newsflash

Injured Pensioner Wins Court Case Over Back Payment Of Pension

Injured Pensioner Wins Court Case Over Back Payment Of Pension

IODPA member Angie McLoughlin has successfully won her hearing which was heard at Leeds County Court on Thursday 21st March 2019.

Following a regulation 32(3) review under The Police (Injury Benefit) Regulations 2006 in which Mrs McLoughlin had her original injury award changed from a band 1 to a band 4, her former force West Yorkshire Police, refused to back pay her the loss of her pension for a number of years.

The case was fought on her behalf by Ron Thompson of Haven Solicitors and David Lock of Landmark Chambers.

Here is their press release –

 

Angie

 

Here is full copy of the judgement – 

McLoughin-V-CC-of-West-Yorkshire-Police

 

Our congratulations to Angela, Ron Thompson and David Lock as this case has huge implications for injured officers who are considering challenging a previous injury award under regulation 32(2) or 32(3).

Thames Valley Police Lead The Way With Ethical Injury Reviews

Thames Valley Police Lead The Way With Ethical Injury Reviews

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

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

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

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

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

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

Here is the relevant section of the NARPO newsletter –

TVP NARPO

 

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

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

The Firefighters’ Pension Scheme 2015 and the Police Pension Scheme 2015

The Firefighters’ Pension Scheme 2015 and the Police Pension Scheme 2015

The Firefighters’ Pension Scheme 2015 saw thousands of younger firefighters compulsorily transferred into a scheme where they have to work until 60, pay more and work for longer only to receive a pension that is greatly reduced in value. Firefighters younger than age 45 on 1 April 2012 were unfairly penalised as they were forced into a worse scheme whereas older firefighters were allowed to remain in their original scheme.

Sound familiar? The Police Pension Scheme 2015 was introduced by the Government which changed the pensions of many serving officers that had previously been in the Police Pension Scheme 1987 or the New Police Pension Scheme 2006.

The PPS 1987 was a two thirds final pension scheme where the officer had to complete 30 years to qualify, whilst the NPPS 2006 was a half final pension scheme whereby the officer had to complete 35 years. The PPS 2015 is a Care Average Revalued Earnings (‘CARE’), whereby officers accrue annual increments to their pension pot based on 1/55.3 of their annual salary. The normal retirement age under the PPS 2015 is 60. Needless to say that each subsequent pension scheme costs more to contribute to with less final rewards.

Ordinarily, new pension provisions cannot be introduced for existing members that would be worse, but the Government introduced new primary legislation to circumvent this restriction. As with the fire service, there was a complex set of rules as which serving officers should remain on their existing pension plans and those who should be moved across to the new scheme. Tapered protection was provided to those with more service, whilst those with less service had no choice.

The Police Federation sought legal advice, and here is a summary of the conclusion, the full text of which can be found here –

All possible challenges have been considered including:

Public law as primary legislation was used to introduce the CARE scheme judicial review was not available.

European law and  Human Rights law (in several recent cases the European Court of Human Rights has not been swayed by arguments that those on the public service have had to bear the brunt of economic reform)

Discrimination. (The key challenge here considered was whether these pension changes would be age discrimination: however, the law states that age discrimination can be justified as a proportionate means to a legitimate end, and it is likely to be considered as such in this instance).

At this time, we will therefore not be challenging the introduction of the Police Pension Scheme 2015. However, we will continue to monitor how the scheme operates in practice and we maintain an open mind should circumstances change that give rise to a potential successful legal challenge.

 

The Fire Brigades Union (FBU) however took their own legal advice, and following pension claims from over 6,000 firefighters, the FBU launched a significant age discrimination legal challenge against the government. A number of employment claims were made, but the crux of the matter hinged on the two following points –

  • Whether the Government could discriminate (by introducing the transitional protection) as long as they have a “legitimate aim”, and
  • Whether that discrimination was a proportionate means of achieving a “legitimate aim”.

Disappointingly, the original Employment Tribunal found in favour of the government and against firefighters. The FBU lost both points and the ET concluded that the introduction of the new pension scheme was a social policy aim of the Government, affecting all public service employees, and European law allows member States a wide discretion when deciding their social policy objectives.

However, a similar Employment Tribunal, at around the same time, but affecting judges, found in favour of the judges.

The FBU appealed the finding against the firefighters. The government also appealed the finding that was in favour of the 210 judges. Both cases were tied together in a new joint Employment Appeal Tribunal.

