Regulation 37

Dr Cheng And Regulation 37(1) Reassessment Of Injury Pension

IODPA Admin Regulation 37, Review, smp
Dr Cheng And Regulation 37(1) Reassessment Of Injury Pension

Essex police have engaged Selected Medical Practitioner (‘SMP’) Dr William Chung Wing Cheng to conduct their Regulation 37(1) reviews under The Police (Injury Benefit) Regulations 2006. Many of our readers will be familiar with the name of Dr Cheng as he is also employed by a number of other forces, predominantly in the South East corner of England along with the Metropolitan Police, to conduct ill health retirement appointments.

Having spoken to a number of pensioners who have had a consultation with Dr Cheng, it appears as though he is conducting Essex reviews using the same methodology as when he considers an ill-health retirement. This is not only worrying, but wrong in law. The case of LAWS – https://www.bailii.org/ew/cases/EWCA/Civ/2010/1099.html makes it very clear that a reassessment under Regulation 37(1) is a comparison exercise between the last known position (either the initial grant of an IOD award, or the last review) and the date of the consultation. It seems to be very clear to us that Dr Cheng is carrying out a fresh assessment rather than carrying out a comparison between the two dates.

The questions that Dr Cheng asks are exactly the same regardless of whether he is assessing ill-health retirement, an injury award, or a review. Many of the questions are not even relevant to a review, but some are specifically designed to provide Dr Cheng with justification to reduce a pensioner.

We recommend that before the pensioner enters the front door, they should start to overtly record the consultation, which is your right, and has been confirmed by the General Medical Council (‘GMC’). Dr Cheng may object, or ask that he is furnished with a copy. He may also request that it should be forwarded to the force’s Human Resources (‘HR’) Occupational Health (‘OH’) department, who incidentally, are not entitled to listen to a person’s private medical and confidential examination.

The GMC guidance states,

“Although the GMC expects doctors to obtain patients’ consent to make a visual or audio recording, patients do not need their doctor’s permission to record a consultation, because they are only processing their own personal information and are therefore exempt from data protection principles.

Section 36 of the Data Protection Act 1998 states,

“Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs are exempt from data protection principles.”

It continues,

“If you suspect a patient is covertly recording you, you may be upset by the intrusion, but your duty of care means you would not be justified in refusing to continue to treat the patient. If you did, it could rebound on you and further damage your relationship with the patient. Remember that your refusal to continue with the consultation could also be recorded. A more pragmatic response might be to invite the patient to record the consultation openly and ask them whether you can have a copy of the recording, which can then become part of the patient’s medical records. In seeking their consent, you should reassure them the recording will be stored securely by the practice and only used for this purpose.”

As can be seen, the doctor needs to obtain a patient’s (your) consent to record the appointment. There is no requirement to give Dr Cheng, or anyone else a copy of the recording.

Onto the appointment itself.

Let us start with the waiting room, before the meeting even starts. It is likely that Dr Cheng or his receptionist will hand across a clipboard with a piece of paper which provides information about the role and requirements of a SMP. The documentation is pretty generic and from what we have seen, it relates to ill health retirement with no real relevance to a review.

Dr Cheng will often use a room which is not suitable for the consultation. It is usually too small to comfortably fit more than three people. It is your right, to be accompanied to the consultation by a family member, a support assistant, a Federation rep, a Mackenzie’s Friend, or any other person that you may consider necessary based on your mental or physical health. You should cite reasonable adjustments under the Equality Act 2010. It is YOUR consultation and you should feel properly supported.

Dr Cheng will often use the room size as an attempt to reduce the number of people a pensioner brings with them. He may go further by suggesting that the appointment be delayed. Be firm, and insist on those that you wish to remain, and that the consultation should go ahead with the people who are supporting you also present.

