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

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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

IODPA Admin caselaw, newsflash
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

Breaking News: Judicial Review confirms that final decisions are final

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Breaking News: Judicial Review confirms that final decisions are final

Our congratulations to David Lock QC and Ron Thompson of Haven Solicitors who have won another very important Judicial Review against Cheshire Constabulary in the Manchester Administrative Court on the 14th March 2018. It centres around whether an SMP who is considering an injury award can revisit the same questions already answered during the ill-health retirement process. IODPA receives a lot of correspondence over this issue, and the judgement reinforces the rights of injured officers and should provide some certainty to those who have been ill-health retired and are seeking an injury award.

The case involved Mark Evans an officer from Cheshire Constabulary, who in 2007 following a number of on duty incidents was deemed to be disabled by reason of (i) mechanical back pain, and (ii) post-traumatic stress disorder, and that that disablement was likely to be permanent. Evans was not ill-health retired, but retained on non-operational clerical roles.

In 2015, the force reconsidered whether that state of affairs should continue and an assessment by Dr Pilkington, a new SMP concluded that he was permanently disabled on the basis of “significant degenerative changes in his right shoulder“, but that his PTSD “would not be expected to constitute a permanent incapacity“. He was required to retire on the grounds of permanent disablement.

Evans then applied for an injury on duty award, and his case was referred to a third SMP, Dr Walsh. Dr Walsh concluded the claimant had a permanent disability as a result of “significant degenerative changes in his right shoulder joint“, but again rejected the claim of PTSD. Evans was awarded band 1.

Evans appealed the decision to the PMAB, who disagreed that he had any permanent disablement at all, and therefore he did not qualify for an injury award.

The case hinged on whether following the initial determination of Dr Hutton, the PMAB were entitled to reconsider under the Police (Injury Benefit) Regulations 2006, the following questions that had already been decided under the Police Pension Regulations 1987,

(a) whether the person concerned is disabled
(b) whether the disablement is likely to be permanent

Mr Justice LANE quashed the decision of the PMAB stating “police officers who are required to retire on the grounds of permanent disablement are entitled to a degree of finality in respect of their entitlement to pensions. A police officer who has to retire as a result of what is then considered to be permanent disablement caused in the line of duty should not be at the mercy of a subsequent medical assessment, that he or she was not, in fact, permanently disabled“.

You can read the full judgement here – http://www.bailii.org/ew/cases/EWHC/Admin/2018/952.html

Ron Thompson from Haven Solicitors has provided the following press release.

 

 

 

More ICO advice for Northumbria Police

IODPA Admin data protection, ICO, newsflash
More ICO advice for Northumbria Police

Another interesting development regarding the use of injured pensioners data by Northumbria Police and complaints that have been made to the Information Commissioners Office (‘ICO’).

IODPA believe that a number of police pensioners have made similar complaints regarding their former force attempting to coerce them to hand over their private and sensitive data (medical notes).

Many of them have taken the step to complain to the ICO, who have now issued advice to them.

The complaints have been centred around consent being freely given when considering releasing medical notes, the retention of medical notes and Subject Access Requests. The upshot is, that it is “unlikely that NP are complying with the first principal of the Data Protection Act”, which states that personal data should be processed fairly and lawfully.

Please note, this is advice from the ICO as opposed to a formal decision notice and it is for individuals. We would imagine that the ICO would come to the same conclusion for any pensioner with a similar complaint, regardless of force.

Of course this is not the first time that the ICO have provide advice in relation to Northumbria Police – https://iodpa.org/2017/11/24/northumbria-police-federation-wins-ico-advice-notice/

If you believe your data is being processed unfairly, please get in touch with the ICO – https://ico.org.uk/

 

 

Employment and Support Allowance (‘ESA’) and injury pensions

IODPA Admin ESA, newsflash
Employment and Support Allowance (‘ESA’) and injury pensions

Reduction of Employment and Support Allowance (‘ESA’) from injury pensions finally gets put on to the statute books.

