Chief Constable

Surrey And Sussex Police Have A Candidate For File 13

IODPA Admin Chief Constable, GDPR, HR, medical records, Regulation 37, smp
Surrey And Sussex Police Have A Candidate For File 13

“File 13” is a euphemism for the trash can or waste paper basket.

 

Our attention has been drawn to a document entitled “Managing Police Officer and Police Staff Ill Health Retirement Policy (Surrey and Sussex) (542/2019)“, which can be found on the Sussex Police website. It is a joint force policy between Surrey and Sussex Police on the management of ill-health retirement, injury awards and subsequent reviews. This policy document is annotated on the bottom as belonging to the “People Services Department (Occupational Health)” of Surrey and Sussex Police.

You can find a copy at the following link:

https://www.sussex.police.uk/SysSiteAssets/foi-media/sussex/policies/managing-police-officer-and-police-staff-ill-health-retirement-policy-surrey-and-sussex-5422019.pdf

Or you can read a copy, duplicated below.

 

There are so many things wrong with this document that it’s difficult to know where to start.

It is probably fair to say that the overall feel of this official multi-force policy is one of dislike or even contempt of injured officers, as is evident from its frequent references to any non-defined ‘failure to co-operate’ being met with punitive measures.

We’ve selected, replicated and highlighted some of the worst sections of this policy document with our comments under each section. However, we will begin with the one section which is uncontentious.

 

3.1 This is a sensitive issue with personal and financial implications for the individual and the force. It must be
administered with sensitivity, understanding and confidentiality

The policy starts off well and we agree with their sentiments whole heartedly. Sensitivity, understanding and confidentiality are all words we use when describing how forces should be treating their injured officers, but it all goes downhill after here.

 

3.10 An individual will remain on their current pay status (full/half or nil pay) once they have made their application for IHR, unless they fail to co-operate with the process. Once authority is given for the individual to be ill health retired, they will revert to full pay.

Note: Chief constables have the lawful discretion to reduce the pay of officers who are ill or injured and thus not able to perform the full ordinary duties of a constable.

There are two things wrong with this statement, the first is that the policy states that if officers have already had their pay reduced, they will remain on their current level of pay until they have completed the ill-health retirement process and it is confirmed that they are likely to be retired; secondly, there is clear intent within this statement that if the officer fails to co-operate with the process, they will be further reduced.

The circumstances under which an officer’s pay may be reduced derives from section 28 of the Police Regulations 2003, which allows the chief constable discretionary powers to retain or reduce an officers pay during periods of sickness.

Police Negotiating Board (‘PNB’) Circular 05/01 provides specific guidance to chief constables to grant discretionary sick pay to officers who have been on sick leave for more than six months.

Section 7 of this guidance reads –

7. Whilst each case must be considered individually, the PNB considers it would generally be appropriate for chief officers to exercise the discretion favourably where:

  • The chief officer is satisfied that the officer’s incapacity is directly attributable to an injury or illness that was sustained or contracted in the execution of his/her duty or
  • The officer is suffering from an illness which may prove to be terminal; or
  • The case is being considered in accordance with the PNB Joint Guidance on Improving the Management of Ill Health and the police authority has referred the issue of whether the officer is permanently disabled to a selected medical practitioner
  • The Force Medical Adviser advises that the absence is related to a disability as defined by the DDA* (*”A physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day-to-day activities.”) and the chief officer considers that it would be a “reasonable adjustment” to extend sick pay, generally speaking to allow (further) reasonable adjustments to be made to enable the officer to return to work.

Whilst there is no explicit statutory obligation on the part of chief officers to have regard to this guidance, in the case of Weed, R (On the Application Of) v Commissioner of Police of the Metropolis [2020], it was accepted that it would have been unlawful to ignore the guidance.

It is clear, under point three (above), that once an officer has been referred for consideration of ill-health retirement, the chief constable should seriously consider reinstating the officer to full pay.

What has to be realised here is that officers can become ill through no fault of their own with physical or mental injuries, or sometimes a combination of both. It is not uncommon with mental health injuries for the officer to suffer from severe PTSD. This can seriously impair their cognitive function and ability to comply with requests or process information. Despite this, it is clear in the policy that there is no compassion or support regardless of the officer’s injury, but instead there is a clear statement that that non-compliance will trigger a further reduction.

Our point is that non-compliance may not be deliberate, negligent or willful, but may well be caused by the effects of the injury or illness. The policy makes no recognition of this possibility

The PNB guidance goes on to say there should be monthly reviews of the officer’s situation. This policy document ignores the guidance as there is no mention of monthly reviews.

 

5.2
…
Where such claims are substantiated at a later date and the application has been made within a year of the date, of the last day of service, for the officer, payment of the injury award will be backdated to the day after, the last day of Service.

This section unmistakably implies that if an application for an injury pension is not made within a year of the retirement date of the pensioner, the force will not backdate payment to the applicant. We’d be interested to hear from Surrey or Sussex where in the regulations or current case law this approach is permitted?

Regulation 43 of The Police (Injury Benefit) Regulations 2006 (‘PIBR’), states that the pension of a member of a police force under these Regulations shall be payable in respect of each year as from the date of his retirement.

It is widely accepted (by most forces) that an injury pension is payable from the date of retirement, unless the date of injury cannot be established, in which case, it would be the date of claim.

If Surrey and Sussex police need further persuading, we suggest that they look at the cases of Tully and North Wales police and Kelly and Chief Constable Of South Yorkshire Police.

