Home Office

Annex C – The Legacy

Annex C – The Legacy

The evil that men do lives after them; the good is oft interred with their bones.

— William Shakespeare, Julius Caesar

 

A while ago, back in 2004, a civil servant, name of John Alexander Gilbert, who was employed within the Home Office as Head of the Police Pensions & Retirement Policy Section put his signature to a document which caused a great deal of trouble, pain and cost.

Trouble and pain to disabled former officers, and cost to police forces – all of which continues to this day.

The document was Home Office circular 46/2004. It offered guidance to Chief Officers of Police.  Its full title was The Police Pension Scheme – Police Medical Appeal Boards/Role of Selected Medical Practitioner/British Transport Police Transfers.

There were three Annexes to the document. Annex C was the poisoned chalice from which Chief Constables were invited to drink.

 

ANNEX C

 

Annex C was a most remarkable document. It contained direct lies and unlawful distorted advice which sorely misdirected some Chief Constables and the doctors tasked with assessing the medical condition of injured former officers. It seems to have been the signal flag announcing the beginning of a dirty campaign intended to reduce or deny injured officers and former officers the pension rights conferred on them by Parliament.

Annex C caused an outcry, with voices raised from several directions, all questioning the lawfulness of the guidance. It took until 2012 for the Home Office to be compelled, at the doors of a court of law, into agreeing to withdraw the guidance.

Disabled former officers suffered for eight long years wherever Chief Officers followed the flawed guidance. Some had their injury pensions drastically reduced and all were thrown into a limbo of financial uncertainty and stress.

However, the suffering did not cease with the document’s withdrawal. Since 2004 injury on duty pensioners have witnessed and have been subjected to a most inventive, sustained and systematic course of aggressive activities devised by HR managers and Chief Constables, all intended to erode and deny pension rights. We don’t propose to analyse here why maladministration blossomed in the wake of Annex C, other than to say it seems to arise from a toxic mix of lack of knowledge and training combined with attitudes contrary to the welfare of disabled former officers.

Annex C has left a disturbing legacy and that is why it may be timely to look again at what was learned about the guidance in the hope that decent and more enlightened HR managers and Chief Constables may better understand the harm which results from maladministration. IODPA remains hopeful that the continuing lessons handed out to wayward forces by the courts will serve to curtail those who deliberately set out to cause harm and will encourage those who wish to manage police injury pensions lawfully and humanely.

We can start our brief lesson on Annex C where Annex C itself starts. It stated:

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.

 

That very first paragraph contained two direct lies.

Extensive research showed that no force had ever, ‘automatically reduced degree of disablement benefits to the lowest banding’ at any age or stage of retirement. In truth, no force had ever used an individual’s age or any stage of their retirement to reduce their pensions, whether automatically or otherwise.

The Home Office was invited to provide the names of the forces which it claimed had automatically reduced degree of disablement benefits to the lowest banding at what would have been compulsory retirement age. It was unable to produce any names. It could not, as all forces had revealed – to a former officer who conducted the research mentioned above – that none of them had ever taken such actions.

The ‘recent survey’ referred to was in truth a complete invention. There was no survey. The Home Office was asked to produce any evidence of the survey. It at first claimed that delegates to the National Attendance Management Forum (NAMF) had given their views in a single ‘round the table’ discussion on the topic – which is hardly an example of a survey on which life-changing advice ought to be based. When the agenda and minutes of the meetings of the NAMF were obtained there was nothing even hinting at any such discussion.

Moreover, the NAMF is not attended by representatives from all forces. Nor are any representatives of NARPO present. Police injury on duty pensioners views are entirely unrepresented. The NAMF was a talking ship for HR managers, and other employees of forces, and a platform for a certain Mr Nicholas Wirz to peddle his own warped view of the law. Notably, representatives of the Home Office were usually always present.

The Home Office then changed its story and claimed that the ‘survey’ was the result of several discussions and several NAMF meetings. Again, the agenda and minutes are absent of any reference to any such discussion.

The Home Office claimed in Annex C that there had been ‘consultation’ (with whom, it neglected to mention). Certainly there was no consultation with NARPO, as Deputy CEO Clint Elliot made very clear. (See below – in the full analysis of Annex C)

Annex C went on to disregard the Regulations with a virtuoso display of unsupported assumption. It said:

Once a former officer receiving an injury pension reaches the age of 65 they will have reached their State Pension Age irrespective of whether they are male or female. The force then has the discretion, in the absence of a cogent reason otherwise, to advise the SMP to place the former officer in the lowest band of Degree of Disablement.  At such a point the former officer would normally no longer be expected to be earning a salary in the employment market.

