PEAM

“Uncontrollable” Staffordshire Police

iodpa Disability Discrimination, Equality Act 2010, newsflash, PEAM, Regulation 37, Review
“Uncontrollable” Staffordshire Police

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).

Staffordshire is infamously renowned for continually using the discredited and neither “lawful nor unlawful”  ©NAMF  Police Earnings Assessment Matrix (aka PEAM) to make everyone, retired from it with an injury award, a band one. Don’t take our word for it, Staffordshire admit the Regulations don’t mention PEAM and that they use it in this freedom of information request:

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.

 

PEAM and Bad Maths

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:

https://www.staffordshire.police.uk/ibr

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.

https://www.staffordshire.police.uk/article/6977/Legal-Background

Oh dear, Oh dear.

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.

https://www.staffordshire.police.uk/article/6981/FAQs—Injury-Benefit-Reassessment#answer6985

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.

Neither Lawful or Unlawful

iodpa NAMF, National Attendance Management Forum, PEAM
Neither Lawful or Unlawful

“If it doesn’t say it’s not, then its allowed” to misquote and paraphrase Dostoyevsky’s  “If there is no God, everything is permitted” .

Without a rule of law as a higher authority  – so the story goes – there is nothing ultimately to prevent us from ruthlessly exploiting our neighbours, using them as tools for profit and pleasure, or enslaving, humiliating and killing them in their millions.  This isn’t the case in truth – an action can be known to be unlawful even though there isn’t an exact line of text that defines without ambiguity it’s legitimacy.  Just because an esoteric Law or Regulation is silent on a particular transgression does not mean that the transgression is permitted.

The Police and Injury Benefit Regulations 2006 does not allow for the interpretation that on reaching 65 years of age a former officer has no earning capacity.  However nowhere is this explicitly mentioned; but it is still a given.  A given because the nature and purpose of the statutory scheme is to provide an entitlement of an award for life.

The Police Pension Authorities and the Home Office knew this and were ‘trying it on’ hoping that their illegality wouldn’t be challenged. And it was,  and they lost.

They are at it again…

The minutes of the National Attendance Management Forum hosted by West Midlands Police on Friday 27th March 2015 has this to say about PEAM (Police Earnings Assessment Matrix):

neither lawful or unlawful

If a matter is not lawful then it must be unlawful.  The opposite of lawful is unlawful, illegal, illegitimate, incorrect,unacceptable, wrong, illicit, prohibited, taboo.  So there is nowhere for NAMF to go on this; they state themselves that PEAM is not lawful.

Not lawful because it is up to the SMP to decide the degree of disablement as a medical matter by assessing the impact of the duty injury to the former officer’s earning capacity – it is a medical question not an accountancy exercise.  It is a broad judgement to be made by the clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data,  and that his/her decision is final.  When has a SMP ever used PEAM?   – the bad maths is always performed subsequently by a HR functionary.  That is not lawful.

The travesty is that they know such an artificial earning matrix is unlawful but they will not stop using it until a former disabled police officer is disadvantaged, agonised and tormented by an unjust calculation to such an extent that they have no option but to challenge it in judicial review.  Why should something known to be unlawful need to have a court to reaffirm it’s unlawfulness?  Because NAMF is on a crusade to undermine the regulations.

More bad maths

iodpa Degree of Disablement, PEAM, selected medical practitioner
More bad maths

Dateline: 24th April 2015.

A response by Staffordshire Police to a freedom of information request.

https://www.whatdotheyknow.com/request/police_regulations

Staffordshire are proud to reveal exactly how they calculate the degree of disablement for the purpose of grant of a police injury pension. The same method is used when they review an injury pension.

One small problem. Staffordshire are acting unlawfully. Their method is intended to provide a way of subverting the purpose and scope of the Police (Injury Benefit) Regulations 2006 so that they can get away with paying disabled former officers less than their due by way of injury pension. Staffordshire takes what is a medical decision on how much remains of a disabled former officer’s capacity to work, and thus earn, puts it through a calculation which has no basis in the Regulations, compares a police wage with a nominal wage and doubly reduces the degree of disablement.

People who should be paid a band four injury pension are finding that under the magic of this slight of hand they are hardly disabled at all and thus get paid only a band one pension. The savings to the force are considerable.

Let’s look at this in detail. The percentage of degree of disablement is a medical question. It says so in the Regulations. The police pension authority is required, by law, to hand the decision on degree of disablement to a duly qualified medical practitioner. Reason being that disablement is a medical matter. It is all about twisted or missing limbs, constant pain and medication, or mental injury. Damage to body and/or mind so bad you would not wish it on your worst enemy. An independent medical person makes a decision which is binding on all concerned. Apart from Staffordshire police pension authority, that is.

