caselaw

Introducing Our Live Employment Tribunal Search Feed

Introducing Our Live Employment Tribunal Search Feed

Following  our Employment Appeal Tribunal (EAT) live feed we are pleased to announce another step in our quest to be the authoritative source of all injury awards information.

As of February 2017 recent Employment Tribunal judgements can be accessed via GOV.UK at https://www.gov.uk/employment-tribunal-decisions.  We have created a RSS feed to this database to extract decisions involving police forces that will be updated automatically as decisions are added.

EATs have always been published on the British and Irish Legal Information Institute (BAILII) but anyone wanting to search or browse employment tribunal decisions had to attend in person at offices in Bury St Edmunds for English and Welsh decisions, and in Glasgow for Scottish decisions.  Employment tribunal judgements are first-instance decisions and are not binding on subsequent cases.

However, decisions often provide a detailed account of the facts in a case, which can incentivise parties to settle rather than risk bad publicity. Judgements can also provide helpful examples of how tribunals deal with legal issues and fact situations

You can find the link on the right side bar under Case Law:

Not all decisions will be matters concerning the Equality Act and disability discrimination but you will be able to see patterns from certain police forces as repeated respondents.  We will blog about pertinent cases that overlap into injury awards and ill-health retirement.

Polemic on the Poll Results

Polemic on the Poll Results

“The fact that man knows right from wrong proves his intellectual superiority to the other creatures; but the fact that he can do wrong proves his moral inferiority to any creatures that cannot.”
― Mark TwainWhat Is Man?

We asked the question in a previous post whether a person who is disabled in relation to earning capacity and then succumbs to a persistence vegetative state should have his life further questioned by a police pension authority?

The question was asked without real context.  We deliberately didn’t explain what the Regulations allow and we purposely left some cross-over with the possible answers; we wanted people to answer with what they instinctively thought was right.

This human touch is sorely lacking in those who administer injury awards. All too often HR managers and SMPs entirely neglect to consider the effects of their actions on others. A few of them seem to be be completely devoid of any moral compass.

For example, Staffordshire thinks financial constraints are a legitimate reason to review and a questionnaire is the way to vet whether the expense of sending someone in front of a SMP is worth the £2000+ expense payable to the doctor for his arguably pre-determined work to reduce the person’s award.

The procedures laid down in the Regulations have to be applied with individual assessment in each case at each stage. This is being ignored in certain forces, and we need look no further for examples than at Knowles & Wirz of Northumbria and Andrew Colly & DCC Baker & Staffordshire.

Any action has to be justified; and it is not sufficient to ask oneself whether the underlying procedure is legal. In respect of the review of degree of disablement there is a ‘shall’ in the Regulations which ignorant or ill-intentioned managers interpret as giving them carte blanche to review whoever they wish, whenever they wish, as often as they wish. Their lack of moral compass allows them to forget that the so-called ‘duty to review’ is strictly limited and contains a wide power of discretion.

In our earlier blog we gave the example of a poor man placed in a coma. Interestingly, 89% of respondents to our survey think it best to leave the man alone.  Only 8% think that it is appropriate to review and reduce the man’s injury award.  No person voted to remove the injury award.

We think it is the sadly indoctrinated view of the majority involved with, and in receipt of, an injury award that reviews only exist to reduce people.  As a charity one of our aims is to dispel this myth. We don’t think it right that those with an injury award have to live their lives in the shadows, frightened of attracting the gaze of the PPA and always prepared for the manilla envelope to drop in their doormat announcing a review.

Such statistics as do exist – and it needs to be noted that they had to be obtained by lengthy Freedom Of Information requests from forces – show that over the last five years, when reviews have been held, then 83% result in a decision of no alteration in degree of disablement. Some 6.2% produced an increase in pension payment, whilst 10.29% saw the pensioners concerned reduced in banding.

The fear of reviews has much to do with the intrusiveness and uncertainty of the process itself, together with a well deserved and natural suspicion that in some forces the entire process is unlawfully constructed and is indeed intended to manipulate a reduction in payment.

We in IODPA think there are too many reviews, and too many of them are pointless and should never have been held. We are not against lawful reviews, but we are firmly against mass reviews and would want to see scheme managers realise they must exercise discretion in deciding whether a review is appropriate.

Turning again to our survey, why didn’t anyone vote for the award to be taken away in its entirety? Was it considered to be morally wrong or did all the participants have in mind that there are very particular and extremely rare circumstances where an injury pension can be ceased?  Regulation 43 tells us that ‘. . . a pension or allowance shall be payable for life’ yet we know that some forces have threatened pensioners with suspension or even cessation of their injury pension.

In some instances these threats have been carried through – at least only for so long as it takes our legal representatives to explain to the PPA concerned the error of their ways.

We have witnessed SMPs who concocted entirely unlawful rationale that an individual should never have been granted an injury award in the first place. We have seen HR managers issue wholesale threats to pensioners that there injury pension could be reduced or suspended if they fail to complete a questionnaire. We have gasped in disbelief when a PPA has issued similar threats to pensioners who had the temerity to refuse to allow unrestricted access to their sensitive medical records.

It is no small wonder then that IOD pensioners generally worry so much about the security of their injury pension income.

Of late, there has been a new addition to the inventive fancies of HR managers who would like to have the power to reduce or cease injury pensions in circumstances which are not allowed by the Regulations. Where in the Regulations does it say someone with a duty injury can have their pension reduced to the minimum when another injury overtakes the disablement?  The person is still unable to earn. We’ve made this point before; does the person become 200% disabled?

To find why we are even asking this question you need to look to NWEF’s and Northumbria’s legal advisor, Nicholas Wirz.  In his training guidance to SMPs he tells them this:

e.g. if an individual were to have developed advanced Parkinson’s disease since the last review, such that he was unable to work by reason of the symptoms of that disease alone, then the uninjured earning capacity should be nil

The “disease alone” could be replaced by anything according to Wirz: a persistent vegetative state, cancer, even aggravated natural degeneration.  Where does this stop?  For Wirz, he’d rather force an ill 70 year into spending his twilight years appealing the reprehensible Wirz-influenced medical decision to make him or her a band one.

