pmab

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

Police Medical Appeal Boards

Police Medical Appeal Boards

Access to justice is a fundamental requirement for the rule of law, by which people have their voice heard, exercise their rights, challenge discrimination, and hold decision makers to account.

The Law Society

 

We are going to talk about Police Medical Appeal Boards.

The British legal system is often said to be the envy of the World. In the criminal justice system an accused person is assumed to be innocent until proved guilty. The proof of guilt is a high one. Whoever is tasked with deciding guilt is proved must arrive at a finding of guilt beyond all reasonable doubt.

Even when found guilty, a person can usually appeal the decision, providing there are some good grounds for believing the decision was in some way flawed.

These two principles apply to most other forms of hearing, such as disciplinary hearings, employment dismissals, grant of a licence, state benefit decisions and right down to parking fines.

So too with decisions made by a police pension authority and by medical professionals acting for the police pension authority.

Anyone who has been reading the blogs on this site will be under no illusion that police pension authorities and their ‘selected medical practitioners’ (SMPs) have a remarkable talent for making decisions which are unsound and eminently suitable for appeal.

So, how many unsound decisions are being made?

Unfortunately, it is impossible to say with certainty, for decisions made by police pension authorities and their SMPs are not subject to any oversight whatever. Unlike in a court of law there is usually no person present who represents the officer or former officer. Nobody to spot the mistakes, or to make at-the-time objections. Nobody to review the decision once made, to examine it for factual accuracy and legal compliance.

IODPA exists to offer advice and support to any former officer who has concerns over their injury pension and we applaud the good work of all local NARPO’s and the Federation where they are able to guide individuals through the tribulations of ill health retirement or the trauma of a review of degree of disablement.

Worse, where the decisions are being made concern disabled former officers who were injured on duty, the individuals subject of the decisions are, we have good reason to say, almost always totally unaware of the police injury pension regulations and thus have no way of knowing whether the process of decision making, or the decision itself is flawed. What greater disservice could there be to officers injured in the line of duty than to leave them unaware of their pension rights and without any support to help ensure they receive the benefits they are due..

Police Forces themselves universally stay clear of offering any advice or assistance – and we can understand their reasons for doing this, but suspect their reasons are not always grounded in concerns to remain impartial. The best any individual can hope for is a brief few lines mentioning NARPO or the Federation and the availability of appeal to a PMAB.

Despite this sorry situation, some individuals must feel so aggrieved by a decision they decide to appeal.

We should bear in mind that decisions made by a SMP are medical ones. That is, they are nothing more than a medical opinion. In that sense, they can rarely be arrived at beyond all reasonable doubt, for diagnosis is not an exact science. Where the decision contains elements of prognosis we depart rapidly a great distance away from certainty, for prognosis is entirely speculative and uncertain.

A PMAB is composed of a panel of three doctors, one of whom must be a specialist in the field of medicine most relevant to the duty injury or injuries of the appellant. The rationale is that only other doctors can offer an opinion contrary to that of a SMP.

When a disabled former officer arrives at a PMAB hearing they are often as poorly prepared as they were in the earlier stages of life as a disabled person. Only those who have secured assistance from IODPA or from the Federation will have anyone to represent them and to look out for their best interests. Pensioners are at the mercy of the Board, and of the arguably fallible SMP, who will inevitably be at the hearing.

Pensioners will also find that their pension authority is represented by a solicitor, or even a barrister, though sometimes they rely on the cheaper services of a self-styled pensions expert or someone from the force’s HR or Occupational Health Department.

It is a testament to the firmness of purpose of the few pensioners who do have the will and the ability to negotiate the many barriers put in their way to getting justice, that there are any appeals at all. IODPA is all too well aware that for the vast majority of individuals the barriers are too daunting a prospect. They have to accept the decisions made, for their circumstances are such they have no hope whatever of taking matters to appeal. For some, the trauma and stress would do so much harm to their delicate health they fear to seek justice.

So, given that, for now, we don’t know how many decisions made by police pension authorities and SMPs have been flawed, and thus susceptible to challenge, how many PMABs have actually been held in recent times?

A freedom of information request – https://www.whatdotheyknow.com/request/smp_police_medical_appeal_boards – made by a Lily Nightingale, which may or may not be the same Lily Nightingale who is an SMP, has revealed this:

  • In 2014 there were 66 appeals heard, of which 23 were upheld, and 43 rejected.
  • In 2015 there were 93 appeals heard, of which 24 were upheld and 69 rejected,
  • In 2016 there were 119 appeals heard, of which 94 were upheld and 67 rejected.
  • In 2017, there were 94 appeals heard, of which 35 were upheld and 59 rejected.
  • In the first quarter of 2018 there were 20 appeals heard, of which 10 were upheld and 10 rejected.

From those figures we can calculate some percentages.

  • In 2014 65.15% of appeals were rejected
  • In 2015 74.19% of appeals were rejected
  • In 2016 56.30% of appeals were rejected
  • In 2017 62.76% of appeals were rejected
  • In 2018 50% of appeals were rejected
  • Overall, 63.26% of all appeals were rejected

If we are to search for reasons why more appeals are rejected than succeed, then more research would be needed. We can theorise that one reason may be that doctors are reluctant to disagree with an opinion of a fellow medical professional. Another may be that where appeals were rejected the individual was not represented or poorly represented.

Given that we know decisions made by PMABs do get challenged successfully by way of judicial review or by complaint to the Pensions Ombudsman, we can also consider it is possible the medical people who form the Boards may lack the legal knowledge necessary to ensure they arrive at decisions which are not biased or arrived at by consideration of irrelevant factors, or by dismissing or ignoring relevant factors.

Unlike the criminal justice system, the appeals concerning matters arising from the Police (Injury  Benefit) Regulations 2006 are heard by a panel selected by and trained by a for-profit commercial company. The doctors who sit on the PMABs are paid a fee, as are the SMPs who attend and whose decisions are being challenged. Representatives of the police pension authority are likewise paid a fee or are on a salary from their police force.

The appellants, in contrast, have no financial assistance save the few who manage to secure some from the Federation. On those grounds alone, the appeal system is weighted in favour of the police pension authorities, who think nothing of spending public money defending their actions.

Appellants are not accused of any crime, yet they seem to have far fewer rights, and lesser safeguards ensuring fairness, than any common criminal. Far too frequently the system as currently established is effective in denying them their pension rights and blocking any paths to the possibility of redress.

The freedom of information request supplies a list of names, of the SMPs whose decisions were being appealed. Not too much can be read into this, as there are not many doctors willing to debase their profession by taking on SMP work. However, even though the likes of Drs William Cheng, Ralph Sampson, David Bulpitt, Johnathan Broome, and, yes, Lily Nightingale appear frequently on the list of appeals via PMAB, it might be preferable to contemplate which SMPs names are consistently absent from the list.

In a well ordered system there would be no need for appeals. But until there is reform PMABs will remain a stain on the enshrined principles of justice. Until justice can be made freely accessible to vulnerable disabled former officers there is no certainty of justice being found. Until vulnerable disabled former officers can know themselves supported and properly advised and represented throughout all stages of ill health retirement and reviews of degree of disablement then the ill-disposed, the ignorant or misinformed, the lazy and the incompetent who administer the systems within which injustice is allowed to flourish will ensure a steady flow of appeals.