The Regulations tell us how an injury pension is to be calculated. For example, a pensioner is given a degree of disablement figure of 66% by the ‘duly qualified medical practitioner’ selected by the police pension authority (the SMP). That is the final figure, and there is no need, and no legal authority for further calculation or decision. As the percentage is between 50% and 75% it falls within band 3 of the Schedule 3, as set out in the Regulations. In our example, that means a former officer with more than 15 years service but less than 25 would be paid an injury pension calculated as 75% of his former police salary.

Staffs can punch in a few figures plucked out of thin air into a calculator and turn that 75% into a lowly 45%.

Staffordshire and some other forces use what is known as the PEAM system (Police Earnings Assessment Matrix), which is a system not specified or sanctioned anywhere in the Regulations, to set aside the SMP’s decision and come to another perverse conclusion which artificially reduces an IOD award to the minimum.

The Regulations do not permit this, yet Staffordshire seem oblivious to that fact. Or, is it the case that they know full well they are breaking the law but just don’t care? Has someone in high authority calculated that disabled former officers are very unlikely to a) realise that they have been screwed and b) if they do cotton on, are too crocked up to do much about it?

Staffordshire was asked a simple question in the freedom of information request. If a SMP gives a degree of disablement of 75%, can a Band 1 be awarded? Think on this – the SMP has awarded a 75% degree of disablement. To award 75% the SMP has judged the disablement caused by the duty injury has caused a reduced amount of earning capacity and has given what the Regulations very clearly state is a final decision on the matter. That’s it. Over and done with. But not in Staffordshire.

Let’s take a look at that:

Regulation 30-(6) ‘The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall . . . be final.’

But not final in the twisted world of PEAM.

Here’s what Staffordshire said:

paem

To break this down, Staffordshire has admitted that a 75% degree of disablement, which the Regulations name as ‘major disablement’ and which is but one degree short of ‘very severe disablement’, can be turned into an 18% degree of disablement – ‘slight disablement’.

Here is the warped logic:

  1. A SMP gives a percentage of 75%
  1. Despite the finality of the 75%, Staffordshire thinks that any retired police officer can earn £28389, no matter what the degree of disablement decided by the qualified medical practitioner. Moreover, they describe this as ‘potential earnings’. It is nothing more than a wage picked out from a job advert – a job some functionary in HR, with no medical qualifications, no understanding of disability, and no right to do so, ‘thinks’ the individual ought to be able to earn. And ex-pigs might fly.
  1. Staffordshire work out that a maximum salary for a PC is £37500. So the ‘loss of earnings’ is the difference between what they would be earning as a PC and what they say the person could be earning outside the job: £37500 minus £28389 equals £9102.

Note: Remember that the 75% is a final decision and this extra calculation is post-decision and thus extraneous and unlawful. Note also: An injury pension is compensation for duty injury and is not compensation for loss of earnings.

In fact, the Regulations do not mention loss of earnings at all. They do speak of earning capacity however, of which regulation 7-(5) tell us this: ‘Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.’

Earning capacity has been determined in the Administrative Court to be a measure of a person’s capacity to work and thus earn. No mention of wages or loss of earnings. It’s the CAPACITY stupid! Not what that capacity might produce in terms of earnings.

  1. So where were we? Oh yes, Staffordshire had worked out that £9102 is 24% of £37500. (Which you and I can readily see makes a ‘loss of earnings’ of 24%, which, if that was a legal way of calculating degree of disablement, which it isn’t, would already place the pensioner on band one.)
  1. That’s not good enough for Staffordshire. They want a lower percentage, more firmly down in band one and thus less likely to see a future SMP move it up into a band two. So, now they calculate a percentage of a percentage. They bring the 75% back into it and calculate 75% of 24%. This gives 18% and a band 1 award.
  1. Taking the poor mathematical logic further, just say the SMP decides the person is totally incapable of any work and so awards a degree of disablement of 100%. Staffordshire will then still award a band 1. The calculation for ‘loss of earnings’ remains the same, but 100% of 24% is 24% and a band 1.
  1. The fallacy is the double jeopardy of calculating a percentage of a percentage to factor down the SMP’s ‘final’ given degree of disablement.
  1. The unlawfulness is that Staffordshire have overruled the final decision of the SMP.

Is it a coincidence that the majority of those injured out in Staffordshire with an on duty injury are band 1s?