We will talk about case law in a minute.  But ask yourself why the administration of police injury awards is so riddled with high court judgements.  It is because the PPAs, Wirz and NWEF keep trying to disadvantage retired police officers and serving officers who are in need, hardship or distress who are disabled as a consequence of being injured on duty.

By discussing whether an award should be reduced or removed because someone has become severely unwell on another matter is asking the wrong question.  A question that need not be asked and is only asked because Wirz is influencing the SMPs to enact it.  The truth of it is the person being targeted has been injured and had their career taken away – the righteous man or woman acting as a PPA would let them live their life without further hardship.

But there is case law on this matter.  There are three judicial reviews which we need to look at to see how the Regulations have been interpreted by the courts on this matter.  The trouble is they aren’t clear.

The 2003 case of South Wales v Anton (Crocker) is the first.  This case concerned an original decision for an award that SWP didn’t like.

Paragraphs 53, 54 and 55 are the pertinent ones.Mr Justice Ouseley says:

So the question to be answered under the Regulations is what degree of the loss of earning capacity is the result of the duty injury? This seemingly simple question can give rise to acute problems of causation, even though the question of whether or not there has been a disability which the duty injury has caused, or substantially contributed to, has already been answered. A separate issue of causation arises at the apportionment stage, because the entitlement stage can be passed on the basis of an injury which substantially contributes to, but is not the whole cause of, disablement

The judge is saying that another injury may have some effect on the person’s capacity to earn.  We all agree on this.  An injury award should not compensate for injuries not received on-duty. If there is a mix of on duty injury and other injury, then the amount of disablement caused by the on duty needs to be determined.

However, it becomes more complex where an on duty injury exacerbates or aggravates a pre-existing condition. This is commonly referred to as the straw which broke the camel’s back. An officer may be fit for duty despite the pre-existing condition, and it is only when injured on duty that they become disabled.

Mr Justice Ouseley touches on the duty injury aggravating an non-duty injury:

The position is more complex where the total loss is attributable to the effect of a duty injury on an underlying condition, which may or may not be an injury within the definition in the Regulations, and which by itself may or may not have contributed to a separate loss of earning capacity. An officer might suffer from a condition which would not affect him or his earning capacity until aggravated by a duty injury.

So for example a person with a dodgy cervical spine injury, that is mainly asymptomatic and intermittent and does not affect his capacity to earn and is still a fully operational police officer, receives a duty injury that aggravates it.

In this example Mr Justice Ouseley says apportionment for the aggravation and acceleration is not appropriate

  1. I do not consider that the question of apportionment should be answered by trying to attribute a share of the loss of earning capacity to any underlying condition which, on its own, had not, or did not, cause a loss of earning capacity. The loss should be attributed wholly to the duty injury which, albeit because of that underlying condition, has directly caused the loss of earning capacity.

Let us return to the poor individual in the persistent vegetative state.  We are only  talking about this because Wirz has taken the above judgement and twisted it to mean that if a person becomes further disabled through the trials and tribulations which life throws at a person then then the unfortunate soul should not be compensated for the injuries received on duty – even though the injury on duty still exists

The Ouseley judgement does not speak of this.  Wirz has picked up the baton and lobbed it into a field of nettles.  It is an invented concept of Wirz that he feels he wants to test upon disabled and vulnerable former officers.

The Walther judicial reviews (there were two of them) also touch on the matter of apportionment and acceleration.

In Walther v The Police Medical Appeal Board & Anor [2010]  Mr Justice Irwin declared that:

  1. A short acceleration of the onset of a permanent disability is unlikely to be held to be a “substantial” contribution to that disability. Acceleration to any degree is some contribution, but not likely to be regarded as substantial. The opposite applies, it seems to me. A significant acceleration – taking the extreme case, an acceleration of a decade or more – clearly would be a significant contribution to a permanent disability. Where the dividing line comes must be a matter of fact in each case. In my judgment such an approach is consistent with the language of the Regulation and with common sense.

Just because a non duty injury or condition has been accelerated, without it being substantial, it matters not and in any case common sense reigns.  The trouble we have is that Wirz has no common sense and the moralistic determinations of some SMPs are zero.  With a predetermined desire to reduce, they will go to whatever lengths to justify apportionment.  Understanding the whole picture by demanding (with threats of suspension of an award) full medical records from birth  is their favoured way of introducing apportionment.  In effect this is a alwyer’s trick to carry out the unlawful act of revisiting causation.

The second Walther judicial review Met v The Police Medical Appeal Board [2013] was instigated by the Met in 2013 who attempted to remove the award granted to David Walther by the PMAB tasked to revisit the question after the 2010 judgement won by Mr Walther.

The judge this time, Mr Justice Collins, said this:

Only if there will be no loss of earning capacity resulting from the injury when the officer is medically retired will it be likely to be the case that there was no substantial contribution.

In the end Justice Collin’s agreed with the PMAB and David Walther kept his injury award.

But, rather contradictory, instead of the decade stated in the first case by Mr Justice Irwin, even if a duty injury had caused only an acceleration of symptoms of 18 months to 2 years, if at the time the question was being considered by the SMP, the disablement was the result of the injury, then the officer would be entitled to an award.

But the interesting point is what Justice Collins said about Regulation 37. The basis for Collins J’s view was that he considered regulation 37, which provides for reassessment of injury pensions where there has been substantial alteration in the degree of disablement, enabled there to be a later assessment as to whether an underlying condition had overtaken any disablement resulting from the injury.