 

 

Our advice to our members remains the same.

You will need to make an application to the DWP for ESA and also Industrial Injuries Disability Benefit (‘IIDB’), as both are now deductible benefits from an IOD award.

If successful with an application, the equivalent amount of money will be taken off your injury pension. They may only deduct money in relation to your qualifying injury.

If unsuccessful with the DWP, please do not worry. Forces will not deduct any monies, but they will need to see that pensioners have applied and failed, so please ensure that a copy of your refusal from the DWP is forwarded to your force.

“Round One” to Staffordshire Police

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“Round One” to Staffordshire Police

Mr Justice KERR recently handed down a judgement in the case of BOSKOVIC v. Chief Constable of Staffordshire Police. The matter was heard in Manchester Administrative Court on the 31st October 2017.

The claimant, now 42, left the employment of Staffordshire Police in 2002 with an ill health pension by reason of permanent disablement consisting of psychiatric injuries. An application was made for an injury on duty award, which was refused by Staffordshire Police following a number of psychiatric reports. The claimant was so unwell that she withdrew her application before it reached PMAB. She left the UK, returning in 2006.

In 2015, after reading an article by IODPA, she submitted an application to Staffordshire Police to have her application reconsidered under Regulation 32(2). In Haworth v. Northumbria Police Authority, regulation 32(2) was described as follows,

 

96. I am persuaded that Mr Lock must be correct in his submission that regulation 32(2) should be construed as 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. It must be the overall policy of the scheme that the award of pension reflects such entitlement and I see no reason why regulation 32(2) should be construed simply as a mechanism to correct mistakes which might nonetheless be able to be corrected by some other means.

97. In other words I am persuaded that in the light of the statutory scheme as a whole, there is no reason not to construe regulation 32(2) as in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right, which is this case.

 

Staffordshire Police refused her request on the basis that her claim was “frivolous and vexatious”, and the matter eventually ended up in front of Mr Kerr.

Mr Kerr has refused the application on three grounds.

He had difficulty with the wording of regulation 32(2) which states the following, “The police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him”. He believes that there must be an agreement by the PPA and that there is NO obligation to refer a matter back for reconsideration.

Secondly, he accepted that the length of time that had passed made it unlikely that the claimant would get a fair reconsideration, and that Staffordshire Police were within their rights to consider this when making a decision. This was despite the fact that the original medical reports were still on file, and even if the original psychiatrists were no longer available to reconsider the case, regulation 32(3) allows for another SMP to be appointed.

Lastly, whilst it was acknowledged that any subsequent costs i.e. payment of an injury pension award should the applicant be successful cannot be taken into account, Mr Kerr accepted that costs associated with the application and review process itself could be, particularly with regards to the cost to the public purse. Translated, this means that it is acceptable for Staffordshire Police to spend £50,000 of public money fighting this application in a Judicial Review in order to save the huge cost of £750 instructing an SMP for two hours. Of course there would be additional work for HR employees, whose salaries have to be paid anyway.

Mr Kerr gave leave for an appeal and we await “Round Two”.

The full judgement can be read here http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2018/14.html

Northumbria Police Federation Wins ICO Advice Notice

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Northumbria Police Federation Wins ICO Advice Notice

Inspector Adrian Smiles, a Northumbria Police officer, and vice chairman of the Northumbria Police Federation has asked the ICO to rule on the matter of demanding full medical records from birth.

The artificially high, SMP imposed,  glass ceiling of a PPA’s definition of attendance has been smashed and put beyond doubt by the Information Commissioner in the declaration that such demands of personal and sensitive data is excessive and a breach of the Data Protection Act.

 

 

David Lock QC: Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

iodpa medical records, newsflash
David Lock QC: Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

All copyright owned by David Lock QC

David Lock QC

David Lock QC

Barrister and QC at Landmark Chambers

Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

There is a considerable debate at the moment about how far Chief Constables, acting as the Police Pensions Authority, (“the PPA”) and the Selected

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.