caselaw

Regulation 32

iodpa caselaw, pmab, reconsideration, regulation 32, Regulation 37, selected medical practitioner
Regulation 32

Everyone in receipt of an Injury on Duty award mostly understands the implications of the discretionary power to review, namely regulation 37.   As described previously on other posts it is frequently an abused power with reviews instigated by the police pension authority, on their whim, so that they can fulfil financial constraint reduction targets.   Rarely does a pensioner with a substantial deterioration in their medical condition request a review themselves – Avon & Somerset has only received 2 self-referred requests for a regulation 37 review in the past 10 years. https://www.whatdotheyknow.com/request/pensions_6

The same story is repeated nationally. Too many IODs are living their lives with degenerative conditions brought on by their qualifying injury received in the execution of their duty without wanting to resurrect the pain of dealing with their former force’s bureaucracy.  So they continue on, living on an award banding lower than what they should be entitled to.  The point I’m clumsily trying to make is that if no IOD recipient thinks of requesting a review, it is not surprising to hear that no one knows that there is a power to ask for a reconsideration.

Regulation 32 became more widely known as a direct result of the the unlawfulness of home office circular 46/2004.  Between 2003 and 2009 hundreds of reviews were used to reduce former police officers to the lowest band due to the fact that they had reached the age of 65.  Despite the hardship this caused only a few had the mental strength to appeal and it wasn’t until the first Judicial review in 2009 that the light was shined on the illegality of what had happened.  By then those affected had missed the strict deadlines to lodge appeals.

The case of Haworth explains this clearly.  This was Northumbria again on their mission to ruin lives, guided in their quest by their legal advisor Mr Wirz.  Susan Haworth was retired on an injury on duty award and medical pension in 1995.  In 2005 she was reviewed and had her injury award reduced.  The decision was taken to the police medical appeals board (hearing in 2006) whereupon the board further reduced the award to the lowest band, a band 1.  Both the SMP in 2005 and the board in 2006 revisited causation and unlawfully attempted to claim that Susan had pre-existing conditions and then applied apportionment.  This was not permissible and was outside the task which they had to undertake under regulation 37.  Susan did not take the fight further (she was unaware she could challenge it at the time) until she realised several years later, after Laws V PMAB in 2009, that the decision made against her was unjust.  So in 2010 she sought advice and submitted a request for the 2006 decision to be reconsidered under regulation 32.

Here is an excerpt of the letter from her solicitor requesting the reconsideration:

‘It is against the background of the decisions of the SMP and the PMAB that Mrs Haworth is seeking a reconsideration under Regulation 32(2) of the Police (Injury Benefit) Regulations 2006. The detailed reasons for seeking this review (sic) are set out below, however in essence the decisions of both the SMP and the PMAB were not made in accordance with the relevant regulations , as it is clear that the SMP…..revisited causation as to the original final decision made at the time of Mrs Haworth’s ill heath retirement in May 1995, and the,PMAB ….then proceeded to apply an apportionment, again to a final decision made in May 1995. Both of these decisions are therefore unlawful, and not made accordance with the Injury Benefit Regulations.”

Typically and acting to type, Northumbria refused the reconsideration.  The refusal was taken to judicial review and Haworth won the right to have a her case heard under regulation 32.

The importance of Haworth is not only that it brought to light that a police pension authority needs a robust reason to refuse a request for a reconsideration – more than Northumbria’s claim of “It is important that final decisions, once taken, remain just that” and that Mr Wirz’s submission to the court that ‘re-opening of old-cases will affect the authorities budget’ is irrelevant to the matter at hand .  But also that there is no time limit to restrict the use of regulation 32:

“I cannot accept that it is lawfully open to a police authority to refuse a retired officer its consent to refer a final decision back to a medical authority for reconsideration under regulation 32(2) simply on the grounds of delay, even inordinate delay, in other words passage of time since the decision was made, without any consideration of the underlying merits of the matters which the former officer seeks to pursue on such a consideration”.

The power to demand a reconsideration is therefore unfettered by time and is always available as a viable option.