Specifically he is referring to David Walther’s problem of degenerative disc changes of the L4/5 and L5/S1 discs and prominent disc bulges at T12/4, L4/5 and L5/S1.  All these were explicitly listed when Mr Walther was retired.  It does not follow then that injuries not listed, or not known about, when the medical retirement was given can be reintroduced by a later review.  This would be contrary to the Laws and Pollard cases.

Of course, the existence of Regulation 37 helps everyone when the duty to review is used correctly. It is a provision which can be sparingly used, with plentiful discretion, to help ensure the correct level of injury pension is paid. It forbids all need for speculation about what might occur in the future. An injury pension is granted at a rate commensurate with what has occurred in the past and what disablement the individual exhibits in the here and now.

It says nothing whatever about the extra-regulatory wage comparison exercises practices by some PPAs which remain the aspect of reviews which create the most persistent and most aggressive forms of abuse of the Regulations.

Another area of particular difficulty arising from the second Walther decision may be the Judge’s interpretation of regulation 37, central to his reasoning overall, that it permits a reduction for David Walther’s injury award once a period of simple acceleration has passed. Collins J did not refer in his judgement to the decision of the Court of Appeal in Metropolitan Police Authority v Laws and the PMAB.  We will never know how a review would affect Mr Walther as the Met do not review unless a person asks to be reviewed.

And here lies the problem.  The two Walther cases do conflict somewhat even though David Walther won both. Nicholas Wirz, without regard to what is right or just or reasonable, is trying to populate the void that now exists by using the contradiction to reduce injury awards.

Even though both Walther cases involved the original decision and applied to someone with co-existing duty and non-duty injuries at the time of the award, Wirz seemingly wants SMPs to apportion everyone and to use Regulation 37 to do it.

IODPA is certain that a further judicial review will clarify the issue for once and for all but we again return to the example of the man in our question of PTSD and a coma after a car accident.

The question on the legality walks in parallel with what is morally right – the spirit of the law is phrase often quoted.  IODPA is a much-needed counter to people like Wirz and part of its role is to shout out quite clearly that legal questions with a moral content are usually easy to answer if the person invoking the questions does so with a just mind.

The law itself is no more than a codified expression of moral standards. It arises and lives as a demonstration of the combined moral core of the people. The law should not be a plaything for the likes of Wirz, Colley and Baker. IODPA has the will and the means to see that they, and others who try to bend the scope and intention of the Regulations into unrecognisable shapes will always be challenged, and will always be made to mend their ways.

More on Case Law: A Brief History …

More on Case Law: A Brief History …

The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated ~ THE NATURE OF THE JUDICIAL PROCESS BY BENJAMIN N. CARDOZO, LL.D. (1921)

Staffordshire police have employed an Andrew Colley, a HR minion formerly of West Mercia, to perform the role of modern-day witchfinder general of this force’s mass review programme without delegated authority nor even a smidgen of scant knowledge of what he is doing.

The original 17th century witchfinder, Matthew Hopkins, actually claimed to hold the office of Witchfinder General, although that title was never bestowed by Parliament. Andrew Colley, however, deserves the dishonoury title of HR reviews minion-in-chief. Hopkins, after spending his short career of just three years hanging the innocent, met his own demise. The exact way of his end remains a mystery. One account, by William Andrews a 19th Century writer on Essex folklore, argues that Hopkins was accused of being a witch himself. Other sources say he passed away peacefully from consumption.

Only time will tell how history will record what happens to Colley – if anyone can be bothered to record his deeds. Chances are that he will play out an Aesop-like moral tale where victimising the vulnerable, abusing the law and usurping the powers of others, leads to some fitting just deserts.

It is amazing how easily some people employed by police forces fall into the trap of ignorance and fail to read about how the law has evolved over the years in respect of police pension maladministration. As evidence of this, you need only listen to the raving lunacy of NWEF (formerly the national attendance management forum).

When considering maladministration of the police injury benefit regulations it would be hard to find examples of other areas of public sector law which have given rise to so many judicial reviews.

We already publish a live link to the British and Irish Legal Information Institute:

Caselaw Only

All Police Injury Award Case Law – live

Now we have gone a step further and provide our readers with a short summary of each judgement.   We always recommend to read the judgement in full, as a summary rarely does it justice.  You can then play “spot the deliberate mistakes” made by SMPs, police pension authorities, HR administrators and of course those by frequent attender in the High Court, Northumbria police’s solicitor Nicholas Wirz.

We’ve made this point before – it always shocks us when we see the frequency Northumbria finds itself in the High Court. But it is even more shocking to see the widespread ignorance displayed by police injury benefit scheme managers, and to note just how far they are prepared to go to try to justify and defend their maladministration.

Enjoy!