 

The Regulations are not to be administered on assumptions, but on provable facts. One can only wonder at the workings of the mind which could so assuredly make a statement so ridiculous as to be incredible, yet expect Chief Officers to swallow it hook line and sinker. According to the Home Office, at the stroke of midnight on the day before their 65th birthday, all disabled former officers are suddenly and completely divested of all capacity to work and thus earn.

There is a very full and thorough dissection and analysis of Annex C which reveals in detail the extent of the deceit and misdirection it contains.

 

Annex C Research

 

The reaction to Annex C spoke volumes about the negative and obstructionist attitudes of some Chief Officers and their staff. It had become very clear, very quickly, that the guidance was badly flawed. Chief Officers received objections from various quarters, including injury on duty pensioners and NARPO, which raised serious and well presented concern, which was more than sufficient to allow the Home Office to at least suspend its Annex C guidance whilst the issues were thrashed out.

The Home Office chose instead to bury its head in the sand and pushed all responsibility onto the forces. Of the 43 forces in England and Wales, only some 17 implemented some or all of the actions suggested in the guidance.

In March 2010 Mr Gilbert wrote to all forces and advised them to suspend reviews of degree of disablement, pending the outcome of an unidentified court case.

The case Mr. Gilbert referenced but did not name was that of Belinda Laws, a former Metropolitan Police officer who is in receipt of an injury pension. She successfully challenged the decision of the Police Medical Appeal Board, dated 17 March 2009, to reject her appeal against a decision of the Selected Medical Practitioner, that her degree of disablement for the purposes of her police injury pension should be reduced from 85 per cent to 25 per cent. The case was first heard on 12 November 2009 at the High Court of Justice. The decision was upheld at appeal on 13 October 2010.

The Home Office did nothing. It neither issued revised guidance nor withdrew Annex C.

The case of Simpson was held in February 2012.  His Honour Judge Supperstone held that part of the Home Office guidance contained in circular 46/2004 was unlawful, as was similar guidance contained in Part 5 of the Home Office’s longer, more detailed, Guidance on Medical Appeals.

At Paragraph 42 of the decision Mr Justice Supperstone opined:

In my judgement, the appropriate relief to grant in the circumstances of this case is a declaration that the section in the Guidance headed “Review of Injury Pensions Once Officers Reach Age 65” and paragraph 20 of the Guidance on Medical Appeals are inconsistent with the Regulations and unlawful. There is no justification for adopting a different approach to regulation 37(1) in respect of a former officer who reaches the age of 65 than in the case of a review for former officers of a younger age.

 

The Home Office then finally withdrew Annex C in its entirety.

It advised forces to amend its longer guidance, but left it in circulation. A copy of this guidance can be found here:

http://webarchive.nationalarchives.gov.uk/20100408130906/http://police.homeoffice.gov.uk/publications/human-resources/PMAB_Guidance/index.html

In our view, this guidance has always been as flawed as was Annex C. It remains as a festering sore, and we believe it is still used by some SMPs to guide their actions. Space prohibits a full analysis of this guidance, but section 5 of the guidance contains an outstanding example of misdirection. Mr Gilbert writes:

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.

 

In truth, the injury pension is a form of guarantee that, if the individual, for whatever reason, whether through choice or through circumstances, earns no money through working, then the injury pension will provide a minimum level of income.

The way Mr Gilbert presented it, the minimum income guarantee – which is how Schedule 3 of the Police (Injury Benefit) Regulations 2006 describes the injury pension – is a mechanism which restricts the total income, from whatever source, which a injury on duty pension is allowed to earn.

No wonder then that we see HR managers and some SMPs fixated on what pensioners earn. The plain fact is, what an individual earns is of no consequence to the Regulations. IODPA advises its members and all other injury on duty pensioners there is no need, nor any legal requirement, to divulge earnings to a SMP, a HR or Occupational Health employee, or indeed anyone else.

We would like to commend the forces who refrained from being bamboozled by the Home Office for their display of common sense – but we fear their lack of participation in the madness may have been due to inertia and indifference more than to insight and knowledge.

We should remind all concerned that Home Office guidance is not law. It does not have to be followed. Given the history of Annex C and the content of the longer guidance from the same author, anyone who follows Home Office guidance on the administration of pensions is at risk of sailing directly into serious difficulties. It took a lot of work, and courage, and a big stick waved by the courts, to have Annex C withdrawn. Annex C did nothing to bring about fairness, nor did it herald a more cohesive approach to the administration of injury pensions. It made matters much, much worse.

Annex C has gone. Its evil content is its legacy, which lingers on.

Injury Awards: Why The Past Matters

Injury Awards: Why The Past Matters

“Study the past if you would define the future.”
Confucius

There has been a massive reception to our recent post of John Giffard’s 2004 letter to the Home Office in which he wrote, without ambiguity, that ACPO wanted all injury awards stopped when IOD pensioners got to age 65.