So what advantage does a reconsideration (reg32) have over a review (reg37)?   If a review (or the original decision that the review is based upon) is using the wrong diagnosis, if there is undue apportionment, if causation is incorrect, if a previous final decision was contrary to regulations; a further review can not fix the fault.  That fault will remain now and in future reviews for eternity – the comparator always is the last final decision whether or not that final decision was wrong. A review is blind to the legitimacy of the last decision.   So the only way to wipe the slate clean and have future reviews looking at the correct factors is to have the previous decision(s) quashed and regulation 32 provides a mechanism for this to happen.

On the shoulders of Giants – Laws & Turner

iodpa caselaw, Regulation 37, selected medical practitioner
On the shoulders of Giants – Laws & Turner

It is no understatement to say that without Stephen Turner (versus PMAB 2009) and Belinda Laws (versus PMAB 2009 & Appeal Court 2010), police injury on duty pensioners would be in an extremely precarious position with police pension authorities riding roughshod over the regulations without impedance.  There was a wave of successful judicial reviews after them (regarding automatic reduction to band 1 at aged 65) but Turner and & Laws reaffirmed the regulations and arguably gave others the strength to challenge unlawful guidance.  They are truly the 0.001% who stood up and were counted and their efforts are held high in esteem.  The case-law can be found here

But what does Turner and Laws mean?

Turner V PMAB concerned substantial change and apportionment (the level of the index injury causing the degree of disablement when other non-IOD injuries are present).  It can be summarised into these points:

  • Causation can not be revisited at review.
  • A review of the degree of disablement can only occur if there is medical evidence of an alteration to the condition.
  • Apportionment can only be a factor if there was apportionment at the original decision.
  • No other illness can be considered at review other than that on the original certificate of disablement.
  • New skills or functional capacity can be considered if substantial alteration has been evidenced.

Laws reaffirmed Turner and, as it was challenged by the police authority and went to the appeal court, it is now the primary case-law that defines the application of the regulations at review.

  • A review does not allow the SMP or the Board to redetermine the merits of any earlier decision. They are only to decide whether there has been an alteration since the last decision.
  • The earlier decision as to the degree of disablement is a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”.
  • Acquisition of new skills can be a factor that determines how a disability of a duty injury affects the capability of work.  But the effect on earning capacity must be proven and more than speculative.
  •  The clear legislative purpose of the regulations is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.
Laws stipulates that a review is a comparative exercise  this means a comparison of the degree of disablement between the date of the grant or the last review.   The natural corollary of this is that medical records prior to the last decision are unnecessary.
There will be a post soon about what the SMP actually can and can’t do.

NAMF – A coven of vipers.

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NAMF – A coven of vipers.

NAMF:  The National Attendance Management Forum.

A committee of HR managers, finance managers, force medical officers made up from a large number of police authorities throughout England and Wales, that meet up to discuss how they can ‘deal’ with those entitled to and in receipt of Injury on Duty awards.  After the Home Office’s guidance was declared unlawful, the meetings provide a convenient avenue for the Home Office to drip feed advice to the forces, instigate a culture and then set the fuse for the encouraged HR managers to go off and work themselves up into a feeding frenzy.

NAMF is semi-clandestine because IOD pensioners generally remain unaware of it. The Forum does not advertise its existence, whilst not exactly attempting to keep itself secret. References to it do occasionally appear on force documents but it does not routinely publish its agenda or minutes. If you Google the Forum you will see that most references to the NAMF result from Freedom of Information Act requests.

The National Attendance Management Forum meets at premises provided by West Midlands Police at their Tally Ho! training centre. Meetings are held every three months.

The Forum comprises representatives from c. 35 forces from across the service, including Scotland and Northern Ireland. A unique feature is the mix of professional skills and background of representatives, which include Lawyers, Personnel Professionals, Doctors and Occupational Health Practitioners. Colleagues from the Home Office and NPIA also attend.

The mix of disciplines allows the Forum to debate and progress a wide variety of work from across the occupational health, legal and HR fields. The views of IOD pensioners are never sought by the Forum.

