submission that regulation 32(2) should be construed as a free standing mechanism as part of the system of checks and balances in the regulations to ensure that the pension award, either by way of an initial award or on a review to the former police officer by either the SMP or PMAB, has been determined in accordance with the regulations and that the retired officer is being paid the sum to which he is entitled under the regulations. It must be the overall policy of the scheme that the award of pension reflects such entitlement and I see no reason why regulation 32(2) should be construed simply as a mechanism to correct mistakes which might nonetheless be able to be corrected by some other means.

97. In other words I am persuaded that in the light of the statutory scheme as a whole, there is no reason not to construe regulation 32(2) as in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right, which is this case.

 

Staffordshire Police refused her request on the basis that her claim was “frivolous and vexatious”, and the matter eventually ended up in front of Mr Kerr.

Mr Kerr has refused the application on three grounds.

He had difficulty with the wording of regulation 32(2) which states the following, “The police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him”. He believes that there must be an agreement by the PPA and that there is NO obligation to refer a matter back for reconsideration.

Secondly, he accepted that the length of time that had passed made it unlikely that the claimant would get a fair reconsideration, and that Staffordshire Police were within their rights to consider this when making a decision. This was despite the fact that the original medical reports were still on file, and even if the original psychiatrists were no longer available to reconsider the case, regulation 32(3) allows for another SMP to be appointed.

Lastly, whilst it was acknowledged that any subsequent costs i.e. payment of an injury pension award should the applicant be successful cannot be taken into account, Mr Kerr accepted that costs associated with the application and review process itself could be, particularly with regards to the cost to the public purse. Translated, this means that it is acceptable for Staffordshire Police to spend £50,000 of public money fighting this application in a Judicial Review in order to save the huge cost of £750 instructing an SMP for two hours. Of course there would be additional work for HR employees, whose salaries have to be paid anyway.

Mr Kerr gave leave for an appeal and we await “Round Two”.

The full judgement can be read here http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2018/14.html

SMPs Have No GMC Immunity

iodpa caselaw, selected medical practitioner, smp
SMPs Have No GMC Immunity

…the moment you declare a set of ideas to be immune from criticism, satire, derision, or contempt, freedom of thought becomes impossible.”
[Defend the right to be offended (openDemocracy, 7 February 2005)]”
― Salman Rushdie

Pop quiz:  Have you heard of  General Medical Council v Meadow [2006] EWCA Civ 1390.  It was a judgement handed down by the Court of Appeal on 26 October 2006.

No?  Doesn’t ring a bell?  You are not alone. We’ve read the majority of literature published on selected medical practitioners (SMPs) and the relationship they have with the Police Injury Benefit Regulations but had never come across this case law either.

General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006)

You are here: BAILII Databases England and Wales Court of Appeal (Civil Division) Decisions General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1390.html Cite as: [2006] EWCA Civ 1390, [2007] ICR 701, [2007] QB 462, [2007] 2 WLR 286, [2007] LS Law Medical 1, [2007] 1 FLR 1398, [2006] 3 FCR 447, [2007] 1 All ER 1, 92 BMLR 51, (2006) 92 BMLR 51, [2007] Fam Law 214, [2007] 1 QB 462, [2006] 44 EG 196

We have read, however, that Nicholas Wirz, solicitor for Northumbria police, thinks the GMC code of ethics and GMC guidelines are irrelevant to the function of a SMP.  He essentially has been advising that SMPS can behave badly towards IOD pensioners with no consequences from the GMC.

Remember, Wirz is the chap who is busy advising Staffordshire and Nottinghamshire how Regulation 33 can be stretched as thin as a cheapest, gossamer see-through pair of budget nylon tights. The visible result of this self-appointed quasi-guru’s meddling is that disabled former officers are seeing their injury pensions unlawfully reduced from band four to band one. The not so visible result is traumatised, bullied, frightened disabled former officers, many of whom are vulnerable due to mental health problems, and who feel they have no way of challenging the appalling behaviour of some SMPs.

Wirz says in his training material to SMPs

The GMC believes it has jurisdiction over medical practitioners performing a statutory function under the Regulations. Officers/Pensioners commonly make complaints to the GMC against both SMPs and those other medical practitioners the SMP instructs to assist with and inform the SMP process.Para 5.1 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

And then he continues to assert that this belief is mistaken:

The SMP takes their authority from the statute as interpreted by the courts. Does the GMC have any locus in these circumstances? In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of CoronerPara 5.2 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

So where does this proclamation by Wirz that the GMC has no jurisdiction leave us? In the training material referred to above, Wirz makes no reference at all to General Medical Council v Meadow. Why? We can not believe he is unaware of the case, nor fully cognisant of its implications for SMPs. Asking as we are, in this rhetorical way, it seems the judgement has some of the characteristics that Wirz would like to ignore. So he has done just that – he does not mention it. Wirz’s modus operandi is to present only material which appears to support his peculiar, warped, biased and objective-driven view of the Regulations.