Whilst all those who either do not know they have been victims of injustice and all those who do suspect but are unable to do anything about it will continue to suffer injustice unseen and unheard.

Breaking News: Judicial Review confirms that final decisions are final

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.

 

Haven Press Release - Evans

 

 

Just Vulnerable or Permanently Disabled?

Just Vulnerable or Permanently Disabled?

“Remember that all through history, there have been tyrants and murderers, and for a time, they seem invincible. But in the end, they always fall. Always.”
Mahatma Gandhi, The Story of My Experiments With Truth

As certain forces continue on their hell-bent course of denying ill or injured officers their pension rights a pattern is developing.  Some Selected Medical Practitioners (SMPs) are labelling applicants with diagnosed PTSD or similar mental illness as ‘only’ having a ‘vulnerability’

Retirement on an ill health pension needs a SMP to decide that an illness or injury is likely to permanently disable the individual from working as a police officer. Some forces want to save the cash, so will go to extraordinary lengths to avoid the need to pay award an ill health pension.

To back up their assertion that medical retirement is inappropriate where the illness or injury is PTSD, as they say that condition is not permanent, SMPs are citing two High Court decisions, which they claim justify their view.

Today, more often than not, when the critical question delegated to SMPs, ‘Is this serving officer permanently disabled?’ the decision given is a rubber-stamped answer like this:vulnerable-refused

So when an application for ill-health retirement (IHR) is refused why are SMPs using the ‘vulnerable’ label?

The short answer is that it’s because they are relying on two cases, one concerning Northumbria and the other concerning Derbyshire. These are both force areas well known for their aggressive, acrimonious and antagonistic attempts to deny retired and serving officers their pension rights.

The cases are R (Northumbria Police Authority) v Broome [2006] ICR 555
and
R (Sidwell) v Police Medical Appeal Board v The Chief Constable of the Derbyshire Constabulary [2015] EWHC 122 (Admin).

By focusing on these two high court decisions some SMPs are attempting to imply things often not relevant to the circumstances. They use the cases as a rejection crib-sheet. It is rather like someone who claims that eating a certain wonder food prevents cancer, but neglects to mention that you would need to eat six pounds of it each day, for ever, for it to have any effect. They thus tell only part of the truth.

These SMPs are selective in their presentation of supporting case law. They fail to point to the case which contradicts and negates their view.

They conveniently fail to mention a much more recent judicial review. That of
Sharp v West Yorkshire Police & Anor [2016] EWHC 469 (Admin) (07 March 2016).
We will come back to this case in detail later.

Let us first discuss the Northumbria judicial review. No doubt this force’s nefarious force solicitor, Nicholas Wirz – skulking and slithering behind the scenes – was the protagonist who advised his Chief Constable to challenge the decision of his own SMP, Dr Jonathan Broome.

What happened was that, in 2005, officers Alison Doyle and Madeline Clementson both claimed permanent disability, which Dr Broome agreed existed and so was certified by him. Northumbria disagreed and challenged his decision – their own doctor! – by way of judicial review.

While based in Bamburgh, PC Madeline Clementson, was injured through being dragged along the road by a suspect’s van. Dr Broome, who assessed her, said she suffered panic disorder and agoraphobia along with an intractable antipathy towards her police role.

He added that although her physical injuries had not made her permanently incapable of performing her duties, she was plagued by symptoms of low mood and anxiety which could be worsened by a return to police duties.

In PC Alison Doyle’s case, Broome said there were several factors stopping her from returning to work including spinal pain, vulnerability to anxiety and her enmity towards Northumbria Police.

The doctor found she had developed such an entrenched aversion to returning to police duties of any sort that the prospect of doing so might well trigger mental ill-health.

Dr Broome said Alison had “an emnity towards Northumbria Police as an organisation” and would even have difficulty performing civilian duties for the force and he said that Madeline had such an “entrenched aversion to going back to police duties of any sort” that the prospect of doing so could trigger mental ill-health.

Both PCs lost the judicial review because neither had a definitive medical diagnosis.  Although both officers were given medical retirement by Broome, he failed to medically diagnose them or refer them to someone who could, so Mr Justice Bennet upheld the challenge and overturned the permanent disability certificates issued to the ex-officers.

It is important to note that a court will inevitably never challenge a medical opinion, for it is not competent to do so. It is a medical matter, and a court lacks the medical qualifications necessary to make any comment or judgement on medical matters. A court can, and will, determine matters of fact and law.

Northumbria took two of it’s officers all the way to the High Court to win a battle over an issue which could have been easily been sorted out without recourse to such stressful and expensive means. The judicial review served only to delay resolution at a horrendous personal cost to Alison Doyle and Madeline Clementson.

The reason why Northumbria won the original judicial review was simply that neither Doyle nor Clementson had a definitive diagnosis which could be found categorised in the World Health Organisation International Classification of Diseases (ICD-version 10)

As Mr Justice Bennet put it;

Vulnerability”, “enmity”, and “intractable antipathy” do not appear in internationally authoritative guides available to doctors such as ICD-10 and DSM IV

In a twist to the sorry state of affairs, Alison Doyle took Northumbria to an Employment Appeals Tribunal in 2012:
http://www.bailii.org/uk/cases/UKEAT/2012/0576_11_1712.html
In this EAT it is shown that four years later, in 2009, Doyle eventually got the IHR she asked for:

‘However, in a subsequent report dated 15 July 2009, Dr Broome recommended that Ms Doyle should be retired on medical grounds.  The Acting Chief Officer took a “holistic” view of her case, namely that her psychiatric condition, which in his view did not on its own amount to a permanent disability, should be taken into account.  Accordingly, on 21 August 2009 Ms Doyle was retired on medical grounds on the basis of her combined psychiatric and spinal problems.’

It seems that by 2009, Alison Doyle had secured a definitive diagnosis and so was, in the end, medically retired – the whole saga of the judicial review was pointless and unnecessary.  Instead of taking it’s officers to judicial review, Northumbria could have spent the money on getting both officers diagnosed by specialist clinicians, for far less cost and with far less stress caused to two damaged individuals.

The take home from this is that a line is drawn by this High Court decision. Once an officer has a recognised medical condition their case becomes distinguishable from the situation experienced by Madeline Clementson and Alison Doyle.

When an officer has a categorised diagnosis, rather than some wishy-washy opinon stated in vague terms by idiots like Broome,  matters have crossed the line into there being a recognised  infirmity.

When there is an ICD-10 diagnosis an “intractable antipathy” may well be noted, but only as a symptom of the infirmity, and not the infirmity itself.

And so on to the Sidwell judicial review.  This case involved the now deceased Dr Ralph Sampson who worked as a SMP for Derbyshire.

An unfortunate sequence of events led to DS Andrew Sidwell’s marriage failing and him then being made homeless after a colleague, who let him share his house, was investigated for corruption – an allegation that was later proved false and which, some believe, was based on a Professional Standards Department witch-hunt.  Homeless, he further suffered a forced transfer to another department, and this all led DS Sidwell into a spiral of understandable anger, resentment, embitterment and antipathy towards Derbyshire police.

