Degree of Disablement

Northumbria’s Lazarus Syndrome

iodpa Chief Constable, Degree of Disablement
Northumbria’s Lazarus Syndrome

“Look up here, I’m in heaven
I’ve got scars that can’t be seen
I’ve got drama, can’t be stolen
Everybody knows me now”
― David Bowie

Steve Ashman, Chief Constable of Northumbria police, found himself in the news this week.  He dismissed criticism by the NSPCC  of the decision to pay an informant who is a convicted child rapist to secure a set of child grooming convictions.

Speaking to the BBC Radio 4’s Today programme, Ashman said: “I accept that some people will not agree with position we have taken, but I have to be content, on the back of the convictions we have secured to date, that it was the right thing to do.”

Our readers understand all too well the the use of informers is a real dilemma … sometimes risks have to be taken and the police have to adopt strategies which at first blush would appear to be awkward and unpleasant. It is a sad fact that any informant who needs to be paid to help the police will be of dubious character, and many will have criminal histories.

It’s newsworthy that the NSPCC – UK’s leading children’s charity – feels it wasn’t proportional that a convicted child rapist was paid £9,680 by Northumbria over 21 months to find out about the times and whereabouts of ‘sessions’ where girls were being plied with drugs and alcohol.  The NSPCC are entitled to raise the matter.  We think this is an operational matter for Northumbria to justify. Ashman said the NSPCC had got its facts wrong.

Police had to make a decision and – while unpleasant – if paying a convicted child rapist £10,000 gives the information needed to bring a swift conclusion to another criminal enterprise intent on the sexual abuse and rape of vulnerable children, then it is surely a price worth paying.

There is no nuanced argument, however, that condones how Ashman allows his force, on his watch, to decimate the income of those injured on duty.

That being said, the NSPCC is a victim of the same trite dismissal of a valid concern that is the usual response IODPA has familiarity with when the police defend their actions concerning injury awards. Telling the media the NSPCC has “their facts wrong” is a media soundbite but it helps no-one when concerns are disregarded in this manner.

As with the NSPCC, we in IODPA also are seeking answers from Northumbria.  We would like to know how CC Ashman thinks he can justify the way he is systemically setting about impoverishing severely disabled former officers who are in receipt of an injury pension. The stink rising from Northumbria on this issue is a miasma like that of an untended public toilet.

Police Injury Regs 2006 – a Freedom of Information request to Northumbria Police

Could you please provide the below information regarding the Injury on Duty awards to ex police offices. How many IODs does NP have and please provide a breakdown of each that are in bands 1-4 How Many Reviews have been carried and of what band Whether any were increased.If so by how many bands Whether any Decreased and if so by how many bands Whether any remained the same.

For our readers who aren’t aware of how the amount of injury pension due to officers injured on duty to the extent they can no longer work as a police officer is calculated, there are four bands or levels of payment, each of which covers a range of degree of disablement:  band one covers 0% to 25% (slight disablement); band two more than 25% to 50% (minor); band three is more than 50% to less than 75% (major); band four is the highest band and covers very severe disablement 75% to 100%.

Will Northumbria tell us our facts are wrong?  They can try.  The statistics are theirs.

The amount of pension paid may be revised should an individual experience a substantial improvement, or a substantial worsening, of their degree of disablement. A Chief Constable can conduct a ‘review’ of any individual’s degree of disablement, subject to certain conditions.

In the above Freedom of Information Act request Northumbria police admits to carrying out sixteen reviews from January 2016.

Of the sixteen reviewed, twelve have been decreased.  A shocking 75%.  As horrendous a statistic as this is, it is abhorrent to read that three of those on a band four injury award were reduced to a band one – in other words from the highest degree of disablement to the lowest.  Three other band fours were reduced to a band two and five on a band three were reduced to a band one.

Some context:  Merseyside reviewed 502 by use of quantifying salary only in the enforced compliance of filling out a, now discredited, questionnaire.  Merseyside reduced 25 out of 502 –  5% had their injured award lowered in bands.  Let us remind you that Merseyside had threatened those retired from the force with a review if their salary increased by 10%.  Don’t believe us?  Here is the letter sent by Peter Owens.

So it’s fair to say, as far as the Regulations are administered lawfully, Merseyside fail.  Even still, they only reduced 5% of those reviewed.  Northumbria has reduced 75%

These aren’t just reductions.  This isn’t simply substantial change, an improvement to a person’s degree of disablement that has resulted in a drop of a band – this is wholesale slaughter of the income of those injured on duty.

We can guess that most of the reductions are being made on wrong assumption made by Dr Broome, Northumbria’s SMP, that co-morbidities are competing with the person’s inability to earn. In other words Northumbria is claiming that the presence of one or more additional diseases or disorders co-occurring with (that is, concomitant or concurrent with) the recorded duty injury means a person can go from 100% degree of disablement to zero percent.

Likely as not there has been no change to disabling effects of the duty injury in any of these cases. No change to circumstances of the person regards to the capacity to earn.  Northumbria is reducing people who have been band four or three for many years without change, just because they are carrying out a policy to reduce that is unlawful as well as insultingly aggressive. Chief Constable Ashman tells us that he is concerned about protecting vulnerable young girls whilst he is busily engaged on a programme to destroy the pensions of honest, loyal former officers who had the misfortune to be injured whilst performing their duties.

Many of the injury pensioners are vulnerable too. Forget the image of the rufty-tufty copper and picture instead a shell of a human being, reduced to a life of constant anxiety and plagued with flashbacks, insomnia, depression and all the other symptoms that come with a mind damaged beyond repair by the harsh realities of police work.

If the Regulations called for a reduction to the lowest percentage when a person suffers from Parkinson’s disease or a cancer, then it would explicitly say as such.  Northumbria is raising Home Office circular 46/2004 from the grave.  Instead of automatic reduction at 65 years of age, this time a person is reduced when advancing age equates to advancing illnesses.

Or Northumbria has seen a dozen walking miracles.  Either it is unlawful or what is happening in Northumbria could  called by biblical name: the Lazarus effect, after the story in which Jesus stands outside the tomb of Lazarus of Bethany and summons him back to life.

We have heard anecdotal accounts that the Police Federation in Northumbria will never sign off a C2 funding form to provide much-needed legal aid to any injury pensioner who is facing an unlawful reduction of their injury pension.  We say that any reduction from a band four to a zero percent band one should automatically be heard in front of a police medical appeal board (PMAB).

The matter the NSPCC took up with the media isn’t as black and white and there are intricacies to any payment to an informant that has grey areas.  What Northumbria is doing to medically retired former officers has no such complexity.

Northumbria has a policy that is contrary to law and they must be called to account before the misery spreads.

 

 

 

 

 

 

 

 

When Reassess means a Fresh Assessment

iodpa Degree of Disablement, reconsideration
When Reassess means a Fresh Assessment

“The difference between the almost right word and the right word is really a large matter. ’tis the difference between the lightning bug and the lightning.”
― Mark Twain, The Wit and Wisdom of Mark Twain

In Staffordshire, some bright spark has had the idea the force could save some brass by conducting what they call regulation 37 reassessments of the degree of disablement of nearly every former officer who is in receipt of an injury pension.

The old saying goes, ‘Where there’s muck there’s brass.’ Staffordshire have got the muck bit right – they are making one heck of a muck in the way they interpret regulation 37. But they are wrong to think that the reviews will produce any savings for the force.

There’s no getting around it.  Staffordshire expects to be able to REASSESS loads of injury awards and see whole swathes of injury pensions reduced rather than do what is required of them under Regulation 37.