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

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

 

5.3
…
This is to be illustrated as the percentage by which the individual’s police salary would fall, in order to reach the level of salary likely to be commanded in another occupation despite the injury. The SMP in such cases may be the FMA.

The suggestion that the Force Medical Adviser (‘FMA’) may act in such cases is not good practice, and we don’t know why it has ever been suggested. The whole purpose of the Selected Medical Practitioner (‘SMP’) is that they are supposed to be non-partisan and independent.

Published on the 4 May 2007, a Home Office (‘HO’) paper entitled “GUIDANCE ON MEDICAL APPEALS” states the following,

5. Where the police authority decides to refer the case to the SMP it should normally be via the force medical adviser (FMA). The purpose of the FMA’s advice is to inform not determine the assessment by the SMP on whether the officer is permanently disabled.

Yet again, it seems as though the author of this paper is blissfully unaware of any of the HO or PNB guidance.

Note: Police Pension Authorities would be negligent if they failed to consider guidance, but guidance is not law and need not be followed. Surrey and Sussex’s policy makes no reference to any guidance, so we are left in the dark as to whether it was considered or not. We add that certain Home Office guidance has in the recent past been determined to be flawed, to the point of being unlawful. PPA’s need to be cautious of blindly following guidance to the same degree that they need to be sure to consider it. The various Regulations are the law which PPA’s must abide by, and this policy document is deficient in that respect.

Surrey and Sussex’s policy casually departs from statutory limitations. Bells and whistles are added with no apparent rationale, and devoid of legal underpinning.

 

6.1 When an officer disagrees with the decision of the PPA not to accept a claim for ill health retirement or injury award and to refer questions to an SMP, the officer may appeal the decision to the Crown Court (PPR and PIBR refers). In such cases the police officer will be asked to complete an appropriate medical records consent form and such records will be sought from the officers GP.

Whilst it is correct that if the Police Pension Authority (‘PPA’) refuse to admit a claim for an injury award, the officer may refer the matter to the Crown Court for arbitration, there is no provision under the PIBR for forces to be able to demand medical records as a consequence. We have to question why the force would only be requesting the necessary medical records at this stage? Surely they would have needed them in order to have made a balanced decision to refuse the application to start with?

 

6.2 Where the officer is considered permanently disabled, the SMP will complete a report, relevant to the questions raised by the PPA in accordance with the relevant PPR that affect that officer and the officer will be formally notified of the decision in writing, by the PPA.

Medical reports completed by the SMP should be released to the officer first, who should be able correct any factual errors before it is released to the PPA.

 

7.3 Where an injury award is payable, the PPA shall consider whether the degree of disablement has substantially altered in accordance with the advice of the SMP who determined the injury award and if it has, the award will be revised accordingly in accordance with PIBR.

In determining the degree of disablement in this process, the PPA shall refer the matter to an SMP (the FMA may act in this role), who will be required to deal with it in accord with PIBR and will issue a report accordingly.

Let’s compare what has been written in the policy with the actual PIBR. The policy states “the PPA shall consider whether the degree of disablement has substantially altered“, whereas regulation 37(1) actually says “the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered“.

A small, but important omission, as the PPA is not entitled to conduct a reassessment of an injury pension unless there has been a suitable interval. A suitable interval is not defined, but in “The Queen on the Application of Turner v The Police Medical Appeal Board” it was said “suitable intervals suggests that this is not a matter which should be revisited every year, nor is it.”

This means that it is not open for the force to simply review at will without due consideration as to whether a suitable interval has passed. The policy thus puts the cart before the horse. It intimates that a SMP will exercise a remarkable ability to predict the future by recommending to the PPA when a disabled officer’s degree of disablement might alter substantially. The plain fact is that nobody, not even a doctor, can tell what the future holds.

The policy places a fetter on the discretion required of PPAs as to whether or when to consider the matter of substantial alteration in degree of disablement. It commits the PPA to a future action, based on nothing more than the opinion of a SMP.

This latter section, again suggests that it is appropriate for the FMA to act in the role of the SMP, when it is not. See the answer we gave to 5.3

 

7.5 The final part of the review process will involve an assessment by the SMP who will initially address the apparent disablement of the individual being reviewed, if necessary during private consultation and examination.

Reading this one line caused us outrage. The use of the word ‘apparent’ is highly offensive and clearly speaks volumes of how these two forces value and think of their injured and disabled pensioners. One dictionary definition of ‘apparent’ is ‘seeming true but not necessarily so’. So their obvious suggestion here is that pensioners are ‘pulling a fast one’ and there are no real injuries or illnesses.

Let us also point out that this approach is also unlawful. Once an SMP makes a determination in relation to a pensioners level of disability, that position is a given, and any subsequent reviews are a comparison exercise between that stated position and today. No ifs, or buts, you cannot question or revisit previous decisions or conduct a fresh assessment.

 

7.7 An individual subject to a review and living abroad, may be directed to see an SMP within reasonable travelling distance of their homes, after consultation by the OHWD with British Authorities overseas (e.g. Embassies, Consuls, Armed Forces). Alternatively, the individual may be advised to attend a meeting with the SMP within the UK. Failure on the part of the individual to co-operate may be addressed in accordance with the PIBR.

Firstly, this section suggests that the force has the right to ‘direct’ the pensioner to do things, which is not the case. They are no longer serving officers taking orders. More importantly, it suggests that pensioners who may be living abroad can be made to return to the UK for a medical consultation. We’d be interested to see where in the PIBR it allows forces to order pensioners to return for the purposes of a medical examination? Yet again, there is the threat of consequences if they fail to co-operate, so what are those consequences?