Fisher v Northumbria It will not be permissible for Chief Constables to put forward hypothetical comparators, which bear no relation to the individual circumstances by, for example, referring merely to national wage averages. There must be consideration of the available evidence of what the uninjured officer’s earning capacity was in fact likely to be.  The Fisher decision does not obligate an SMP or PMAB to use the officer’s police earnings prior to injury in all cases, it merely stresses that they must form part of the consideration or act as a starting point. If there are good reasons in a particular case for a departure from that level of earnings it is permissible, but it must be objectively justified on the facts of the particular case and on the evidence available. 2017
Sharp v West Yorkshire Mr Sharp was denied an ill health pension despite the evidence that the stresses of work would “cause a recurrence of his depressive disorder”. That decision was quashed by the High Court.  This gives guidance on the nature of work related stress and the entitlement of those with mental illnesses which have intermittent symptoms to an ill health pension. 2016
Sidwell v  Derbyshire This particular case the claimant was suffering from a psychological condition which on the face of it was not permanently disabling.  The definition of permanent disablement and the three distinct elements which need to be proved under Regulation A12. Although the first is a question of fact, the second and third are a mix of both factual and expert evidence. Whilst  expressing some criticism of the PMAB’s specialist member’s ‘demolition’ of the claimant’s expert evidence, the PMAB had acted within its legitimate remit in preferring its specialist member’s opinion, its reliance not being so contrary to the weight of the evidence as to invalidate its conclusion 2015
Scardfield V Hampshire This case was primarily concerned with the availability of treatment that had not been tried when assessing permanent disablement.  The judge found the Board had erred in law in its interpretation of the words “permanently disabled”.  But that that would have come to the same conclusion in denying the award even had they got this right.  The judge stated  that “permanent” in relation to the Regulations does not mean for life; it means until the date of retirement. Scardfield lost the judicial review on as he had barely scratched the surface of the treatments available 2013
Commissioner of Police v PMAB (Walther 2) After Walther 1, Walther was again refused an injury award by a SMP. He appealed to a PMAB which considered that
the concepts of acceleration and aggravation were not helpful and concluded that the injury on duty had substantially contributed to the permanent disablement. The Met challenged the PMAB at judicial view. The Judge agreed with the PMAB that an approach based on aggravation or acceleration and the extent of any acceleration was not appropriate, because the relevant time for assessing causation of disablement was the time the question was referred to the SMP. Thus, even if a duty injury had caused only an acceleration of symptoms of 18 months to 2 years, if at the time the question was being considered by the SMP, the disablement was the result of the injury, then the officer would be entitled to an award
2013
Simpson v Northumbria A further judicial review hearing, before His Honour Justice Supperstone at Leeds High Court in February 2012 held that part of Home Office circular 46/2004, concerning “Review of Injury Pensions once Officers reach 65”, and paragraph 20 of section 5 of the Home Office ‘Guidance on Medical Appeals under the Police Pensions Regulations 1987 and the Police (Injury Benefit) Regulations 2006’ are inconsistent with the Police (Injury Benefits) Regulations 2006 and therefore unlawful. 2012
Crudace v Northumbria Police Authority In Crudace the officer’s degree of disablement had been reduced to 0% on a regulation 37 review on the sole ground that he had reached state pension age and accordinglyhome guidance asserted his uninjured earning capacity would ordinarily be expected to be nil.  The officer had instituted an appeal, but had abandoned it when told by the force solicitor that his case lacked merit and that he was on risk as to costs. Only much later did he request a reconsideration of the decision under reg.32(2).In Crudace the judge if necessary would have quashed the decision not to agree to a reconsideration on the ground that it had been made by an HR manager and there was no evidence that what was then the Police Authority’s power had been delegated to her. The Police Pensions Regulations 2015 permit, without express limitation, delegation of the functions of the PPA, and it is important to ensure that any decision-maker acts with appropriate statutory authority. 2012
Haworth v Northumbria In Haworth it was said that the SMP, and on appeal the PMAB, had fallen into the error noted above of reconsidering causation on a reg.37 review.  In Crudace and Haworth it was held that where a request for reconsideration is made under regulation 32(2) the PPA is under a public law duty to consider the request in the light of the statutory purposes of the provision. Delay, even inordinate delay, since the original decision was made is not in itself a sufficient reason for refusing to consent to a reconsideration without regard to the underlying merits of the challenge.  Reg.32(2) is “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”. In other words a reconsideration under reg.32(2) may take place when the time for an appeal or a judicial review has long passed. 2012
Williams v Merseyside Police Authority Performing his front-line policing role without training, exacerbated by with tutoring a probationer, which had caused his symptoms of insomnia, anxiety and deep depression. Simply to decide that Mr Williams’ illness was not caused by proven lack of training, lack of support, bullying or harassment did not decide the question which the Board had to decide. The PMAB did not consider the totality of the evidence before it. The PMAB went on to conclude that it was not related to proven lack of training, lack of support, bullying or harassment. It did not, however, reach any decision as to what workplace exposures it was related to. Had it done so if may well find that workplace exposures (lack of support, bullying, victimisation) rationally has to be viewed as substantial contributors to the psychiatric illness and therefore can be suffered in the execution of duty. 2011
Commissioner of Police v Laws Reg.37 reviews do not provide a mechanism for the correction of errors in the original decision. The Board should have concentrated on whether there had been any “substantial alteration” in the degree of her disability since that had last been reviewed in 2005.  The Court of Appeal accepted that Ms Laws’ law degree can be taken into account in subsequent reviews of her pension rights, the judge said its impact on her pension was “likely to be modest” as unless it has concrete results in terms of actual job prospects (and the degree is not, of course, a professional qualification) its effect on her earning capacity was largely speculative. 2010
Walther v PMAB & Met (Walther 1) A short acceleration of the onset of a permanent disability is unlikely to be held to be a “substantial” contribution to that disability. Acceleration to any degree is some contribution, but not likely to be regarded as substantial. The opposite applies,. A significant acceleration – taking the extreme case, an acceleration of a decade or more – clearly would be a significant contribution to a permanent disability. Given this significance it was concluded that it was appropriate to consider aggravation, acceleration and the extent of any acceleration in determining entitlement to an award 2010
Doubtfire & Williams v West Mercia Police Authority & Merseyside This case stops the absurdity of a SMP, on deciding the injury award entitlement, saying the duty injury was not permanently disabling – even when this question was answered to the positive for medical retirement. The test concerns the disablement and not the specifics of the diagnosis 2010
Merseyside v Police Medical Appeal Board & Ors (Hudson & McGinty) Two police officers had been granted injury awards on the basis that they had been injured in the execution of their duty. The chief constable denied this and appealed to judicial review. Merseyside lost. McGinty by taking them his dogs exercise on his annual leave he was carrying out the same function as he would have on an ordinary duty day and for the same purposes. What he was doing was an integral part of his functions as a dog handler. He was acting in the execution of his duty.
Hudson suffered suffered numerous drip, drip of a number of nondisciplinary related events over a period of time which led to the depressive illness. An injury caused by having to work without support an officer is entitled to expect can be regarded as an injury received in the execution of duty. That would also be the more so if there was deliberate victimisation of an officer by superiors.
2009
Laws v PMAB [2009 The pensioner’s degree of disablement had been reduced from 85% to 25% on a review. The SMP had undertaken an entirely new assessment of the range of work which the
pensioner was able to perform, and it had been taken into account that she had recently obtained a law degree. There had been no material change in the extent of her symptoms. scope of the review was to determine whether there had been a substantial alteration in the degree of disablement due to the injury on duty since the preceding review, and not to conduct a wholly fresh assessment
2009
Turner v. PMAB (Met) Reaffirmed Pollard. An appeal against a decision by the SMP on a reg.37 review.
That the PMAB had impermissibly reduced the pensioner’s degree of disablement on the ground that only 50% of his hearing loss had been caused by injuries at work. The PMAB was wrong to re open the 2001 causation decision, when they unlawfully concluded that Mr Turner’s injury on duty accounted for only 50% of his overall disability, and not 100% as decided in 2001
2009
Pollard v Police Medical Appeal Board (West Yorkshire)