Staffordshire has produced a spiffing web page about its plans to rob disabled former officers of their injury pensions. It was written, we think, by a part-time employee in a contracted-out service company based somewhere in the Urals. It barely makes sense and if its intention was to inform then it fails spectacularly.

Take a look at it: https://www.staffordshire.police.uk/ibr

We won’t do a word by word critique of this most confusing bit of flummery as we have our sights on what lays behind it rather than the content itself. However, there will be a small prize for the first person who can tell us what this lump of nutty slack means:

‘The reassessment of the degree of Injury Pensioners’ disablement has been decided by Chief Constable Jane Sawyers . . .’

Eh?

We are confident that we won’t need to present the prize, which is, appropriately a tangled Staffordshire knot made out of old police whistle chains, for the sentence has no discernible meaning whatever.

Mind you, some parts of the Police (Injury Benefit) Regulations 2006 could do with a bit of a tidy up to help improve their clarity, for Staffordshire’s sake. IODPA has no problem in understanding what the Regulations mean, but they can be hard going for HR managers.

For SMPs and for a certain crafty solicitor, whose name we have mentioned from time to time, the Regulations are a playground where meaning can be twisted into unrecognisable shapes.

So, what’s in a word? A turd by any other name would smell just as foul. Why does Staffordshire’s use of the word ‘reassessment’ bother us?

Let’s look at Regulation 37 and see how Staffordshire have got hold of the wrong end of the stick.

They have seized on the heading of the Regulation, which is ‘Reassessment of Injury Pension’ and have not really bothered to think about what the entirety of Regulation 37 says, and what it intends.

Staffordshire have leaped to the disastrously incorrect assumption that Regulation 37 gives a police pension authority permission to conduct a mass reassessment of injury pensions. And not to just look for any alteration in degree of disablement, but to question what are legally final decisions made in the past.

Digging further into the shallow seam of Staffordshire’s less than helpful web site and clicking on the Frequently Asked Questions we spot some corkers.

‘Q:       Where does it say in the Regulations that Injury Benefit can be reassessed?

A:        Regulation 37 of the Police (Injury Benefit) Regulations 2006 enables the Police Pension Authority, at such intervals as may be suitable, to consider whether the degree of the pensioner’s disablement has altered. If after such consideration it is found that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.’

Where is the word ‘reassessed’ in Regulation 37?

‘Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.’

Nope, don’t see it, do you?

Staffordshire see it though, because they approach Regulation 37 with a preconceived misconception that when this Regulation is used, then an injury pension can be reassessed from scratch, just as though it were being done at the time an injury award was granted.

Staffordshire thinks, as another Q and A reveals, that they are allowed to send out an intrusive questionnaire which asks, in a demanding sort of way, for information which has no relevance whatever to the proper, lawful, application of Regulation 37.

Staffordshire thinks, according to its FAQ’s that it can ask IOD pensioners for permission to access their complete medical file from birth.

The web site reveals too that the SMP is going to make some sort of ‘calculation‘ whenever a substantial alteration in degree of disablement is determined to have occurred. Leaving aside our very great concerns that the SMP will drive a giant JCB through the Regulations in his quest to decide whether there has been any alteration, we find ourselves boggling at the thought that any calculation would need to be made.

Come on Staffordshire, buck up and tell your SMP he has no calculations to make. All he has to do is decide there has been a substantial alteration in degree of disablement, and tell HR to tell the payroll people (who are probably working for a contracted outsourced company in Botswana) to pay the injury pension in line with one of the four bands set out and calculated ONCE AND FOR ALL in the Regulations.

While we are at it, let’s also try to educate Staffordshire a bit more about using the correct words whenever they chose to talk about legal matters. There is no such thing as a review or a reassessment of an ‘injury benefit’. There is an injury pension and there are two specific gratuities available for former officers. There is a child’s special allowance and a child’s special gratuity. There is an adult dependant relative’s special pension and there is a death gratuity. There are also other provisions.

Is Staffordshire trying to say that it has a duty, or a right, to reassess any or all of these?

Of course not. They are concerned only with injury pensions paid to former officers. So why not say so?

Staffordshire thinks Regulation 37 invariably results in a reassessment.  But hold on, what is a reassessment?  A dictionary definition of performing a reassessment of something is to evaluate it again, or reappraise it, especially if its value has changed or new information has altered your understanding of it.

A fine definition you might think.  The trouble is an evaluation or a reappraisal of any injury award from the start is illegal.  Some people may think this is nitpicking – what’s in a word, you may ask.

The world inhabited by those with an injury award is a very literal existence.  Words are our framework of meaning.  Given the way the administration of injury awards has always seen flawed meaning imposed on the Regulations by those who administer injury pensons, it is no wonder we in IODPA get all jittery when we see Staffordshire throwing around the word ‘reassessment’.

The Simpson judicial review judgement is there for Staffordshire to see, and it explains things neatly. However, if pension administrators have difficulty in understanding Regulation 37 there is little hope they will understand a court judgement.

‘The statutory scheme requires an assessment as to whether there has been an alteration in the degree of disablement first. A further quantum decision on the present degree of disablement is only permissible if the police authority, acting by the SMP, have first decided that there is a substantial alteration in the former officer’s degree of disablement.’

Only after substantial change is identified by the SMP, can the SMP move from the first test to the second test.  In the second test an assessment is not a “reassessment”.  The assessment mentioned by  the Honourable Justice Supperstone is a comparative exercise only – the degree of disablement now, as altered by the substantial improvement or worsening, compared to the degree of disablement as decided the last time the question was considered.

The Court of Appeal in Metropolitan Police Authority v Laws and the PMAB[2010] EWCA Civ 1099, made it clear, for the likes of Staffordshire HR,  that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations, and had merely to consider whether the degree of disablement had substantially altered.

If Mr Justice Supperstone chose his words carefully, and we can be very sure he did – an assessment was stated, and not a reassessment.

The verb reassess means to consider something again, especially if new factors have come to light since you first assessed the issue.  A review under Regulation 37 cannot consider something again. The last decision is final and earlier decisions are closed.  There are no new factors allowable in a review, only a comparative exercise from the last decision (whether the original decision or review) to the present.

Only after the first test of substantial change can the degree of disablement be revisited and even then the Fisher judicial review now strongly enforces the requirement for there to be presented the depth of reasoning which is applied to uninjured earning capacity.

An IOD pensioner can’t go to the SMP under a Regulation 37 review and say the decision 20 years ago was wrong and they want their degree of disablement “reassessed”.  That is obviously wrong.

And it will be equally wrong should Staffordshire embark on its mass review programme and add another layer of illegality by revisiting what are final decisions.

The local Staffordshire NARPO branch have publicly said all the facts are known and Staffordshire Police should be allowed to continue with the mass review program.  Those that understand the Regulations have more than anecdotal evidence that Staffordshire Police has a history in the dubious ways some original decisions do not reflect the degree of disablement actually given by the medical authority – the final band is magically reduced as the SMP’s report is then hijacked by a HR minion.

Perhaps Staffordshire Police should include a FAQ explaining how to go about a Regulation 32 reconsideration when the lawfulness of the past decision needs to be “reassessed”.

Reading this Judicial Review may give Gareth Morgan and Andrew Colley some clues …

Haworth, R (on the application of) v Northumbria Police Authority [2012] EWHC 1225 (Admin) (16 May 2012)

You are here: BAILII Databases England and Wales High Court (Administrative Court) Decisions Haworth, R (on the application of) v Northumbria Police Authority [2012] EWHC 1225 (Admin) (16 May 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1225.html Cite as: [2012] EWHC 1225 (Admin)

 

Otherwise Healthy

iodpa Apportionment, Degree of Disablement, Disability Discrimination, Federation, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, NWEF
Otherwise Healthy

“A committee is the only known form of life with a hundred bellies and no brain.”
― Robert A. Heinlein, Methuselah’s Children

The March 2017 NWEF conference displayed a clear example wherein decision making becomes internally focused, defined by the needs and beliefs of the group.