 

8.1
…
If the individual wilfully or negligently fails to submit to a medical examination, or to attend such interviews as the SMP may consider necessary in order to reach a decision, the PPA may make their determination on such evidence and medical advice, as in their discretion, they think necessary.

We have already mentioned in section 7.3 how the omission of a word from the regulations can change their original meaning. With that in mind, lets look at what has been written in the policy “the individual wilfully or negligently fails to submit to a medical examination“. That’s not what the PIBR say. What it actually says in regulation 33 is the the following “the person concerned wilfully or negligently fails to submit himself to such medical examination“.

Have you spotted the difference? The word “himself” is missing. So what is the significance of this? The word “himself” implies “the person” i.e. the pensioner should attend in person where they may be questioned or examined about their current level of disability. The statement “failing to submit to a medical examination” is far broader than just the person. It implies and could be argued that the medical examination also includes the authority to demand and examine medical records or other medical information about the pensioner which is not a requirement of the regulations.

SMPs can request, but not demand, access to medical records. They can ask a pensioner any relevant questions they think necessary to their task. However, we see nothing in the Regulations that allows anyone, SMP or other, to require or demand access. Nor do we see any legal authority in any other legislation which allows access without express informed permission from the data subject.

 

8.2 To assist with this determination, individuals who fail to co-operate, or only co-operate conditionally, will be provided with an appointment to see the SMP at their clinic, or other location specified by the PPA.

This section is absolutely nonsensical. It’s suggesting that pensioners whose injury pensions are being reviewed that are not co-operating will be referred to an an SMP in order to assist the PPA make a determination under regulation 33.

However regulation 30(2)(d) is clear, that if the PPA is considering revising an injury pension, the PPA has an obligation to refer the matter to the SMP,

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—
…
…
…
(d) the degree of the person’s disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

This means that the PPA should have already referred the pensioner to the SMP for the purposes of regulation 37(1), that being the case, why would they then refer the pensioner in order to determine regulation 33? If our understanding of this section is right, and they wish to refer the pensioner to the SMP purely for the purposes of regulation 33, then we’re happy to inform them that there is no such authority.

 

8.3 If they attend but have not completed a medical review questionnaire as supplied by OHWD, they will be provided with one by the SMP and asked to complete it forthwith. Once completed the SMP will conduct the consultation and examination but will delay any decision until the information on the questionnaire is examined by the OHWD and the appropriate report completed.

What!??? They will be “asked to complete it forthwith“. Once and only once they complete it will the SMP conduct the examination. Let’s make it unequivocally clear to the chief constables of Surrey and Sussex, there in no requirement under the PIBR to complete any medical questionnaire. Furthermore, the disclosure any of such medial questionnaire to the Occupational Health and Welfare Dept (‘OHWD’) as suggested is a series breach of ‘special category’ personal data under the General Data Protection Regulations (‘GDPR’) and will make the force liable as the data controller for this serious breach.

Let’s make it perfectly clear to Surrey and Sussex Police,  a 37(1) reassessment of an injury pension is a medical decision, and as such can only be made by a medical practitioner. It is our view, that medical data should ONLY be requested and viewed by the SMP. There is no authority or provision in the regulations for OHWD staff to paw over the personal, sensitive and private medical notes provided by a pensioner. Is this clear enough?

 

8.4 Should the individual fail to attend any meeting with the SMP, or fail to co-operate at all, the injury award percentage will be reduced to 0%, unless there are clear and unequivocal reasons for not doing so. Any subsequent appeal will be defended, or the case may be reassessed if the individual is then able to co-operate

Wow! Let’s say that again, WOW! What regulation allows the PPA to reduce the injury award to 0% if the pensioner fails to attend an SMP meeting or if they fail to co-operate at all? This is fantasy land stuff and is UNLAWFUL. Again, we believe that this is clear indication as to the contempt in which they hold those in receipt of any injury award. They should bow their heads in shame!

 

9.1 An individual will remain on their current pay status (full/half or nil pay), once the PPA have granted permission for the IHR application to proceed, unless the individual fails to co-operate with the process. Once authority is given for the individual to be medically retired, they will revert to full pay from the date the PPA authorised the ill health retirement.

In closing, we would draw your attention to the comments we made in relation to 3.10 (ante).

Clearly someone has taken a lot of time and effort in producing this dreadful document, and we can only assume that the Chief Constables of Surrey and Sussex have viewed and authorised this policy.

Chief Constable of Surrey – Gavin Stephens Chief Constable of Sussex – Giles York

We started this blog by saying that “File 13” is a euphemism for the trash can, and we’ve found a prime candidate for the use of such a receptacle.

We’d love to hear the hear the conversation between one of the chief constables and the author of this policy document when they’re summonsed to his office.

Chief Constable: “So how long did it take you prepare this policy?”

Author: “About a week.”

Chief Constable: “Well, that’s how long you’re not going to be paid for!”

Author: “Oh, okay. What do you want me to do with the policy?”

Chief Constable: “Put it in file 13, on the way out!”

The Devil Finds Work For Idle (Staffordshire) Hands

IODPA Admin Chief Constable
The Devil Finds Work For Idle (Staffordshire) Hands

The devil finds work for idle hands

— Henry David Thoreou

We have it on good authority that our website is widely read not only by injured officers or those seeking further information about the ill-health or injury award process, but by SMP’s, force solicitors, HR managers and maybe even Chief Constables.

