On 28th June 2017, Companies House web-site posted a document Appointment of voluntary liquidator detailing the impending winding-up of Dr William Cheng’s business; Partners Occupational Medical Services Limited. This document shows that the Liquidator was appointed on 6th June 2017.
This will have critical implications for Northumbria, Durham and Cleveland Constabularies, who had awarded a contract to Cheng’s (now liquidating) Company totalling £576,000
Once a Company is liquidated it would be unlawful for it to continue to trade in any way.
A further document Special Resolution to Wind up [the Company] is currently being processed by Companies House and will be published on-line within 5 working days (of 28/06/17).
Oh dear. Nicholas Wirz, Northumbria’s solicitor, isn’t getting any love from his fellow legal practitioners. Indeed they seem to totally contradict Wirz’s own interpretation of the Fisher judicial review, the one that he lost, and at the same time these real legal eagles agree with our own explanation.
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
Sarah Simcock writes in UK Police Law Blog, a blog of the Serjeant’s Inn barrister Chambers, that it isn’t about being otherwise healthy as Wirz told the NWEF conference, and it clearly isn’t about always using the police salary as the uninjured comparator – like we say, someone could have been underemployed as a police officer and their uninjured earning capacity can be a lot higher. We used an example of a maxillofacial surgeon.
And if you read all of what Sarah and her fellow professionals of barristers and lawyers actual think … it’s fair to say you will decide that our explanation is closer to the truth.
The Fisher decision does not obligate an SMP or PMAB to use the officer’s police earnings prior to injury in all cases, it merely stresses that they must form part of the consideration or act as a starting point. If there are good reasons in a particular case for a departure from that level of earnings it is permissible, but it must be objectively justified on the facts of the particular case and on the evidence available.
What is crucial is that there must be sufficient reasons provided to justify a decision in relation to the level of a particular officer’s uninjured earning capacity.
The recent decision of the High Court upon an application for judicial review of a Police Medical Appeals Board (‘PMAB’) decision in the case of R (Fisher) v (1) Chief Constable of Northumbria (2) PMAB [2017] EWHC 455 (Admin) highlights the pitfalls in the assessment of a former officer’s uninjured earning capacity when reviewing the level of an injury pension under regulation 37 of the Police (Injury Benefit) Regulations 2006.
We think people should stop listening to Nicholas Wirz. Northumbria could save millions by paying him to stay at home in a locked broom cupboard.
Yesterday the Bristol Post rightly criticised Avon & Somerset Constabulary for wasting public funds and, even more tellingly, reported that the constabulary didn’t come clean with the paper by refusing to inform them of the total expenditure. In an feeble attempt to cover their tracks freedom of information requests on this topic are now (unlawfully) banned by this police force.
Police officers injured in the line of duty do not have to fear their pensions being reduced after Avon and Somerset Police U-turned on a decision to review them. In a three-year ordeal, officers receiving the Injured on Duty Pensions were told their payouts would be reviewed, but that decision has now been abandoned by the force.
It just so happens that previous freedom of information requests give a running commentary.
We retweeted the Post that over £146,000 has been paid to one doctor – the selected medical practitioner, Dr Philip Johnson. This figure does not include the money spent on legal advice and barristers defending pension ombudsman complaints or appeal boards.
The latest figure up until the end of last year for the Doctor used (SMP) is £146,000. This excludes everything else inc. legal challenges https://t.co/Uc0Ay6FUsN
Our blogs have been a constant update of the money flow. In November 2015, just over year into the mass review program, £46k was sent to Johnson’s business, Sarum Occupational Services.
All injury on duty pensioners in Avon & Somerset have today received a letter from the, apparently outgoing, director of resources Julian Kern. The letter says:
After careful consideration, the Avon and Somerset Police Pension Authority has decided not to progress with their automatic review process of injury on duty awards.
This is consistent with a number of other forces and we will not recommence these reviews until such time as there is a change in legislation and guidance from the Home Office.
The Police Pension Authority will however continue to support and facilitate any reviews requested by a pensioner (in accordance with the relevant statutory framework) to enable injury on duty awards to be adjusted to reflect any change to the degree of disablement, or relevant earnings capacity in accordance with regulations.
