Regulation 33

Injured Pensioner Wins Court Case Over Back Payment Of Pension

Injured Pensioner Wins Court Case Over Back Payment Of Pension

IODPA member Angie McLoughlin has successfully won her hearing which was heard at Leeds County Court on Thursday 21st March 2019.

Following a regulation 32(3) review under The Police (Injury Benefit) Regulations 2006 in which Mrs McLoughlin had her original injury award changed from a band 1 to a band 4, her former force West Yorkshire Police, refused to back pay her the loss of her pension for a number of years.

The case was fought on her behalf by Ron Thompson of Haven Solicitors and David Lock of Landmark Chambers.

Here is their press release –

 

Angie

 

Here is full copy of the judgement – 

McLoughin-V-CC-of-West-Yorkshire-Police

 

Our congratulations to Angela, Ron Thompson and David Lock as this case has huge implications for injured officers who are considering challenging a previous injury award under regulation 32(2) or 32(3).

Staffordshire Police Put The Brakes On

Staffordshire Police Put The Brakes On

Whoa!!!

— [Anonymous] command to stop or slow down, usually horse or vehicle

We have breaking news…

Staffordshire’s Chief Constable, Mr Morgan, has thrown the gears of his review truck into reverse.

A few weeks ago Mr Morgan took the extraordinary step of deciding that failure by IOD pensioners to allow access to their medical records amounted to a failure to attend a medical interview or examination. His stance was that full access to medical records was a necessary step in any medical examination or interview.

Seventeen of our members had received letters just four weeks prior to Christmas from Mr Morgan advising that because they had refused access to their medical records he would be reducing their injury pensions and the reductions would be backdated, indicating that they would also claw back the money from the affected pensioners.

Mr Morgan’s decision was robustly challenged by Ron Thompson and Mark Botham of Haven Solicitors, and Mark Lake of Cartwright King Solicitors, acting on behalf of the IOD pensioners concerned.

Pensioners have now heard from Mr Morgan’s solicitors that he, in his role as Police Pension Authority (‘PPA’), accepts that the letters notifying pensioners of his decision to reduce their pensions,

. . . did not sufficiently explain the reasons for the decisions. Further, the decisions should not in the circumstances have had retrospective effect.

 

Our solicitors have been told that Mr Morgan,

. . . proposes to provide each of the proposed Claimants with further decision letters, containing a fuller explanation of the reasons for the decision taken in each case…

 

Meanwhile no reductions in injury pensions will be made at this time.

IODPA can not comment in detail on the issue as the legal arguments will be continuing, and may be heading for the Administrative Court should the PPA wish to see his interpretation of regulation 33 tested.

However, we can say that all of the IOD pensioners affected by Mr Morgan’s threats to reduce their injury pensions can now have a peaceful Christmas without the extreme fear that any future decision by CC Morgan will not allow him to backdate any pension payments.

Staffordshire – The Story To Date

Staffordshire – The Story To Date

All the things I really like to do are either illegal, immoral, or fattening.

Alexander Woollcott (1887-1943)

 

Elsewhere on our web site are numerous comments concerning the action taken by Staffordshire Police in reducing the pension payments due to a group of disabled former officers. The comments make clear the feelings engendered in reaction to this dramatic turn of events.

IODPA has refrained from making comment as the issue is undoubtedly going to be subject to prompt legal challenge.

However, we can give an account of what has happened so far.

Officers who are injured on duty to such an extent they can no longer perform the ordinary duties of a constable can be required to retire. They can be awarded a one-off gratuity payment plus a pension, payable for life, as compensation for no-fault injury.

The compensation scheme is governed by The Police (Injury Benefit) Regulations 2006, which is secondary legislation made by a Minister of State under provision of The Police Pensions Act 1976.

The Regulations, specifically regulation 37, allow the question of degree of disablement to be considered from time to time, as appropriate, for it is recognised that the disabling effects of duty injuries may worsen or lessen. If there has been a substantial alteration, then the amount of pension paid can be revised accordingly.

On 26th April 2017 Staffordshire Police commenced a programme intended to review the degrees of disablement of the over 300 former officers who are in receipt of an injury pension.

