Disability Discrimination

Dismissed PTSD Officer wins right to sue for discrimination

iodpa Disability Discrimination, Equality Act 2010, newsflash, Uncategorized
Dismissed PTSD Officer wins right to sue for discrimination

A former Metropolitan police officer who suffered post-traumatic stress disorder (PTSD) following an assault while on duty, but was dismissed by a misconduct panel who failed to take the PTSD into account, has been given the right to sue her bosses for discrimination at an employment tribunal.

The officer – named in court only as ‘P’ – said the misconduct panel which ended her career in 2012 had been guilty of disability discrimination because it failed to take her PTSD into account.

Previously, police officers could not bring proceedings in an  employment tribunal, to challenge the actions or decisions of the Panel, because it’s a judicial tribunal.

The Supreme Court ruling on Wednesday over-ruled this.  The ruling is a game-changer that determines that police internal misconduct panels do not enjoy judicial immunity and victims of discrimination on the grounds of race, gender or disability can now pursue discrimination claims against the police at an employment tribunal.

P (Appellant) v Commissioner of Police of the Metropolis (Respondent) – The Supreme Court

Case details

It is apparent that this judgement has further implications on other professions, panels and tribunals, including Police Medical Appeal Boards (PMABs).

The Supreme Court is highest authority in the interpretation of UK law and can not be appealed.  Such a judgement shines a light on the thought processes and current paradigm of our leading judges in how, and to whom, the Equality Act applies.

 

Employment Judge Rules That The Equality Act Applies To Injury Awards

iodpa Disability Discrimination, Equality Act 2010, newsflash
Employment Judge Rules That The Equality Act Applies To Injury Awards

Northumbria Police has  failed in its attempt to strike out a disability discrimination claim against a former officer with an injury award who Northumbria wanted to continue a review under Regulation 37 despite the former officer being sectioned in a mental health institution.

In perhaps the first judgement in employment law concerning the Police Injury Benefit Regulations, Employment Judge A M Buchanan (sitting alone) has ruled that the Regulations are an occupational pension in relation to the Equality Act 2010 (EqA).  Northumbria Police tried to persuade the court to dismiss the claim without a full hearing of all of the evidence on the basis the tribunal had no jurisdiction.

The immediate consequence is that Section 61 EqA is a gateway that allows discriminatory action to challenged in an Employment Tribunal, when it occurs in the administration of injury awards.

Judge Buchannen said;

I consider there is every reason why a nondiscrimination rule should apply to the Scheme. It is a scheme which clearly provides benefits in the nature of a pension

And he continued that the only forum to seek redress for such matters will be an Employment Tribunal;

I conclude that the matters which are sought to be litigated in these proceedings are not matters which fall within the jurisdiction of the Administrative Court of the High Court or for that matter the Crown Court. The claimant does not seek to challenge the process per se but seeks to have a Tribunal adjudicate upon whether or not in doing what he has done the respondent has breached the provisions of the 2010 Act in the way he has carried out his duties.

The claim can now proceed to full trial.   If Northumbria appeal the preliminary judgement then it will be heard before an Employment Appeals Tribunal and become a stated case. The full judgement can be read below:

Mr DJ Curry v The Chief Constable of Northumbria Police: 2500281/2017 – GOV.UK

Employment Tribunal decision.

Introducing Our Live Employment Tribunal Search Feed

iodpa caselaw, Disability Discrimination, Equality Act 2010, newsflash
Introducing Our Live Employment Tribunal Search Feed

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

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

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

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

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

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

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.

 

 

 

 

The History between Wirz and Staffordshire Police

iodpa Disability Discrimination, Legal Services, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, NWEF
The History between Wirz and Staffordshire Police

It is as though instead of a dog wagging its tail the tail should wag the dog. And all Nature would stand aghast before such an improper spectacle.” – Fräulein Schmidt and Mr. Anstruther by Elizabeth von Arnim

Another knife-attack was thwarted last week in Westminster. Overnight, on the same day, there were anti-terror raids in Kent and London. These were unconnected, but police say that they have foiled an ‘active terror plot.’ All this will blend into the background soon, as much as last month’s attack in Westminster already has. Not because we don’t remember anything, but because we never learn anything.