A number of months ago we introduced ‘Like’ and ‘Dislike’ (or thumbs up/down) buttons for the user submitted comments on our blogs. As an organisation that believes everyone is entitled to their own view, we are happy to have ‘Dislikes’ as well as ‘Likes’. We have in the past also published negative opinions about our blogs.

However, it wasn’t long before we noticed that a person or persons unknown went on a frenzied clicking spree, ‘Disliking’ all publicly published comments on our blogs. The ‘Dislikes’ far outweighed the ‘Likes’ for any particular comment, and disproportionately so.

On 18th March 2020, we released a factual news item concerning Gareth Morgan, the Chief Constable of Staffordshire Police where we highlighted a recent BBC documentary where is was said that he had wept – https://iodpa.org/2020/03/18/chief-constable-gareth-morgan-weeps/. The item gave no personal opinions and linked to both the program and a number of online news articles. This resulted in some public comments being posted.

The day after the news item appeared, the phantom clicker was back, putting twenty three ‘Dislikes’within tweleve minutes on just about every one of the user comments! Only this time, we captured the Internet Protocol (‘IP’) address of the user making the clicks.

For the non technically minded, whenever one computer talks to another using something called Transmission Control Protocol/Internet Protocol (‘TCP/IP’), certain additional information is always passed in the transaction. This includes a numerical identifier separated by dots, which is a unique reference to the computer or network at the time.  It is something that always happens in the background, that most people are probably not even aware of.

Here is a list of the ‘Dislikes’ that were recorded –

You will see that the IP address captured was – 213.104.210.101

A reverse Domain Name Server (‘DNS’) lookup using one of the many publicly available tools gave us details of who that particular IP address was assigned to.

You will see that a static block of IP addresses 213.104.210.96 – 213.104.210.127 has been permanently assigned to none other than…

Staffordshire Police

Yes, that’s right, someone viewing our site from within Staffordshire Police is frantically clicking the ‘Dislike’ button on every public comment published.

The following day there was another tranche of ‘Dislikes’. This time, twenty one ‘Dislikes’ in a period of two minutes. The IP address this time was 213.81.65.226. Wait for it… yes, it is another IP address in a range (213.8.65.224 – 213.81.65.231) allocated to none other than Staffordshire Police.

This obviously begs, the question, who is it? Is it a member of HR such as Andrew Coley, who has been driving the injury reviews? Is it a member of his team, or maybe it is a member of senior management? Of course it could be Gareth Morgan himself?

We have supplied sufficient information for Staffordshire Police IT department to check their own server logs and identify who this person is, and would be very happy to hear from the person directly? As we have previously said, we are more than happy to place alternative views on our website; it is always interesting to hear the argument from another viewpoint.

You may, of course (as always), leave a comment on this blog, but just bear in mind that you may, at some stage, get a ‘Dislike’ for it, but don’t take it too personally as it appears to be the work of one person, and judging by the emails we receive from serving and retired officers from Staffordshire Police, we know that their view doesn’t represent the rank and file from within the force.

Chief Constable Gareth Morgan Weeps

IODPA Admin Chief Constable, newsflash
Chief Constable Gareth Morgan Weeps

Gareth Morgan commented on the decisions he’s made:  “I’m fairly unapologetic about it”

Chief Constable Gareth Morgan, has taken part in a new BBC documentary, “Cops like us”, following police officers in Staffordshire. He was reduced to tears when talking about some of the decisions that he’s had to make, but concluded by saying “So, it may well be surprising. I’m fairly unapologetic about it.”

The program shows the scale of challenges that the officers face on a daily basis and are a constant reminder that some officers can become seriously injured through no fault of their own.

PC Keri Inskip said, “While violence has always been prevalent in the areas I’ve worked in and I’ve always been in city centre policing where there has been high levels of violence, it’s more dangerous now than I’ve ever known.”

Last year Gareth Morgan reduced the pensions of seventeen former officers injured on duty. A judicial review is expected later this year over that decision.

Cops Like Us aired at 9pm on BBC Two and is available on BBC iPlayer.

https://www.stokesentinel.co.uk/news/stoke-on-trent-news/bbc-cops-like-us-staffordshire-3960394

https://inews.co.uk/culture/cops-like-us-police-stoke-austerity-cuts-2461984

Mental Health Awareness Week 2019

IODPA Admin Chief Constable, Police Pension Authority, Review
Mental Health Awareness Week 2019

 

Hosted by the Mental Health Foundation, Mental Health Awareness Week 2019 takes place from Monday 13 to Sunday 19 May 2019.

We often associate the word ‘bedlam’ with raving madness and chaos, whilst forgetting that it derives from the name of a hospital, Bethlem, which was established in 1247 in London.

Now called the Bethlem Royal Hospital, it is a well-regarded psychiatric hospital providing a wide range of clinical services for people with mental health and / or substance misuse problems. Its history is, however, very colourful and is perhaps a microcosm of how mental illness has been viewed, and treated, over the centuries.

As far back as the middle of the sixteenth century, friends and relatives were allowed to visit the ‘inmates’, not least to bring food and other essentials for their survival. Public and casual visitors with no connection to the inmates were also routinely allowed in. It would be easy to think that there was entertainment to be had in viewing the extraordinary behaviours of the mentally ill, but the original rationale behind allowing the public access was rooted in financial considerations.