The EAT was held between 11th and the 14th December 2017 at which point, judgement was reserved. The decision was handed down on 29th January 2018 whereby the EAT overturned the original decision of the ET in favour of the FBU.

The case was then heard in the Court of Appeal between 5th and the 9th November 2018 following a further challenge by the Government, again combining both cases.

The court has determined that there is only one possible answer to the question as to whether the government was pursuing a ‘legitimate aim’ when it introduced the transitional protections. On the evidence produced by the government, the answer is, “No”.

Because the FBU won on this first question, the court determined it did not need to go into the second question.

The government has asked for permission to appeal to the Supreme Court. This is not an automatic right and they would need permission either from the Court of Appeal or from the Supreme Court to do so. To get permission they would need to show that there is an arguable point of law of general public importance.

The court also ruled that the other side (government) should pay the FBU legal costs, which is an additional victory.

The case itself hinges not on whether the Government can introduce such a scheme, but the transitional arrangements for members of existing schemes. If the current ruling is not overturned it is likely that the FBU members would demand to be put back on their original pension schemes.

So, what is the relevance of this on police pensions and injury pensions?

Firstly, there are many thousands of officers that have been affected in a similar manner by having to transfer to the PPS 2015. For some, this means working for an extra 10 years, paying higher pension contributions and eventually leaving with a much smaller pension.

It also affects those retiring today under the PPS 2015 with an ill-health pension as they are calculated across two schemes with a lower pension as a result. In addition those transferring from the PPS 1987 are finding that the SMP’s are having to consider whether to place the pensioner in a lower or upper/enhanced tier which didn’t exist in their original scheme. Again, this may result a lower ill-health pension.

As injury pensions are partly calculated using ‘other’ pensions received, this too would affect the value of injury awards, which in turn may have to be re-calculated.

After the ruling, Alex Duncan , the National Secretary of the Police Federation made the following statement –

This remains a complicated issue, with no certainty over how the government will choose to address the ruling.

Today’s announcement seems like good news, but we need to digest the full judgement and of course we will continue to keep our position under review.

We will keep you updated of any further developments.

Some interesting times ahead!

Staffordshire Police Put The Brakes On

Staffordshire Police Put The Brakes On

Whoa!!!

— [Anonymous] command to stop or slow down, usually horse or vehicle

We have breaking news…

Staffordshire’s Chief Constable, Mr Morgan, has thrown the gears of his review truck into reverse.

A few weeks ago Mr Morgan took the extraordinary step of deciding that failure by IOD pensioners to allow access to their medical records amounted to a failure to attend a medical interview or examination. His stance was that full access to medical records was a necessary step in any medical examination or interview.

Seventeen of our members had received letters just four weeks prior to Christmas from Mr Morgan advising that because they had refused access to their medical records he would be reducing their injury pensions and the reductions would be backdated, indicating that they would also claw back the money from the affected pensioners.

Mr Morgan’s decision was robustly challenged by Ron Thompson and Mark Botham of Haven Solicitors, and Mark Lake of Cartwright King Solicitors, acting on behalf of the IOD pensioners concerned.

Pensioners have now heard from Mr Morgan’s solicitors that he, in his role as Police Pension Authority (‘PPA’), accepts that the letters notifying pensioners of his decision to reduce their pensions,

. . . did not sufficiently explain the reasons for the decisions. Further, the decisions should not in the circumstances have had retrospective effect.

 

Our solicitors have been told that Mr Morgan,

. . . proposes to provide each of the proposed Claimants with further decision letters, containing a fuller explanation of the reasons for the decision taken in each case…

 

Meanwhile no reductions in injury pensions will be made at this time.

IODPA can not comment in detail on the issue as the legal arguments will be continuing, and may be heading for the Administrative Court should the PPA wish to see his interpretation of regulation 33 tested.

However, we can say that all of the IOD pensioners affected by Mr Morgan’s threats to reduce their injury pensions can now have a peaceful Christmas without the extreme fear that any future decision by CC Morgan will not allow him to backdate any pension payments.

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

 

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

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

 

David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

David Lock QC has released a paper – “Police Ill-health and Injury Pensions: A guide through part of the maze”.

The original article can be viewed here – https://www.linkedin.com/pulse/police-ill-health-injury-pensions-guide-through-part-maze-lock-qc

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

Police Ill-health and Injury Pensions

Mark Botham Appears In NARPO News

Mark Botham Appears In NARPO News

The “November 2018 | Issue 96” edition of the monthly NARPO magazine contained this full page article by Mark Botham.