Everyone nods their head and no-one in the audience calls out “that doesn’t sound right“.   Called “groupthink” it critically clouds decision making and of course the point about groupthink is that, if you are part of the group, you don’t realise that it’s there until it’s too late.

The legal advisor to NWEF, a person at the heart of the Fisher judicial review, harped on about the clarification given in the hearing he lost (note he says it was the PMAB who were the last decision makers, but this review of Mr Fisher’s injury award had Wirz’s fingerprints on it since 2008)

NW [Nicholas Wirz] provided an update on the recent high court judgement Fisher v Northumbria and PMAB. He highlighted the outcome of the judgement confirmed the case law brought about in the cases of Anton, Ayre and Walther (1).
Ground 1 of the Fisher judgement related to comparator and the use of Police Salary, the high court judge quashed the PMAB determination for the reasons that the comparison between injured and uninjured earnings was not analysed sufficiently and there was no rationale as to why police officer salary was not used.
Clarification is provided by this judgement that police officer salary would be the correct comparator where the former officer has only one qualifying injury and is otherwise healthy.

Look at the sentence highlighted bold.  The Fisher JR doesn’t say the police salary is the only correct comparator. It says the police salary should be the start and, if the tests have been passed for the quantum to be calculated, as much effort should go into defining the uninjured as the injured earning capacity.  Uninjured earning capacity could be higher if the person was under-employed as a police officer.  We examined this with an example of an Oral and maxillofacial surgeon  in this blog.

But let us examine the other nonsense about being “otherwise healthy”.  What is Wirz trying to imply here?

A glomerular filtration rate (GFR) is a measure of how efficiently kidneys filter the waste from our blood. Healthy young people commonly have GFRs of about 120. A GFR lower than 60 or another marker of kidney damage for more than three months means chronic kidney disease (CKD). At which point, patients become scared. 

But wait a minute. Kidney function declines with age in almost everyone, and the proportion of older people with GFR readings below 60 approaches 50 percent, studies have found. As the older adult population grows, the prevalence may rise even higher.

So there is an age-related decline in kidney function; however, not all individuals will develop CKD with advancing age and not all patients diagnosed with CKD need to worry about dialysis, because that’s what they associate with kidney disease.

When you’re told you have a disease, that’s a bad day.  A doubly bad day for you in the warped world of Wirz:  On the day your kidney disease was diagnosed, you woke up that morning with at least an uninjured earning capacity of a police officer – you went to bed without it, indeed supposedly with no uninjured earning capacity and therefore a default reduction to a band one.  

Should a diagnosis of CKD effect your injury award? No? Yes? Maybe…?

Nicholas Wirz thinks it should because now you are not “otherwise healthy”.

We can hear Wirz shouting at us!  ‘Don’t use your kidney disease example to misrepresent NWEF’s position’.

A “straw man” is when an argument is put forth —usually something extreme or easy to argue against—that is known that the opponent doesn’t support. You put forth a straw man because you know it will be easy for you to knock down or discredit.  We can’t find a word that describes when the argument actually pulls a punch compared to the true position maintained by the opponent – some sort of inverse straw-man.

Chronic Kidney Disease? Pah!, Wirz trumps that with neurological disease, namely Parkinsons.

So let us highlight the guidance Wirz has been providing to SMPs since 2014.

Wirz writes:

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. Alternatively, if an officer were to have become generally less fit by reason of advancing age, such that he was no longer able to undertake a physically demanding job, or no longer able to work full time, then the uninjured earning capacity would be reduced accordingly.

“[…] then the uninjured earning capacity should be nil.” That line is worth repeating.

The uninjured earning capacity is the alternative universe “you“.  The you that wasn’t injured; the you that excelled at life; the you that aspired to be the best and had no injury holding you back; the you back in the day when the world was your oyster. It is not the you in the real world, as you are now with co-morbidities. Co-morbidity is the presence of one or more additional diseases or disorders co-occurring with (that is, concomitant or concurrent with) a primary disease or disorder.

Is Wirz a time-lord?  Can he categorically say you would have suffered from Parkinsons (or chronic kidney disease) HAD YOU NOT BEEN INJURED? Maybe the trauma led to the additional disorders?  Who knows.  This is as ridiculous as it gets.

Do you see what Wirz is trying to insert into the brains of those who listen to him?

A former officer has physical injuries all caused on duty.  His injuries have only deteriorated and he has struggled with chronic pain and mental health issues directly related to the chronic pain.  He has taken tricyclic antidepressants for long term analgesia.  He has chronic kidney disease because of the decades of reliance on non-steroidal anti-inflammatory drugs.

On his fifty-eighth birthday, he is diagnosed with early onset of Parkinson’s disease.  Just when he, and his family, needs his injury pension, Nicholas Wirz wants to make him a zero percent band one and remove thousand of pounds from their income.

But his duty injury is no better!  Is he now two hundred percent disabled? Yes, he has a further disability but this has nothing to do with his permanent disablement for carrying out the full duties of a police officer.  In effect, to reintroduce any concurrent disablement is tantamount to revisiting causation and apportionment.  Such lawyer tricks have been already declared unlawful.

Wirz wants to carry his corruption to the high court in order to “clarify” how things, in his world, should be.  A vulnerable person will be taken through hell just because Nicholas Wirz thinks the law needs to be tested.

This is what IODPA is dealing with.  If only other organisations, those there for the support of those injured on duty, will take up the clarion call and help us to stop these abuses.

 

 

 

 

Everlasting Anxiety

iodpa Causation, Chief Constable, Degree of Disablement, earning capacity, Equality Act 2010
Everlasting Anxiety

Anxiety is love’s greatest killer. It makes others feel as you might when a drowning man holds on to you. You want to save him, but you know he will strangle you with his panic.”
― Anaïs Nin

It seems that those who oversee the administration of injury awards in Staffordshire Police have rather a special collection of ineptness.  Quite a feat to combine the malevolence of Northumbria with the idiocy of Avon & Somerset.

For a force that officially signed a contract and abandoned reviews in 2008, the errors and illegalities in the letter they have sent out to all those retired with an injury award is exceedingly far beyond any, even the twisted mind, could conjure up.

We’ve published the missive in full at the end of this post.

Rather than pointing out the obvious conflict this letter has with the Regulations and case law – such as the invented duty that the 2015 Police Pension Regulations* forces them to do this (!)  and the continual use of the word “reassessment“, today we are going to talk about this paragraph:

This letter is just to inform you of the reassessment programme. Whilst I acknowledge this may cause you some anxiety, I regret that at this point in time I am unable to enter into correspondence with you about your personal circumstances. You will be written to again directly in due course when your injury pension comes up for review. The process is expected to take at least eighteen months, so it may be some time before you are written to again about this.

*(Very naughty Staffordshire!  A blatant lie!  In fact these Regulations has no implications on injury awards as they only refer to the Career Average Revalued Earnings Scheme (CARE) scheme and the lower/enhanced tier only applicable to those retired on this 2015 pension scheme – the PIBR 2006 Regulations are the only regulations that concern injury on duty awards)

Wow!  Sending an unsolicited letter, that they know (or don’t care perhaps out of complete indifference) will cause or manifest an existing diagnosis of a mental health illness, to a cohort of disabled individuals – some with severe PTSD, all with a protected characteristic under the Equality Act – and then sign-off by saying that they will happily prolong the assault for up to 18 months….