‘ I suspect that my original intention was always to deal with people reaching 65 years of age and that remains the most important part. We continue to think that at that stage anybody inreceipt of an injury award should be automatically dropped to the lowest band or possibly even completely dropped.’

When he penned this letter Giffard was ACPO’s 1st Vice President and their spokesman on pension matters, having held this role since 2003. Had he read the Regulations, he would have known that an injury pension can not be stopped. It is payable for life.

The inference is though that Giffard knew that, but wished to disregard it. It is hard to find words to describe the utter corruption displayed should it be the case that Giffard, and ACPO, and the Home Office knew that injury pensions could not be stopped as proposed.

What do you call someone who is in authority but chooses to use their position to undermine a benefit scheme intended to be a vital component of the contract between police officers and their employers? It must be regarded as one of the most despicable acts of betrayal ever perpetrated on any body of loyal officers of the Crown.

Every problem disabled former officers have faced over the last decade or so have come about by the mismanagement and meddling of the Home Office, aided and abetted by a compliant ACPO. Every decision made in respect of degree of disablement, or grant of an injury award, since the time ACPO and the Home Office poisoned the well must be viewed as potentially flawed.

Even the national media reported the shift towards pure antagonism from ACPO viewing those injured and receiving injury pensions form heroes to a burden.  This Telegraph article is dated 2002 and mentions a quote from Giffard.

Police pension crisis looms

Already the number of former officers on pensions almost matches the 125,000 currently serving. As with the rest of the population, they are living longer. There is no separate, superannuated pension fund for the police, so the costs of retirements comes from money which could be spent on fighting crime.

There may be some who think the past is the past and should be left alone.  There is a popular adage in our society that goes something like this: Forget the past, don’t worry about the future, live in the present.

This position is untenable when considering how widely injury awards have been mismanaged. The past is vitally important, for the whole validity of each and every medical decision made by SMPs in regard to injury pensions is defined by the legitimacy of the last final decision.

Any review of degree of disablement, such as the mass reviews Staffordshire wants to conduct, depends on the fact that the previous decision on degree of disablement, whether this is the original decision or at an earlier review, was lawful. Once a decision is made, it is to be regarded, in law, as a final decision. It can be revisited or challenged by way of appeal, but if there has been no challenge then it must stand inviolable.

No matter that it may have been a bad decision. It has to be taken as a given, and as the starting point from which any future decisions on degree of disablement must proceed.

When mistakes have been made, whether in law or in fact, there is no way anyone in receipt of an injury pension can move forward until the past is fixed.  A review under Regulation 37 cannot fix the past; all it can do is only reaffirm the damage already done as the only test it can apply is “has there been substantial change” … a review can’t ask, “was the previous review lawful“.  Only a reconsideration under Regulation 32 has that power.

A medically retired former police officer in receipt of an injury pension should not have to face a Regulation 37(1) review when the last decision was corrupted, for as to do so would be accepting the unlawful determination of the SMP as a final decision.

And this brings us to Staffordshire police’s current eagerness to conduct a mass review program and the history behind it.

Giffard’s letter was the starting gun for around half of Staffordshire’s IOD pensioners to be reviewed from 2005 to 2008.  All these reviews were conducted mostly on paper without a medical authority making any decisions. We have yet to find out, but we believe it likely that the people selected were all on bands two, three and four. Those on band one were left alone, and we can guarantee the reason was because Staffs figured out that anyone on band one could not have their pension reduced, but there was a danger some of them might qualify for it to be increased.

Some pensioners at the time put up a valiant effort to inform  and educate Giffard and his HR Director,  Graham Liddiard, that the actions of Staffordshire Police was both morally corrupt and unlawful.  Pushed into a corner, Staffordshire saw they were found out and semi-capitulated by promising that they wouldn’t repeat their wrongdoing and the result was the shameful and unlawful agreement made by local NARPO, and local Federation with Staffs police.

This is a 2007 email from Graham Liddiard to Staffs NARPO.  Liddiard actually proclaims that the Regulations allow him to take injury awards away from those vulnerable and medically disabled.  Liddiard says:

The Home Office issued circular 46/2004 because it was clear that in many forces, including Staffordshire, the administration and payment of injury awards had slipped away from the regulatory position. The position adopted by Staffordshire is similar to and, in many cases, more  generous than that adopted by a number of forces outside the Met.  It is clear that Staffordshire, along with very many other forces, has not administered injury awards as  the regulations require.

Slipped away from the regulatory position‘ … in other words to justify the illegality he is claiming he has no choice – the Regulations are making him do it.  And he thinks two wrongs make a right; that by previously ‘not administering injury awards as the regulations require‘ it excuses him from now unlawfully administering the Regulations definitely not as required.