We understand that your review may already be in progress but have decided to stop these with immediate effect unless you advise us that you wish the review to continue. If this is the case you can contact us via email using the following email address: IODReviews@avonandsomerset.police.uk .
Yours sincerely
Julian Kern
CFO and Director of Resources
For three long years IODPA as been shouting about the illegality of the process conducted by this force as well Nottinghamshire, Merseyside, Northumbria and more recently Staffordshire. It seems A&S have finally worked out that they could never be successful in buying a new vehicle fleet to the expense of those injured on duty and at last it has dawned on them that their legal costs would just keep on mounting.
Note that A&S do not admit having done anything wrong.
Gareth Morgan was the DCC of Avon & Somerset. He has recently been appointed as the Chief Constable of Staffordshire. We challenge Staffordshire to follow the lead of A&S and send out a similar letter.
We will continue to place pressure on all the above forces to make them comply with the Police Injury Benefit Regulations.
Theresa May has hailed the ‘unbreakable spirit’ of Mancunians as she signed the book of condolences for those killed in the terror attack. The Prime Minister said that people would remember those who died and ‘celebrate those who helped’, insisting that ‘terrorism never wins’.
“As we remember those who died, their loved ones and those who were injured, we will celebrate those who helped, safe in the knowledge that terrorism never wins, our country and our way of life will prevail.’
PRESS ASSOCIATION Photo. Picture date: Tuesday May 23, 2017. Photo credit: Arj Singh/PA Wire
The PM’s letter is welcome public show of support for the emergency services.
Giffard advocates that those injured on duty in criminal assaults, which would have included those injured in historical terrorist activities, both here on the mainland and in Northern Ireland, should have their injury pensions taken from them when they reached the age of 65. So, just at the time when a pension would be most needed, this heartless figurehead proposes to have them taken away. This isn’t the spouting of a civil servant or an accountant. This was a Chief Constable sending a message to his chums in the Home Office, agreeing to support whatever the Home Office was planning to do.
Significantly, Giffard was not offering a personal statement. He wrote as the spokesman for the Association of Chief Police Officers (ACPO). Thus his view can only be taken as the combined agreed view of all Chief Constables. They were proposing to go along with an unlawful reduction of police injury pensions. The cost of paying injury pensions had become a significant concern, so instead of finding ways to continue to honour the payments which the law set out, the Home Office and ACPO conspired to find underhand, unlawful ways to subvert the pension arrangements.
Let’s make this as clear as we can. Elements in the Home Office conspired with ACPO to break the law.
Giffard proclaims:
We continue to think that at that stage anybody in receipt of an injury award should be dropped to the lowest band or possibly even completely dropped.
Note well, he uses the word ‘we’ which confirms he speaks for all members of ACPO. Note also, ACPO wants injury awards completely dropped, removed, taken away. If they can’t get their way, then they’ll settle to a reduction to the lowest band. With total disregard to the law and the severity of the disability of those in receipt of an injury award.
Giffard was not talking about some future, new, pension scheme. He was writing in respect of what would become, a few weeks later, the infamous advice from the Home Office, issued as Annex C to HO circular 46/2004 which advised all forces that injury pensions could be reduced to the lowest band at age 65.
‘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 Home Office felt confident in issuing unlawful advice as it had the assurance of ACPO that Chief Constables would not raise any objections.
That was in 2004. The Home Office guidance has been declared unlawful in the High Court and has been withdrawn. Yet still we see Staffordshire and some other forces plotting to reduce injury pension payments, contrary to the law of the land. The current Staffordshire Chief Constable Jane Sawyers hands over her baton to none other than Gareth Morgan on the 19th June. Gareth Morgan, as we have mentioned in an earlier blog, comes from that other hotbed of injury pension abuse, Avon and Somerset. His well-fed and self-satisfied frame should fit in well in Staffordshire.
The next time you read an ACPO level press release about the hard work of the emergency services, please remember the true thought processes of certain people who, behind the cameras, commit the most vile disservice to those who protect this country.
We ask the simple question … When those who run towards violence aren’t protected for life when they suffer life changing injuries, then is our society broken?