There should not be anyone else present in the room, that you have not invited other than Dr Cheng. We hear occasionally that there is an additional person in the room who is not introduced nor any medical credentials given. Dr Cheng MUST seek permission with the pensioner for any third party to be present in the appointment. If you are uncomfortable with a third party being present, during what will be a private medical discussion, representation must be made and the person asked to leave the room. We believe that it is an unfair and unethical approach that no prior permission is sought by Dr Cheng in these instances.

Once in the room, the chairs will have been purposely arranged. The pensioner, particularly for those with mental health conditions such as PTSD, will be invited to sit on a chair which will have the door to their back. It is a known fact that many PTSD sufferers will not be able to sit with their back to any door; they need to see all exits and be able to view the whole room. Dr Cheng is waiting to see if you move the chair. If you are not happy with the positioning, move the chair, it is YOUR consultation. A record will be made within his report if the pensioner does not ask to move chairs. This is the first subtle test of the appointment. If a pensioner does not ask to change places, his logic is that their PTSD cannot be that bad.

For those with physical conditions such as back problems, it is likely that uncomfortable chairs will be provided, or there will be no back supports such as a cushion. If you are not happy with the chair, ask for another, it is YOUR consultation. He will make a note if you sit on an unsuitable chair for any length of time.

If you have a physical disability and find it difficult to sit still or in the same place for long periods, get up and walk around the room. You are allowed to ask for a toilet break. It is highly likely that Dr Cheng will make a note in your report if you do not do these things, but will not mention it if you do. We would recommend that you actually say out loud, for the purposes of the tape that you need to stand up or move around so that it is captured on the tape recording and there can be no dispute that you needed to do this.

It is YOUR consultation, and you can do whatever makes you comfortable. He will make a note in your report if you sit for long periods or do not move about or do not complain.

Here is a list of questions (not definitive) that he puts to virtually all pensioners, regardless of whether they have a physical disability or a mental health condition.

He will ask –

  • About your antecedent history, for example, the age, occupations and health of your parents and children along with dates of any marriages or how long people have been together. He will return to them to test you if you cannot remember them. He will often throw the wrong dates back at you on purpose to see if you correct him. These questions are designed to check your memory skills. Our belief is that the logic behind these questions is that if you are able to remember all these various numbers, then you are not that mentally unwell.
  • About your current relationship, and the names and ages of those in the room with you if they are family members.
  • What your partner does and how many hours they work?
  • If your partner leaves you to fend for yourself for long periods on your own whilst they work? This is to establish whether you are alone through the day and whether you can manage by yourself for ‘x’ number of hours.
  • What type of education did you have and what qualifications you possess?
  • Whether you have worked, what you have done and the details and dates of that work. As well as determining what your current work capability is, these types of questions are establishing any skills-set and qualifications you may have which can be used in the civilian world.
  • What medication you were on when you retired and what medication you are on today, and whether it’s increased or decreased?
  • What treatments that you have or may be receiving?
  • What medical problems or illnesses you had before ill-health retirement?
  • What time do you get up?
  • How do you wash or shower?
  • What you ate for breakfast.
  • What you do in your day.
  • Do you sleep during the day?
  • What time do you have your evening meal?
  • What time do you go to bed?
  • Who looks after the garden and pets i.e. are you capable of looking after or caring for other dependent things?
  • Who does the housework, you or your partner?
  • Do you watch TV, how long do you sit for, what do you watch?
  • What hobbies that you may have, and how you fill your day?
  • If you drink alcohol and how much you consume? Any answer in the affirmative could be used against you in that you may not have PTSD, but are instead, an alcoholic. This has been used on a number of occasions.
  • Whether you are in receipt of certain benefits such as IIDB or CSA?
  • You to spell a word backwards such as ‘WORLD’ or ‘SCHOOL’?
  • You to count backward from 100 subtracting 7 on each occasion?

Again, both these questions are designed to test your cognitive functions, memory and concentration. Even a physical injury will be asked to answer these questions.

If Dr Cheng does not get the response he wants, he will manufacture the result to support his case. Where a pensioner has failed to spell or count backwards i.e. they’re plainly unable to perform this task, Dr Cheng will write that they were able to complete the task, but “with errors”.