Dr Michelle Shepherd, a consultant psychiatrist, diagnosed DS Sidwell as having situational anxiety disorder.  Dr Sampson refused medical retirement as he claimed that, ‘situational anxiety … is not permanently disabling’.

DS Sidwell saw another consultant psychiatrist to help an appeal he made against this decision to a Police Medical Appeal Board (PMAB). Consultant Maria Isaac assessed DS Sidwell and determined that his,

‘. . . anxiety is severe enough to approach phobic intensity. However I could find no evidence of significant underlying psychiatric illness or impairment’.

During the PMAB, one of the consultant psychiatrist panelists, Dr Karim Rajput, stated,

“I would classify him with an ICD-10 diagnosis of anxiety disorder, unspecified (F44.9)’

Despite this, the Board concluded (using a confusing double-negative to do so) that successful treatment of his condition was “not unlikely” and that therefore “he is not suffering a permanently disabling psychological condition’.

Consequently the appeal was dismissed and Sidwell was refused medical retirement.

Soon after, Derbyshire instigated Unsatisfactory Performance Procedures (UPP) against DS Sidwell citing inadequate attendance at work.  The Federation sent Sidwell to see yet another consultant psychiatrist. This time a Dr Qureshi diagnosed Sidwell’s condition as a permanently disabling chronic phobic anxiety disorder.

Derbyshire’s newly appointed SMP for this case was a Dr Geoffrey Davies who proclaimed that DS Sidwell’s condition would improve if he left the police service and as such has he has,

‘. . . a vulnerability to being in the police but does not have a permanent disablement.’

Another PMAB was held and another panelist, Dr Nehaul, disagreed with the diagnosis made by Dr Qureshi and the panel took Dr Nehaul’s view that the Mixed Affective Disorder diagnosis could not be right as there was no evidence of mania. Dr Nehaul devotes rather more words to demolishing Dr Qureshi’s diagnoses.

It is important to note that, unlike a court of law, a PMAB, can comment on and decide on medical matters, as all the Board members are themselves doctors.

The Board concluded,

‘Whilst having enormous sympathy for the position in which Mr Sidwell finds himself, the unanimous decision of the Board is that he does not have a permanent disabling medical condition which would prevent him from carrying out the ordinary duties of a Police Officer and therefore the appeal is rejected.’

This then went to judicial review where Mr Justice Mostyn rejected the claim that the PMAB’s decision was wrong and decided that,

‘The Board was entitled to prefer the opinion of Dr Nehaul to that of Dr Qureshi as to whether there existed a medical condition which caused the relevant inability.’

So the Sidwell case hinged on a spat between two consultant psychiatrist who failed to agree with each other and the judge decided there was not a point of law or fact in which the court could make a determination, given that there has to be considerable respect to the decision of an expert and informed tribunal.

In simple terms you could say that with the saga of Madeline Clementson and Alison Doyle (where there was no definitive diagnosis made), we can see their cases were the complete inverse to that of Sidwell v Derbyshire – wherein too many diagnoses existed!

Returning the question of this post.  How can a SMP on first seeing a serving injured officer use these cases to assert vulnerability?  If there is a diagnosed infirmity then the Rubicon for Doyle & Clementson is crossed.  If there is no PMAB and no quarrel between eminent consultants over what the condition actually is, then Sidwell is irrelevant.

This brings us to the latest judicial review, heard in 2016, of Sharp v West Yorkshire.

Mr Sharp suffered from anxiety on a number of occasions before he joined the police. He was in fact initially rejected by the police on medical grounds.  In 2011, whilst under UPP, he resigned and in 2013 he made an application for an ill health award. This was subsequently refused by the SMP, Dr Dagens.

He appealed and his PMAB submission was supported by a report from Professor Rix, a consultant forensic psychiatrist, who gave a diagnosis of recurrent depressive disorder (F33.4 ICD-10) and concluded,

The primary issue appears to be whether or not the Appellant is permanently disabled. Critical to this is the Appellant’s vulnerability. That vulnerability is his paranoid attitude. This is a permanent feature of his character or personality. It is when that attitude engages with management, as inevitably it would, that the Appellant would suffer a recurrence of his depressive disorder and be unable to perform all of the ordinary duties of a police officer. It therefore appears to me that the issue for the Board will be whether or not such vulnerability in itself amounts to a permanent disability for the purposes of the Regulations.

The PMAB rejected the appeal.  It had concluded,

‘Whilst his attitude may indeed make him more vulnerable to further episodes of depression, the Board does not consider such attitude equates to an infirmity with regards to the Police Pension Regulations. Likewise vulnerability arising from this attitude would not be regarded as permanently disabling. This is consistent with the case law on vulnerability.’

“Case law on vlunerabilty”.  Interesting use of the phrase there.  Just saying it doesn’t make it true and in reality the PMAB catastrophically failed to understand the precedents on vulnerability

It was accepted that Sharp suffered from a recurrent depressive disorder.  It was therefore unnecessary (and irrelevant) to consider whether Mr Sharp’s attitude was also an infirmity.  By trying to deny Sharp ill-health retirement and bending case-law to fit their objectives the PMAB failed to test whether Mr Sharp’s recurrent depressive disorder was sufficiently serious to amount to a permanent disablement.

Sharp requested a Regulation 32 reconsideration on the basis that Professor Rix’s report was misunderstood and the conclusion taken out of context. This reconsideration went to the same PMAB panel for a re-decision.  Unsurprisingly (and true to form), the PMAB panel stuck to it’s original decision to reject the application and finished by saying,

though mention of paranoid attitude in reports may suggest possibility of a personality trait, it would not amount to a disorder in the context of this case. The Board does not agree that likelihood of recurrence and persistent illness and ensuing disability despite optimal treatment is so strong, in this instance, as to fulfil the criteria for permanent disability

It was this second PMAB decision that went to judicial review.

Judge Brehens rejected West Yorkshire’s argument that both the Broome, Clementson & Doyle and the Sidwell case was applicable to Sharp.  The key to the Sharp judgement was that is was found that the PMAB asked the wrong question of infirmity and they wrongly considered the paranoid attitude to be the disorder.

So Judge Brehens found in favour of Sharp and overturned the PMAB decision by saying

I am satisfied that the PMAB ought to have held that Mr Sharp’s recurrent depressive disorder was an infirmity within the meaning reg A(12)(5). It was unnecessary and wrong to go on to consider whether his paranoid attitude was also an infirmity. It was a cause of the infirmity not the infirmity itself. I agree with Mr Lock QC that Mr Sharp had indeed crossed Bennett J’s line and was a recognised medical condition.

Judge Brehens continued,

‘Mr Sharp’s paranoid attitude is one of the causes of the severity of the recurrent depressive disorder.’

In other words, the Board had taken a symptom instead of the illness itself as reason to declare that disablement was not likely to be permanent.