The programme quickly ran into difficulties as pensioners raised issues questioning the legality of the programme, both in concept and in detail.

A major issue was the insistence of Staffordshire Police that it be allowed full unrestricted access to individual’s medical records, from birth, and to personal financial information.

A number of pensioners refused to give permission, on the grounds that their personal data enjoyed detailed protection under data protection law and that there is nothing in the 2006 Regulations to require a former officer to submit any medical records made by any other doctor to the force or to any doctor employed by the force.

A further concern expressed by some pensioners was that they had no confidence Staffordshire Police was capable of conducting the review process lawfully. The content of various policy and process documents created by Staffordshire Police concerning the review programme arguably contained misinformation and misrepresentation of law.

A number of reviews were held, and the doctor tasked by Staffordshire Police to decide whether there had been any alteration in degree of disablement reported that, in some instances, due to the absence of permission to access medical records, he could not make a decision. The doctor later withdrew himself from any further involvement in the review process.

In December 2017 Staffordshire Police published a letter which sought to apportion all blame on the difficulties being experienced to, ‘a small number of individuals’.

It emerged that in the majority of instances where pensioners had refused unrestricted access to their medical records no decision was made on alteration of degree of disablement, despite it being a requirement of the relevant regulation (regulation 30) that the appointed doctor is referred the question ‘for decision’.

Each of the individuals concerned had attended an appointment arranged by the force with the force’s doctor. They answered all questions which were put to them, and allowed themselves to be medically examined where this was requested. Some provided medical evidence showing there had been no alteration in their degree of disablement. in some cases, the pensioners were recalled within months to attend a second medical examination. Again, they fully complied.

On 26th November 2018, we reported that seventeen pensioners had had their pensions reduced.

This is the letter that was sent out to those who had refused permission for unrestricted access to their medical records. We reproduce a redacted copy of one of those letters here.

Morgan letter redacted

 

The letters announce that Staffordshire Police has turned to regulation 33, which it relies on as giving authority to reduce the injury pensions of those who had refused permission for unrestricted access to their medical and access to financial records.

It is worth reproducing regulation 33 here:

Refusal to be medically examined

  1. If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then—

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

(b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.

 

The letter indicates that Staffordshire Police has taken the view that it was not enough for the individuals concerned to have submitted themselves to such medical examination as had been arranged for them with the force’s doctor, and to have allowed themselves to be interviewed by the doctor.  Staffordshire Police appears to believe regulation 30 covers access to personal medical and financial information. Staffordshire Police thus claims there has been either a wilful or negligent refusal.

Consequently, a decision has been made by the force to reduce the pensions of the individuals concerned.

Moreover, the reductions are to be back-dated to the time when they saw the force’s doctor.

The letter is essentially identical to each individual. Each letter fails to give any reason or insight into how the decision to reduce the pensions was taken, or on what evidence.

IODPA understands that solicitors have been instructed in challenging this extraordinary action by Staffordshire Police.

We will provide updates as the situation evolves.

Mark Botham Appears In NARPO News

Mark Botham Appears In NARPO News

The “November 2018 | Issue 96” edition of the monthly NARPO magazine contained this full page article by Mark Botham.

Mark is the Managing Director of Botham Solutions which provides training, a health and safety consultancy and advises on matters such as police pensions. He is an ex Yorkshire Police Federation rep of nineteen years and spent ten as chairman of the county branch. He holds a BA Hons, Post Graduate Diploma in Law, Post Graduate Certificate in Law, Post Diploma in Law and Master of Law and currently works for Haven Solicitors.

It is great to see some sound legal advice being published for all officers that have been injured on duty.

Here is his article –

 

img20181105_18341676

 

This article has been reproduced by kind permission of Mark Botham and the National Association of Retired Police Officers.

Mark can be contacted via Haven Solicitors – havensolicitors.co.uk

NARPO can be contacted via their website – www.narpo.org

CC Morgan cancelled today’s IOD meeting at Staffordshire Headquarters

CC Morgan cancelled today’s IOD meeting at Staffordshire Headquarters

We recently reported that Chief Constable Gareth Morgan had invited vulnerable pensioners to Staffordshire Police Headquarters to discuss the Police (Injury Benefit) Regulations 2006 and in particular Regulation 33.