Moving on from the questions, let us discuss what type of examination Dr Cheng will conduct on a pensioner.

He will ask them to stand on their toes and rock backwards and forwards, or to squat. He will also request that they move their head from side to side. This is regardless of whether you have a physical or mental disability.

However, he will take your blood pressure. If it is a normal reading, he is likely to say that you are not anxious or ill as he is suggesting that a person’s blood pressure should be raised if in a distressing and stressful situation.

Dr Cheng is unlikely to do any further physical examinations, even for those suffering with physical injuries and has previously stated that he would not be able to establish anything more than the specialist reports that he may have in his possession (and will then later go on to ignore!).

He is likely to report on how a pensioner looks and dresses. He will comment on whether a pensioner is able to make eye contact with him when speaking, what their speech sounds like, or whether they become physically alert and distressed if they hear a siren outside the office. Again, he will be looking to see the reactions of someone who suffers from PTSD. Of course, not everyone who has PTSD is triggered by sirens but this seems to have been lost on him.

Be in no doubt that Dr Cheng will have thoroughly read through your GP medical records to see if there is anything in your history that may be the cause of your injury i.e. if you are a mental health injury, he will be looking at whether you have suffered stress, anxiety, depression before and what was the cause. Likewise, if you are a physical injury and whether you had any history prior to your index injury on duty.

We would recommend that you read and check your own GP notes prior to the appointment so you know what is in there and what he will be seeing. It is important that you check for any inaccuracies that may have been written in your notes and has never been corrected. Moreover, reading through your records will refresh your memory on what you have previously consulted the doctors about. Do not let him surprise you with anything. What you have read is exactly what he will read.

What Dr Cheng is also very adept at doing, is to root through your medical records and find somewhere that it states you feel better and then quote this phrase out of context. For example, if you have had a hydrocortisone injection in a painful shoulder it may give you a limited amount of instant relief (until it wears off). Of course the underlying problem remains, and so does your disability, but if you have made a comment to the physician, that it made you feel better, then Dr Cheng will quote this as an improvement in your condition.

Dr Cheng will report on anything he considers that he can use to show an improvement in your condition or your mental well-being.

At the end of the consultation, as we have already covered in a previous blog – https://iodpa.org/2022/02/09/true-to-form/, Dr Cheng will present you with a feedback questionnaire for you to sign. It is likely that pressure will be placed on the pensioner to complete it there and then. As in our previous blog, our recommendation is to take hold of the questionnaire form and state you will complete it later. There is no requirement to complete it, either at the appointment or at home. Of course, we are well aware that many people complete it in Dr Cheng’s favour in the hopes that they will receive a favourable report. It matters not if the questionnaire is completed or not in this respect. If you feel that Dr Cheng has not behaved satisfactory in the appointment, it would be worth sending the questionnaire to the GMC for them to log it rather than return it to Dr Cheng who may just discard any derogatory reports written about him.

From what we have been told by various sources, Dr Cheng will show very little compassion whatsoever when a pensioner recalls traumatic events and breaks down. Many people have voiced their surprise and shock at such a lack of empathy from a doctor. He may ask if you felt in fear of your life.

He will not usually ask how the pensioner is or if there has been any change in your condition since your last review or the grant of your IOD award.

Experience shows that the report prepared by Dr Cheng is not likely to provide any evidence that there has been a “substantial change” in your condition, which is a requirement in law. It will most likely just state that you have got better. In these cases, Dr Cheng’s determinations should be challenged as you are entitled to do under the regulations.

Finally, it is worth highlighting that Dr Cheng can come across as quite polite and friendly, but do not be fooled. In our opinion, the old adage ‘A sheep in wolf’s clothing’ springs to mind.

If you require further advice, or if you have had a recent consultation with Dr Cheng, and we have omitted to include something that may be of use to others, please get in touch at admin@iodpa.org

 

Dorset Reviews – lessons learned, or not?