Someone being, in the opinion of a SMP, merely ‘vulnerable‘ or having an ‘antipathy‘ towards their employers should not mean they are refused medical retirement. The vulnerability could be a symptom of a recognised, categorised condition which the SMP, for whatever reason has failed to diagnose. Those reasons may be simple medical incompetence, but worryingly could also be the result of deliberate policy by the force and SMP in collusion to prevent granting injury awards.

We pointed out above that law courts can’t second-guess medical opinion as they are not medical experts. PMABs, conversely are a medically expert arena, but have unfortunately consistently shown that when it comes to the law they are woefully unable to grasp the issues.

It does seem odd that PMABs are allowed to consider legal aspects at all. And if PMABs can misinterpret the case-law, do think it wise to trust any legal opinion of a lowly SMP?

For those officers with reports saying that their ill-health retirement is rejected due to’ vulnerability’ or any other vague and ill-defined phrase, please look carefully at any stated cases quoted by the SMP purporting to underpin his decision. It’s a sure bet that Sharp, the latest case-law on vulnerability, will have been omitted.

Ignoring something relevant which fails to prove one’s point is not how UK law operates.  You may have grounds to appeal whenever a SMP starts referencing case law.  An appeal to a PMAB will take you before a panel of doctors but the Board may have no better understanding of legal points than does the SMP.

IODPA does not suggest never going to PMAB, but we do strongly advise that you seek expert legal advice from one or other of the two excellent solicitors we refer our members to. A judicial review, based on errors of fact or law may be a better route than a PMAB.  Or if you are currently in proceedings for a PMAB look very carefully at the submission made by the police pension authority – are they relying on proving vulnerability whilst ignoring both your definitive diagnosis and the Sharp decision?

Alternatively, ask IODPA to provide you with information about how to use regulation 32 to have a SMP reconsider a decision which you believe errs in fact, law, or medical opinion.

Serving officers are facing hard times should they become ill or injured and are seeking ill heath retirement. It will not now be an easy path. However, it need not be an impossible path, provided that they seek professional advice and help at the earliest stage. SMPs, Police Pension Authorities, Chief Constables and their HR managers and legal ‘experts’ make so many mistakes that a challenge to a decision not to award an ill health pension has a very good chance of success.

Besides, why should you let the tyrants get away with it?

The Wisdom of the Pension Ombudsman

The Wisdom of the Pension Ombudsman

“He who establishes his argument by noise and command, shows that his reason is weak.”
Michel de Montaigne

In 2016, the months of September and October has seen two interesting decisions handed down by the Pension Ombudsman (PO).  In both decisions it is clear the arrogance of the pension authority involved led them to think the forcefulness of their command would conceal the lack of reason within.

One decision concerns Thames Valley Police and how this force (and vicariously by the SMPs they appointed) incorrectly apportioned an on-duty injury by trying to imply that the complainant, Ms E, had a pre-existing vulnerability to mental illness.  The infamous  Dr Cheng is in the centre of this particular stagnant mire.

The second Pension Ombudsman decision we are going to discuss here isn’t about police injury awards but it does involve ill-health retirement.  Mr Y complained to the Pensions Ombudsman that NGF Europe Pension Fund’s refusal of an ill-health early retirement pension was maladministration.  The Ombudsman upheld Mr Y’s complaint and directed the employer to make the decision again.

The points raised by the PO in these decisions have huge implications for police forces. Each will be discussed but let us first look at Mr Y’s case.

The PO found that NGF relied too much on it’s own occupation health clinician and ignored the expert opinion of the patient’s own clinicians:

NGF’s view that it is entitled to prefer its medical advisers’ opinions when there is a conflict of opinion between them and those of Mr Y’s GP and the consultant treating him, demonstrates that NGF saw its medical advisers’ own opinions of Mr Y’s state of health as at least equal to those of a specialist in a particular field of medicine. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

Effectively, the PO is saying employers can not simply rely on the recommendations  of their own ‘in-house’ medical advisers and that it is not…

“[…] rational to give considerable weight to a prediction that had not been fully explored and was outside the adviser’s remit”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

The decision says that, whether or not the employer (or regards to injury awards, the police pension authority) is understandably concerned about if the treating doctors of the patient have understood the definition of total incapacity, it can not give undue considerable weight to the opinion of it’s own assessor.

How often is a one-sided view taken by a SMP?  Every-time that SMP is trained or advised by certain elements within NAMF is the answer.

It is a well recorded fact that often SMPs deliberately disregard what a former officer’s General Practitioner or treating consultant have said.  Indeed Nicolas Wirz, solicitor for Northumbria police has been so unguarded as to write in his NAMF approved ‘guidance’ to SMPs that:

SMPs are likely to be more skilled at resolving disputes of medical fact [Para 4.12 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]

and

A common occurrence is for the treating physician to “fudge” the issue [Para 4.14 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]

In other words, a highly qualified, experienced specialist consultant’s opinion is nothing compared to that of some money-grabbing quack who has jumped on the gravy train of doing SMP work. Moreover, said consultant will be biased, whereas the SMP will be squeaky clean unbiased.

Come off it Wirzy-boy, pull the other one, it’s got bells on. Do you really think that you can fool anyone other than the intellectually-challenged likes of Cheng and Nightingale, etc. with this sort of manure? You have got dear old Karen thinking she is a High Court Judge who can ‘direct’ people to do her bidding, and good old Billy Chung Wing prefers not to engage his brain other than to remember where he has stashed all his illicit earnings. The rest of the medical profession have wisely elected to give SMP work a wide berth because of you.

But we digress – the case of Mr Y shows that the PO disagrees with Mr Wirz.  In fact it leaves Mr Wirz’s claims naked.  His imagined invention of an aura of being ‘judicially all-powerful’ is simply his cloak for SMPs to wear. Cloaks that make them feel better about themselves.  Not only delusional cloaks, if cloaks can be delusional, but clearly not in accordance with fact that the SMP is acting as an employer’s agent.

An agent with a role defined in statute – but an agent of an employer nonetheless.

The SMP is no more a presiding judge than, say, a Custody Sergeant with his duties defined in the Criminal Justice and Courts Act 2015.

The PO declared that when it comes to Mr Y’s ill-health retirement there were relevant questions which should have been asked and that the employer and his medical adviser should not apply a selective restriction to the reports provided by the patient’s clinicians.

The PO’s decision could be exactly applied to the erroneous methodology preached by Wirz.  The PO has said it is wrong for pension authorities, like NGF, to only take into account its medical advisers’ opinions as this, by it’s nature, will also take in irrelevant considerations.

So yet again the proclamations of Nicholas Wirz are proved wrong – SMPs must resist being brainwashed by the outpourings from this darkly dubious source into thinking the Regulations are too complex for the patient’s clinicians to comprehend.  If the SMP has suspicions the clinician doesn’t understand the statutory question then he shall not dismiss the opinion outright, he should seek clarification.  Put plainly, the PO says they should just ask:

It would not have been difficult to ask them, but this was not done; https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

In the PO’s judgement NGF Europe held a dismissive view of important reports and it was wrong for it to claim that it had enough evidence already and clarification was unnecessary.  This arrogance conveys the impression that the decision not to award a total incapacity pension had already been made.

And so, onto the decision in respect of Ms E’s complaint to the PO.