The governors of the hospital aimed to encourage ‘people of note and quallitie’ to visit and be moved by moral benevolence to make generous donations to aid the running of the hospital. They succeeded in this aim, but it soon became obvious that visitors came mostly for the entertainment value. What drew the visitors was, “the frisson of the freakshow” where Bethlem was “a rare Diversion” to cheer and amuse. It became one of a series of destinations on the London tourist trail which included such sights as the Tower, the Zoo, Bartholemew Fair, London Bridge and Whitehall.

Attitudes to mental illness have shifted somewhat since those dark days, and in generally the right direction. But within the police service it seems there may still be a mountain to climb.

A recent study of almost 17,000 police across the UK found that 95% of officers had been exposed to traumatic events, almost all of which were work-related. Civilian staff too were affected, with  67% of operational police staff reporting they had experienced trauma.

The study showed that 20% of the respondents reported symptoms which were typically experienced by sufferers of PTSD or complex PTSD.

Disturbingly, some 66% of respondents were unaware they might be suffering from PTSD or other anxiety related illness.

The study appears to indicate a widespread lack of awareness by senior managers of the presence of mental health problems among officers and staff.

Gill Scott-Moore, chief executive of Police Care UK, the charity which funded the research, has said,

The service has real challenges around recognising and responding to the signs and symptoms of trauma exposure and is heavily reliant upon generic NHS provision that isn’t equipped for the specialist treatment needed.

 

 

View the study here

 

 

Meanwhile, in April a national police wellbeing service was launched. Branded as ‘Oscar Kilo’ (OK) it is funded by a £7.5 million investment from the Government through the Department of Health. Chief Constable Andy Rhodes of Lancashire Constabulary heads up the new initiative. He announces on the Oscar Kilo web site that it

. . . was created and designed to host the Blue Light Wellbeing Framework and bring together those who are responsible for wellbeing. It is a place to share learning and best practice from across emergency and blue light services so organisations can invest the very best into the wellbeing of their staff.

 

 

Find the Blue Light Wellbeing Framework here

 

 

Elsewhere, between 2015 and 2019 MIND, the mental health charity, had thousands of volunteers across the emergency services actively challenging stigma, and learning more about mental health. The charity says they made positive changes for themselves and colleagues and the charity learned how organisations can improve mental health support, tackle stigma and increase workplace wellbeing.

 

 

Back in January 2017, Police Oracle, the online publication which covers policing matters, launched its ‘Blueprint  Campaign’. Under that banner Police Oracle says it,

. . . accuses the government of failing to meet its obligation of protecting our officers both in the job and particularly, when they have been forced out of the service because of physical injuries or mental trauma.

 

Read the announcement here

 

 

It’s of some significance to note that only the Police Oracle initiative makes any mention of the thousands of former officers who were ‘forced out of the job’ as a result of disabling injury whilst on duty. Once out, their forces have generally done nothing to assist them in overcoming their disabilities. In some forces, quite the opposite. Some forces have instead chosen to hound and harass disabled former officers by a misplaced enthusiasm for conducting ‘reviews’ of their degree of disablement – an enthusiasm driven entirely by a callous desire and foolhardy expectation of easing the pressure on force budgets.

IODPA’s constantly growing membership includes serving officers who are on the cusp of retirement due to injury on duty. Their accounts reveal just how inadequate are the levels of training and awareness of mental health among line managers and more senior officers, as well as civilian staff. The accounts of pensioners are also extremely harrowing, and lay bare the true state of affairs, which is that in some forces no regard or concern is shown for the impact on them of reviews and of the financial uncertainty and anxiety engendered by the prospect of repeated reviews continuing over their lifetimes.

All of IODPA’s members have suffered, and continue to suffer, with a diversity of injuries incurred in the course of performing their ordinary duties. Many of those injuries are of the mind. Notably, depression and PTSD feature highly on the list, but the entire spectrum of anxiety disorders are represented.

In some cases, mental injury is the sole recorded ‘duty injury’ but members who have only physical injuries recorded as ‘duty injury’ also experience resulting mental damage. Hence, it is unusual to find anyone who has been retired with an injury pension who has not suffered some form of mental illness, at some level.

IODPA is pleased to see a greater emphasis on safeguarding the mental health of officers and staff, but is disappointed to see no official government-led initiatives to improve the situation of former officers with psychiatric damage who are retired on an injury pension.

We suggest this shortcoming urgently needs to be addressed. There is a need to start at the top, with the senior managers of forces. Chief Constables have the office of Police Pension Authority (‘PPA’) and are responsible for making all the decisions concerning the injury award scheme. Some of them, thankfully currently only a handful, are actively harming disabled former officers through abuses of the injury pension regulations.

We could fill many pages here with examples of truly appalling behaviour by individuals who clearly have absolutely no comprehension of the need to apply  care and compassion to any dealings with disabled former officers with psychiatric damage. We know, from a study of force management of ill health retirements, injury on duty awards and police medical appeal boards overseen by Chief Constable Morgan and sponsored by  the College of Policing, that,

Many forces are struggling due to the lack of expertise within their organisations.’ and, ‘The structure of some force HR facilities do not support the management of the process… and …issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.

 

What concerns our members is that whilst the inadequacies highlighted by Mr Morgan can be addressed, unless positive and impactful action is taken to significantly change attitudes towards mental illness and injury, then disabled former officers, and officers about to retire due to mental illness or injury, will continue to suffer at the hands of the likes of Mr Morgan. For it is Mr Morgan, in our opinion, who is spectacularly failing in his duty of care for his disabled former officers.