The NAMF is infamous for being used by the Home Office in its attempts to circumvent the Regulations. A steadfast regular attendee was none other than John Gilbert – the civil servant author of Annex C to Home Office circular 46/2004.

As to the ‘lawyers’ the list of delegates shows Nicholas Wirz (Northumbria), whose legal advice to his force seems to have been somewhat lacking as he was the instructing solicitor to Johnathan Holl-Allen, QC in the case of Crudace V PMAB,  decided that significant parts of the Home Office guidance were unlawful. Written evidence supplied by Wirz to the Haworth case was equally unconvincing. Wirz was the gentleman who wrote threatening letters to 45 of the 70 disabled former officers whose injury pensions had been reduced in one afternoon on 20th February 2009 by SMP Dr. Broome. The 45 pensioners had given notice of appeal, and Wirz’s letters effectively threatened them with having to pay the £6,200 costs of any appeal and also contained his opinion that any appeal would be hopeless. Northumbria is the force listed in several judicial reviews and pension ombudsman decisions.

Rather worryingly given his track record Wirz now provides guidance to selected medical practitioners who attend NAMF functions: MR+NICHOLAS+WIRZ+PRESENTATION+(1)

The paradox is that despite the guidance that NAMF churns out having no legal basis and no substance that it is in harmony with the regulations, shamefully forces now use it as a badge of honour when conducting a review – basically saying ‘Its OK we’re following NAMF guidance’.  In fact what they should be saying is ‘It’s OK – we’re following the regulations to the letter’.  NAMF guidance is now being used as the Injury on duty equivalent to the Nuremberg defence.

There seems to be little doubt that the NAMF is the source of poor and ill-thought out information which can be readily seized upon by lazy and ignorant HR and OH ‘professionals’ who can’t be bothered to read and understand the Regulations and stated cases for themselves. It is also a platform for a small number of people whose motives are suspect and who seek to manipulate opinion. As a showcase for the talents of the people who are entrusted with the administration of police injury pensions the NAMF is more of an example of a group of people with which to frighten your grandchildren than to inspire them with role models.

Regulation 37

iodpa caselaw, Regulation 37
Regulation 37

The ‘positive duty to review’ and the weapon to ‘protect the public purse’

There’s an introduction to regulation 37 here on the ‘The Regs – and what they mean to you’ page.

It’s quite difficult to explain what is meant by earning capacity and how this is the measure of the degree of disablement.  It’s even harder to convince people that the regs do not directly correlate ‘physical disability’ to its meaning of ‘degree of disablement’.

A problem is that reg37 is silent on the detail on how individual forces shall measure the loss of earning capacity.  It has quite simply stated the banding of slight, minor, major and severe is enough instruction, but just like mankind has a tendency to do, something simple has be turned into something complicated.  The complication is the ‘guidance’ that police forces use in an effort to justify their defiled view of what it is to ‘protect’ the  public purse.

The thing is that to be given an IOD award, a high bar has already been passed.  There are 4 levels of attainment to qualify:

(a)whether the person concerned is disabled;

(b)whether the disablement is likely to be permanent,

(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;

If a former officer has an IOD and ALL of the above wasn’t satisfied (retired off, wink, wink, nudge, nudge…) then that says more about the force that did it than the former officer it was done to.

In reality an injured serving officer lives a  hell once injured.  Treated like a malingerer, put on surveillance, reduced to half pay.  The full weight of bureaucracy is put against them and that injured person has to prove everything – permanence, whether the injury was on duty, whether it was in the execution of their duty and all the rest.  An award may be begrudgingly given.  More than likely a civil claim against the force is ongoing as well as the ‘injury in the execution of their duty’ was down to poor management, being single crewed, having defective equipment. Once gone the retired officer has to justify his or her level of loss of earning capacity when they apply for an award so another fight with the HR department starts.

Now retired, the former officer wants to live their life in peace often with a deep resentment of how they were treated.  But every 2 years a letter pops through their postbox calling them to attend a review of their degree of disablement as the police force claims they have to protect the public purse under regulation 37. The insinuation is that the award is something you have to prove for life.  Not much of an award is it?