Behind the scenes there are police officers working tirelessly to protect the public.  But other, ill intentioned people within the police service itself are also working behind the scenes. They are a cabal of individuals who are determined to see those same officers in financial peril if they are ever injured on-duty;  even though legislation exists to protect those who protect us, if the worse happens to them.

Today we are going to talk about two particular individuals, both of whom have history in the recent scandal started by Staffordshire Police in their mass review program.  The frequency these two names appear throughout the saga of injury awards is clear proof that lessons have not been learnt.

Back in 2008 Staffordshire was developing a serious case of frost bite in it’s cold feet over the zealous application of the infamous Home Office guidance 46/2004 which called for severely disabled former police officers to have their income instantly dropped by thousands of pounds just because they had reached 65 years of age.

The small legal minds of Staffordshire Police were in a bind.  “What to do?”, they mulled.  “We really want to do this. Think of the money we we can save.  But something about this guidance doesn’t smell right”.  Like any proud member of NAMF at the time they reached out to the one person they thought could provide some legal incantation to help clear the way..

Introducing the first of our dastardly duo:  Nicholas Wirz, principle solicitor of Northumbria Police.

Michael Griffiths was Staffordshire’s force legal advisor at the time and, on behalf of the force’s director of resources, Graham Liddiard, Griffiths wrote to Mr Wirz on 27th September 2006 to ask whether Wirz had an answer to their concern that, by reviewing all with the intention of reducing everyone not on a band one, that they would breach discrimination law.

Specifically Griffiths asked:

Our particular concern at this time however relates to the potential effect, if any,  of the soon to be implemented Employment Equality (Age) Regulations 2006  upon the Home Office Circular.
My particular purpose in writing to you at this time is to ascertain whether or not you are in possession of any external legal advice regarding the matters referred to in your report

The report mentioned above is this NAMF guidance authored by Wirz and another grubby individual named Trevor Forbes.

Forbes is number two of our individuals of note.  He is a former Inspector who joined ranks with Wirz and ran with the NAMF wolves, Forbes still to this day works as a freelancer for some forces defending their position in Police Medical Appeals Boards.

This NAMF guidance seems quite detailed on the Home Office invention of ‘cogent reasons’ doesn’t it?  It is as if the Home Office authored it itself… or more likely the Home Office was using Wirz and Forbes as proxies.  Perhaps another conspiracy theory is HOC 46/2004 was Wirz’s idea all along and he was the one who sold it to the Home Office.

Whatever the truth, back in 2006 Wirz and Forbes had a prominent role in the roll-out of unlawful guidance.  Wirz happily used his position to slowly but surely influence decisions.  He advised on every matter on reviews of injury awards that came to his court. This meant that every decision made in relation to Police Injury Benefit Regulations was influenced by Wirz as early as 2006.

We can’t find a comparable analogy of a qualified solicitor surviving the fall-out or pursuing an agenda that was later found to be unlawful, and yet managing to remain in practice.  Whether or not the guidance was actually all his, or not, is irrelevant.  The report referred to by Staffordshire shows that Wirz swallowed it whole and sung it out from the pulpit like a demented proponent of televangelism.

It’s quite likely a police officer found to be championing unlawful processes with such enthusiasm would find themselves on a gross misconduct charge.

Anyway, back to the Staffordshire and Wirz love letters.

Wirz obviously didn’t convince Messrs Liddiard and Griffiths.  They bottled it and capitulated to an ‘agreement’ signed by themselves, local NARPO and the Federation.

On the 6th October 2006 Griffiths wrote back to Wirz saying:

Thank you for your very useful letter of the 2nd October 2006 in response to my earlier correspondence. […]

I am pleased to note that it is not just ourselves who are of the opinion that the Circular causes a degree of confusion which may require litigation to resolve. I shall forward a copy of your letter to Mr Liddiard for his consideration.

So what did Wirz say to Staffordshire police?