Mr Morgan is not alone in his unawareness, but it is Mr Morgan who has given us the most glaring example of how bad things can be when senior managers fail to understand how to engage with people who are suffering mental health damage. We have reported elsewhere, in earlier blogs, on the situation in Staffordshire, where Mr Morgan is Chief Constable and Police Pension Authority. He wished to conduct mass reviews of the degree of disablement of injury on duty pensioners. When deficiencies and alleged unlawful procedures in the process, as applied by Mr Morgan’s staff, were brought to his attention he reacted in a way which could only possibly be the result of deep ignorance of mental health issues.

He ‘invited’ a number of those pensioners under review to a meeting in summer of 2018. He could have arranged a neutral disabled-friendly environment to meet, listen and discuss issues with those who had raised concerns about the way review process was being conducted. Instead he announced he would be holding the said meeting, at police headquarters,
to which pensioners – all disabled in some way or another, – were invited. His invitation reads
more like a summons.

Here are the original blogs –

https://iodpa.org/2018/07/13/chief-constable-morgan-sends-letters-to-vulnerable-pensioners/

and

https://iodpa.org/2018/07/23/cc-morgan-refuses-pensioners-legal-representatives-to-attend-a-meeting/

Mr Morgan described the proposed meeting thus: ‘The meeting is to explain the next stage of the process.’ There could not have been a clearer indication that the meeting would never be about clearing the air through informed discussion.

When pensioners asked if their legal representatives could attend, and were met with a refusal, the pensioners all decided there would be no point in attending if Mr Morgan wished to use the meeting only to ‘explain’ what he intended to do. Pensioners felt they would be exposed to pressure in the anxiety-inducing environment of police headquarters.

In our opinion, Mr Morgan’s actions seem to be those of a man who is by instinct adversarial and dogmatic. They appear to be the actions of a man who cares more about defending a flawed process into which he has inserted allegedly unlawful demands, rather than caring for the health and wellbeing of disabled former officers. They seem to be the actions of a man who wishes to hear no other views than his own.

His force is now facing a legal challenge to his decision to reduce the pensions of the seventeen pensioners who questioned his review process. It may cost the force many tens of  thousands of pounds and will do nothing to foster good relationships with injury on duty pensioners.

Just as Bethlem became bedlam and a meme for historically inappropriate mental health care, so too has the ‘review’ provision within the police injury benefit scheme regulations become, in the hands of the likes of Mr Morgan and a few others, a meme for the entrenched institutional insensitivity and disregard for disabled former officer’s mental health.

Bethlem reformed itself over the years and became a shining example of modern healthcare. We have to hope that the police service and the government will do more than announce initiatives and studies and will take positive and far-reaching action to eradicate the negative attitudes exemplified by Mr Morgan and others who we have identified and named in these blogs.

Conflict Of Interest

IODPA Admin Chief Constable
Conflict Of Interest

“Conflict Of Interest” – A term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary.

Up until 2006, the source of funding of police injury pensions were the payments which serving officers made, by way of deductions from their salaries, amounting some 11%. Those contributions were intended to be sufficient to covered the costs of the ordinary retirement pension and the injury benefits.

However, in 2006, the Government made the injury benefit scheme a freestanding scheme, ostensibly because this was a move necessary to preserve the tax free status of the injury benefits (gratuity and pension for life).

In 2006, the Police Pension Regulations were amended to remove injury benefits from that legislation and new Regulations – The Police (Injury Benefit) Regulations 2006 were made.

The change was necessary because a new tax regime for registered pension schemes – introduced by the Finance Act 2004 – came into effect on 6 April 2006. Any unauthorised payment would thus incur a tax charge. In order not to let the Police Pension Scheme incur such charges, it was necessary to separate the injury benefits from the pension scheme regulations.

However, the Government at the same time also decided that funding for the injury benefit scheme would now come entirely from the operating budget for each force.

We may speculate that the Government was aware, that prior to 2006, there had been some inventive use, shall we say, of the injury benefits. When it suited forces to do so, they could rid themselves of expensive long serving officers of constable and sergeant rank by retiring them on an injury pension. The force could then hire cheaper labour in the form of new recruits.

There is some suggestion that the Government may have encouraged this or at least gave tacit approval.

The immediate effect of the change in funding arrangements meant that some chief officers and police authorities began to view payment of existing injury pensions as a burden – a drain on resources. Those attitudes grew more entrenched whenever the Government required forces to make cuts in spending.

Prior to 2011, the responsibility for all decisions made concerning police injury benefits lay with the police authorities. In practice, the police authorities usually delegated the entire administration of injury benefits to their Chief Constable, who in turn delegated to a senior manager.

The Police Reform and Social Responsibility Act 2011 abolished police authorities in England and Wales, outside of London, on 22 November 2012 replacing them with directly elected Police and Crime Commissioners.

At the same time, the office of Police Pension Authority (PPA) was created. The new office of PPA took on the responsibilities formerly held by the police authorities.

The office of Police Pension Authority was vested in the sole personage of each Chief Constable (with different arrangements in London).

This naturally created the opportunity for a conflict of interest to arise. A Chief Constable was, on one hand, now supposed to be prudent with their force’s budget whilst on the other hand ensuring the scope and purposes of the police injury benefit scheme were promoted and nurtured.

It has proved to be a difficult, sometimes wilfully impossible, task for some Chief Constables to separate out the differing and often conflicting duties of a police pension authority from those of a Chief Constable.

