reconsideration

“The difference between the almost right word and the right word is really a large matter. ’tis the difference between the lightning bug and the lightning.”
― Mark Twain, The Wit and Wisdom of Mark Twain

In Staffordshire, some bright spark has had the idea the force could save some brass by conducting what they call regulation 37 reassessments of the degree of disablement of nearly every former officer who is in receipt of an injury pension.

The old saying goes, ‘Where there’s muck there’s brass.’ Staffordshire have got the muck bit right – they are making one heck of a muck in the way they interpret regulation 37. But they are wrong to think that the reviews will produce any savings for the force.

There’s no getting around it.  Staffordshire expects to be able to REASSESS loads of injury awards and see whole swathes of injury pensions reduced rather than do what is required of them under Regulation 37.

Staffordshire has produced a spiffing web page about its plans to rob disabled former officers of their injury pensions. It was written, we think, by a part-time employee in a contracted-out service company based somewhere in the Urals. It barely makes sense and if its intention was to inform then it fails spectacularly.

Take a look at it: https://www.staffordshire.police.uk/ibr

We won’t do a word by word critique of this most confusing bit of flummery as we have our sights on what lays behind it rather than the content itself. However, there will be a small prize for the first person who can tell us what this lump of nutty slack means:

‘The reassessment of the degree of Injury Pensioners’ disablement has been decided by Chief Constable Jane Sawyers . . .’

Eh?

We are confident that we won’t need to present the prize, which is, appropriately a tangled Staffordshire knot made out of old police whistle chains, for the sentence has no discernible meaning whatever.

Mind you, some parts of the Police (Injury Benefit) Regulations 2006 could do with a bit of a tidy up to help improve their clarity, for Staffordshire’s sake. IODPA has no problem in understanding what the Regulations mean, but they can be hard going for HR managers.

For SMPs and for a certain crafty solicitor, whose name we have mentioned from time to time, the Regulations are a playground where meaning can be twisted into unrecognisable shapes.

So, what’s in a word? A turd by any other name would smell just as foul. Why does Staffordshire’s use of the word ‘reassessment’ bother us?

Let’s look at Regulation 37 and see how Staffordshire have got hold of the wrong end of the stick.

They have seized on the heading of the Regulation, which is ‘Reassessment of Injury Pension’ and have not really bothered to think about what the entirety of Regulation 37 says, and what it intends.

Staffordshire have leaped to the disastrously incorrect assumption that Regulation 37 gives a police pension authority permission to conduct a mass reassessment of injury pensions. And not to just look for any alteration in degree of disablement, but to question what are legally final decisions made in the past.

Digging further into the shallow seam of Staffordshire’s less than helpful web site and clicking on the Frequently Asked Questions we spot some corkers.

‘Q:       Where does it say in the Regulations that Injury Benefit can be reassessed?

A:        Regulation 37 of the Police (Injury Benefit) Regulations 2006 enables the Police Pension Authority, at such intervals as may be suitable, to consider whether the degree of the pensioner’s disablement has altered. If after such consideration it is found that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.’

Where is the word ‘reassessed’ in Regulation 37?

‘Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.’

Nope, don’t see it, do you?

Staffordshire see it though, because they approach Regulation 37 with a preconceived misconception that when this Regulation is used, then an injury pension can be reassessed from scratch, just as though it were being done at the time an injury award was granted.

Staffordshire thinks, as another Q and A reveals, that they are allowed to send out an intrusive questionnaire which asks, in a demanding sort of way, for information which has no relevance whatever to the proper, lawful, application of Regulation 37.

Staffordshire thinks, according to its FAQ’s that it can ask IOD pensioners for permission to access their complete medical file from birth.

The web site reveals too that the SMP is going to make some sort of ‘calculation‘ whenever a substantial alteration in degree of disablement is determined to have occurred. Leaving aside our very great concerns that the SMP will drive a giant JCB through the Regulations in his quest to decide whether there has been any alteration, we find ourselves boggling at the thought that any calculation would need to be made.

Come on Staffordshire, buck up and tell your SMP he has no calculations to make. All he has to do is decide there has been a substantial alteration in degree of disablement, and tell HR to tell the payroll people (who are probably working for a contracted outsourced company in Botswana) to pay the injury pension in line with one of the four bands set out and calculated ONCE AND FOR ALL in the Regulations.