 

Causation can not be revisited in a Regulation 37 review as the medical authority used (SMP or PMAB) cannot change findings of SMP on review once IOD established. The PMAB in purporting to re-open the issue of the causal
link between the duty injury and the disablement the decision-makers had gone outside their powers under regulation 37, which were to re-consider only the degree of
disablement.
2009
Corkindale v West Yorkshire The judge said he had to decide whether Pc Corkindale was permanently disabled within the meaning of the 1997 Police Pension Regulations and therefore entitled to an “ill-health award” under the pension scheme.
A doctor initially decided against her.When she appealed, the Police Medical Appeal Board ruled she could not be said to be permanently disabled because although she could not carry out ordinary duties with West Yorkshire Police, she was fit for service with another force which did not use CS gas. But Mr Justice Underhill overruled the board’s decision. The judge said CS gas was routinely employed in “the great majority of police forces” and therefore its use “plainly forms part of the ordinary duties of an officer in the police service”.
2006
R (Edwards) v Police Medical Board The injury had not been sustained because of being at work, but because of the impact of the notification of transfer. That was received when he was at a conference which he was required to attend, but he attended as a police officer, not in the execution of duty 2005
Northumbria v Clementson & Doyle Northumbria argued the former officers’ problems did not amount to a permanent disability as doctors had only diagnosed a vulnerability and not a current medical condition. At the High Court, Mr Justice Bennet upheld the challenge and overturned the permanent disability certificates issued to the ex-officers as neither had, at the time, a definitive diagnosis under the required medical definitions (WHO ICD10 codes) 2005
McGinley v Schilling Whether a medical referee determining an appeal under Reg H2 Police Pensions Regulations 1987 decides the appeal at the date of the appeal, taking into account up-to-date evidence, or whether he is confined to reviewing the material that was before the selected medical practitioner that earning capacity and degree of disablement are to be determined at the date of the PMAB hearing. The latter was found. The appeal was a re hearing and not simply a review of the contested decision 2005
Merseyside Police v Gidlow The psychological harm suffered by a police officer as a result of a grievance procedure brought against him was not an injury received in the execution of his duty within the meaning of the Police Pensions 2004
R (on the application of Sussex Police Authority) v Cooling A stress-related psychiatric condition developed while an officer was suspended from duty could not be regarded as an injury received in the execution of duty. While suspended the officer could not be on duty 2004
Clinch v Dorset Police The claimant appealed refusal of his application for a police pension following an injury suffered, he claimed had occurred on police duty. He claimed to have suffered depression since he failed to be promoted. He said that they had wrongfully refused to refer his application for medical assessment. The judge ruled that the disabling psychiatric injury deriving from failure to achieve promotion to other duties does not meet the statutory test 2003
South Wales Police Authority v Morgan A case of a police officer’s depression being caused by (1) overwork  exacerbated by stress and anxiety from an investigation into an (2)  injury suffered by his three year old foster son, and (3) financial difficulties experienced during sickness absence and the resultant reduction in pay. In relation to the second and third of those, it was found could not have been injuries received in the execution of duty. On the other hand, the first – stress and depression caused by overwork – gave rise to different considerations and if it were a substantial cause of disablement the disablement could be an injury received in the execution of duty. 2003
South Wales Police Authority v Medical Referee (Dr David Anton) (Crocker) The courts had found that the task in assessing earning capacity was to determine what the person was capable of doing and thus capable of earning.
It was not a question of whether an employer would actually pay that person to do what he or she was capable of. Also Before apportionment can arise, each factor must separately have caused some degree of loss of earning capacity on its own
2003
Jennings v Humberside Police In Jennings the test was whether the injury sustained had caused or substantially contributed to the disablement. A police officer, whose injuries sustained in a road accident while he was on duty had brought forward the symptoms of a pre-existing condition, was not permanently disabled as a result of those injuries for the purposes of the Police Pensions Regulations, and therefore was not entitled to an injury award 2002
Commissioner of Police v Stunt However elastic the notion of “execution of duty” could be, it did not encompass stress-related illness through exposure to disciplinary proceedings. Accordingly, an award was not payable to an officer disabled through his reaction to disciplinary proceedings. 2001
Stewart v Sussex Police Within the meaning of the Police Pension Regulations 1987, a police officer’s “ordinary duties” included operational duties. 2000
Yates v Merseyside Police Authority Police Pension Authority must refer the questions of the Regulations to a medical authority (SMP) unless the claim is “obviously spurious or vexatious”. 1999
R v Kellam ex parte South Wales Police Authority Officer contending that medical injuries were the result of harassment at work after his wife made a complaint about the chief constable – Whether causal connection between injury and service as police officer. Police officers whose depressive illness developed from the accumulated stresses of work qualified for an award. 1999
Dorset ex parte Vaughn The decision of the Selected Medical Practitioner is final
upon the Police Authority unless there has been fraud by the officer. In the absence of fraud the only remedy to challenge the certificate is through a Judicial Review, only if the Police Authority can establish that the SMP misunderstood the law.
1994

Update: Staffordshire Agreement

Update: Staffordshire Agreement

The Staffordshire branch of NARPO has, quite correctly, asked the Police Federation of England & Wales (PFEW) about the “agreement” that was sent out to those as a consequence of being paper reviewed almost a decade ago.  Remember this “agreement” was signed at the time by the individual, local NARPO, local PFEW and Staffordshire police.