This one-sided statement makes it clear that Staffordshire Police, even in 2007, was still hellbent in implementing the Home Office guidance in it’s rawest form.  Cogent reason, National Earnings Averages … all made up.  No such things exists in the Regulations.

There are countless life-giving lessons those who administer police injury pensions in Staffordshire could have learnt from it’s past but the current police pension authority – none other than an office vested in the sole personage of the Chief Constable – has refused to learn and is rolling on in the present as if the unlawful actions it carried out never happened.

All those people reviewed over a decade ago and who were reduced or wrongly kept on the same banding when their medical condition may have deteriorated to the extent they should have been increased, but with no selected medical practitioner used by Staffordshire back then, the reviews were all patently unlawful.

The Telegraph article makes it clear that Giffard was a major force in helping the Home Office contravene the Regulations. We accept there was some pressure on budgets then, as now, but we firmly reject that as any sort of reason for the actions of ACPO and the Home Office. The duty place by the Regulations on various authorities is to actively promote the scope and purpose of the benefits scheme. There is no duty to try to find devious ways of subverting the Regulations, but this is exactly what ACPO and the Home Office did. They didn’t much like the law, so they conspired to find ways to get around it.

This is the letter from the Home Office to Giffard that explains the thought processes of ACPO and the civil servants.

Letter HO to Giffard Staffs

Neither Giffard, speaking for ACPO, nor the Home Office could change the legislation so they conspired to change how the medical decisions would be made. Colin Phillips, the Home Office’s Police Pensions and Ill Health Retirement Officer wrote :

I write to inform you of some proposed changes that we are considering making to the guidance to police medical appeal  boards … As you know, it is important to balance safeguarding the public purse and safeguarding the interests of pensioners and that the correct band is identified

We worry for the sanity of Colin Phillips if he thought a global reduction to the lowest degree of disablement is safeguarding the interests of the pensioner! The reason for all this schadenfreude is a simple one.

They knew they could not make revisions to the existing scheme, as a) there is a general legal rule prohibiting retrospective application and, b) there is a clause in the parent Act which says that no alteration in terms and conditions which result in a worsening of benefits can be applied to existing members of the scheme unless they are first asked if they wish to accept the changes. The parent act is the Police Pensions Act 1973. Section 2 of that Act of Parliament says:

(2) No provision shall be made by regulations under section 1 above by virtue of subsection (1) above unless any person who is placed in a worse position than he would have been in if the provision had not applied in relation to any pension which is being paid or may become payable to him is by the regulations given an opportunity to elect that the provision shall not so apply.

In other words no person in receipt of an injury on duty could ever be disadvantaged by a change of legislation.

The only ammunition the Home Office had was to shape and influence how the current Regulations would be applied by those under its control. The Home Office issued guidance to PMABs and to all forces which advised actions which were unlawful.

To the eternal shame of all Chief Constables at the time, not a single one of them spoke up and pointed out that the guidance was evil rubbish. Not a one. Nobody. Some of them just kept quiet and did not implement the guidance. Their silence did not indicate any concerns over the legality of the guidance – it served only to make it easier for those forces which had grasped onto the guidance as a way of reducing the ‘burden’ of paying injury pensions to set about robbing their disabled former officers.

Fourteen years of poison, influencing those who make decisions in the administration of injury awards, has produced the likes of Wirz, Cheng and deviant HR directors.

The past is the key to this and with hindsight it is easy to see how the monsters have stepped out from the dark and now perform their roles in full view of those, like PFEW, Police and Crime Commissioners, honest HR managers, and senior officers who should be shouting from the rafters.

This takes us back yet again to Staffordshire.  Giffard and his cronies invoked the Home Office guidance with zeal, but how many of those individuals whose pensions were unlawfully reduced have had their banding restored to the correct level?  How many who were reviewed by a HR minion in order to get to the “agreement” once Staffordshire realised they had a damage limitation problem to contain?

Other forces have paid back millions in unlawful deductions.  The Metropolitan Police does not review at all arguably because of the £80m recompense added to police authorities’ bills.  This huge total doesn’t even reflect the needless self-imposed legal fees these forces spent on compliant lawyers to justify the indefensible.

Retired police officer wins injury pension ruling

Police authorities may have to find tens of millions of pounds extra to fund their pension liabilities after a retired inspector won a landmark legal challenge preserving his income. The ruling by a court in Leeds overturns Home Office guidance that permitted a review of the pensions of injured officers once they reach retirement age and resulted in lower payments.

Staffordshire is again hell-bent on breaking the law by unlawfully holding reviews. IODPA wishes to make it clear to all concerned that no reviews should take place until past errors have been identified and corrected.