Mark is the Managing Director of Botham Solutions which provides training, a health and safety consultancy and advises on matters such as police pensions. He is an ex Yorkshire Police Federation rep of nineteen years and spent ten as chairman of the county branch. He holds a BA Hons, Post Graduate Diploma in Law, Post Graduate Certificate in Law, Post Diploma in Law and Master of Law and currently works for Haven Solicitors.

It is great to see some sound legal advice being published for all officers that have been injured on duty.

Here is his article –

 

img20181105_18341676

 

This article has been reproduced by kind permission of Mark Botham and the National Association of Retired Police Officers.

Mark can be contacted via Haven Solicitors – havensolicitors.co.uk

NARPO can be contacted via their website – www.narpo.org

CC Morgan cancelled today’s IOD meeting at Staffordshire Headquarters

CC Morgan cancelled today’s IOD meeting at Staffordshire Headquarters

We recently reported that Chief Constable Gareth Morgan had invited vulnerable pensioners to Staffordshire Police Headquarters to discuss the Police (Injury Benefit) Regulations 2006 and in particular Regulation 33.

He also rejected the offer for the pensioners legal representatives to attend in order to represent their clients.

We understand that the meeting scheduled for today was cancelled. We can only assume that there were no takers to his invitation?

 

 

If you didn’t see them, here are the original blogs –

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

and

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

 

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

Court holds that Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP for IOD assessment on retirement if the officer “may” have an entitlement to a police injury pension.

In a ruling on 20th July 2018, that may have significance for many other disabled former police officers, HHJ Moore has decided that Chief Constables who require a police officer to retire on the grounds of permanent disablement can be under a legal duty to refer the officer to an SMP to decide whether the officer is entitled to a police injury pension.  The Judge decided the legal duty will arise in a case where the SMP report contains information which indicates that that the officer may have a right to a police injury pension.  This positive duty means that the Chief Constable is required to take the initiative by making an SMP referral in appropriate cases, and cannot just wait until the officer makes a request.

This important principle was decided in the case of former Sergeant Lloyd Kelly who was serving with the South Yorkshire Force.  After a long career of public service, Sgt Kelly was required to retire after developing a permanent medical condition in 2005.  The SMP report showed his condition was clearly duty related, but no referral was made by the Chief Constable to an SMP to make a decision whether he was entitled to an enhanced police injury  pension.  Police pension rights are complex and, as with many officers, Sgt Kelly was unaware that he may have been entitled to an IOD award as well as his standard ill-health pension and so did not request an SMP referral.

In 2016, Sgt Kelly learned that he may be entitled to an injury award and so applied to West Yorkshire Police to have his case considered by an SMP for the first time.  He was assessed by a new SMP and awarded a substantial police injury pension.  But contrary to Regulation 43(1) of the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”), the Chief Constable refused to pay a backdated award from the date of his retirement.  Sgt Kelly, supported by the Police Federation and Slater and Gordon Lawyers, appealed that refusal to the Sheffield Crown Court under Regulation 34 of the 2006 Regulations.

On 20th July 2017, HHJ Moore held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the Chief Constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension.  The Judge held that the scheme of the Regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement.  Hence, he directed the Chief Constable to pay the backdated pay in full and with interest from the date of the award.

However the case has wider significance because the Judge also decided a Chief Constable has a positive duty to refer disabled police officers into the IOD system if they may have a right to a pension, and cannot simply wait until the officer makes a request.  He reached this decision based on:

  1. the duty on the Chief Constable to make a decision as to what pensions were owing to the former officer under Regulation 30(1) of the 2006 Regulations,
  2. the common law duty the Chief Constable owes to police officers,
  3. the requirement to make reasonable adjustments in favour of disabled officers (now under the Equality Act 2010), and
  4. to give effect to the officer’s rights under Article 1 of Protocol 1 of the ECHR.

The Judge also followed the cases of Tully and Schilling in deciding that the police pension system provided for back-dated pensions payable from the date of retirement for officers who were permanently disabled on retirement, even if the pension award decision was taken at a later date.

The Court ordered the Chief Constable to pay all of the former officer’s legal costs.

David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

David Lock QC has released a paper following his highly successful win at the high court in a Judicial Review against Cheshire Constabulary in the Manchester Administrative Court on the 14th March 2018.

The original article can be viewed here – https://www.linkedin.com/pulse/implications-police-injury-pension-scheme-decision-r-evans-lock-qc/

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

The implications for the police injury pension scheme of the decision in R v Evans