newsflash

Officers Should Be Warned Of The Tax Implications On Pensions

Officers Should Be Warned Of The Tax Implications On Pensions

In a recent court case, several recently retired officers from Essex Police and the Avon and Somerset Constabulary brought a joint action by way of judicial review against a decision made by the Pensions Ombudsman.

The Ombudsman had received numerous complaints that both forces had incorrectly told them their retirement lump sums (commutation) would be tax free. The individuals concerned had retired on full ordinary pensions, and had then taken up new employment within one month of leaving their force. The Finance Act of 2004 penalises people under certain conditions for taking pension benefits where they have retired under the normal minimum pension age, this being 55.

The pensioners found themselves liable to pay a substantial tax charge on the lump sum as well as their annual pension until they reached the age of 55.

The Home Office had issued a circular on the issue, and HMRC had published the changes in their Registered Pension Scheme
Manual and so the respective forces should have been well aware of the tax implications to their ex-employees.

The High Court found that the Chief Constables were not liable for the adverse tax consequences, but the Police and Crime Commissioner for Avon and Somerset Constabulary was in their particular case. Additionally, due to the fact that certain papers submitted in the Avon and Somerset case, were found to be missing in the Essex case, the Judge remitted the case for the Essex Police and Crime Commissioner back to the Pension Ombudsman for a decision. The Judge concluded that had the unseen Essex papers been found to be similar to those of Avon & Somerset, then he would have made the same decision for the Essex claimants.

The case is Corsham and others v Police and Crime Commissioner for Essex, Hazel and others v Chief Constable of Avon and Somerset Police and others (2019) EWCA Civ 676, a copy of which may be read here –

 

Corsham

The Government Responds To The Public Service Pension Challenge

The Government Responds To The Public Service Pension Challenge

Last December a group of judges and firefighters won a Court of Appeal case against the government.

The Court decided that changes made to their pension schemes were age discriminatory.

Both cases were ruled together, as they dealt with similar issues and had previous contradictory outcomes.

The Supreme Court refused permission for the government to appeal the judgment.

On July 14th Elizabeth Truss, who is the Chief Secretary to the Treasury, issued an announcement which included this statement:

The matter will be remitted to the Employment Tribunal in respect of the litigants in the firefighters and judicial pension schemes. It will be for the Tribunal to determine a remedy. Alongside this process, government will be engaging with employer and member representatives, as well as the devolved administrations, to help inform our proposals to the Tribunal and in respect of the other public service pension schemes.

The Government has stated the reasons for the 2015 reforms remain and that the judgment does not alter their commitment to ensuring that the cost of public service pensions are affordable for taxpayers and sustainable for the long term.

It now seems the government accepts the court’s ruling will have wide-reaching effects, which will impact, we hope favourably, on police pensions.

The full Government statement can be read here.

 

Public Service Pensions_Written statement - HCWS1725 - UK Parliament

Has Your Force Been Deducting Too Much From Your Injury Award?

Has Your Force Been Deducting Too Much From Your Injury Award?

Following the recent case brought by David Lock QC and Cartwright King Solicitors and the decision of the Court of Appeal in Evans & Ashcroft v Chief Constable of South Wales Police, it has come to light that many forces may have been deducting too much from injury pensions since 2010 for those in receipt of certain social security awards, namely Industrial Injuries Disablement Benefit (‘IIDB’).

We have included a copy of the decision as well as a very useful circulation provided by the Police Federation.

In short, injury pensions and social security awards are normally increased by the same annual increments, which means that as each rises annually by the same percentage increase forces are entitled to deduct the whole amount of IIDB from your injury pension. However, in 2010, due to an Up-rating Order, the Secretary of State was entitled to increase benefits (including IIDB) at at rate higher than the general level of prices, which is what they did. The result of this was that IIDB increased at a rate higher than injury pensions.

The PPA continued to just deduct the total received in IIDB from the injury pension causing a detriment to the officer and in contravention of sub-paragraph 7(2) of Schedule 3 of The Police (Injury Benefit) Regulations 2006.

Officers in receipt of IIDB are encouraged to write to their forces asking whether they have been unlawfully reduced.

Here is the court decision

Evans & Ashcroft v Chief Constable of South Wales Police

 

Here is the Federation circulation

police fed circulation re IIDB

 

 

Court rules that there are two sides to every story

Court rules that there are two sides to every story

IODPA would like to congratulate David Lock QC and Ron Thompson of Haven Solicitors for another successful judgement that was handed down last week by the High Court in the case of R (Michaelides) v Police Medical Appeal Board [2019] EWHC 1434 (Admin).

We have included the full judgement at the bottom of the article for you to read.

Robin Michaelides moved to Scotland in 2001 from South Africa where he was a police officer, and joined a Scottish force. He did well there, and passed the promotion exam for the rank of Sergeant, before transferring to Merseyside Police.

He was promised by Merseyside that his promotion qualification would be accepted, but that promise was soon broken. Robin also faced numerous incidents of racial abuse and discrimination from his fellow officers in Merseyside. Senior officers did nothing to address the concerns he raised and seem to have instead viewed him as a troublemaker.

Robin was given no assistance in getting up to speed with English law, and was posted to CID without any appropriate training.

His health suffered under the persistent abuse, and eventually in 2015 after several periods of sick leave he was made subject to an Unsatisfactory Attendance Procedure, the stress of which only served to worsen his mental health. Robin was retired from Merseyside by the Chief Constable in August 2015.

His application for an injury award was rejected, and Robin appealed the decision to a Police Medical Appeal Board, where it was again refused.

The matter was successfully challenged, and the decision of the court is that the matter should be remitted back to a (preferably new) PMAB.

 

David Lock QC had the following to say about the case –

The court affirmed (albeit on an obiter basis) the approach of the Court of Appeal in Boskovic to the Evans/Doubtfire point.  That, of course, may or may not remain good law depending on the outcome of the application for permission to appeal in Boskovic to the Supreme Court (which awaits a decision).

However, perhaps more significantly, the claim was successful because the Court affirmed the need for the PMAB to act as a proper fact finding tribunal where there are disputed facts.  Thus a PMAB which fails to act as a proper fact finding tribunal before exercising its medical decision making function will act unlawfully.”

 

This is an important case because there are often two version of events presented to an SMP or a PMAB, one from the officer, and one from the force. What it instructs the medical authorities to do is to consider all the evidence available regardless of the source and give sufficient consideration before dismissing one version or the other.

 

Michaelides

Northern Ireland Police Win Claim For £40 million Overtime Payment

Northern Ireland Police Win Claim For £40 million Overtime Payment

Some 3,750 officers and support staff in the Police Service of Northern Ireland (PSNI) have won a class action over how holiday pay should have been calculated.

They claimed holiday pay should be calculated on the basis of actual annual working days, rather than on the 365 days divisor which the force had been using.

A tribunal hearing initially went against the claim, but this was overturned on appeal.

The affected officers and staff now can expect to be paid monies owed from back to 1998, and the total bill is likely to top £40 million.

Lawyers for the Chief Constable had argued that payment was only due for three months prior to the case being brought, but this was dismissed by the appeal court judges, who accepted that the Chief Constable would be ‘unjustly enriched’ were this argument accepted.

 

Summary of Judgment - Court of Appeal determines that claims for holiday pay shortfall can be taken back to 1998

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 –