This case concerned Professor Sir Roy Meadow, the infamous paediatrician, and his evidence in the case of Sally Clark, who became the victim of a miscarriage of justice when she was found guilty of the murder of her two elder sons.

The Fitness to Practise Panel (FTPP) of the GMC found serious professional misconduct to be proved, and ordered Professor Meadow’s name to be erased from the register. Professor Meadow appealed both against the finding of serious professional misconduct and the sanction of erasure.

The GMC had sought to protect the public by removing Meadow’s registration. This action was in response to his serious professional misconduct, or impaired fitness to practice, which was evidenced by testimony given by him in a criminal court. The doctor’s appeal was based on a claim that the evidence given by him in court was privileged. Immunity is a common law concept. It is given to witnesses to encourage them to give evidence, and to avoid multiplicity of actions.

Meadow won the appeal on the argument that the purpose of the GMC’s FTP (fitness to practice) proceedings is not there to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those doctors who have shown they are not fit to practise.

In other words the FTPP should look forward not back, and the FTPP got this wrong, so the GMC appeal failed.

The important part of the ruling is that the court did however rule that the GMC did indeed have the jurisdiction it claimed. There is no blanket immunity permissible for doctors to never be referred to the GMC for misconduct or impairment to practice. It depends on the type of misconduct or impairment.

Master of the Rolls Sir Anthony Clarke covered the GMC’s statutory function, powers and duties of the GMC as governed by the Medical Act 1983;

  1. It is I think inconceivable that the draftsman of any of these provisions could have thought that a person against whom there was a case to answer that he was guilty of serious professional misconduct or, now, that his fitness to practise was impaired, would or might be entitled to an immunity of the kind suggested here. Such immunity would, to my mind, be inconsistent or potentially inconsistent with the principle that only those who are fit to practise should be permitted to do so.

So on the matter of granting an immunity which had not, up to 2006 been explicitly recognised, the judge considered that the immunity did not need to be absolute.

There was no reason why the judge before whom an expert gave evidence (or the Court of Appeal where appropriate) should not refer his conduct to the relevant disciplinary body if satisfied that his conduct had fallen so far below what was expected of him as to merit disciplinary action.

Master of the Rolls Sir Anthony Clarke said in his judgement,

However, I should say at once that in this regard I accept the submission made by Mr Henderson on behalf of the GMC. It is that, although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public’s health and safety enshrined in the GMC’s statutory duty to bring FTP proceedings where a registered medical practitioner’s fitness to practise is impaired. A similar point can be made in the case of other professions and occupations, with more or less force depending upon the particular circumstances.

Meadow seemingly won the appeal on a technicality of the failings of the FTPP  – not because the GMC’s FTPP did not have jurisdiction.

All the doctors brainwashed by Nicholas Wirz via his ramblings presented at meetings of the NWEF and at the College of Policing should realise that the equivalent immunity from professional regulatory investigation or proceedings, which Wirz tells those gullible enough to listen to him applies to SMPs, has been held by the Court of Appeal to be contrary to the public interest in the case of expert witnesses.

Nowadays, the GMC has the Medical Practitioners Tribunal Service (MPTS).  Whether or not the GMC case examiners or the investigation committee are satisfied that there is a realistic prospect of establishing that the doctor’s fitness to practise is impaired, and so refers complaints to the MPTS,  is down to the facts of the matter being alleged.  Perhaps the conduct does or doesn’t touch on fitness to practice issues.  Maybe the matter concerns a breach of GMC guidance such as failing to treat the former officer as a patient or to ignore the requirements to disclose medical reports BEFORE disclosure to the force.  Guidance such as this  Confidentiality & Disclosure GMC.

But the take-home here is that Wirz is wrong yet again.  How many vulnerable former officers have not pursued complaints because he has told them the SMP is out of bounds?  Perhaps even Wirz knew about the GMC v Meadows judgement and wanted to bamboozle those about the threshold level required for the GMC to act. Who knows.  We know that there is a world of difference between “no jurisdiction” and  the threshold of fitness to practice to ensure patient safety.

In following this Court of Appeal, there is no exception. The GMC does not aim to resolve individual complaints or punish doctors for past mistakes, but rather to take action where needed in order to protect patients or maintain the public’s confidence in the medical profession.

You do know now, though, that any SMP who claims immunity from GMC ethics or guidelines, or claims that you are not his or her patient needs to read the above Court of Appeal judgement.

If you feel a SMP has harmed your health by his behaviour, or by his failure to put your health first, or by making unreasonable demands causing distress, such as insisting you travel a distance to see him or her, provide medical records from birth, or threaten you with reduction on your injury pension if you do not comply – or any other behaviour or omission which adversely impacts on your health, then complain to the GMC.

You are a ‘patient’ in the eyes of the GMC, and you have the right to be protected from doctors who are unfit to practice.