He also rejected the offer for the pensioners legal representatives to attend in order to represent their clients.

We understand that the meeting scheduled for today was cancelled. We can only assume that there were no takers to his invitation?

 

 

If you didn’t see them, here are the original blogs –

https://iodpa.org/2018/07/13/chief-constable-morgan-sends-letters-to-vulnerable-pensioners/

and

https://iodpa.org/2018/07/23/cc-morgan-refuses-pensioners-legal-representatives-to-attend-a-meeting/

 

CC Morgan refuses pensioner’s legal representatives to attend a meeting

CC Morgan refuses pensioner’s legal representatives to attend a meeting

We recently published a letter sent by Chief Constable Morgan of Staffordshire Police to  pensioners in our blog found here – https://iodpa.org/2018/07/13/chief-constable-morgan-sends-letters-to-vulnerable-pensioners/

He invited pensioners who are currently subject to an ongoing review to meet him, so that he may discuss his obligation to make a determination under regulation 33 of The Police (Injury Benefit) Regulations 2006.

Any such determination under Regulation 33 is a legal decision and Mr Ron Thompson of Haven Solicitors who represents a number of the pensioners has quite rightly requested that he and his colleague Mark Botham be allowed to attend the meeting in order to represent his clients best interests.

Mr Morgan has refused to allow the vulnerable pensioner’s legal representatives to attend the meeting on their behalf on the basis that

 

…it was not not my intention for the meeting to be adversarial in any way.

 

We’ve been passed Mr Morgan’s response by one of the pensioners.

 

Morgan_letter_to_Ron

 

Chief Constable Morgan sends letters to vulnerable pensioners

Chief Constable Morgan sends letters to vulnerable pensioners

Chief Constable Morgan of Staffordshire Police today sent a letter to former police officers, all of whom are disabled, either mentally or physically.

These pensioners have been under review for a considerable amount of time and have to date fully complied with The Police (Injury Benefit) Regulations 2006 which govern them.

They have been sent this letter by Mr Morgan who has given them a week to comply.

Our advice is that these vulnerable and injured pensioners should politely decline his offer.

 

Morgan_letter

 

Watch out for a more detailed blog on this letter shortly.

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.

 

 

 

 

Project Fear

Project Fear

“never to admit a fault or wrong; never to accept blame; concentrate on one enemy at a time; blame that enemy for everything that goes wrong; take advantage of every opportunity to raise a political whirlwind”
– page 219 Analysis of the Personality of Adolph Hitler: With Predictions of His Future Behaviour and Suggestions for Dealing with Him Now and After Germany’s Surrender, by Henry A. Murray, October 1943

Merseyside’s Project Fear has evolved into Project Threat.  We’ve tried to point them onto a righteous path but they  still do not understand that they cannot threaten to remove an injury award just on the basis of whether or not a questionnaire is completed.

Let us be quite clear for the umpteenth time.  There is no power to punitively revoke an injury award.

Regulation 33 of the Police (Injury) Benefit Regulations states that if there is a negligent or wilful refusal to be medically examined then a decision can be made on the available evidence.   It does not say an award can be taken away as punishment.  In any case this  does NOT apply  to Regulation 37(1) — Reassessment of injury pension — so far as it relates to the statutory duty  placed upon a police pension authority to ‘consider’ whether there has been substantial alteration after a suitable interval.

Only after the police pension authority having considered whether the degree of the pensioners disablement has altered, and a suitable interval has occurred, it MUST then and only then refer the statutory medical question under Regulation 30 (2) (d) –  degree of disablement -to an SMP and, a result, it is only then that Regulation 33 can feasible ever apply.

This is an extract from a threatening letter being sent out to disabled former police officers written by Chief Superintendent Chris Markey, who evidently has never read the Regulations in his life.

remove award

The obvious reply to such a threat is to ask ‘under what power will you use to suspend my injury award?’.    Chief Superintendent Markey would not be able to answer this without either by telling the truth and admitting there is no power or without lying by saying there is and the Regulations permit him to do this (which if you are still in doubt – they don’t). Why would a senior officer debase himself this way?  Would he tell an untruth in a criminal investigation to get what he wants?