This is the Wirz letter to Staffordshire’s Mr Griffiths in full:

Apparently no external legal advice had been sought by Wirz or by NAMF (National Attendance Management Forum now re-branded as the National Wellbeing Engagement Forum).  Wirz is the self-proclaimed authority in such matters so his arrogance probably prevented further legal examination of his mutterings.

Wirz starts his letter with this:

Thank you for your letter of 27 September 2006. I can confirm that I sought no external legal advice with respect to the matters contained in  the joint note to members of the National Attendance Management Forum dated 24 July 2006

Wirz then says without a hint of irony that it is OK to review when Staffordshire wants to reduce awards, but encouraging former officers to seek a self-reviewed review shall not happen due to the drain on resources.  He says:

Personally I believe an ex officer keeps the CRA, which applied at the time of an ex officers retirement, otherwise vast numbers of officers who have attained the old CRA and who are in receipt of injury awards will seek a review. No resources have been made available for this and the Home Office has not flagged this up

The highlight of Wirz’s assertions comes before his own definition of how compulsory retirement age can be used against a disabled former police officer.  Apparently, he didn’t have a clue.  In any case he doesn’t say whether Staffordshire should or shouldn’t concern themselves with worrying over discrimination and breaches of equality law:

As regards new age discrimination legislation, this, too, needs to be the subject of further guidance

An ambiguous lawyer’s answer if ever there was one!  Guidance begat guidance seems to be his mantra.  The cynic would say that no doubt Wirz would write the secondary guidance on the guidance, wrongly reassuring forces that there is in fact no breach of equality law.

But then even back in 2006, Wirz knew that forces like Staffordshire were guinea pigs and that he was walking on the wrong side of the knife’s edge.  He knew the work he encouraged would light appeals.  Realisation that anything Staffordshire does, as encouraged by people like Forbes and Wirz, will in all likelihood be challenged.

Wirz evens comes clean with this fact:

This matter will, in all probability, be resolved by the High Court when a case dealt with pursuant to 46/2004 is appealed.

Now that remark would be acceptable from anyone who hand no hand in the administration of police injury pensions, but is a remarkably incautious remark from a man whose influence over how injury reviews would be held was considerable. He seems to care not a jot that the Home Office guidance might be of dubious legal integrity. His attitude is to advise that administrators go ahead and possibly break the law. It is a gambler’s advice, not the carefully considered balanced view expected of a legal professional.

Indeed, Wirz’s prediciton was spot on.  The issue was indeed resolved in the High Court – to the considerable inconvenience of the pensioners involved.  The cases of Crudace, Slater and Simpson (along with a huge amount of Pension Ombudsman decisions) called Wirz’s guidance the unlawful perversion that it was..

So back to 2017.

Who is still the legal advisor to NAMF/NWEF? Answer: Nicholas Wirz of course.  Who’s force has lost yet another judicial review about the unlawful interpretation of Regulation 37?  Answer: Nicholas Wirz’s Northumbria.

And what police force is plunging head-first into another mass review catastrophe? Staffordshire.  NAMF/NWEF is still at the heart of the problem.

Wirz is the tail that keeps wagging the dog.  The lessons of the past have not been learnt.

The tentacles that spread out between Staffordshire & Wirz in 2006 are still clutching for  hand-holds on brittle ground.  This time it’s different though, as the lessons of NAMF has only been forgotten by those who listen to NAMF.  The wealth of information available from dark times show that the benefit of doubt no longer exists. Staffordshire is looking down the dark wide barrel of a blunderbuss, which is primed, loaded and ready to fire. Wirz must know that Staffordshire is heading for large amounts of trouble with its mass review ambition. It will be a costly and futile mistake. But, Wirz has not a care. He gets paid no matter what.

IODPA exists to stop the vicious gamesmanship of people like Wirz, who in their efforts to always try to push their own interpretation of  the Regulations, to the very great harm and distress of disabled former officers and their families.

We take no pleasure seeing Staffordshire squirm in its defence of its mass review program.  It’s all so unnecessary.  But sorry, Staffs, you can not defend the indefensible and hope to get away with it.