This concerned the granting of an original injury award.  The first SMP, Dr Leeming-Latham, made the  decision to apportion Ms E’s injury benefit on nothing more substantial than than the appearance of a single entry in her GP’s notes dating from 1988 stating, “Depressional neurosis”.

Despite being told that a reconsideration of Dr Leeming-Latham ‘s decision (under regulation 32) would be a paper exercise, Ms E had the unfortunate experience of attending an appointment with Dr Cheng.  Not only did Dr Cheng think the apportionment applied by Leeming-Latham was reasonable but he also considered the 1988 notes demanded an apportionment bedfellow, and commented that:

general formal grievances that were not upheld and disciplinary proceedings should not be classified as an injury on duty”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-5477/police-injury-benefit-scheme/

You can see how Dr Cheng’s brain was working … when you are asked to review a complaint of inappropriate apportionment, why stop at one.  Why not add further apportionment and then you can try to apportion the whole award away?

Seizing the chance with both hands to go gaga full-bore crazy, Dr Cheng continued by saying Ms E actually had a problem with her wrist, which was incorrect.  On top of all this Ms E had expressed concern her papers might have been mixed up with someone else’s. She also said that Dr Cheng had told her he never gave anyone a 100% degree of disablement.

This was all taken to a PMAB, where the basis for the appeal was that Ms E disputed Dr Cheng’s opinion that her disablement placed her in Band Two for an injury award.

Ms E won the appeal and was awarded a band three award.  The PMAB found Dr Cheng was wrong and concluded that the psychological impairment arising from perceptions of work events were the only factor contributing to permanent disablement and that apportionment was not appropriate.

A victory against the odds!  The PO mentioned in his judgement that Ms E raised concerns that the PMAB appeared to exhibit bias.  Ms E specifically called into question the unnecessary time delays, the lack of female presence, that there was no mention at the hearing of her being put under surveillance while on sick leave, nothing submitted relating disciplinary proceedings whilst she was on sick leave and the horrendous situation of the conflict of interest that existed as TVP’s Pensions Manager and Dr Cheng both sat on the national HR board for the PMAB.  Ms E was awarded £750 for all the maladministration.

And now we can weave together the similarity between Ms E’s decision and Mr Y’s.

Just like NGF Europe Pension Fund’s modus operandi, both TVP and the PMAB “cherry picked” Ms E’s documents.  Favourable reports from a Dr Logsdail were not considered and personal development reviews, papers relating to her grievances, newspaper articles criticising her, and emails from senior staff criticising her were all ignored by Dr Cheng and the PMAB.

Sound familar?  TVP, as a pension authority, had a duty not to have a predetermined decision in mind.  But they used Cheng and Leeming-Latham to get the result they wanted by ignoring everything that contradicted their point of view.

This is exactly what the PO is getting at in the decision of Mr Y.

The simple message for all police pension authorities is to keep this in mind: you only get one chance to do things right the first time.

Why not dispense with your biased SMPs and save money and improve the quality of injury award decisions by making fewer mistakes and learning more from those you do make.  Tell the SMPs you use to look objectively at all the evidence placed in front of them.  Stop using Dr Cheng and the number of appeals will plummet.

This means also put the Book of NAMF in the bin where it belongs.

It must be better, quietly and without fuss, noise and bluster, to aim to get things right in the first place rather than having to forced to put them right through expensive appeal and complaint processes. You may well think that the likes of Cheng and Wirz save you money. You would be wrong to think that. The legal challenges you are facing now are only the tip of the iceberg.

Henderson’s Precedent

Henderson’s Precedent

Don’t use the conduct of a fool as a precedent
The Talmud.

Sometimes you read a decision handed down by an authority and are so appalled by the maladministration which is revealed by the light of justice in action that you miss the obvious.

The 2011 Pension Ombudsman’s decision in Mr Henderson’s complaint is one such example. North Yorkshire Police Authority (NYPA) had foisted upon this poor medically retired police officer a level of injustice concerning his pension such that anyone with a grain of common sense would have recognised as the actions of fools.

(Note that, in another example of foolishness, when the old Police Authorities were scrapped, the Government decided that each Chief Constable should be the police pension authority. In other words, they now not only are the injury pension scheme managers, but are also supposed to be their own oversight agency. Given that many of them have not a clue about the Regulations, and nor do their so-called professional HR people, it is no wonder that NYPA could make such an almighty cock-up – and then not even have the good grace to put things right without the need for the directions of the Pensions Ombudsman.)

Download: Mr M Henderson V North Yorkshire Police Authority (NYP)
View:
(if it fails to open in google docs, try again.  It will work eventually!
Mr M Henderson V North Yorkshire Police Authority (NYP)

Mr Henderson was retired in 1991, following an assessment by a Dr Givans of permanent disability caused by,

‘. . . problems [that] consist of pain and stiffness in the left knee and right hip with associated weakness of the legs’.

He was awarded an injury pension on band four – the highest level, which is described in the Regulations as, ‘very severe disablement.’

Mr Henderson’s degree of disablement was reviewed in 1993, when it was decided there was no change to his circumstances.  Some fourteen years passed, during which time Mr Henderson struggled on with no ability to work and earn, then, in 2007 he was reviewed for a second time. NYPA performed a complete reversal from the 1993 review and this time, for reasons unknown, thought he could be a personal security co-ordinator, a scrutiny officer or a rent recovery officer.  This is someone who had been a band four for 16 years.

His injury pension was reduced by NYPA from a band four to a band two. We can only imagine the huge shock and upset this must have caused the poor man, who had never been fit to work since leaving the police.

He appealed, but, amazingly, the PMAB magnified his torture by reducing him further from a band two to a 0% band one.  The (cough) ‘wisdom’ of the PMAB was they thought Mr Henderson’s right hip problem was not related to the injury on duty.

So far, so bad.

Mr Henderson turned to the Pensions Ombudsman for some sane insight into the situation.

Fortunately, (and inevitably) the PO upheld Mr Henderson’s complaint and found against both the PMAB and NYPA. The PO directed that North Yorkshire Police Authority had to refer Mr Henderson’s case back to the PMAB for review and to make it clear to the PMAB what it was to consider.

The PO concluded that:

‘[NYPA had unlawfully] invited the PMAB to reconsider the original decision and expressed its concerns about Dr Givans’ decision’

As readers of our pages will know, it is, and always has been, unlawful to revisit any final decision on the cause of disablement when conducting a review of degree of disablement. NYPA and the PMAB were apparently blithely unaware of this. So much for professionalism. Or is it that neither actually cared a damn, and just did what they wanted to do, regardless of the law?

Before we jump ahead and talk about an important implication of the PO’s decision, we need to have a crash course about some legalese.  Hold on though as the punchline will be worth it.

The legal doctrine of precedent has a Latin term: stare decisis – ‘standing of previous decisions’ as the legal principle of determining points in litigation according to precedent.  It means that Judges must follow past decisions to ensure certainty.

William Blackstone (English jurist, judge and Tory politician of the eighteenth century) opined that judges do not create or change laws. The law has always been that way and the Judge’s role is to discover and declare the true meaning.  Since it is discovered by the Judge that the law has always existed in the way he or she rules then this means that case law operates retrospectively.