IODPA Admin Regulation 37, smp
Dorset Reviews – lessons learned, or not?

It certainly didn’t take Dorset’s new Chief Constable, Scott Chilton, who was only appointed on 12th August 2021, very long to authorise reviews of injury pensions under The Police (Injury Benefit) Regulations 2006 (‘PIBR’). He must have been in post less than a month before letters have been sent out. A clear message to his serving officers should they become injured.

We have been sent a copy of the correspondence sent out by the force and will examine it to see what lessons, if any, may have been learnt over the years from other forces.

Let’s start by looking at the covering letter sent out by Susan McCausland (HR Officer). We must start off by saying, that yet again, these letters were received by pensioners on a Friday or Saturday, at a time when the recipients are often unable to seek professional help in the form of legal advice or medical support through their GPs. Thankfully we are on hand to give some immediate help and reassurance to those very poorly and vulnerable people.

Here is a copy of the documentation that was sent out –

 

The first paragraphs of the letter relates to the individual, and states that the review is as a result of their previous SMP recommending a future review. This approach is confirmed in the FAQ sheet (post) where they state “Presently we are only reviewing Injury Benefit Pensioners where the Selected Medical Practitioner (‘SMP’) has recommended a review.”

This indicates that Dorset intend to review EVERY injury pension based upon a previous SMP recommendation.

Regulations 37(1) of the PIBR states that reviews may take place “as such intervals as may be suitable”. The recent case of Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 at para 81 is clear, that “It is for the Defendant [PPA] to decide whether a suitable interval has elapsed since the last assessment or reassessment”. It continues, “The Regulation does not permit the Defendant [PPA] to decide in advance that a suitable interval will never elapse”. What flows from this, is that a future date for review cannot be specified either, so a SMP cannot in our view recommend a future date that the PPA can then act on, on this basis alone.

It seems to be common practice for SMPs to make these recommendations, despite there being no requirement or reference to this in the PIBR.

Paragraph 3 of the letter “respectfully” requests that the pensioner completes an enclosed questionnaire. We know from paragraph 182 of the Goodland/Wright judgment (ante) that in the case of Staffordshire judgment, the Chief Constable “erred in law” by threatening the triggering of Regulation 33 for failing to complete this questionnaire.

Yet, we see in the FAQ, there is a suggestion that a failure to complete the questionnaire and consent to medical records may trigger Regulation 33. This implied threat is in itself is at best misleading and at worst, unlawful.

Paragraph 5 of the letter states that the pensioner has 28 days from the date of the letter to comply. The only reference to timescales in the regulations is when the pensioner has 28 days in which to appeal an SMP decision. So where in the regulations do these self-imposed timescales come from?

This 28 day deadline is also highlighted in bold in the FAQ. These time limits are quite rich considering forces regularly ignore correspondence from pensioners and their legal representatives for months and months at a time. Pensioners can also wait for six months or more for SMP reports to be forwarded after completion.

What this really highlights is the total lack of care or compassion, or understanding of the vulnerable and often very ill people that Dorset Police are dealing with. We have experienced first-hand the impact that a letter of this type has on a pensioner. HR staff sitting in their comfy, air conditioned offices, who probably have no experience of mental health issues, and see these ex-officers and as just a collar number, start date, end date and continuing cost (burden) to the force. We do make mention that it is not all HR staff who lack the emotional connection with their former officers, we know of  some HR personnel who go well beyond what is expected of them in caring for their injured and ill police pensioners. But clearly not in this case.

Many pensioners with mental health issues, often caused or exacerbated by their forces, will often not open post for weeks or months at a time.  A self-imposed limit of 28 days does nothing to reassure us that the force know who or what they are dealing with.

It has to be asked, what training have Dorset staff received to deal with vulnerable individuals? Little, or nothing is probably the answer.

We have already touched on the non-mandatory questionnaire, but let’s look at it in a little more detail.