 

 

 

“Uncontrollable” Staffordshire Police

iodpa Disability Discrimination, Equality Act 2010, newsflash, PEAM, Regulation 37, Review
“Uncontrollable” Staffordshire Police

Oh Dear.  The force labelled by the Daily Mail* as “out of control” has decided to victimise those former police officers, now medically retired, who became injured on duty whilst serving for it. (*we know some people refuse to read the Daily “Fail” but occasionally it does serve a purpose for campaigning journalism  – Press Awards Newspaper of the Year for 2016).

Staffordshire is infamously renowned for continually using the discredited and neither “lawful nor unlawful”  ©NAMF  Police Earnings Assessment Matrix (aka PEAM) to make everyone, retired from it with an injury award, a band one. Don’t take our word for it, Staffordshire admit the Regulations don’t mention PEAM and that they use it in this freedom of information request:

PEAM is used along with police staff earnings and appropriateoccupational earnings information to calculate potential earnings. It is not necessary for PEAM to be in the regulations as forces can utilise differing methods for calculating earnings.

 

PEAM and Bad Maths

In an example of unprecedented lunacy, it seems  as though Staffordshire, with the current Chief Constable Jane Sawyer retiring, is looking at compulsory reviewing any former officer who ISN’T a band one!

The irony is unparalleled given the degree of disablement of the  majority of Staffordshire injury awards were calculated using a flawed methodology and therefore falls foul of the Fisher judgement that ruled that any “thin in the extreme” reasoning and lack of individual application means the decision should not stand.

PEAM by it’s nature removes individuality and covers all of those piped through it with a generic blanket of defaults – all variables predefined by a spreadsheet algorithm.

So it amazes us that these people can’t read?  If only the HR minions of Staffordshire viewed our blogs.  The legal bill of paying thousands upon thousands of pounds could be avoided.  Equality law exists to prevent this discriminatory use of a discretionary duty.

To give you a flavour of what unlawfulness to expect, look at the first line of their ‘policy’ here:

https://www.staffordshire.police.uk/ibr

The purpose of the reassessment of Injury Benefit (otherwise known as an Injury Pension or Injury Award) is to ensure that the recipient (the Injury Pensioner) receives the correct level of Injury Benefit.

Wrong from the get-go.

A review (under Regulation 37) is not a reassessment.  Only after evidence of substantial change can there be any revision to the degree of disablement and it is unlawful to calculate a new degree of disablement to find substantial change.  It absolutely has nothing to with regressing to the ‘correct level’ of benefit … whatever that is!

We covered the ridiculous “goldilocks” syndrome some HR directors grasp hold of over a year ago- read the dismissal of it here.

Someone in Staffordshire thinks they know everything there is to know about the Police Injury Benefit Regulations.

https://www.staffordshire.police.uk/article/6977/Legal-Background

Oh dear, Oh dear.

Whilst every other force steps backwards, Staffordshire jumps into the breach.  They even think Regulation 33 can be used to force people to complete their invented questionnaire.

https://www.staffordshire.police.uk/article/6981/FAQs—Injury-Benefit-Reassessment#answer6985

Interestingly Gareth Morgan, the Deputy Chief Constable of Avon and Somerset, will be appointed Chief Constable of Staffordshire next month.

Let us remind you of the February 2017 press release this future Chief gave concerning the historical abuses conducted by a police doctor, and subsequently covered up by senior personnel.

“Anyone requiring a police medical examination held on police premises by a police doctor should have had an expectation of being safe. It is clear that the conduct of some of these medical examinations fell well below this standard.Deputy Chief Constable Gareth Morgan

Plausible deniability can not be argued by Mr Morgan.  He was in a senior post whilst Avon & Somerset thought mass reviews were a good idea.  He was also the senior investigative officer on the 2015 College of Policing’s scathing report on the horrors of ill-heath retirement.

It looks like we will reporting extensively on Staffordshire and we will do whatever we can to show them the true path.