It’s no wonder that those retired on the lowest tier, a band 1, who’s condition and earning capacity deteriorates rarely if ever ask for a review.  They haven’t the strength.  It can be said that that are more IOD retirees with a banding lower than is strictly appropriate than a banding higher. But that’s the nature of beast – the SMP gives a subjective figure using his qualified medical judgement. If and when circumstances dictate on review here has been substantial change, in other words an substantial improvement or a substantial deterioration, then a revision is permissible, down a band or up a band respectively.  Retrospective attempts at cost-saving redress by HR and Finance teams because they think in hindsight the original banding wasn’t the right one is unlawful as much as it is it impossible.  The award was given at the Zeitgeist of the original decision and if there is notable substantial alteration it is a SMP alone that performs the revision; not for HR departments to interfere and influence the SMP or to attempt to rewrite history.

Case-law deals with the finality of the banding: Laws Appeal 2010

The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners

Imagine a person with PTSD and severe mental illness.  A constant review program will lead the person to being sectioned under the mental health act.  Military veterans aren’t treated with this level of disrespect so why are retired former police officers?

Why all the hullabaloo about IOD reviews?

iodpa caselaw, Finance, HR, NAMF
Why all the hullabaloo about IOD reviews?

Injury on Duty Awards used to come out of central government funds but that changed in the early ‘noughties and the awards became payable out of the individual force’s budget.  But the Home Office threw a sop to the forces – now obligated to pay for their decisions they made to retire former officers.  Their redress was new Home Office Guidance – Home Office Circular (HOC) 46/2004

The problem is that although the Regulations are unchanged, many Police Authorities ( probably slightly less than half of the authorities in England and Wales) changed their policy following the issue of the guidance in HOC 46/2004 and introduced reviews triggered when the retired officer reaches the ages of 60 and 65. Although this guidance and policies based on it have been declared unlawful and withdrawn, forces are still attempting to find ways to reduce IOD bands in order to make budget savings. Existing injury pensions which may or may not have been subject to review previously were now reviewed under the new guidance which, in some forces was pursued aggressively.

HOC 46/2004 was unlawful and challenged – not directly at first – there was a blow-back and the new aggressive stance by Police Pension Authorities was used on other former officers, of all ages, in receipt of IOD awards.  Turner V PMAB and Laws V PMAB were case-law decided as a direct result of 46/2004 even though neither of the appellants were 65 years old.  This circular corrupted the administration of ALL IOD awards and the whole thing came down to ways the police pension authority can save money.  Lets not forget who had to challenge the unlawful guidance – incapacitated and disabled former police officers.

Turner and Laws were successful on points of law.  After that the guidance itself contained within HOC 46/2004 was challenged both by  judicial review (Crudace, Simpson etc)  and by the pension ombudsman (Ayers, Sharp etc) and the guidance was declared unlawful in 2013 in the consent order Slater V PMAB and officially withdrawn.

But the Rubicon had been crossed and the police pension authorities had tasted blood.  In the days of austerity how better for a high-flying Chief Finance Officer (CFO) to mark their career by making instant savings into their budget. If they can save ££££ then their CV and LinkedIn would be flowered up and then a new role with  an inflated 6 figure salary plus bonus will be within their grasp.  Like a plague of locusts, using the budget reduction as evidence, the CFOs think they can move onto a new force to decimate and corrupt the administration of IOD awards there as well.

Did the Home Office and police pension authorities accept they were wrong?  No.  The guidance was withdrawn and the Home Office and those forces that pursued 46/2004 maliciously had their fingers burnt.  Out of the ashes the National Attendance Management Forum (NAMF) was born.  A coven of HR and finance managers who meetup at Tally Ho! Conference Centre Birmingham. The cynically minded might view this organisation as an attempt to further undermine the regulations with an attempt to keep  keeping the sphere of influence separate so the Home Office doesn’t get the blame.

There will be further posts all about NAMF.