Just Wow!… What cave has Staffordshire been living in for the past five years?

The Department of Work and Pensions received a drubbing in the Court of Appeal back in 2013.  Court judges upheld a decision that the ATOS assessments for sickness and disability benefits discriminate against people with mental health conditions.  This followed an earlier decision by the Upper Tribunal that the Work Capability Assessment – the notorious computer based test which has led to hundreds of thousands of claimants declared ‘fit for work’ – substantially disadvantaged those with mental health problems.

The Appeal Court said:

Tribunal was satisfied that the difficulties faced by [mental health patients] placed them at a substantial disadvantage when compared with other disabled persons who do not experience mental health problems

The judges found that:

  1. In my judgment, therefore, the Tribunal properly identified relevant disadvantages in this case as potentially relating both to the actual determination or outcome itself, and to the process leading up to it.

So to speak the obvious; who has Staffordshire seen fit to sent a mass mailing list to, warning the recipient that they will spend the next 18 months in purgatory whilst knowing full well that what they intend to do will cause them harm?

Rhetorical answer: Only to members of the public with both physical and mental illness, who are permanently disabled  and who are proportionally certain to have many of the mental health disorders that are caused by a combination of factors, including changes in the brain and environmental stress.

Bizarrely this was sent out to even the people they have unilaterally decided not to review such as those band ones and those over 72.

Even those with a terminal illness recieved this letter. Whilst it’s excellent that they won’t be further victimised whilst end of life, but why stress them with irrelevance? – an example why mass mailshots to those with a protected characteristic without due public sector equality duty compliance is unlawful.

Though we are experienced in the dark-arts of those who administer injury awards, IODPA is still perpetually amazed that some police forces think those that get injured and permanently disabled on duty have no rights.

Avon & Somersent DCC Gareth Morgan may be thinking that becoming this force’s chief may not be a wise career move after all!

 

 

 

 

 

Comparisons

iodpa caselaw, Degree of Disablement, earning capacity
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

iodpa caselaw, Degree of Disablement, 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.

 

 

 

 

 

The ICE… is gonna BREAK!

iodpa Degree of Disablement, earning capacity, Finance
The ICE… is gonna BREAK!

“He who cannot put his thoughts on ice should not enter into the heat of dispute.”
― Friedrich Nietzsche, Human, All Too Human

The ultimate temperature test of a Police Pension Authority’s malevolence towards injury awards is how they consider what is a self-created paradox of the ‘band one issue’.

The end game of some Police Pension Authorities is to achieve reduction of all injury pension payments by means of unlawful reviews. But what to do with those who can’t be reduced further? What to do with disabled former officers who are on band one, the lowest band of payment?

Band one presents them with a conundrum. Their thoughts run like this. Reviewing band one pensions might open a box of worms. Should we review them? If we do, then we can’t reduce them, so it would be a waste of time and money, but some of them might well qualify for an increase in payment, which would cost us money. We might also uncover a lot of historical maladministration and face endless complaints, appeals and litigation, which would also cost us money. If we don’t review them, then we leave ourselves open to accusations of disablement discrimination. We can hardly claim we have a duty to review if we then decide not to review band ones.

For so long as these rogue police pension authorities try to justify the contradiction that it’s ‘not all about savings’ whilst holding reviews which so very obviously are for the sole purpose of attempting to save money, they will find it harder to maintain their stance indefinitely and, meanwhile the ice they skate on is getting thinner and thinner.

Staffordshire Police, for example, have a tendency to use dubious practices when an injury award is first decided, such as using their arcane Police Earning Assessment Matrix, to bias the calculation of the degree of disablement heavily so as to only produce disablement levels within band one.

Other police forces such as Merseyside and Nottinghamshire go out of their way to review those in receipt of a band two award and above, so regularly and unlawfully that it just becomes a matter of time until the medical retirement officer civilian or the ‘gun for hire’ SMP succeeds in reducing the award to levels acceptable to the force accountants, but unacceptable and unlawful in respect to legislation.

Merseyside clearly implied in their answer to a freedom of information request that people with injury awards can only ever improve, never deteriorate.  In any case, it seems Merseyside is of the opinion that if the people they medically retire do deteriorate they can’t be bothered to find out.  Action by a public authority cannot be lawful unless there is a positive power that falls within legal restrictions and discharges lawful duties.  Cherry-picking how and when to impose a power isn’t any of these things.

Band 1 will not be reviewed unless requested by the former officer and in that case they would be seen as a priority.

“Seen as a priority” can be interpreted as getting a quick phone call back from Merseyside, from a panicky medical retirement officer, who is intent on convincing the vulnerable that it’s futile to attempt to justify an increase to an award.

Then there are forces like Cambridgeshire, who zealously carried out the unlawful Home Circular 46/2004 whilst deceitfully telling those it affected that it was never about the money, when, in reality, it was always all about the money. Cambridgeshire spent a small fortune of taxpayers’ money in pursuit of illusive savings only to find they were on a fool’s errand. In 2010, Cambridgeshire suspended all reviews. Then in 2012 produced a new policy which limited the number of reviews. Recently there has been a decision to suspend their so-called ‘proactive’ review program. A report to Cambridgeshire Constabulary’s Force Executive Board by the new Director of Human Resources, who runs the recently-formed tripartite Beds/Cambs/Herts HR function, recommends,

‘That in the absence of current national guidance on Injury Award Reviews and the diminishing likelihood of accruing further savings, the current proactive review process be suspended. Recipients will still be able to request reviews where, for example, they believe that there has been a significant change in their degree of disablement, relative to the relevant injury.’

And –

‘The process of carrying out first reviews has generated some savings through the reduction in bandings of allowance for some recipients. However, experience shows that any further reductions in bandings is less likely as a result of second and further reviews.’

Ooops! A bit of a slip there. Do we hear the ominous crack of breaking ice? An admission by Cambs that the driving force behind reviews has always been to achieve savings. No mention of the true intent of the provision of a review process in the Regulations, which is to ensure that disabled former officers continue to receive the amount of injury pension which their disablement qualifies them for, should their degree of disablement alter substantially – for worse, or for better. We suspect, however, that it is less of a slip but rather some sure-footed footwork by a Director who has her heart and her brain fully ethically engaged. She has perhaps recognised the dreadful impact which unlawful or unnecessary reviews bring, to the individuals concerned, and in a different, financial, budget-busting way, to the forces concerned.

The review provision in the Regulations care not what band a person is. The Regulations are blind to the cost implications. Approaching reviews from the point of view of using them to save money is unlawful and immoral. As we have said many a time, injury awards are a form of compensation of work related injuries quantified by the affect the injury has had on a person’s capacity to earn.

Instead of their true purpose, some police pension authorities have corrupted injury awards into the politics of welfare, to what can be termed a ‘race to the bottom’; that is, a drive to cut costs, provision and standards.

There would be a massive improvement in the discourse of injury awards if those who administer the Regulations would calm down enough to think hard about what was being said and to examine its possible truth value.

If the rogue Police Pension Authorities could, for once, examine the ‘heat’ they put into liking or advocating the unpleasant things, plastered all in the emails they distribute between themselves behind closed doors, and start to see the light, there would less opportunity for any independent observer to incessantly impute badness to these people.

Their public face says reviews are nothing to do with the money. Safely sat at their desks their half-truths and lies are forgotten whilst the hot potato of unlawful reviews is put aside to allow them to concentrate on the pressure from above, from the bean-counters and ignorant Chief Constables who see only balance sheets.