There is a hierarchy of precedent that starts from the Supreme Court, goes down through the Court of Appeal, High Court, Crown Court, County Court all the way to Magistrates and tribunals.

Obiter dictum translates to “said in passing” and this exists in the doctrine of precedent covering decisions by legal authority lower in the hierarchy than the Courts themselves.

In legal-speak the Pension Ombudsman is a ‘persuasive authority’.  In plain language this means that, although a PO decision is final and binding on both parties (and an appeal of a determination of the Pensions Ombudsman can only be lodged at the High Court on points of law or questions of fact), the decision does not set a definitive precedent onto judgements made by a higher court.

But, as a persuasive authority, any given PO decision is one which any higher the court can, and will, consider and may be persuaded by it.

It is also a decision which any police pension authority, and any PMAB ought to take due notice of, as to act contrary to it is sure to attract challenge and appeal.

Now we have talked about the persuasive precedent of the PO, let us return to the decision made in Mr Henderson’s case.

In the conclusion of the decision the Ombudsman stated this:

NYPA shall refer Mr Henderson’s case back to the PMAB for review and make it clear to the PMAB what it is to consider. NYPA shall restore Mr Henderson’s injury benefit to its previous rate until such time as a final decision is reached.

The PO decided the decision of the PMAB would be quashed.  It must be readdressed – this time correctly – and no reduction to rate of injury benefit shall occur until it is all over.

In other words, until there is finality – until all appeal avenues have been exhausted – the injury award of Mr Henderson must not be altered.

Persuasive precedent.

Bully boy tactics by civilian so-called medical retirement officers, director of resources or other such non-medical technocrats should please take very careful note of the PO’s conclusions in the Henderson case.

Such people have been known, with intent fuelled by self-interest, to casually make unlawful threats to disabled former officers of suspension of their injury award or punitive reduction to a band one.

These threats are made just because there is no capitulation to their wrongful orders for disclosure of medical records since birth or non-completion of an odious and irrelevant questionnaire asking for sensitive personal information which no PPA has a right to demand.

They need to be reminded that not only does Regulation 33 not apply in such circumstances (decision upon the available evidence if there is a failure to attend a medical examination), but the PO has made it very clear that any reduction in pension payment, whether made lawfully or not,  has to be suspended until all avenues of appeal are exhausted.

It rather takes the wind out the sails of their threat doesn’t it?

PPAs and their HR managers – and compliant (‘Show me the money’) SMPs should take note that if the sanction of reduction of pension has been performed without any medical evidence an appeal is clearly inevitable.

Taking the precedent to it’s logical conclusion, any punitive unlawful threat to ‘do this, or else!’ is meaningless.  All that is being achieved is to take the decision out of the hands of the police pension authority and into the remit of an appeal.  The reduction can not be enforced until the appeal process has finalised.

It seems to us in IODPA that the system is well and truly broken. Chief Constables and their staff lack the necessary expertise to understand the Regulations. In some areas, they see injury pensions as a drain on resources, so throw their PPA hat into the bin and clap on their ‘I’m concerned about the budget’ hat and set about scheming how they can manipulate the review process so as to reduce injury pensions.

PMABs, if anything, are worse. They are a panel of medical professionals whose knowledge of the Regulations is based on out of date Home Office guidance, which has no legal authority and which has been roundly discredited by the Courts. They struggle with the niceties of legal protocol. To them the rules of precedent are a dark pool into which they prefer not to venture.

So, PPAs, PMABs, HR types, SMPs and all the other acronymic twerps who are currently the bane of the lives of disabled former police officers continue to act according to their own vacuous precedents, rather than to legal precedent. They keep on repeating, and elaborating on, their own woeful mistakes.

They are truly fools, one and all.

 

 

 

 

Duress by Denying Appeal

Duress by Denying Appeal

As long as we can get redress in the courts, as long as the laws shall be honestly administered, as long as honesty and intelligence sit upon the bench, as long as intelligence sits in the chairs of jurors, this country will stand, the law will be enforced, and the law will be respected. -Robert Green Ingersoll

Police Medical Appeal Boards (PMABs), for all their faults, have an important function in the administration of police injury awards.

Quite often SMPs come to an erroneous decision and make glaring errors in their final report.  You only need to look at the legion of Pension Ombudsman determinations and high court judgements. There are many possible reasons why SMPs make errors. Commonly, they fail to assess the medical evidence properly, and may be misled by irrelevant, prejudicial or fabricated evidence fed to him by a HR minion.  The SMP may be following Home Office or  NAMF guidance which has no lawful authority, and in doing so contravenes the Regulations and the case-law that exists to dictate the narrow remit of his lawful duty.

PMABs provide a forum in which retired officers may have these concerns addressed. They serve an important institutional function. They should provide legitimacy to the system as a whole by maintaining consistency in decisions and their function is to prevent miscarriages of the Regulations.

Nevertheless, Police pension authorities seem eager to neglect their duty to act fairly.  They are knowingly interfering in the access to PMABs by declaring fictional restrictions, and to achieve this they will resort to nefarious threats that are well outside the sanction of natural justice in order to scare people away from their important right to appeal.

Just look at Nicholas Wirz, Principal Solicitor to Northumbria Police:

Crudace. Paragraph 49

On 2nd July 2009 the Police Authority solicitor, Mr Nicholas Wirz, sent Mr Crudace a letter which in effect threatened the Claimant with a £6,200 adverse costs award if he persisted with his appeal

…45 of the 70 former officers who were the subject of decisions on 20th February 2009 lodged notices of appeal. Mr Wirz sent a letter in similar terms to each of them. The letter has been the subject of criticism by Mr Lock QC and was also the subject of a complaint to Mr Wirz’s professional body

Recently IODPA has seen more examples of threats such as above.  A former officer has recently been told by a Northern force that the SMP requires, ‘full medical records to understand the baseline from which he has to assess whether there has been any significant change’.   Failure to do as demanded is threatened with the punitive reduction to a level of 0% degree of disablement.  Kafkaesque in it sinisterness, the author of this letter then proves his point by attaching a copy of the new ‘financial statement’ based on a 0% degree of disablement/Band 1 award. This is not far removed from the Medieval practice of showing the instruments of torture to the prisoner.

Forget lawful process; forget evidence of substantial change and the other requirements of the Regulations, this is simply: ‘Do as we say, or else’

In the spirit of the times, the threats are becoming more and more forceful.

Regularly appearing now is the threat that if, at a review, full medical records are not disclosed then not only will the police pension authority automatically reduce the pensioner to 0% without lawful authority, they also proclaim, astoundingly, that there is no avenue to appeal at PMAB.

This quote can be found in the new consent form sent out by Avon & Somerset.  Forget Kafkaesque; we need a new expression of surreal distortion and sense of impending danger – the Avon and Somerset threat is Wirzesque in it’s intimidating menace.