It rightly asks whether the pensioner considers whether there has been a substantial alteration in the condition of the former officer. That is a sensible question to ask, and if the answer to that is ‘no’, the pensioner should be left alone. Alas, it then continues to go into a lot of detail about employment and other conditions.

We all know the purpose of these intrusive questions; it is an evidence gathering exercise for no other purpose but to reduce. We would know it commonly as a ‘fishing expedition’.

We all know that the SMP (perversely) performs a calculation (rather than a medical assessment) based on what a pensioner is earning in order to determine how their physical or mental disability has affected their earning capacity. We were, however, shocked to read this question –

(g) Date of next pay increase (as this may impact on your next award).

Quite simply this approach is unlawful. A regulation 37(1) reconsideration is about the ‘here and now’, not about what you may earn at some stage in the future. If anyone has had future earnings used in a calculation in this manner, we would suggest that you immediately have grounds to appeal and would urge you to contact us at admin@iodpa.org.

Finally, the questionnaire contains a declaration entitled Section 2 of the Fraud Act 2006. The inclusion of this caption seems to have originated in Avon and Somerset Police, way back in 2014, subsequently copied by Staffordshire Police and has now been adopted by Dorset Police. Quite frankly, we find this wording disgusting and highly offensive. We would recommend that pensioners do NOT sign this document based on this one caption alone.

Police officers, by the very nature of their role, are honest and have unquestionable integrity. They have signed the Official Secrets Act, prepare and present papers for the most heinous of crimes at the highest levels of probity, and yet they are not trusted to honestly complete a questionnaire (which is not required under the regulations or case law). This speaks volumes of the contempt in which they are held by their forces.

Let’s now look at the FAQs.

In answer to the question “Will my medical records be kept confidential?” they reply “Only SMP reports will be seen by non-medical staff in the HR Operations Corporate Support Team”.

Clearly, we need to provide Dorset police with a lesson on confidentiality of personal and private sensitive medical information under the GDPR and the PIBR.

The PIBR states under Reg 30(2)(d) that if the [PPA] are considering whether to revise an injury pension, they shall refer question (d) above to the SMP –

(d) the degree of the person’s disablement;

It is clear that all medical decisions are to be answered by the SMP, and the SMP alone. There is NO provision in the regulations for any other nominee of the PPA to request, collect, collate, or view any personal and private medical records of retired pensioners. In our view medical records should be forwarded directly to the SMP with the condition that they are not disclosed or shared with any third party without express permission.

The fact that an SMP may not want records sent directly to them, is not a reason not to do it, if it secures the confidentiality of your medical files. At paragraph 150 of the Goodland/Wright judgment (ante), Dr Vivian kindly wrote to Mr Wright offering him the facility of sending his medical notes directly to him. This proves that it can be done.

Once the SMP has made their consideration, Reg 30(6) states that the decision ‘shall be expressed in the form of a report’.

Having read many SMP reports, we are well aware that the SMP will usually prepare a written report as well as a new certificate of disability (often referred to under the 1987 Regs as a H1) including the new level of disability or banding.

The covering report, however, is verbose and very detailed, and will often contain a summary of the pensioner’s entire medical background and history. It is quite wrong in our view, that this report be shared amongst any individual in HR, let alone a team. The ONLY people entitled to see a person’s personal and private medical conditions is another medical professional, and that is with the express consent of the pensioner.

In our opinion, if the SMP report has to go back to the force, then it should ONLY go back to someone who is medically qualified, and that person is the Force Medical Examiner (‘FMA’), and this is despite them playing no recognised role in the review process according to the PIBR. The only document that should go to HR is the revised certificate.

Finally, we turn our attention to the two consent forms that were attached for the pensioner to sign. They ask for full medical records, which, in our view, is not necessary. The force would have obtained a full set of medicals at the time of the officer’s ill health retirement so why ask for a duplicate set? Or have they lost the original set they held which could lead in to another potential can of worms to be opened?