Legal Advice March 2008 Agreement

Legal Advice March 2008 Agreement

There is a stand-out point that seems to be missed here …  The test whether the contract is a stand-alone, legally binding thing of absolute validity is arguably the wrong question to apply.  It matters not whether the contract, on it’s own, is a legal document of authority.  What matters is the context underpinning how the signed paper came into being and the legitimate expectation such a document provides as a consequence of the processes that occurred before it.

If the conclusion is flawed  (the “agreement“), then the process (a review conducted under Regulation 37) that led to that conclusion is compromised.

So the real significance lies in the gap between the very start of process (including the motivation behind why it commenced) to the finality of the Staffordshire 2008 mass review program, the conclusion of such being the “agreement“.

If the context of the “agreement” is flawed then it opens the fact that the paper review that underpins the “agreement” is unsound.

All those mass paper reviews conducted a decade ago by Staffordshire, in an attempt to limit their exposure to the illegality of the 46/2004 Home Office guidance, were finalised without the knowledge contained in the later judgements found in the Pollard, Turner and Laws judicial reviews.

A mechanism to fix such wrongs is a Regulation 32 reconsideration and the legal advice of the PFEW, however it is interpreted, is a gateway that brings to stark realism the judgement of Justice King in Haworth, R (on the application of) v Northumbria Police Authority [2012]  that a reconsideration …

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.

…and that refusal of the police pension authority to allow such right to a mechanism to fix a wrong is:

potentially unlawful interference with a ECHR right

We could have saved the effort of the PFEW by telling those who asked that the “agreement” is not congruent with the “checks and balances” demanded by the Regulations.  Excuse the use of deliberate tautology, but the point is so important that it needs to be repeated with different words: the “agreement” is a dubious result caveated by Staffordshire Police’s 2008 mass review program that was itself, by its very nature, not congruent with “checks and balances” demanded by the Regulations.

Before a person  starts to think they should ever acquiesce to any review there needs to be answers.  Not only shall the review be justified to the individual, a suitable interval needs to have elapsed and individual discretion applied based on that person’s circumstances.  The disabled former officer also needs to fix the damage done by any previous unlawful paper review.

We will be pleased to field any questions you may have about the information contained in this post and the PDF above.  Either comment below, so others can benefit from the conversation, or email us for a private chat admin@iodpa.org

Ms Doubtfire & Mr Williams

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

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

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

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.

 

Natural Justice: The Rule Against Bias

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 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!

 

 

 

 

 

Avenues of Appeal

Avenues of Appeal

“As my sufferings mounted I soon realised that there were two ways in which I could respond to my situation — either to react with bitterness or seek to transform the suffering into a creative force. I decided to follow the latter course.”
Martin Luther King Jr.

If you are unhappy about any regulatory decision made by the Police Pension Authority (PPA) concerning an injury award or ill health retirement you are able to appeal against the decision. (In most forces the PPA is an office vested in the sole personage of the Chief Constable)

The intention of this post is to remind our readers of some of the ways injustice can be resolved.  As with other legal challenges, an appeal needs to be based on some good reason. Therefore, you will need to be able to point to any apparent error of fact or law which the authority has made.

A PPA carries ultimate responsibility, and will be the body named in the appeal, but the actual decision in question may have been made under delegation by a HR person, some other civilian worker or a SMP. A SMP has a regulatory duty to make certain decisions on behalf of the PPA. Decisions made by a Police Medical Appeal Board (PMAB) can also be subject to appeal.

The avenues of appeal available depend on the Regulation the decision was made under and whether you are currently serving or medically retired. Any decision which you receive from the PPA, SMP or a PMAB will be set out in writing and will normally contain the rationale or reason for the decision. A decision notification should also outline the reasons for the decision, and list avenues through which you may appeal the decision, as well as the relevant time limits within which an appeal must be made.

As well as formal avenues of appeal it is worth bearing in mind that complaints can be made about any individual employed by a police force, or against the police force itself. Complaints are justified wherever there is incompetence, injustice or a refusal to act within the rules of the pension schemes. All forces are required to have a formal Internal Disputes Resolution Procedure (IDRP) and will provide you with details of how it is operated.

Complaints about alleged criminal acts can be made to the Independent Police And Crime Commissioner.

Complaints to governing bodies (e.g. the General Medical Council or the Law Society) about the behaviour of the decision maker can also be pursued either unilaterally or combination to an Ombudsman concerning further maladministration.

Here is a brief list of the more usual avenues for appeal.

  • Regulation 32 Reconsideration (Further reference to medical authority – PIBR 2006)
  • Police Medical Appeals Board (Regulation 31 PIBR 2006 –  Appeal to board of medical referees)
  • Crown Court
  • Employment Tribunal & Employment Appeal Tribunal
  • Pension Ombudsman
  • Parliamentary and Health Service Ombudsman
  • Equality and Human Rights Commission
  • Equality Advisory and Support Service
  • Judicial Review
Regulation 32

Of particular note, as being probably the most useful, yet most under-used mechanism for having questionable decisions corrected is contained in regulation 32 of The Police (Injury Benefit) Regulations 2006. This is a very important provision of the Regulations, which every serving and retired officer who seeks or who is in receipt of an injury award should make themselves, their Federation Rep and any legal representative familiar with. Here it is in full:

Further reference to medical authority

32.—(1) A court hearing an appeal under regulation 34 or a tribunal hearing an appeal under regulation 35 may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him, or as the case may be it, for reconsideration in the light of such facts as the court or tribunal may direct, and the medical authority shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report which, subject to any further reconsideration under this paragraph, shall be final.