The questionnaire is a work of pure villainy.

Mersyeside-questionnaire

Such guff deserves an appropriate response:

Dear Chief SuperNintendo Markey

I recently received a letter from you. Every two years or so I get one. This one suggested that there was an urgent requirement to address the problem of my lack of a questionnaire.

I am sorry, but after all these years my medical condition has not changed, and now I have run out of patience. I understand your need to ensure that people who have an injury award should be considered if there has been substantial change to see if the correct band is being paid, but as someone who never receives a nice and pleasant letter from you just asking ‘how I am and can you help’, I think it’s time you cut me some slack.

I think this and the tone of your letter, and threats of taking my award away, and suggestion that in some way I am a liar is what finally got my goat (I do not actually have a goat either. This is an expression in common usage, although even if I did have a goat I do not believe this amounts to substantial change.)

The questionnaire that you demand of me is rather confusing.  You first ask what my injury is.  Don’t you know?  This seems rather strange.  If you need me to explain it then something is amiss already.

If I answer NO to question 2 and declare that there has been no change then is this farce then over?  Surely you can’t send me to see a SMP if there there  has been no change.  The ‘review’ for all it’s purposes is in effect over.  Or won’t you believe me?

You then ask me to declare medical interventions.  Have you not heard of Chatham House rules? or more colloquially:  What is said to my doctor stays with my doctor.  Putting confidential medical information on a questionnaire that can be read by all and sundry does not seem to the correct way to process personal and confidential information.  The Data Protection Act can be very serious when it comes to medical information.

Throughout the questionnaire you jump from reference to  reference.   Does “your condition” reference back to the “medical condition” referred to at question 1?  Are you surreptitiously trying to determine apportionment in a review!?  Don’t you know you can only consider the degree of disablement.  I hope you aren’t already trying to declare that an unrelated medical condition has overtaken the index injury – in a tatty questionnaire.  Oooh! you are awful!

You then jump to the term “disability”.  Does that phrase simply refer back to the “medical condition” or is it meant to encompass something broader?  If so, what?  You are like a jumping bean, all over the place.

Out of interest have you ever seen the ESA50 form used by the government?  This is to do with applying and reapply for a benefit.  As you know an injury award isn’t a benefit – it is an award for life and the last decision made by the medical authority is final.  But the point is in the ESA50 they don’t just use YES/NO like you’ve done.  They have a ‘it varies’ option.  This is much nicer.  Can I suggest you add it for next time?

I am very puzzled with precisely what way my current ability to drive or ride a motor vehicle or use sporting equipment is relevant to the questions falling for consideration under the Regulations?  I would love it if you could explain this to me.

In like terms, please clarify the relevance of any current annual salary  to the relevant issue for consideration under the Regulations?

At this point I need you to post to me the last questionnaire I filled in and sent you. I can’t remember ever doing this but I may be mistaken.

I would like to see the answers I put. You must have a copy – how else can you compare what I’ve written then to what I might write now?  I do hope you have a copy.  Otherwise this might all be a fresh assessment. And that will be a very naughty thing to do.

Is the question of salary limited to income earned from employment or self-employment or is it meant to encompass income from any source (such as investments)?  This puzzles me. I’ve read and reread the Regulations and can’t see anywhere, anything that gives you authority to be entitled to that information, and how it touches upon the relevant statutory question.

My Great Aunt Bessy died last year (god bless her) and she bequeathed me her house.  I now rent this out.  I can’t see how this affects my capacity to earn.  Sure the rental income is income, but it isn’t earned income.  Could you please help me out with this sticky problem?

As you can see Chief SuperNintendo Markey I do have loads of questions.  I herewith give you 21 days to reply.  If you fail to reply I may take action to suspend any doubt that you are an idiot.

This is not an action that I would usually wish to take

Yours Sincerely and with love

XX

 

 

 

 

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.