The Staffordshire branch of NARPO has, quite correctly, asked the Police Federation of England & Wales (PFEW) about the “agreement” that was sent out to those as a consequence of being paper reviewed almost a decade ago. Remember this “agreement” was signed at the time by the individual, local NARPO, local PFEW and Staffordshire police.
There is a stand-out point that seems to be missed here … The test whether the contract is a stand-alone, legally binding thing of absolute validity is arguably the wrong question to apply. It matters not whether the contract, on it’s own, is a legal document of authority. What matters is the context underpinning how the signed paper came into being and the legitimate expectation such a document provides as a consequence of the processes that occurred before it.
If the conclusion is flawed (the “agreement“), then the process (a review conducted under Regulation 37) that led to that conclusion is compromised.
So the real significance lies in the gap between the very start of process (including the motivation behind why it commenced) to the finality of the Staffordshire 2008 mass review program, the conclusion of such being the “agreement“.
If the context of the “agreement” is flawed then it opens the fact that the paper review that underpins the “agreement” is unsound.
All those mass paper reviews conducted a decade ago by Staffordshire, in an attempt to limit their exposure to the illegality of the 46/2004 Home Office guidance, were finalised without the knowledge contained in the later judgements found in the Pollard, Turner and Laws judicial reviews.
A mechanism to fix such wrongs is a Regulation 32 reconsideration and the legal advice of the PFEW, however it is interpreted, is a gateway that brings to stark realism the judgement of Justice King in Haworth, R (on the application of) v Northumbria Police Authority [2012] that a reconsideration …
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.
…and that refusal of the police pension authority to allow such right to a mechanism to fix a wrong is:
potentially unlawful interference with a ECHR right
We could have saved the effort of the PFEW by telling those who asked that the “agreement” is not congruent with the “checks and balances” demanded by the Regulations. Excuse the use of deliberate tautology, but the point is so important that it needs to be repeated with different words: the “agreement” is a dubious result caveated by Staffordshire Police’s 2008 mass review program that was itself, by its very nature, not congruent with “checks and balances” demanded by the Regulations.
Before a person starts to think they should ever acquiesce to any review there needs to be answers. Not only shall the review be justified to the individual, a suitable interval needs to have elapsed and individual discretion applied based on that person’s circumstances. The disabled former officer also needs to fix the damage done by any previous unlawful paper review.
We will be pleased to field any questions you may have about the information contained in this post and the PDF above. Either comment below, so others can benefit from the conversation, or email us for a private chat admin@iodpa.org
Our investigative columnist has spent minutes in the labyrinth of long-forgotten archives and has discovered a contract that seems to rather undermine Staffordshire’s new found eagerness to recommence reviews. Click here to download: Staffordshire-Police-Injury-Awards-Agreement
A promise made not to review.
It seems to be saying that, as at 01/01/2008, anyone under state retirement age (SRA) and anyone over state retirement shall “retain their existing injury award band“. The former until SRA and the latter for life.
In a benevolent wave of a wonky wand, apparently everyone is “entitled to at least a Band 1 injury award for life“. Which is nice given that it would be unlawful not to provide the injury award for life.
Home Office Circular 46/2004 couldn’t and didn’t change the legislation that defines a review under Regulation 37(1) of the Police (Injury) Benefit Regulations. The statute and the discretional duty of the Regulation is the same now as it was then.
So why, do we ask, are those same people who signed this contract back in 2008, now eligible to be reviewed in the present day? And how can the arbitrary cut-off of August 2008 be defended as sound? One rule for one, and another rule for others never sits well with equality law.
Those with a band two award and above, in their fifties and so below SRA when their contract was signed, now face the traumatic shattering of their expectation to never be reviewed . Some of this exact same cohort are now under the self-imposed age of 72 years and concurrently above state retirement age.
They basically had a promise that they will never be reviewed. Ever. The guff about cogent reason and the nonsense on steroids about a review just because someone reaches SRA, read today in 2017, is contrary to case law.
Mr Justice Supperstone in the Simpson judicial review in 2013 made it clear that:
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.