While we are at it, let’s also try to educate Staffordshire a bit more about using the correct words whenever they chose to talk about legal matters. There is no such thing as a review or a reassessment of an ‘injury benefit’. There is an injury pension and there are two specific gratuities available for former officers. There is a child’s special allowance and a child’s special gratuity. There is an adult dependant relative’s special pension and there is a death gratuity. There are also other provisions.

Is Staffordshire trying to say that it has a duty, or a right, to reassess any or all of these?

Of course not. They are concerned only with injury pensions paid to former officers. So why not say so?

Staffordshire thinks Regulation 37 invariably results in a reassessment.  But hold on, what is a reassessment?  A dictionary definition of performing a reassessment of something is to evaluate it again, or reappraise it, especially if its value has changed or new information has altered your understanding of it.

A fine definition you might think.  The trouble is an evaluation or a reappraisal of any injury award from the start is illegal.  Some people may think this is nitpicking – what’s in a word, you may ask.

The world inhabited by those with an injury award is a very literal existence.  Words are our framework of meaning.  Given the way the administration of injury awards has always seen flawed meaning imposed on the Regulations by those who administer injury pensons, it is no wonder we in IODPA get all jittery when we see Staffordshire throwing around the word ‘reassessment’.

The Simpson judicial review judgement is there for Staffordshire to see, and it explains things neatly. However, if pension administrators have difficulty in understanding Regulation 37 there is little hope they will understand a court judgement.

‘The statutory scheme requires an assessment as to whether there has been an alteration in the degree of disablement first. A further quantum decision on the present degree of disablement is only permissible if the police authority, acting by the SMP, have first decided that there is a substantial alteration in the former officer’s degree of disablement.’

Only after substantial change is identified by the SMP, can the SMP move from the first test to the second test.  In the second test an assessment is not a “reassessment”.  The assessment mentioned by  the Honourable Justice Supperstone is a comparative exercise only – the degree of disablement now, as altered by the substantial improvement or worsening, compared to the degree of disablement as decided the last time the question was considered.

The Court of Appeal in Metropolitan Police Authority v Laws and the PMAB[2010] EWCA Civ 1099, made it clear, for the likes of Staffordshire HR,  that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations, and had merely to consider whether the degree of disablement had substantially altered.

If Mr Justice Supperstone chose his words carefully, and we can be very sure he did – an assessment was stated, and not a reassessment.

The verb reassess means to consider something again, especially if new factors have come to light since you first assessed the issue.  A review under Regulation 37 cannot consider something again. The last decision is final and earlier decisions are closed.  There are no new factors allowable in a review, only a comparative exercise from the last decision (whether the original decision or review) to the present.

Only after the first test of substantial change can the degree of disablement be revisited and even then the Fisher judicial review now strongly enforces the requirement for there to be presented the depth of reasoning which is applied to uninjured earning capacity.

An IOD pensioner can’t go to the SMP under a Regulation 37 review and say the decision 20 years ago was wrong and they want their degree of disablement “reassessed”.  That is obviously wrong.

And it will be equally wrong should Staffordshire embark on its mass review programme and add another layer of illegality by revisiting what are final decisions.

The local Staffordshire NARPO branch have publicly said all the facts are known and Staffordshire Police should be allowed to continue with the mass review program.  Those that understand the Regulations have more than anecdotal evidence that Staffordshire Police has a history in the dubious ways some original decisions do not reflect the degree of disablement actually given by the medical authority – the final band is magically reduced as the SMP’s report is then hijacked by a HR minion.

Perhaps Staffordshire Police should include a FAQ explaining how to go about a Regulation 32 reconsideration when the lawfulness of the past decision needs to be “reassessed”.

Reading this Judicial Review may give Gareth Morgan and Andrew Colley some clues …

Haworth, R (on the application of) v Northumbria Police Authority [2012] EWHC 1225 (Admin) (16 May 2012)

You are here: BAILII Databases England and Wales High Court (Administrative Court) Decisions Haworth, R (on the application of) v Northumbria Police Authority [2012] EWHC 1225 (Admin) (16 May 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1225.html Cite as: [2012] EWHC 1225 (Admin)