‘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.