It was clearly known in 2008 that the 46/2004 circular was unlawful otherwise this Staffordshire contract would not have come into effect. Staffordshire allowed it to come into being for it’s own self-preservation and as a means to get former officers to agree to the unagreeable. What better way to reduce someone unlawfully when there is no invented cogent reasons stopping them, than to get that someone to sign a contract to agree that it’s OK to do it without the necessary substantial change to the medical condition demanded by the Regulations.
Oh, how quickly their positive duty evaporates when it means defending a court claim.
On the other side, it was an well-intentioned (albeit misguided) attempt by local NARPO and Federation to protect those retired with injury awards as best they could, all before the illegality of an automatic reduction at SRA and unlawfully invented so-called cogent reasons was judged by the Pension Ombudsman and in the High Court as being a travesty, and that actually the protection wasn’t needed.
But what the agreement now does is raise two major issues and several corollaries.
The first is Estoppel and the basis of reasonable expectation: Staffordshire is now asserting something contrary to what it has implied by a previous action or statement by them.
The second is direct age discrimination that those with an injury award are to be treated differently depending on the abstract variable of whether they were retired before or after the 1st August 2008. Those with ‘the pledge‘ have to be treated the same as those without ‘the pledge‘, given those without are by default younger.
In other words, Estoppel stops those signatories from ever being reviewed and direct discrimination prevents anyone retired post this agreement from being treated differently.
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).
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.
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:
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.
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.
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.
Nicholas Wirz, Northumbria Police’s principal solicitor as well as the
National Wellbeing & Engagement Forum’s (NWEF/NAMF)
self-declared legal advisor, has suffered a humiliating legal defeat over his unlawful interpretation of comparators used by many SMPs and PMABs to calculate earning capacity.
A feature length blog on the implications of the Fisher v Northumbria judgement will follow soon. This judicial review quashes the decision of a PMAB panel that, in 2016, reduced him from a band 3 to a band 1. It is the culmination of a 11 year battle fought against Wirz and Northumbria police.
In March 1998 The Journal reported that his injury pension had been reduced before, by £1200, only to be restored on appeal. The article described how Mr Fisher was medically retired from Northumbria police after being called to the Kirkley Hall mink farm on the outskirts of Ponteland, Northumberland, to police an animal rights demonstration, when a cross-breed Rottweiler sank his teeth into his lower right arm. The animal had been fed on the remains of dead minks and Mr Fisher spent five days in hospital undergoing numerous emergency surgeries when the wound became infected.
He needed almost 40 stitches to the gash and his injuries were so severe he lost full control of the fingers in his hand. This incident was the culmination of fighting the symptoms of PTSD after being injured in an on-duty knife attack in 1992.
The Chronicle recently published that on Wednesday 8th March, Mr Justice Garnham allowed Mr Fisher’s challenge against the Chief Constable of Northumbria and the PMAB: Bitten policeman battles off bid to slash his pension
The grounds lost by Northumbria have implications on any SMP or PMAB decision where the earning capacity was based on comparative earnings as well as where the decision made fails to give sufficient reasoning to identify, at least, the basis for the medical authority’s conclusion on uninjured comparators.
We will keep our readers up to date on the ramifications and discuss how a reconsideration, or the Pension Ombudsman, can be used to relook at unsafe historical revisions to injury awards.
The decision of the PMAB has been quashed by Justice Garnham. Points 1 & 4 (below) were won in favour of Mr Fisher and the PMAB decision has been overturned. Points 2 & 3 failed but the judge made it clear in his judgment that a reasoned decision of uninjured earning capacity has to be made by the decision maker. The corollary is that picking random jobs has to be justified and reasoned.
The PMAB, as a delegated decision maker on behalf Of the Chief Constable, made the following errors in reaching this decision:
The PMAB erred because it failed to use the Claimant’s potential police earnings as the uninjured earnings comparator;
Further the Chief Constable erred in back-dating the effect of the decision to 27 February 2015 and thus claiming that the Chief Constable had overpaid the Claimant when, in law, the decision only took effect at the date that it was made by the PMAB and so there no back-dating.
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I learned that public service is a privilege that must be based on moral foundations. Shimon Peres on Stats do not lie – PSNI
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.
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