“Don’t use the conduct of a fool as a precedent”
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.)
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.
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.