The burning – indeed ice melting – question is why would a certain HR manager, one who has been at the centre of the review fiasco in Avon & Somerset since its inception, think its appropriate to ask her force’s Finance Director whether band ones should be reviewed?

There’s nothing in the Regulations to say band ones should be treated any differently from any other band … so, with asinine brashness, Avon & Somerset’s Police Human Resources Manager of Planning, Christine Jones, brings the whole massive iceberg to the surface in her witless puzzlement of why the heck are they even considering to review band ones!

Come on guys, what’s the point? – she asks. It’s not as if we can reduce them any further!

jones-bulpitt-19112015

Realising the thin ice that Jones is blundering across has not only cracked but in danger of shattering, Dr Bulpitt, the force’s highly paid Medical Advisor, attempts damage limitation concerning any ‘wild’ assertion from his staff that this is all about reducing people and saving money.

With a rheumy eye to future disclosure under the Freedom of Information Act, Dr Bulpitt, steps in to suggest that he is only doing this mass review program for the benefit of the unfortunate band ones!

bulpitt-jones-30112015

So, according to the kindly, caring Dr David Bulpitt, those former officers who are on the highest band, classified in the Regulations as being the victims of ‘very serious disablement’ as a result of performing their duty, are nothing less than ‘selfish’ and ‘fortunate’.

It seems, from this memo, that once Bulpitt thinks the cracking, popping, chirping and pinging from the ice has lessened from Jones’ heavy footfalls, his Tourettes kicks in and normal service resumes. He reverts to his usual nasty, brash, inconsiderate, disability discriminatory self. His memo reveals he thinks his attempts to say as many people should be increased than reduced has stopped the ice from weakening.

His disingenuous claim that reviews are ‘all about the band ones‘ doesn’t, in any way imaginable, mask his claim that those forced to end their career with a severe disability to their earning capacity are ‘fortunate‘ and ‘selfish‘ in their desire to be treated both with dignity and within the law.

Let’s be clear – a doctor, a highly paid medical professional, employed by a police force, has gone on public record that people with a severe degree of disablement which ended their police career are ‘fortunate’ and ‘selfish’.

Why is Dr Bulpitt’s statement about band ones all pretence and covering-his-back bluster? Because in Avon & Somerset between 2005 to 2010 there was not a single increase to any injury award at all. Not only was no single person with a band one increased, there were no increases at all of any banding.

Dr Bulpitt could, of course, send a letter out to every one of the 70 band ones identified by Christine Jones and ask them politely if there has been a deterioration to their medical condition. It is fair to say the probability of him sending such a letter is less than that of Donald Trump converting to Islam and still being elected President.

Dr Bullpitt could also, of course, recommend to his Police Pension Authority, who is the Chief Constable, that he hire another SMP just to review all those on band one. Band one pensioners would be unlikely to object, wouldn’t they? He has chosen not to make that recommendation, for the simple reason that his words are a sham. He has no intention of wanting to see band ones reviewed. He records his fake concern for them only to lay down a get out of goal free card, should he need it. Perhaps this is a sign that he realises the end is now not very far away?

Just like the dungeon scene in Monty Python’s Life of Brian, Dr Bulpitt is effectively saying this to those on any award higher than a band one: You lucky, lucky bastards.  Proper little jailer’s pet, aren’t we? You must have slipped the original SMP a few shekels, eh?

There is no sign from this doctor of any understanding that those on higher awards could have been retired with a higher degree of disability simply because their disablement qualified them for it. He seems to be fixate on some unstated conviction that all bands above band one were the result of some sort of ‘fix’. He pays only lip-service to the fact that there are band ones with an award too low for the disability inflicted upon them. It is abhorrent that a clinician, with such callous condescension, can dismiss all historical awards which were given by his predecessors.

The fact is, Dr Bulpitt, that pensioners themselves were not responsible for deciding what band they were awarded. Those decisions were made by senior people within the organisation, overseen by the then Police Authority. Most, probably all of those disabled officers had no knowledge of the Regulations, and in the midst of the trauma of injury and enforced retirement could hardly have been in any fit state to query the decisions of those in authority. If you think that the ‘wrong’ bandings were decided, then why are you calling pensioners selfish and fortunate? Why are you not calling for your predecessors and for former Police Authorities and former Chief Constables to be investigated and made to account for their decisions?

Bear in mind though that those decisions can not now be overturned. The law is very clear on that point. Decisions are final, subject only to appeal within certain time limits, now long past. Also, can you imagine the disastrous publicity which would ensue should any force attempt to hound disabled people, not for mistakes made by them, but for mistakes made by their former force? What would the Home Office have to say about that, Bulpitt? Given that the Home Office might well have been encouraging Chief Officers to rid themselves of disabled officers at that time? A word of advice, Doc – don’t go looking for any support in that direction. They have long decided they want nothing more to do with existing injury pensions; having sipped from the poisoned chalice once they are not coming back for another quaff. Ask the suddenly retired, aged 54, former Chief Constable of Cambridgeshire what support she got from the Home Office when her particular injury pension scam was revealed in all its sordid glory.

We’ve mentioned that Dr Bulpitt seems to be clumsily mitigating Christine Jones’ attitude to band ones, knowing full well that the emails he types can find their way in the public domain. But isn’t it more than likely that Jones is just saying exactly what she has learnt from the jerky personality of Dr Bulpitt? Hierarchy works like this: when anger and intimidation flow down, initiative stops flowing up.

Christine Jones has summarised the whole attitude in Avon & Somerset: Why review when they can’t be reduced further …

And why is this disclosure important?

Because serving officers are currently in the ‘care’ of Dr Bulpitt and the culture of disrespect towards disabled former officer is not confined to them – it extends to any serving officer unfortunate enough to become injured on duty. Dr Bulpitt’s words are but a visible symptom of a deeply-engrained institutional attitude of disrespect which, if allowed to continue uncorrected will have adverse effect on the efficiency and morale of the force.

The link between harsh words and medical errors was reignited in 2012 when Lucian Leape, Professor of Health Policy at the Harvard School of Public Health, published a two-part series in Academic Medicine. Leape and his co-authors asserted that,

‘A substantial barrier to progress in patient safety is a dysfunctional culture rooted in widespread disrespect.’

The series also reported,

‘Disrespect is a threat to patient safety because it inhibits collegiality and co-operation essential to teamwork, cuts off communication, undermines morale, and inhibits compliance with and implementation of new practices.’

The £159,000 remuneration of A&S’s Force Medical Advisor should dictate that the recipient of the salary is beyond reproach in their maintaining of high standards. Sadly the Bulpitt exception proves the rule. Also sadly, it is doubtful whether the Constabulary will do the right thing and dispense with the services of the dubious Dr Bulpitt. They could get a decent doctor for half the price: that’s a legitimate way to save money.

What is certain is that until the culture changes, the maladministration will continue, and people like Dr Bulpitt and Jones and Kern will continue to skate on thin ice until they and this particular police force sinks under the weight of more and more scandals.

Minimum Income Guarantee

iodpa Degree of Disablement, earning capacity
Minimum Income Guarantee

“If you have got a condition that has made you unfit for work and which can only stay the same or get worse, I think it is just pointless […] to just bring someone back again.” – Damian Green Work and Pensions Secretary

 At last, some common sense. Damian Green was referring to people who are on long term State benefits for illness and injury which prevents them working. In a change of rules due shortly sickness benefits claimants will no longer have to go through reassessments to keep their payments if they suffer from chronic illness.