A PPA should be blind to the cost implications of any decisions made regarding the grant or review of injury pensions. It would be entirely wrong, and contrary to the intent of the injury benefit Regulations if a PPA were to allow bias and partiality or irrelevant factors to enter and skew any decision-making process.

A PPA is entitled – even is under a duty – to ensure that injury benefits are paid only at the level to which the recipient is entitled to receive. In practice, some PPAs try to take this to extremes, by making it very difficult for injured officers to get an injury award, and by aggressively using the review provision within the Regulations to harass disabled former officers with a view to reducing their pensions.

Clearly, something needs to change. Either Chief Constables need to stop acting outside the law, or the responsibility for the injury benefit scheme should be handed, through new legislation, to a truly impartial and independent body.

We see no sign of the latter becoming reality, so it remains incumbent on injury on duty pensioners to do all that is necessary to protect their pension rights – and that usually means firstly standing up to errant Chief Constables, and, where they won’t listen to reason, taking them to court.

Thames Valley Police Lead The Way With Ethical Injury Reviews

IODPA Admin Chief Constable, Federation, NARPO, newsflash, Regulation 37
Thames Valley Police Lead The Way With Ethical Injury Reviews

Thames Valley Police (‘TVP’) lead the way in how Injury on Duty reviews should be carried out and if they do indeed, follow the process as described by their National Association of Retired Police Officers Secretary (‘NARPO’), they should be applauded and praised.

We are extremely pleased to read this publication from TVP’s NARPO Secretary.  NARPO and the Federation have been involved from the outset and it appears that Reg 37(1) reviews will be conducted in exactly the way we have been campaigning for.

TVP IOD pensioners have been well represented by both organisations and we thank them wholeheartedly.

IODPA have never had a problem with reviews being held as long as they are conducted fairly, compassionately and in accordance with the Regulations and all relevant caselaw.

We are delighted that it seems that TVP are going to do just that.

Thames Valley NARPO have released a circulation explaining how the process will be carried out, how the procedure was agreed following consultation with NARPO, the Police Federation and the Force administration.

Here is the relevant section of the NARPO newsletter –

 

We commend the approach by Chief Constable Habgood (pictured above) and his team for showing the way the review process should be carried out. We are forever hopeful that other reviewing forces will take note.

If anyone is concerned at any impending reviews, please contact us at using our contact form above where we will be able to support and assist.

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

IODPA Admin Chief Constable, newsflash, Regulation 37, Review
Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

 

Gareth Morgan (pictured) has sent out letters to seventeen Staffordshire police pensioners informing them he is dropping their injury pensions based on his interpretation of Regulation 33 of The Police (Injury Benefit) Regulations 2006. He is also intending to back date his decision.

We cannot comment on this any further for legal reasons, but here is what Staffordshire Police have posted on their website –

 

The Staffordshire Saga

IODPA Admin Chief Constable, Regulation 37, Review
The Staffordshire Saga

Never let the truth get in the way of a good story.

― Mark Twain

 

Staffordshire Police is one of less than a small handful of forces which remain determined to abuse the ‘review’ provision contained within The Police (Injury Benefit) Regulations 2006.

Chief Constable Morgan, fresh from his experiences with attempting to run a mass review programme of injury pensions in Avon and Somerset, has committed Staffordshire to a similar enterprise.

Mr Morgan’s story in Avon and Somerset, which he has repeated in Staffordshire, is that there is a duty to review the degree of disablement of all former officers who are in receipt of an injury on duty pension. In an open letter dated 21st December 2017 CC Morgan writes,

On 26 April 2017 Staffordshire (sic) Police began a pension review of retired Injured on Duty (IOD) officers in accordance with Reg. 37 (1) of the Police (Injury Benefit) Regulations 2006 which places a duty upon the Police Pension Authority (the Chief Constable) to review whether the degree of the pensioners’ disablement has altered.

 

There is a duty, which is subject to a discretionary process before being acted upon, which allows a Police Pension Authority (‘PPA’) to,

. . .  consider whether the degree of the pensioner’s disablement has altered . . .

 

A PPA must, for each individual, first determine whether it is appropriate to consider whether their degree of disablement has altered. It must first identify a suitable interval has passed since the time of the last final decision was made on degree of disablement. In some instances, there may never be a suitable interval.

Let’s  put this as simply as possible. Unless a PPA can show, with a record of its reasoning process, that there has passed a suitable interval then a PPA is not entitled to make any consideration on degree of disablement.

This aspect of the Regulations was settled way back in 2003, in the case of Crocker. The court opined,

I regard the review provision as the key.  There is no need to speculate.  As and when circumstances dictate, the pension is reviewed.  The doctors, the Medical Referee, and Selected Medical Practitioner can, and here did, indicate when they thought that that should happen.  Such a power is wholly inconsistent with a need to forecast the future and then to test the calculation of the forecast against the actual out turn on a number of occasions.  The means by review of correcting the pension when circumstances change obviates the need not just to speculate, but to speculate and review as well.

 

That determination is not hard to understand, but in plainer English, the court decided that doctors, medical referees (now PMAB’s) and SMPs should not speculate about when any alteration in an individual’s degree of disablement might occur. A PPA should not use those speculations as reason to conduct a ‘review’.

Moreover, the court decided that any ‘review’ should be a reaction to a perceived change in circumstances of an individual.

Staffordshire Police, and others, should note well the deliberate use of the singular pronoun in regulation 37, which identifies – ‘the pensioner’. Not, ‘all pensioner’s degrees of disablement’ or even, ‘pensioner’s degrees of disablement‘.