(2) The police [pension] authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him, or as the case may be it, for reconsideration, and he, or as the case may be it, shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report, which, subject to any further reconsideration under this paragraph or paragraph (1) or an appeal, where the claimant requests that an appeal of which he has given notice (before referral of the decision under this paragraph) be notified to the Secretary of State, under regulation 31, shall be final.

(3) If a court or tribunal decide, or a claimant and the police [pension] authority agree, to refer a decision to the medical authority for reconsideration under this regulation and that medical authority is unable or unwilling to act, the decision may be referred to a duly qualified medical practitioner or board of medical practitioners selected by the court or tribunal or, as the case may be, agreed upon by the claimant and the police authority, and his, or as the case may be its, decision shall have effect as if it were that of the medical authority who gave the decision which is to be reconsidered.’

(4) In this regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a board of medical referees being made, or if, following a notice of appeal to the police [pension] authority, the police [pension] authority have not yet notified the Secretary of State of the appeal, and the board of medical referees, if there has been such an appeal.

The decision maker, which can be either the SMP, or a PMAB, is asked to look again at (reconsider) the decision, in the light of argument and/or information presented by the individual subject to the decision. It provides a simple way of having a mistake corrected.

Mr Justice King in the Haworth judicial review stated that [Regulation 32 is 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.’

Anyone considering using regulation 32 should note well that there is no time limit on when it can be used. It can be activated at any time following a decision – even many years later. We know of instances where historic maladministration has been discovered by pensioners, who can then use regulation 32 to have matters corrected. A typical instance is where an incorrect degree of disablement has been decided.

It is, however, well worth requesting a reconsideration of a decision at the same time as giving notice of appeal to a PMAB. That way, you secure registration of the PMAB appeal within the time limit, which allows the PPA to correct matters swiftly, thus negating the need to go to a PMAB. This has mutual benefits to both the individual and the PPA as stress and cost can be minimised.

One further valuable aspect of this regulation is that if the original decision maker is ‘unable or unwilling’ to make the reconsideration (a SMP might have retired, died, or simply not wish to be proved wrong) then individual is granted an extraordinary power. The individual and the PPA need to agree over selection of the alternate ‘duly qualified medical practitioner’ who will make the reconsideration. That means the individual can object to any doctor proposed by the PPA (on reasonable grounds, such as suspicion of bias or lack of appropriate qualifications). More importantly, though still untested in the Courts, it seems that the individual has the right to propose a duly qualified medical practitioner of his or her own choosing – and that doctor need not be someone who is already acting in the role of SMP for any force.

PMAB

A Police Medical Appeal Board is the method of appeal stipulated in the Regulations as an appeal to board of medical referees when person is dissatisfied with the decision of the selected medical practitioner as set out in a report under Regulation 30(6). A PMAB usually consists of a panel of three (two occupation health doctors and a specialist in the condition being assessed). Notice of intention to appeal to a PMAB needs to be given to a PPA within 28 days of receipt of formal notification of a decision. The appellant then has a further 28 days in which to provide the PPA with the full grounds for the appeal. (There is discretion for these time limits to be extended, within reason.)

A police pension authority does not have the right to appeal to a PMAB and therefore must take a SMPs decision it contests to judicial review.

Crown Court

If a serving officer simultaneously applies for an injury award/ill-health retirement and the police pension authority fails or refuses to refer the decision to a SMP, or a decision of the police authority is that the officers refusal to accept medical treatment is unreasonable, then the refusal or the suggested treatment can be challenged in a Crown Court.

Employment Tribunals

Employment Tribunals are responsible for hearing claims from people who think someone such as an employer or potential employer has treated them unlawfully (unfair dismissal, discrimination, unfair deductions from pay) . Employment Appeal Tribunals are responsible for handling appeals against decisions made by the Employment Tribunal where a legal mistake may have been made in the case.

Post-termination victimisation or discrimination claims are justiciable under the Equality Act 2010 following the recent Court of Appeal Judgments in Jessemy v Rowstock Ltd and Anor [2014] and in Onu v Akwiwu & Anor [2014]

In both decisions Court of Appeal decided that the Equality Act 2010 should be read to cover post-employment victimisation.  This should clear up the uncertainty caused by conflicting Employment Appeal Tribunal decisions on this issue.  In other words, a ‘post-employment‘ medically retired officer has the right to bring a disability, age or gender discrimination claim to an employment tribunal.

Pension Ombudsman

The Pension Ombudsman (PO) has legal powers to settle complaints, maladministration and disputes.  In recent years the PO has played an important part in having maladministration of injury awards corrected. If the PO decides someone responsible for a decision or the wrongful exercise of a power of discretion, or has got the law wrong or has not followed the scheme’s rules or regulations, or not taken the right things into account, they can tell them to go through the process again, but properly.

If financial loss has occurred, the PO can enforce the decision maker to put the disadvantaged individual back into the position they would have been in if everything had been done correctly. The PO can also decide upon redress for non-financial injustice, whether someone has been caused significant inconvenience, disappointment or distress. Although amounts of compensation are usually rather low, they serve to underline the finding of wrongdoing.

Every pension scheme has to have an Internal Dispute Resolution Procedure (IDRP) system built in to enable members of that scheme to complain about matters concerning the administration of their pension (section 50 of the Pensions Act 1995). Injury awards are no exception.