Now, what are the chances that the unthinking, unfeeling, drones who populate the HR departments of certain police forces will see the close fit of Damien Green’s remarks to the situation faced by disabled former police officers who have permanent disability due to injury on duty?

Think of pushing peanuts uphill with a rubber fork, or of meeting Elvis in your local Pound Shop.

The long sad history of maladministration of police injury pensions has taught us that expecting any degree of initiative from some people is an exercise in futility. They wait patiently to be told what to do, and then do it without critical examination or engagement of moral sense. That’s why IOD pensioners face so much difficulty and why so much taxpayers’ money is wasted on attempting to use unlawful means to review injury pensions.

HR drones fail spectacularly in some part of the country to understand that their job requires them to understand a few simple concepts in regard to injury pensions. And to apply those concepts in a humane fashion, in accordance with the scope and purpose of the Regulations, rather than in compliance with the ramblings of some crazed force solicitor or financial director, or on the unlawful guidance of some long retired Home Office civil servant.

One such concept is that of minimum income guarantee.

The Police (Injury Benefit) Regulations 2006, Schedule 3 gives a description to the injury pension granted to former officers disabled through no fault of their own whilst on duty. It is described as ‘a minimum income guarantee‘

In this blog we are going to be concentrating on what that means, particularly the meaning of minimum income. However, it is worth bearing in mind as you read on, if you will, the word ‘guarantee’. Which to most folk, save for certain HR drones and assorted persons of evil intent, means that the Regulations give a promise or assurance, which attests that the injury pension will be paid no matter what.

There is no small print with this guarantee. Note well, there is nothing about it being reduced should a pensioner have other income. It is an unconditional guarantee.

The only way an injury pension can be ceased by some default on the part of the pensioner is if the pensioner commits treason or is sentenced to at least ten years imprisonment for an offence against the Official Secrets Act.

The concept of the injury pension providing a minimum income guarantee is lost on those HR drones who park their brains alongside their overcoats when they commence their day’s work.

They may well have at some point unthinkingly, uncritically, adopted the misplaced idea that was touted by John Alexander Gilbert, civil servant in the Home Office (retired). He was responsible for issuing the nattily entitled, ‘Guidance for SMPs, Police Medical Appeal Boards, Chief Constables and Police Authorities’. [Hereinafter referred to as ‘the guidance’]

Mr Gilbert wrote:

‘How an Injury Award is Calculated
An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.‘ [Emphasis added]

Even small child sucking a sherbert dipper and clutching a favourite teddy bear would, upon reading this utterance, have piped up and cried, ‘I may only be little but even I can see that according to Mr Gilbert an injury pensioner could never be paid more than the amount of his or her injury pension. The way Mr Gilbert puts it, if a pensioner earns a few quid collecting shopping trolleys at Tesco, the HR drones would want to reduce his injury pension by an equivalent amount.’

Where do we get the idea that the injury award is a guarantee of minimum income?

The Regulations clearly says the injury pension is quantified as minimum income guarantee expressed as % of average pensionable [police] pay. In plain language, the injured officer’s police salary is used as one element to calculate the amount of injury pension due. The other elements are years of service and degree of disablement.

And that is the last time any form of wages come into anything to do with injury pensions. Wages and earnings are not mentioned anywhere in relation to any review of degree of disablement.

Let’s be clear – there no link of minimum income guarantee with earnings. And a minimum income guarantee is not designed or intended to bring total income up to a certain level.

Why can we state this as undisputed fact?  The facetious answer would be if this was true it would be better called a maximum income guarantee.

The legal answer concerns the 2012 demolition in the Administrative Court of the Home Office guidance which wrongly put forward that a link with earnings as a ‘top-up’, is necessary.

Mr Justice Supperstone in the 2012 case of Simpson V PMAB & SECRETARY OF STATE FOR THE HOME DEPARTMENT & Northumbria explicitly rejected the position of Mr Sanders QC, who, defending the position of the Home Office and their guidance, submitted:

‘. . . that it is the claimant [the pensioner] who falls into error by seeking to divorce earnings capacity from practical reality in the purpose of injury pensions.’

Section 5, paragraph 6 of the guidance brazenly claimed that this imaginary link with earnings as a ‘top-up’ is necessary:

Degree of disablement 6.

For the purposes of police injury awards “degree of disablement” means the extent to which the SMP assesses a person’s earning capacity has been affected by the relevant injury. The link with earnings is necessary because injury pensions are based on a system of “minimum income guarantee” designed to bring total income in retirement up to a certain level.

Mr David Lock QC, acting for the pensioner, disagreed with Ms Sander’s submission. He submitted his learned opinion that the guidance is wrong in that,

‘. . . it mistakes earnings for earning capacity.’

The Court accepted Mr Lock’s view, rejected Mr Sander’s view, and confirmed that degree of disablement is assessed by regard to the loss of capacity to earn, and not by regard to any actual loss of earnings. In other words, a pensioner can earn whatever he is able to earn, and any earnings are irrelevant to the assessment of earning capacity. The correct test is to what extent has his ability to do paid work been diminished by the disabling effects of duty injury.

This is nothing more than common sense, and if any of that quality in HR people, SMPs and all others concerned had been less rare and less fogged by the insidious Home Office guidance then the case need not have been brought to trial.

Unfortunately, the residue of the misleading guidance still permeates the brains of those who administer injury awards. The effects have been damaging and long lasting.

Although the argument was lost, the pernicious after-effects resonate still. Certain people blatantly refuse to accept that their interpretation of the Regulations, based on the guidance, is wrong

They are the equivalent to flat Earthers who, given a globe for their birthday, would wish to take an iron to it and deflate it into two dimensions.

A minimum income guarantee isn’t a ceiling – it is a floor. When a floor for income is set, a certain minimum amount must be paid – as is the case with injury pensions. A floor for the injury pension does not create a barrier to the pensioner making other earnings.

Back in 1978 the case of an injured officer from Merseyside Police was discussed in the House of Commons. The basis of this exchange hinged on the thoughts of the Member of Parliament for the injured officer. Merseyside had cast a young police officer aside onto the scrap heap after being run over by a stolen car whilst on duty.

http://hansard.millbanksystems.com/commons/1978/dec/15/police-constable-turner-merseyside

Dr. Shirley Summerskill (Under-Secretary of State for the Home Department) was justifying that the retired officer was compensated for loss of status as well as loss of finance:

Mr. Turner has not appealed against discharge or against the degree of his disability, which has been assessed at 40 per cent. We have checked with the police authority that Mr. Turner’s award has been correctly based. He receives an ill-health pension and an injury pension, which have been increased annually since awarded….

A police pension is not reduced on account of any pay received from civilian employment. …

I hope that I have shown that the financial arrangements that the police service makes for those of its officers who are unfortunate enough to have to retire on account of injury on duty are very fair. There is obviously nothing which can adequately compensate for Mr. Turner’s lost career, as the hon. Gentleman is emphasising. I hope, however, that the hon. Member will agree that the care and sympathetic consideration shown by the police service for officers injured in the line of duty.

The Secretary of State was explicitly saying in the House of Commons that Mr Turner, as a former officer with an injury award, could earn whatever he was able to without reduction of his award.  But Dr Summerskill did not end her point here.  She also continued that Mr Turner is admirably advancing his future prospects.

Ex-police constable Turner has been very much worse off ever since the accident, even though he has worked very hard as a clerk and has been promoted. He has passed a number of examinations which he took to improve his position and pay, and he must be commended.