Here is how it should happen:

  1. SMP awards 75%
  2. Look for where 75% sits in the following table for a PC retired with service between 15 and 25 years
  3. Degree of disablement Gratuity expressed as % of average pensionable pay Minimum income guarantee expressed as % of average pensionable pay
    Less than 5 years’ service 5 or more but less than 15 years’ service 15 or more but less than 25 years’ service. 25 or more years’ service.
    (1)       (2) (3) (4) (5) (6)
    25% or less (slight disablement)         12.5% 15% 30% 45% 60%
    More than 25% but not more than 50% (minor disablement)         25% 40% 50% 60% 70%
    More than 50% but not more than 75% (major disablement)        37.5% 65% 70% 75% 80%
    More than 75% (very severe disablement)          50% 85% 85% 85% 85%
  4. It is band 3.
  5. The % is still 75%75% of the final salary is due as the IOD award

The insight into Staffordshire’s calculations given by their response to the freedom of information request is scarily enlightening. Staffordshire has given us a clear understanding of the perverse ploys that they, and some other forces, use to go against the Regulations.

Needless to say, use of PEAM to make calculations after the SMP has announced a final decision is blatantly unlawful and needs to be taken to Judicial Review.

Now, if only there was an organisation, say a federated organisation created by statute, which could support retired officers and fight their cause . . . .

PEAM and Bad Maths

iodpa HR, PEAM, selected medical practitioner
PEAM and Bad Maths

PEAM (Police Earnings Assessment Matrix)

“The Police Earnings Assessment Matrix (PEAM) was independently developed by Grantwood Consulting to enable the force to arrive at fair, reasonable and defensible assessments of the earnings potential of Police Officers. PEAM’s underlying principle is that there are a number of generic job levels in the police, public sector and the wider job market. The job levels enable:  The size of jobs to be assessed, particularly jobs in different functions or disciplines.  Base salary levels for a number of different market sectors or geographies. The job levels allow police officer positions to be compared with jobs of comparable size or weight in the public sector, private sector or police support staff populations. PEAM therefore combines best practice from both outside and within the police sector. It has also been tested to ensure compliance with equal opportunities requirements.”

Why is this bad maths.  Well its contrary to regulations for a start.  The regulations are quite simple and split the degree of disablement of earning capacity into 4 bands: slight, minor, major and severe:

Degree of disablement Gratuity expressed as % of average pensionable pay Minimum income guarantee expressed as % of average pensionable pay
Less than 5 years’ service 5 or more but less than 15 years’ service 15 or more but less than 25 years’ service. 25 or more years’ service.
(1)       (2) (3) (4) (5) (6)
25% or less (slight disablement)         12.5% 15% 30% 45% 60%
More than 25% but not more than 50% (minor disablement)         25% 40% 50% 60% 70%
More than 50% but not more than 75% (major disablement)        37.5% 65% 70% 75% 80%
More than 75% (very severe disablement)          50% 85% 85% 85% 85%

What the PEAM manages to do is turn a % given by a medically qualified selected practitioner  into another lesser % used by HR for the award.  For example, 75% (major and band 3) once put into the Police Earnings Assessment Matrix can be magically distorted into a minor band 1.  Basically PEAM is a device that is used to reduced an IOD banding into its lowest factor.  This fallacy was spotted in a Senior Counsel review of Injury on Duty Awards commissioned by the Northern Ireland Policing Board where Mr David Schofield QC stated in section 1.35

“I also recommend that, in the course of such a further review of Northern Ireland specific policy guidance in this area, serious consideration should be given to abandoning the currently recommended method of calculating percentage disablement, including detailed reliance on the ASHE survey and comparison with the officer’s notional uninjured police salary, in favour of a much more basic approach, whereby the relevant medical authority would simply make a judgment in the round as to the severity of the impact of the duty injury on the officer’s earning capacity, so as to select the officer’s appropriate band without the need to calculate a specific percentage disablement figure”.

chapters_1_and_14_of_the_scoffield_report__website_version_

In other words the injured former officer should be placed in band 1,2 3 or 4 based on a judgement ‘in the round’.  The regulations do not allow for inclusion of any manipulation by use of an invented earning matrix therefore this PEAM device has no de jure.

So the use of PEAM (or any convoluted matrix) is unlawful.  PEAM and other methods involving wage comparison resulting in a figure which purports to reflect future loss of earnings. An injury pension is paid as compensation for loss of the capacity to work, and the Regulations are blind as to how much or how little an individual might be earning, or be capable of earning.

The SMP (selected medical practitioner) is not permitted to look to the future when deciding degree of disablement. He must make his decision on the medical evidence at the time he makes that decision. The wording of the Regulations is,

‘Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.’

Note, ‘has been’ not ‘will be’.

Note also, ‘capacity’ not ‘earnings’.

The SMP must make a decision in the here and now, and should relevant circumstances alter substantially in future, then the Regulations allow for a police pension authority to review the degree of disablement and revise the amount of pension paid.

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.

And so the machinations of the NAMF continue...