Post-Employment Victimisation & Discrimination is Unlawful

iodpa Disability Discrimination
Post-Employment Victimisation & Discrimination is Unlawful

President Franklin D. Roosevelt would not travel on the 13th day of any month and would never host 13 guests at a meal. Napoleon and President Herbert Hoover were also triskaidekaphobic, with an abnormal fear of the number 13.
– Unknown

Friday the 13th, considered by many as one of the unluckiest days of the year, was upon us yesterday.  We published this post:

Proportionate Means of Achieving a Legitimate Aim

For those HR professionals that took the decision to stay tucked up in bed all day to avoid any potential Friday the 13th bad luck that may come their way, or alternatively, locked themselves in their drab hermetic-sealed office to ignore the superstitious chatter, we are giving them a second chance to embrace the Equality Act 2010 (EqA).

There will be those who administer the police injury Regulations – those indefatigable HR professionals that braved their fears yesterday and faced Friday 13th head on – who may have read the above post but still have the asinine view that the EqA does not apply to them: You know the sort!  their mantra, oft repeated, is … “we have a statutory duty… dontcha know! Anyway these medically retired officers have left – they can’t touch us with equality law“.

Oh dear.  How wrong can they be?

Dear reader, let us introduce you to the Court of Appeal decisions of Jessemey v Rowstock Ltd & Anor [2014] and Onu v Akwiwu & Anor [2014].

The Court of Appeal handed down these two judgements setting out important points of principle in equality law. In Jessemey v Rowstock Ltd & Anor [2014] (an age discrimination case) , heard alongside the conjoined appeals in Onu v Akwiwu & Anor [2014] (race discrimination case), the court found that the EqA does cover post-employment victimisation.

The EqA does provide for claims of post-employment victimisation, as required by the Equal Treatment Framework Directive (2000/78/EC), the Race Directive (2000/43/EC) and the European Court of Justice.

Post-termination protection is conferred by Section 108 of the Equality Act 2010 and that section applies only where a relationship has previously existed between the parties.  For instance, the relationship between a police force and those it medically retired!

In particular, the Court of Appeal took into account:

  • –       at the time the act was drafted, post-employment victimisation was unlawful (Rhys-Harper v Relaxion Group plc);
  • –       there was nothing suggesting that the government intended to change to law and remove this protection;
  • –       the Act’s explanatory notes suggested that post-employment victimisation was to be covered;
  • –       if it was not covered, the UK would be in breach of EU law; and
  • –       there is no rational basis for treating post-employment victimisation differently from post-termination discrimination and harassment.

Those not aligned with this truth are operating on a wrong perception of reality.

Coherence and internal logic are not notable attributes of the Friday 13th superstitions. Just like the film franchise series of the same name getting sillier and sillier, the failure of police forces to grasp their duty and to consider the EqA when dealing with those with injury awards will lead them into their own world of  never-ending horror sequels.

 

 

 

 

Proportionate Means of Achieving a Legitimate Aim

iodpa Disability Discrimination, Equality Act 2010
Proportionate Means of Achieving a Legitimate Aim

“Against legitimacy is arrayed usurpation; against modest, single-minded, righteous, and brave resistance to encroachment is arrayed boastful, double-tongued, selfish, and treacherous ambition to possess. God defend the right!”― Charlotte Brontë

You won’t find the Employment Appeals Tribunal decision West Midlands Police & Others v Harrod UKEAT/0189/14/DA in our sidebar feed as it concerns age discrimination not disability discrimination.  But we are now going to talk about it anyway!

West Midlands police and four other forces needed to make manpower savings to ensure continuing efficiency whilst suffering budget cuts. By law no officer could be retired in order to secure efficiency unless he had an entitlement to a pension worth 2/3 of average pensionable pay after 30 years service. The forces retired those officers who had such an entitlement.  The officers complained they had thereby been indirectly discriminated against on the ground of age, and an Employment Tribunal (ET) upheld their claims.

The ET originally found that the widespread practice of requiring the retirement of officers in this way was not a proportionate means of achieving a legitimate aim. It took into account that there were other ways in which the forces could have cut costs.