The former officer has to under-sign this statement:

I understand that at any time in the Procedure I may elect to withdraw my consent to attend a medical consultation or for medical information about me to be disclosed. […] I understand that in these circumstances the Pension Authority may decide the issue of Permanent Disability and that I will not enjoy a right of appeal to a Medical Appeal Board

The HR minion who sent this letter is referring to the refusal of consent of full medical records. There is no space in the form to specify a date range therefore they are asking for full medical records, from birth, or nothing.  Then they threaten to reconsider the issue of Permanent Disability  and continue to say the entitlement of a PMAB is forfeit.

There is no explicit mention of it, but the HR minion is of course referring to Regulation 33 (refusal to be medically examined).  What the minion fails to acknowledge is that consent to the pension authority is different and distinctly separate to the consent to a PMAB.  Also the minion neglects to inform the would-be signer that Regulation 33 is concerned with ‘wilful or negligent’ refusal to be medically examined.

It is true to say if consent to a medical examination and access to relevant medical records required by a PMAB (when the appeal process has commenced) is not granted then the appeal is withdrawn – but this is an entirely different matter to the disclosing of full medical records from birth to the pension authority.

Let us examine this further.  What if the person reviewed has good reason not to disclose full medical records to the pension authority? – this is neither wilful nor negligent failure.  In this theoretical example, just say the pension authority punishes the disabled former officer by unlawfully totally removing the injury award by declaring that there is no permanent disability.

Regulation 33 does not speak of punitive measures.  It also does not allow a gateway into anything other than Regulation 30-2(d), the degree of disablement – the sole question allowed in a Regulation 37 review.  There is no power for Regulation 33 to reconsider Regulation 30-2(b), in other words the permanency of disablement.

There is also no power for the pension authority to block access to a PMAB.  If the medical consent is subsequently granted to the PMAB then the appeal board will hear it.  Remember, the appellant may have a valid reason to deny full medical records to the pension authority but may be extremely willing to allow the PMAB panel to see the same.

The pension authority has no jurisdiction to block access to a legal appeal process.

Plain and simple it is a dirty threat that the pension authority has no power to enforce.  A rather sick bluff used against vulnerable individuals.

Just like the Home Office circular 46/2004 proclaiming that people over 65 have no earning capacity, the issue of consent to full medical records and threats to invoke punitive reductions of injury awards is hollow and unlawful and will be demolished by means of Judicial Review.

Deliberately scaring disabled former officers by exposing them to unlawful threats and frightening them into compliance is now firmly embedded into the PPAs’ toolkit to undermine the Police Injury Benefit Regulations.

It is just heartbreaking that police pension authorities are on such a self-destructive path.

 

 

The Police Injury Pensioner’s Grand Day Out

The Police Injury Pensioner’s Grand Day Out

With thanks to the author – you know who you are !  The members of IODPA are forever in your debt.

The Police Injury Pensioner’s Grand Day Out

A one-act play.

Some reviews:

‘As compelling as the Mousetrap. The pensioner, played convincingly by A. Copper looks just like a lump of mouldy cheese.’

Daily Mail

‘A surreal insight into the quasi-judiciary. Reminded me of Waiting For Godot.

The Guardian

‘Crocked Cop Cracks Up’

Daily Mirror.

—————————————————-

The scene is a well-lit room in a modern concrete city centre building. It is furnished sparsely, with a set of cheap tables set in an open horseshoe shape.

Sat at the table forming the base of the horseshoe, facing the door and with the sunlight streaming in from a window behind them obscuring their features, sit the Judge Jury and Executioner – all three members of the Police Medical Appeal Board.

On one set of side tables are sat various anonymous persons. All are wearing expensive business type clothing and have a self-satisfied look. They are representatives of the pensioner’s former force and Police Authority, together with a self-styled pensions expert and a smug looking selected medical practitioner.

Judge: Bring in the prisoner – I mean pensioner!

The door opens and a police injury pensioner stumbles in, blinking against the light. A warder removes the prisoner’s straight-jacket and roughly forces him to sit in a chair placed in the open end of the horseshoe, facing the Judge.

Judge: Pensioner at the bar, you have been summoned to appear before us today to give cogent reason why I should not reduce your injury pension to the lowest band of disablement. You are charged that you did wilfully, knowingly and with scant regard to the public purse, reach the advanced age of 65. How do you plead?

Pensioner: Not Guilty.

Judge: What? Am I hearing right? Were you not advised that your only option is to throw yourself on the mercy of the court after admitting your sins against the State?

Pensioner: May it please the Bench, I reserve my right to supply the court with a number of cogent reasons why I should not be reduced to penury.

The anonymous onlookers whisper amongst themselves and one of them scribbles a note and hands it to the Judge.

Judge: Were you not warned that the Home Office (blessed be its name) issued guidance in this respect and that they make mention of ‘cogent reason’ – singular – not ‘cogent reasons’ – plural?

Pensioner: Yes, your worship, I did know that but why do I have to provide a cogent reason? Surely my previous employers know that there is nothing in the Police (Injury Benefit) Regulations 2006 about cogent reasons.

Judge: What they know or don’t know is not the issue. They are not on trial – you are. Shall we get on? Provide one reason only. Be quick about it. Time is money you know and that’s what this hearing is all about – your former employers saving it and you losing it.

Pensioner: With respect, your worship, I would like to have my solicitor present, and I have several persons outside who wish to address the court on my behalf.

Judge: Impossible! You can have a friend sit in the room if you insist, but he, she or it must not speak or take any part in the proceedings. We had a dog in here the other day – man’s best friend and all that, but the damned animal peed up my leg. (turns to anonymous suits) Why did we admit that creature?

The anonymous suits send another note.

Judge: I am reliably informed that dogs are allowed provided they are guide dogs. You are not blind are you, pensioner at the bar?

Pensioner: No sir, I suffer from chronic reactive depression and post-traumatic stress disorder.

Judge: Complete twaddle. There was no such thing in my day. We just got on with things. You are a disgrace to your uniform.

Pensioner: I was in CID.

Judge: Well, a disgrace to your cheap Marks and Spencer suit then.

Pensioner: What are your qualifications to preside at this sham of a hearing?

Judge: Listen sonny, I ask the questions, OK.

Pensioner: I only asked a perfectly reasonable question.

Judge: How dare you question the system. I’ll have you know that it was designed entirely with your welfare in mind. For the record, (turns and winks at the suits) I am a fully qualified medical practitioner and have been shown how to calculate in percentages.

Pensioner: But you are hardly independent and impartial are you? Doesn’t the Home Office pay your wages?

Judge: Listen up, you toothless old fart, it not only pays me but trains me and guides me and what is wrong with that!

Pensioner: Yes, but it does rather cast a doubt in my mind about your impartiality.

Judge: Mere semantics. The fact is, my dear little has-been, that you haven’t got a leg to stand on – just like the last chap who was in here. He’d lost the use of both of his. Ha! Ha!

Pensioner: May I produce my cogent reason now?

Judge: Get on with it. We are none of us getting any younger sat here. You, more than anyone should know that. How you have managed to survive to the amazingly advanced age of 65 is a miracle. By any standards you should be pushing up daisies by now and not continuing to be a drain on scarce police resources.

Pensioner: I protest! You are displaying bias.