An IDRP can be a one or two part process. One part may settle the matter, but if not on it goes to part two. Be very aware though that the ‘I’ in IDRP does not stand for Independent. In part one a senior person is asked to consider your submission. If there is no resolution, then someone else is appointed to take a look. That person may be another force employee, or, more often will be someone with no close connection to the force who is deemed to have some relevant expertise. We have no data on how many IDRPs produce an acceptable solution at either stage. The process can take several months.  If a solution isn’t found or the IDRP process is ignored, then it can go to thePensions Ombudsman’s office for adjudication.

But if you don’t initiate an IDRP you will find that the Pensions Ombudsman – who is the person who can really do something about maladministration – will not be able to accept your complaint. He likes to see himself as a mediator, a settler of differences, and an arbiter of the law. He wants to see the parties to a dispute make efforts to resolve it before he is asked to get involved.

Quite often the failure of the PPA to correctly deal with the IDRP stages adds to strength of evidence that maladministration has occurred.

Parliamentary and Health Service Ombudsman

The Parliamentary and Health Service Ombudsman provides a service to the public by undertaking independent investigations into complaints that government departments, the National Health Service in England and a range of other public bodies in the UK have not acted properly or fairly, or have provided a poor service.

At this time complaints are raised through a person’s MP.  Soon the service will be open to take complaints directly.

This real case story neatly summarises what this ombudsman can do: Read Mr R’s Story .   What happened to Mr R was an example of disability discrimination and serves a good example of the Ombudsman providing redress for the individual – and also recommending systemic improvements for a wider public benefit.  It is a synonym of how some SMPs treat those disabled people forced in front of them.

An important point regarding his ombudsman is that complaints about the exercise of clinical judgement are within its jurisdiction.

Equality and Human Rights Commission & Equality Advisory and Support Service

The Commission has responsibility for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales.  It took over the responsibilities of three former commissions: the Commission for Racial Equality, the Equal Opportunities Commission (which dealt with gender equality) and the Disability Rights Commission.
The EHRC’s functions do not extend to Northern Ireland, where there is a separate Equality Commission (ECNI) and a Human Rights Commission (NIHRC), both established under the terms of the Belfast Agreement.
The Equality Advisory and Support Service (EASS) is an advice service. It is aimed at individuals who need expert information, advice and support on discrimination and human rights issues and the applicable law, particularly when this is more than other advice agencies and local organisations can provide.

Judicial review

Judicial review is an audit of the legality of decision-making by public bodies.  Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted

  • when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have
  • a decision may be challenged as unreasonable if it “is so unreasonable that no reasonable authority could ever have come to it”
  • failure to observe statutory procedures or natural justice
  • when a public body is, by its own statements or acts, required to respond in a particular way but fails to do so.

A JR is a remedy of last resort.  However, the Court has a wide discretion to hear cases even if there is an alternative appeal mechanism available in line with M and G v IAT 2004. They successfully argued that the statutory appeal was both procedurally and substantively inadequate to safeguard the rights of asylum seekers.

Applications for JR will be refused are those where there are proceedings in another forum already underway or imminent.

 

We hope this brief guide to routes of appeal will serve to inform and encourage all serving, about to be retired and retired officers who believe they have suffered at the hands of the widespread incompetence and ignorance of the Regulations, so frequently displayed by those in authority over their ill health and injury pensions, to stand up and challenge decisions which they believe are wrong.

This is not intended to be a comprehensive guide to how to appeal. In all cases, you should seek professional advice and assistance before initiating any avenue of appeal or challenge. IODPA can, and will, give initial advice and information, and in some areas the Federation will be knowledgeable and helpful. IODPA retains excellent solicitors who can be instructed by individuals, and funding for them can be obtained via the Federation.

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...

Mr R has learning disabilities and a mental health condition. He went overseas on holiday to stay with some family friends. His parents had intended to travel with him but were unable to do so because of his father’s ill health. This was the first time that Mr R had travelled abroad alone.
On his return he was stopped at his local airport by two trainee customs officers because he was carrying a large amount of tobacco. He was then interviewed about his trip abroad, how it had been funded, and the tobacco. Contrary to the UK Border Agency’s own guidance, the customs officers did not check at the start of the interview whether Mr R was fit and well, or whether he had any medical condition they needed to be aware of. Nor did they ask him to read and sign the notes of the interview. If they had done, they would have discovered that Mr R could not read or write. The officers strip searched Mr R - at one point leaving him naked.
One of the reasons given for the strip-search was that Mr R appeared ‘nervous’ and ‘evasive’ when questioned. Although Mr R had referred to his disabilities and one of the officers had written ‘Mental health problems, disability’ in his notebook, the officers simply continued with the interview and the search. No drugs were found. Mr R was eventually allowed to leave, but the tobacco he had been carrying was seized. My investigation found that the UK Border Agency had not had regard to Mr R’s disability rights in the way that it had carried out its functions. As soon as Mr R referred to his disabilities, the customs officers should have stopped the interview and re-arranged it so that an appropriate adult could be present. Instead they had pressed on regardless, they had failed to follow the Agency’s own interviewing protocols, which might have helped them to identify Mr R’s disabilities and deal with him appropriately as a vulnerable adult. An appropriate adult should have been able to explain that Mr R’s difficulties in answering questions were due to his learning disabilities and not evidence of evasive behaviour. Not only was it unlikely that the encounter would have progressed so far as a strip search, but Mr R would have had the support and protection he was entitled to in what for him was a terrifying situation. Not surprisingly, he never wanted to go near an airport again. We upheld the complaint. The UK Border Agency apologised to Mr R and paid him £5,000 compensation for the distress, humiliation and anxiety they had caused him. In an attempt at restorative justice we asked the Agency to explore with Mr R and his mother what they might do to enable Mr R to feel comfortable using his local airport in future. The Agency also agreed to review the disability awareness training provided to their customs officers, with a particular emphasis on identifying non-visible disabilities such as learning disabilities and mental health conditions.