However, the Employment Appeal Tribunal disagreed. It held that, while discrimination potentially occurred when the forces retired the police officers, the tribunal had been wrong to conclude that the forces’ actions were not justified.

The Honourable Justice Langstaff said this of the flawed decision of the original ET

It applied too stringent a standard of scrutiny, and did so in part because it failed to engage with the fact that Parliament had chosen to make A19 in the terms it did, wrongly thought A19 was a provision intended to provide security of tenure (which it demonstrably did not, since it allowed for the opposite), and failed to analyse the reasons of social policy which underpinned the restriction of the use of A19 to those who had an immediate pension entitlement

In a rare twist, there is something significant to the judgement which is found in the postscript of the transcript.  Justice Langstaff says this:

Though it may be said that those over 48 are not all, nor inevitably, included in the group of those subject to A19, since not all may have served for long enough, it is entirely permissible to see the group constituted by those over the age of 48 as being at risk of inclusion, whereas those under 48 could not be.  This is a difference entirely and directly defined by age.  It leads me to think that the discrimination here would properly have been identified as direct …

It leads me to think that the discrimination here would properly have been identified as direct

Justice Langstaff is saying the arguments of the appeal could have been put to him as direct discrimination and he postscripts his view in order to:  “. . . serve to tell others who face similar circumstances that they should not necessarily assume their case is one of indirect rather than direct discrimination, and may wish to argue the point out fully, as it has not been before me”.

In plain language, the court was saying that the officers would have won their case if it had been presented on slightly different grounds.

Why is this worthy of your intention?

Because there there’s no objective justification defence for cases of direct discrimination.

We can relate this to the way in which disabled former officers are being regularly discriminated against, in that they are being selected to have their degree of disablement reviewed solely on the basis of which band of injury pension they receive.

There is ample evidence that those few forces who are still hell-bent on conducting unlawful reviews target pensioners who are in the higher bands. There can be only one reason for this sort of selection, and that is the higher bands represent the best opportunity for reduction and thus saving the force money.

Bear in mind that we are talking about those forces which hold reviews which are unlawful in other ways as well as discriminatory here – reviews where a corrupt doctor acting as SMP for a corrupt police pension authority via a corrupt HR department, supported by a corrupt legal services department set out to subvert the injury pension Regulations so as to achieve a reduction in pension payments to damaged and often very vulnerable people.

Choosing to review band three and fours more regularly than band ones is directly discriminatory.

Indeed, the situation is that band ones are rarely reviewed by these corrupt forces. Go figure. A band one can only be increased, not reduced, so why bother to review them?

The discrimination is direct. Select those pensioners on the higher bands for no reason other than they are on a higher band. Send them a questionnaire and threaten suspension of their pension if the stupid and intrusive form is not completed.

The madness of these forces is such that they see their discrimination as being obligatory. They actually think they have to review – the oft-repeated false declaration of, ‘We have a duty to review.‘ Of course, nothing could be further from the truth.

The opposite of discrimination is discretion, and forces are required to apply individual consideration to whether or not it is appropriate to review anyone’s degree of disablement. Yet, in their blind ambition to save money certain forces make no allowance for the nature or severity of the injury suffered, or the greater adverse impact a review has on those most vulnerable due to mental injury.

We know of instances where hugely distressed pensioners, in tears, shaking with apprehension, unable to form a coherent appreciation of the legal aspects of the process, and unaware of the nature and intent of the loaded questions put to them by a corrupt SMP, have been refused the comfort and support of a companion or chaperone during the medical interview. SMPs have been told, incorrectly, that they have the power to ‘direct’ pensioners to do this or that. They think they can make up rules, such as barring companions being present, whereas the fact is they have no authority whatever to do anything which is not specifically set out in the Regulations.

No matter how badly a police pension authority, or it’s HR department or SMP behave towards serving or medically retired officers, sometimes they will claim that they are just doing what they think their statutory role forces them to to. They are mistaken.

This post intends to show the reader that in fact the Equality Act makes it harder for employers (post employers etc.) to show justification than was the case under the Disability Discrimination Act 1995.  It is no longer sufficient for a police pension authority to blindly follow ‘processes’.