Fast forward to 2016 and the self-created Merseyside Police Medical Retirement Officer, Peter Owens, would have felt obliged to see Mr Turner’s promotion as a certain indicator that his degree of disablement had substantially altered and would hasten to reduce his injury pension to a zero percent band.

The Regulations in 1978 when Dr Summerskill spoke up are in no material way different from the current Regulations. The only difference is the way they are administered.

And out of the seven billion people on this planet it seems only Mr Gilbert, said former Home Office employee, had the front to make the mathematically impossible assertion that a minimum can be a transmuted to ‘top-up’ to a maximum?

Although his UK Human Resources acolytes still follow his discredited teachings, everyone else thinks a minimum income guarantee is just that – a guaranteed minimum income.

Other organisations in other parts of the World have experimented with the idea of a minimum income guarantee. Let’s look to Alaska.  The Alaskan government, for instance, has since 1982 paid a dividend on oil revenues to all residents, about $1,100 a year on average.  Everyone gets a payout, rich or poor, employed or not.

The minimum income guarantee, or the income floor, in Alaska is thus about $1,100.

Finland is considering an experiment that would give up to 10,000 people roughly $625 a month, tax-free, which would replace most existing welfare benefits.

In Canada an experiment with minimum income guarantee was called a “mincome” experiment, as in “minimum income.” It was conducted in just a couple of places, including a town of about 12,000 called Dauphin. It’s in Manitoba, a few hours Northwest of Winnipeg.

No matter if any resident Canadian then earned big money working as a ‘Ice Road Trucker’, they would still get the payment.

The experiment was never finalised and a report never issued but it was proposed to give those involved a ‘minimum income guarantee’.  Anecdotal evidence suggested that a guaranteed income can produce positive results.

What none of these guarantees ever did was to place a high bar and remove the income once the recipient raised their income over a set threshold.  That would be ludicrous.

Noticeably, there doesn’t seem to be a legal definition of a minimum income guarantee in the UK.

Is this because the term is so self-explanatory it needs no explanation?  It is only those who have been touched by idiotic Home Office guidance and similar advice issuing from elements within the National Attendance Management Forum who think differently.

Stop to think for a second.  Concentrate on the hundreds of former police officers who have had their awards reduced or removed entirely because, like Mr Turner in 1978, they have managed to gain employment after being retired from the police.  Now think of the reason: they disclosed a salary – or earnings.  And because of this the HR manager took it upon themselves to turn a minimum guarantee into a maximum ceiling just to save the force money.

This travesty must be stopped now.  All those affected should have their awards restored immediately.

Failure to do the right thing will mean this will inevitably be resolved in favour of the pensioners at Judicial Review – and that is something which we in IODPA can absolutely guarantee.

Ex-Police Constable Archibald

iodpa caselaw, Degree of Disablement
Ex-Police Constable Archibald

“If you want to feel the life and the body of great men who are long gone, go to their tombs or monuments; if you want to understand the real life and the wisdom of great men who are long gone, go to their libraries!”
― Ernest Agyemang Yeboah

The Police Pension Scheme has its origins in a scheme introduced by the Metropolitan Police in 1829. Benefits were provided on disablement for London officers “worn out by length of service”. Payment of a pension was discretionary, with limits to payment set in legislation. The pensions reflected the “arduous and hazardous conditions” of police work.

A police officer could gain a maximum pension after 25 years, compared to 45 years under the 1834 civil service scale.

In 1890, the Government promoted a Bill which retained the existing superannuation funds.  A uniform pension scheme for police officers was first established under the Police Pensions Act 1921 and further detailed police pensions regulations, along the current lines of what we have today, were subsequently made under the Police Pensions Act 1948.

On the 21st November 1967 Mr. Ron Lewis (Member for Carlisle) had an exchange in the Commons concerning police injury pensions with Dick Taverne, the then Under-Secretary of State for the Home Department.  The featured image of this blog is a picture of Mr Taverne sat in his personal library.

They discuss the case of an ex-policeman named P.C. Archibald, who had “… been compulsorily retired from the police as a result of injuries sustained in the course of duty in trying to restore order or to arrest criminals”.

How attitudes have changed. Back then they understood that earnings had no relevance to the degree of disablement and that it was important to ensure the “fair and adequate financial provision for police officers who are retired because of disablement as a result of injuries received in the performance of their duties”.

Mr Dick Taverne:
I come to particular examples, including Police Constable Archibald’s case. A police constable like Mr. Archibald who retired after nine years’ service with the degree of disablement of 40 per cent..—. . . [snip. Archibald got an enhanced ill-health pension and an injury award]. . ., his total benefit would be £149 plus £198, or a total of £347 a year, and he would continue to receive this while the degree of disablement persisted, whatever work he took up.

The purpose and intent of the injury Regulations has not changed one iota since PC Archibald’s duty injuries were the subject of Parliamentary discussion. To the Home Office Minister of the day, it was a clear as it could be that there was absolutely no link between what a disabled former officer earned and the level of his injury pension. This is what we in IODPA have been saying for some time, but, so far, scheme managers are refusing to listen. They will, eventually, have to listen when this issue is aired by means of judicial review – and that will not be too far in the future.

We’ll say it again. Reviews where any attention is paid to earnings are unlawful. The medical condition resultant from the duty injury, and whether it has altered so as to improve or worsen an individual’s ability (capacity) to work is the focus, not income.

Here is a link to the full exchange:

http://hansard.millbanksystems.com/commons/1967/nov/21/disabled-policemen-superannuation#S5CV0754P0_19671121_HOC_452

 

 

 

Not a Zero-Sum Game

iodpa Degree of Disablement, police injury award
Not a Zero-Sum Game

“There are two kinds of people: eaters and bakers. Eaters think the world is a zero-sum game: what you eat, someone else cannot eat, so they eat as much as they can. Bakers think that the world is not a zero-sum game—they can just bake more and bigger pies. Everyone can eat more. People trust bakers and not eaters.”
Author: Guy Kawasaki

In the world of the SMPs and HR managers the inhabitants are all eaters.  They wrongly think that an injury pension is there to top up to a certain level any earnings achieved by a disabled former officer. They think the pension plate is intended to only hold a certain amount of food. The worst of them think the food on the plate is not the pensioner’s food, but theirs.

They get this idea from some well-past-its-sell-by-date guidance issued by the Home Office. The plank who wrote the unlawful guidance contained in Annex C to HO circular 46/2004 (guidance now disgraced, destroyed, dismantled and withdrawn) is the same chunk of knotty pine who penned this astounding bit of nonsense:

‘How an injury award is calculated
4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.’ [Our emphasis]

We have mentioned this before, but it is worth repeating, and repeating, until the message gets through. The Regulations do not place a cap on what a disabled former officer might earn, or be thought to be capable of earning. The amount of pension paid has no link whatever with earnings, whether real, speculative or whatever.

SMPs and HR managers, when they bother to actually look in the Police (Injury Benefit) Regulations 2006, and at the table in Schedule 3, which sets out the various levels of pension payment, see the phrase, ‘minimum income guarantee’ then think this means that a pensioner is not supposed to earn more outside the police than was earned whilst in the job.

They think that pension payments are like a game, where one player’s gain is always another player’s loss. They see pension payments as a drain on scarce resources.

It is but a short step from these basic misconceptions over the purpose of the police injury pension regulations to want to devise ways to gobble up whatever they can of the money due to disabled former officers.