Judge: Idiot! Of course I am. That is the whole purpose of this hearing. If you were not so old and decrepit you would have realised that before you demanded this hearing.

Pensioner: Your Medical Worship, I didn’t ask to be here. I was injured due to no fault of my own, thrown out of the job I loved, and expected to be left in peace to pick up the threads of my shattered life whilst battling with a debilitating and disabling illness without the benefit of support from my ex-employers. Anyway, they commanded that I attend, under threat of reducing my pension to zero if I was unable or unwilling to stand here and be your patsy.

Judge: Are you from Devon or Cornwall?

The prisoner looks puzzled.

Prisoner: No, I’m from Yorkshire.

Judge: Well, why are you talking about pasties then? What has a convenient snack formerly used by tin miners got to do with these proceedings?

Pensioner: Patsy – I said patsy, meaning an innocent dupe, a sacrificial goat, a con-man’s mark.

Judge: Exactly so!

Pensioner: May I enquire if the court can offer me any guidance regarding what cogent reason would find favour?

Judge: You really are at an advanced state of decay aren’t you? If you had a few functioning brain cells remaining in that wrinkled and disgustingly bald head of yours you would understand that is for me to know and for you to guess.

Pensioner: Could you perhaps give me a clue?

Judge: Well, I am a reasonable man – provided the reasons are mine – so let me just say this: I will know a cogent reason when I see one. Please remember that these proceedings have been set up so as to provide a fairer and more cohesive approach to the management of police injury pensions. With that in mind, I feel it only fair to warn you I have not heard anyone air a cogent reason yet – and I intend to make damned sure that I never do!

Pensioner: But –

Judge: Silence! You have tried the patience of this court far enough. You should realise that it is the purpose of this court to try the patient. Ha! Ha!

Prisoner: May I present my cogent reason now?

Judge: (feigning a yawn). Well – if you insist, but you are wasting your time, you wrinkled old prune.

The pensioner stands and begins to deliver an impassioned and carefully constructed plea, but it is obvious that the Judge isn’t listening. He has plugged in the earphones of his iPod and the tinny strains of Abba singing ‘Money, Money, Money’ can be heard faintly throughout the court. The pensioner sits down.

Judge: Finished? Right then. After due deliberation, taking due cognisance of all irrelevant aspects such as apportionment, revisiting the final decision of the SMP and paying particular attention to Home Office (blessed be its name) guidance whilst totally misreading the Regulations, this court finds that the pensioner before the bar is guilty as charged. Warder, please confiscate his wallet and hand the contents to the honourable persons to my left. Leave him his old age pensioner’s bus pass so he can get back to the old people’s home.

The Judge bangs his gavel and all present, except the pensioner, decamp to the fine dining establishment conveniently situated next door for a well-earned lunch on expenses.

Regulation 32

Regulation 32

Everyone in receipt of an Injury on Duty award mostly understands the implications of the discretionary power to review, namely regulation 37.   As described previously on other posts it is frequently an abused power with reviews instigated by the police pension authority, on their whim, so that they can fulfil financial constraint reduction targets.   Rarely does a pensioner with a substantial deterioration in their medical condition request a review themselves – Avon & Somerset has only received 2 self-referred requests for a regulation 37 review in the past 10 years. https://www.whatdotheyknow.com/request/pensions_6

The same story is repeated nationally. Too many IODs are living their lives with degenerative conditions brought on by their qualifying injury received in the execution of their duty without wanting to resurrect the pain of dealing with their former force’s bureaucracy.  So they continue on, living on an award banding lower than what they should be entitled to.  The point I’m clumsily trying to make is that if no IOD recipient thinks of requesting a review, it is not surprising to hear that no one knows that there is a power to ask for a reconsideration.

Regulation 32 became more widely known as a direct result of the the unlawfulness of home office circular 46/2004.  Between 2003 and 2009 hundreds of reviews were used to reduce former police officers to the lowest band due to the fact that they had reached the age of 65.  Despite the hardship this caused only a few had the mental strength to appeal and it wasn’t until the first Judicial review in 2009 that the light was shined on the illegality of what had happened.  By then those affected had missed the strict deadlines to lodge appeals.

The case of Haworth explains this clearly.  This was Northumbria again on their mission to ruin lives, guided in their quest by their legal advisor Mr Wirz.  Susan Haworth was retired on an injury on duty award and medical pension in 1995.  In 2005 she was reviewed and had her injury award reduced.  The decision was taken to the police medical appeals board (hearing in 2006) whereupon the board further reduced the award to the lowest band, a band 1.  Both the SMP in 2005 and the board in 2006 revisited causation and unlawfully attempted to claim that Susan had pre-existing conditions and then applied apportionment.  This was not permissible and was outside the task which they had to undertake under regulation 37.  Susan did not take the fight further (she was unaware she could challenge it at the time) until she realised several years later, after Laws V PMAB in 2009, that the decision made against her was unjust.  So in 2010 she sought advice and submitted a request for the 2006 decision to be reconsidered under regulation 32.

Here is an excerpt of the letter from her solicitor requesting the reconsideration:

‘It is against the background of the decisions of the SMP and the PMAB that Mrs Haworth is seeking a reconsideration under Regulation 32(2) of the Police (Injury Benefit) Regulations 2006. The detailed reasons for seeking this review (sic) are set out below, however in essence the decisions of both the SMP and the PMAB were not made in accordance with the relevant regulations , as it is clear that the SMP…..revisited causation as to the original final decision made at the time of Mrs Haworth’s ill heath retirement in May 1995, and the,PMAB ….then proceeded to apply an apportionment, again to a final decision made in May 1995. Both of these decisions are therefore unlawful, and not made accordance with the Injury Benefit Regulations.”

Typically and acting to type, Northumbria refused the reconsideration.  The refusal was taken to judicial review and Haworth won the right to have a her case heard under regulation 32.

The importance of Haworth is not only that it brought to light that a police pension authority needs a robust reason to refuse a request for a reconsideration – more than Northumbria’s claim of “It is important that final decisions, once taken, remain just that” and that Mr Wirz’s submission to the court that ‘re-opening of old-cases will affect the authorities budget’ is irrelevant to the matter at hand .  But also that there is no time limit to restrict the use of regulation 32:

I cannot accept that it is lawfully open to a police authority to refuse a retired officer its consent to refer a final decision back to a medical authority for reconsideration under regulation 32(2) simply on the grounds of delay, even inordinate delay, in other words passage of time since the decision was made, without any consideration of the underlying merits of the matters which the former officer seeks to pursue on such a consideration”.

The power to demand a reconsideration is therefore unfettered by time and is always available as a viable option.

So what advantage does a reconsideration (reg32) have over a review (reg37)?   If a review (or the original decision that the review is based upon) is using the wrong diagnosis, if there is undue apportionment, if causation is incorrect, if a previous final decision was contrary to regulations; a further review can not fix the fault.  That fault will remain now and in future reviews for eternity – the comparator always is the last final decision whether or not that final decision was wrong. A review is blind to the legitimacy of the last decision.   So the only way to wipe the slate clean and have future reviews looking at the correct factors is to have the previous decision(s) quashed and regulation 32 provides a mechanism for this to happen.

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...