Before we move on to the ‘legitimate aims’, we need to mention the types of disability discrimination and the defence of objective justification.

Direct discrimination is where because of a disability, A treats an individual B less favourably than it treats others, or would treat others (s.13 EqA)

For ‘discrimination arising from disability’ and ‘indirect discrimination’ the employer (former or present) has a defence if it shows its conduct is a ‘proportionate means of achieving a legitimate aim’.

So far, so good.  So let us talk about when this defence does not apply: As mentioned above by Justice Langstaff, it does not apply to direct discrimination because of disability. That cannot be justified. Ever.

It is a fact that the defence also does not apply to the reasonable adjustment duty.  In other words, even if discrimination can ever be justified, the duty of providing reasonable adjustments to those discriminated against still wholly exists.

The Supreme Court in Akerman-Livingstone v Aster Communities Ltd 2015 2015 (concerning eviction of a disabled tenant), laid down a four-stage structured approach for classifying a ‘proportionate means of achieving a legitimate aim’:

  1. First, is the objective sufficiently important to justify limiting a fundamental right?
  2. Secondly, is the measure rationally connected to the objective?
  3. Thirdly, are the means chosen no more than is necessary to accomplish the objective?
  4. Is the  impact of the rights infringement disproportionate to the likely benefit of the impugned measure

An exception to this is when the individual has no real prospect of establishing that he/she is disabled.  Of course, if a person has a permanent disability as defined by the Police Injury Benefit Regulations this defence will not apply. All IOD pensioners are de facto disabled.

Therefore blindly reviewing pensioners based on what band their pension is, or following a policy which sets the intervals between reviews, or sets out an intention to review all pensions without any consideration to the individual, or is based on the aim of reducing the financial obligation of the police force to its disabled former officers are not valid objectives.

The only legitimate aim a PPA can hold is the correct administration of the Regulations.  A review doesn’t exist to see if someone’s award is too little or too much – only to answer the Regulatory question of substantial alteration since the last final decision. Any objective intended to look at earnings in an attempt to lower their burden to injury awards is not legitimate.

Picking on those more severely disabled purely because they receive a proportionally higher injury award is not rational, and it certainly is not fair.

The Supreme court found the Equality Act applies in cases where an eviction process is a statutory function. Similarly the supposed ‘duty’ of police pension authorities to conduct reviews of degree of disablement is subordinate to the Equality Act.  If a PPA does not perform the test when it deals with disabled people then it breaches not only it’s ‘duty’ but also primary legislation.

The Public Sector Equality Duty, or “PSED” as we will come to know and love it, came into life when section 149 of the Equality Act 2010 came into force.

149 Public Sector Equality Duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

David Scoffield QC, in his report to the Police Service of Northern Ireland, where there had been widespread maladministration of police injury awards, had this to say on the practical application of a public sector equality duty:

I have already suggested that this may well be an area where a general policy, applicable to all cases, is not the best way to proceed….
Given the contention around reviews, it also occurs to me that officers might be more receptive to being called back for review where they can be satisfied that this was considered to be an appropriate response to the particular circumstances of their case, rather than merely the result of a ‘bureaucratic’ policy of general application

Following bureaucratic policy with no allowance for individual circumstances is not a proportional use of any power or ‘duty’.  This was recently proved in the recent 2016 EAT of Buchanan v The Commissioner of The Met where the Metropolitan police lost their argument that it was proportional to instigate and continue with the informal management action process and the formal UPP process.

The procedure laid down in the Regulations and the policies which the Met developed easily meant it allowed for individual assessment in each case at each stage – but the Met thought they knew better and applied everything blindly and without forethought.

The steps that led to their rejected defence of proportional means for a legitimate aim was not mandated by the procedure or by any policy of the Met. Section 15(1)(b) of the Equality Act 2010 required the Employment Tribunal to consider whether the treatment was justified; and in such a case as this, it was not sufficient to ask whether the underlying procedure was justified.

Let’s wind up this brief exploration of forces’ confusion between discrimination and discretion.