When the Regulations speak of the singular person they intend a singular consideration, not a mass consideration.

The PPA should therefore conduct a full review only after having considered that the degree of the pensioner’s disablement has altered.

We have to comment too, that a ‘consideration’ is a very different concept to a ‘review’. In fact, the word ‘review’ does not appear anywhere in the Regulations.

What Staffordshire Police mistakenly reads into the Regulations is a carte blanche duty to intrude into the lives of disabled former officers. They think that they can demand a range of sensitive medical and financial information to which they have no legal right. They think that they can task their HR or Occupational Health departments to collude with the doctor hired by the force to conduct medical assessments and examination with a view to influencing what should be an independent medical decision by the SMP.

Staffordshire Police set about their plans to conduct a mass review programme in the manner of a surgeon removing a leg to treat an ingrowing toenail.

The truth is, all Staffordshire Police are entitled to do is to make a polite enquiry of only those pensioners where there my be a strong indication of alteration. Their duty is discharged entirely once they get the answer that there has been no alteration.

We can for the moment leave aside well-founded suspicions that wherever a force has decided to hold mass reviews the decision to do so has been based entirely on an expectation of saving money.

Such expectations have proved to be illusory.

The facts are that over a ten year period, up to 2015, across the country, when most forces were conducting reviews, the vast majority resulted in a decision there had been no alteration in degree of disablement.

Even if Staffordshire Police’s intentions were entirely based on an altruistic desire to comply with the basic concept that a police pension authority needs to ensure the correct level of pension continues to be paid, should circumstances alter, then conducting a mass review is not the way to go about it.

So, what has happened so far? What progress has been made since Mr Morgan’s announcement in April 2017?

A recent Freedom of Information request has revealed some interesting facts.

A company called IMASS/Medigold was contracted to provide a doctor or doctors to conduct the medical aspects of the reviews. This company’s doctor commenced his work with Staffordshire in February 2018.

A doctor assessed 26 injury on duty pensioners. He made a decision there had been no alteration in degree of disablement in 6 cases. In the remaining 20 cases he decided he could not make any decision. No former officers were decided to have experienced any alteration in degree of disablement.

There is no option in the Regulations for a SMP to discharge his task by not deciding. Once a PPA has commenced a consideration it must ensure a decision is made. Staffordshire PPA is in breach of its duty in respect of those 20 pensioners who have no finality.

Surely, common sense should prevail in these circumstances. A PPA has only one realistic option, which is to record the SMP’s ‘no decision’ as a decision there has been no alteration. It is inhuman to leave pensioners up in the air with the uncertainty a failure to decide engenders.

Other evidence of what has resulted from reviews is contained in a Progress Report dated 22nd March 2018.

 

It states a total of 45 injury on duty pensioners had been reviewed, or were in the process of being reviewed. Of them, 13 were decided to have no alteration in degree of disablement. In 4 cases, the pension was reduced due to a decision there had been a substantial improvement in degree of disablement. Of the remaining 28 pensioners there was no news.

Each review will have cost at least £500 to £600 and if there are appeals and court cases resulting from unlawful application of the regulations the experience of Avon and Somerset will be repeated in Staffordshire. When Mr Morgan was DCC in Avon and Somerset he saw a bill which ran into hundreds of thousands of pounds.

IODPA finds it hard to understand why Staffordshire police pension authority is happy to waste so much public money in conducting ‘reviews’ as currently constructed, when it is open to it to devise a process which will allow it to comply with regulation 37 at minimal cost, and without visiting anxiety and real harm on vulnerable disabled former officers.

Staffordshire Police tell a good story, but just like those of Mark Twain, it is complete fiction. And not even slightly amusing.

CC Morgan refuses pensioner’s legal representatives to attend a meeting

IODPA Admin Chief Constable, medical records, Regulation 33
CC Morgan refuses pensioner’s legal representatives to attend a meeting

We recently published a letter sent by Chief Constable Morgan of Staffordshire Police to  pensioners in our blog found here – https://iodpa.org/2018/07/13/chief-constable-morgan-sends-letters-to-vulnerable-pensioners/

He invited pensioners who are currently subject to an ongoing review to meet him, so that he may discuss his obligation to make a determination under regulation 33 of The Police (Injury Benefit) Regulations 2006.

Any such determination under Regulation 33 is a legal decision and Mr Ron Thompson of Haven Solicitors who represents a number of the pensioners has quite rightly requested that he and his colleague Mark Botham be allowed to attend the meeting in order to represent his clients best interests.

Mr Morgan has refused to allow the vulnerable pensioner’s legal representatives to attend the meeting on their behalf on the basis that

 

…it was not not my intention for the meeting to be adversarial in any way.

 

We’ve been passed Mr Morgan’s response by one of the pensioners.

 

 

Chief Constable Morgan sends letters to vulnerable pensioners

IODPA Admin Chief Constable, medical records, Regulation 33
Chief Constable Morgan sends letters to vulnerable pensioners

Chief Constable Morgan of Staffordshire Police today sent a letter to former police officers, all of whom are disabled, either mentally or physically.

These pensioners have been under review for a considerable amount of time and have to date fully complied with The Police (Injury Benefit) Regulations 2006 which govern them.

They have been sent this letter by Mr Morgan who has given them a week to comply.

Our advice is that these vulnerable and injured pensioners should politely decline his offer.

 

 

Watch out for a more detailed blog on this letter shortly.