Trouble is, their actions will come back to bite them. Truly a case of the biter bit. What SMPs and HR managers in some forces are doing is illegal, and dare we say, incredibly illogical and stupid. We don’t mean to be unkind, or descend into name-calling, even though some SMPs and HR managers have been really, really nasty to disabled former police officers. So, we can let them off the ‘stupid’ allegation, but only if their actions are recognised as considered and deliberate – which would of course mean that they had set out to break the law. So, if I were you, dear SMP or HR, I would accept the ‘stupid’ label as being no more than a factual description and implore you do something positive about it. Like gaining a proper, correct, understanding the Regulations.

We here in IODPA think you would benefit from some educating about the scope and purpose of the  Regulations. When we say, ‘benefit’ we genuinely mean that. It is as much in the interest of HR managers and SMPs as it is ours to see police injury pensions administered within the law. Why risk reputation and career on a wrong-headed attacks on police injury pensions? If you would like to see your name featured, not in a nice way, in the transcript of an Administrative Court case, as has happened to the likes of Nicholas Wirz and that scion of the medical profession, Dr Broome, then, go ahead – keep on breaking the Regulations.

In effect the, literally, misguided denizens of some HR departments and the tame SMPs they instruct, administer the Regulations as if a salary of any amount is a ‘deductible benefit‘.

Perhaps this way of thinking may be valid in the world of welfare state benefits. Britain’s postwar political consensus, which guaranteed citizens ‘protection from want’ from cradle to grave colours some people’s attitudes to police injury pensions. But not in an appropriate or acceptable way. An injury pension may be a ‘benefit’ but it is not a means-tested State benefit. It is, quite simply, compensation for injury received whilst on duty, paid in the form of a pension for the life of the individual.

The drafters of the various police injury Regulations recognised that it would be wrong to receive payment twice for duty injury. So, the 2006 Regulations require that an injury pension shall be reduced by the amount of “any” Incapacity Benefit paid until the first day the pensioner is capable of working again (though not as a police officer) after retirement, at which stage the entitlement to Incapacity Benefit would cease.

In late 2008 Incapacity Benefit was withdrawn and Employment Support Allowance (ESA) began. Just as some police pension authorities blatantly disregard the Regulations in most aspects, a sizeable number of forces have continued to illegally deduct this new allowance from injury awards.

This stands as more proof, if any extra was needed, of police pension authorities who are incompetent administrators of injury awards.

ESA should not have been deducted as it is not defined as a ‘relevant benefit’ in Schedule 3 of the Police [Injury Benefit] Regulations 2006. It may well have been an oversight on the part of the Home Office not to have amended the Regulations so as to substitute ESA for incapacity benefit. The Home Office’s mistake, if that is what it was, is no excuse for forces unlawfully deducting a non-specified benefit.

Now, please pay attention, SMPs and HR managers, for this is the bit you need to get your heads around. Just as with ESA , a salary earned by a disabled former officer is obviously not defined as a ‘relevant benefit’.  Unlike ESA, it never will be.  An injury award is not designed as something that replaces something else only in times of need – it guarantees a minimum income whether or not other income is earned.

It is not a temporary security blanket to help only until that person is back upon their feet.

It is an award for life and serves a purpose as compensation for work-related injuries

Please read the Explanatory memorandum to the police (injury benefit) regulations 2006

An injury award also provides vital reassurance for police officers who may often face adverse and dangerous situations in their routine working day. That is the cornerstone of what is admittedly a generous scheme of compensation.

Note to SMPs, HR managers, some Federation and NARPO types: you may think that injury pensioners get a good deal. Please don’t let your jealously cloud your professional judgement, or duty. Think instead, if you will, of facing a lifetime of disablement, of dealing with pain, frustration and rejection, of having your life curtailed in so many ways, and employment opportunities reduced dramatically, and then having to suffer the ignorant and often spiteful attitudes of people who should know better.

Within the police injury pension Regulations there are certain things which are fixed and thus not up for adjustment, or revision or review. They are the final police salary of the medically retired officer, the last, latest, final decision on degree of disablement, and the fact that that only a substantial alteration in degree of disablement allows any revision of the amount of injury pension paid.

The injury pension is always a percentage of that final police salary, artificially fixed in time for perpetuity, but index linked to whatever the cost of living is in a given year based on the Consumer Price Index so to protect against the devaluing nature of inflation.

Disabled former officers are expected to work and earn, if they chose to do so, to a greater or lesser degree. The Regulations are designed to take that into account. That is why there are four bands of disablement. The point that needs to be borne in mind though is that, whatever the band, there is disablement present, and thus some degree of reduction in an individual’s capacity to work and earn.

Admittedly, it is perhaps counter-intuitive to consider that an award of band four does not necessarily mean that person is totally unable to work. Of course, a sizeable proportion of people in band four are totally unable to work, but we can see that the Regulations hope or trust that some amount of work might be achievable. However, it should not be beyond the wit of so-called professionals, paid to administer the Regulations, to understand that being assessed as being in band four, ‘very severe disablement’ actually means that out of their capacity to earn (either potential or realised), at least 76% of the earning capacity equivalent to the last final salary they received as a police officer has been denied them.

If it can be evidenced that an individual former officer has detrimentally lost the capacity to earn more than 24% of what they would be capable of earning as a police officer if they were not injured, then that person is a bona fide band four. It matters not that the individual is currently earning, say £76,000 a year. It is utterly wrong for a SMP, or someone in HR to look at those earnings and to start at zero by comparing that salary with the former police salary. What matters is that this person, without the index injury, could have the potential to earn at at least £100,000 and therefore their earning capacity has been detrimentally lowered by £24,000.

There is a corollary to this which applies to the injury award given no matter what level of the banding.

It is not a zero sum calculation always starting from nought. A SMP working for Merseyside, Nottinghamshire or Avon & Somerset would treat this salary as a deductible benefit and illicitly remove it from the award, thus making the person a band one – ignoring the truth that there has been no change to the person’s medical condition and therefore no difference in the capacity to earn.

Whatever is earned is not to be deducted directly from the award. The salary of a police officer, at the time they were medically retired, is not an accurate gauge of what that person could actually earn. The award, however, makes sure that the former officer is guaranteed a proportion of at least that income at that snapshot in time.

The point is this: the salary of an officer when they are medically retired does not even equal the theoretical maximum earning capacity of that person as a police officer let alone as a productive uninjured member of society.

Likewise the injury award of a medically retired officer who, due to the incapacity of their disablement, is totally unable to work does not fully compensate that person for the loss of all of their earning capacity – it can only compensate for the amount earned when that person was able to serve as a police officer.

It is noted that some individuals, before they were injured, may have continued in a role such as a beat officer or a uniformed response police officer for which they are over-educated, over-qualified or amply experienced purely as they feel it is a vocation, they enjoy thief-taking or in the hopes that they will be able to specialise or to be promoted in the future.  They may have left a high-flying job to pursue their dream of becoming a police officer.

Arguably if a true forensic actuarial compensation was calculated, the exposure of a police force to compensate for someone’s true loss of earning capacity would greatly exceed the amount payable by injury awards. In other words, the injury award is intended to dissuade those injured on duty from suing the police force that medically retired them. This is the truth of the minimum income guarantee purpose of the award and this is why anyone exercising their latent capacity to earn should appeal when a SMP or HR manager does some clever jiggery-pokery calculations involving deducting earnings from former police salary, or national average earnings, or the assumed, speculative earnings potential of the individual in the same manner than ESA is unlawfully deducted.

We at IODPA would like SMPs and HR managers to think about what they have been told by the Home Office, elements with the NAMF, and by the likes of Mr Wirz, and contemplate another short quote from Guy Kawasaki:

‘Defy the crowd. The crowd isn’t always wise. It can also lead you down a path of silliness, sub-optimal choices, and downright destruction.’

 

 

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...