We’ve talked about there being no defence to direct discrimination and that a justifiable legitimate end can not be used.

We’ve mentioned that sometimes what seems to be indirect discrimination can be in fact direct discrimination.  We’ve also touched on the fact that when even a justifiable objective exists a public authority has an obligation to prove it has considered all the points raised in it’s Public Sector Equality Duty.

Finally, what we are saying here is that a letter from HR saying they are reviewing you, because the chief constable has a statutory duty to do so it not good enough. There has to be a good, rational, individual reason for a police pension authority to consider whether your degree of disablement has altered. A fishing expedition is not a proportionate means of achieving a legitimate aim.

If forces continue to send out letters like this they will find themselves defending a disability discrimination claim. We remind these forces that direct discrimination has no defence.  Boastful, double-tongued, selfish, and treacherous ambition leads inevitably to a very bad day in court.

 

Introducing Our Live Feed of UK Employment Appeal Tribunal Case Law

iodpa Disability Discrimination, Equality Act 2010, newsflash
Introducing Our Live Feed of UK Employment Appeal Tribunal Case Law

Happy new year to all our readers!

Under the Equality Act 2010 (Specific Duties) Regulations 2011, police forces are listed bodies (under schedule 19) and are required to comply with the non-devolved general and specific duties under the Equality Act 2010 (EqA). The Court of Appeal has clarified that protection against victimisation contained in the Equality Act can be extended to former employees.

In preparation of our 2017 series focusing on disability discrimination law, we are proud to publish another live connection to the British and Irish Legal Information Institute website.

The new Disability Discrimination EAT Caselaw menu item can be found on the right sidebar:

You will see each Employment Appeal Tribunal case (and new ones as soon as they are published) defined as relating to the Police (either as the named party in the case or referenced by the Judge as relevant to the law as established by the outcome of a former case).

The above search of bailli.org using the terms ‘disability discrimination‘ AND ‘chief constable’/’commissioner of the Met‘ (as at 1st Jan 2017) returns 422 results for EATs.  A  cursory straw-poll of the results shows that 31 cases directly relate to a Police force as a named party in the title of the appeal – so 7.3% of these listed disability discrimination EATs directly involve a police force and the rest involve other employers where the judges have use the legal precedents found in the police related EATs or their subsequent Court of Appeal hearing.

This frequency shows a revealing characteristic of how UK police services apparently fail in their obligations to the EqA given the appeal tribunals they defend are regularly quoted in otherwise non-police disability discrimination court proceedings.   Evidence of deep institutional failure or are forces the unfair victims of vexatious complaining? If the outcomes follow the same pattern of the judicial reviews, the majority of which are found against the police pension authoities, the former is more probable.  We intend to put a meaningful measure to the EAT results.

Is horrendous treatment of those applying, or with an injury award, a proportionate means of achieving a legitimate aim?  Is the aim legitimate and are there no less discriminatory ways of achieving it?   Can police forces admit to discrimination but hide behind the defence of saying it is objectively justified?

Over the coming months we will try to answer these questions and explain in easy terms how these cases relate to those with, or applying for, injury awards.

 

Avenues of Appeal

iodpa caselaw, Disability Discrimination, Pension Ombudsman, regulation 32
Avenues of Appeal

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

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

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

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

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

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

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

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

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

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

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

Further reference to medical authority

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

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

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

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

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

Mr Justice King in the Haworth judicial review stated that [Regulation 32 is a]

‘. . . free standing mechanism as part of the system of checks and balances in the regulations to ensure that the pension award, either by way of an initial award or on a review to the former police officer by either the SMP or PMAB, has been determined in accordance with the regulations and that the retired officer is being paid the sum to which he is entitled under the regulations.’

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

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

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

PMAB

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

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

Crown Court

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

Employment Tribunals

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

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

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

Pension Ombudsman

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

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

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

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

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

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

Parliamentary and Health Service Ombudsman

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

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

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

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

Equality and Human Rights Commission & Equality Advisory and Support Service

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

Judicial review

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

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

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

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

 

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

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

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...

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