In the Goodland/Wright case (ante) the judge deemed that it was for the SMP to decide what was necessary, and in that case some of the SMP only asked for notes since the last review, so our question to Dorset, is why are you asking for full medical records since birth in every case when other forces are not doing the same?

We note that the ‘CONSENT FOR THE RELEASE OF GP RECORDS’ document contains a statement that any withheld records my affect “my application for ill-health retirement or an on duty award”.

There forms have been re-purposed for these reviews, but are not fit for purpose as unless expressly requested and justified by the SMP, the pensioner should only be requested to provide their medical records since the granting of the award, or the last review. The case of the Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 was not superseded by the Goodland/Wright case, which states that a review is a comparison exercise, and therefore medical notes since the last review should nearly always be sufficient.

We would have expected a professional organisation to have seen the small but nonetheless important administrative error and actually created a document that reflected the regulation that they are dealing with, rather than ‘making do’.

We can only profusely apologise to all those who will be affected by this review process and the poor and compassionless manner in which they are being dealt with. Perhaps a letter asking the former officer how they are and whether there has been any change initially would not have gone amiss, when many have not heard from their former force for years. Or are we asking for the impossible?

Bad Law (Appeal For Justice)

IODPA Admin caselaw, Regulation 33, Regulation 37, selected medical practitioner
Bad Law (Appeal For Justice)

Bad law, or a bad law, or bad laws may refer to:
– A law that is oppressive
– A law that causes injustice
– Dumb laws, those laws which are particularly bizarre

 

Appeal for Justice

Please support our appeal for crowdfunding for this very important cause.

Make NO mistake, this ruling affects EVERY force in England, Scotland, Wales and Northern Ireland, every pensioner in receipt of an injury award, and EVERY serving officer who may find themselves, being injured on duty.

This appeal is for all serving police officers, all retired officers (with or without an injury pension), the families, friends and supporters of the police service and for anyone else that recognises the dangers that officers face on a daily basis. It is also for those, in the legal profession who recognise bad law, and the implications of allowing such law to remain unchallenged.

A recent court ruling places thousands of police officers up and down the country forced to retire through injury in a position where they have no option to consent on a regular basis to their forces trawling through their personal or private medical data from birth, or risk having their pensions reduced their lowest level. Those injured officers are now leading the fight on behalf of ALL future injured officers and those who are currently retired.

Police officers, on a daily basis, selflessly put themselves in harms way to protect life and property. We have all heard the expression of police officers running into danger when everyone is running away from it. They do this regularly without thinking of the personal consequences to themselves, and thankfully in the vast majority of cases they escape without any serious harm. We know all too well from the news, that on some very sad occasions, officers lose their lives, and there can be a fine line between these officers and those, who survive but end up with life changing injuries.

Many, having dedicated their entire lives to policing, will be forced to retire early with ill-health retirement as they are no longer able to perform operational duties. If their permanent injures affect their future earning capacity, they may be granted an additional injury pension to compensate for their inability to earn what they may have been able to, were it not for those injuries.

This additional pension is paid under the The Police (Injury Benefit) Regulations 2006 (‘The Regulations’), and is only awarded after careful scrutiny by a doctor. There are four bands within The Regulations, with highest band being awarded to the most affected, and which in turn attracts a higher pension.

Once awarded, The Regulations allow police forces in England, Wales, Scotland and Northern Ireland to periodically review these pensions to ensure that the correct level of award is maintained. We’ve yet to meet an injured pensioner who disagrees with being reviewed to ensure that they are given the correct level of award as long as the review is conducted properly, fairly and impartially. Sadly this is not generally the case and injured officers are mostly treated with contempt by the doctors.

The decision when to review is discretionary and down to each Chief Constable who act in a secondary role called the Police Pension Authority (‘PPA’). They appoint a doctor with a title of Selected Medical Practitioner (‘SMP’) to carry out a medical examination who have to determine whether there has been a ‘substantial change’ in the condition of the pensioner since their last examination. This period for consideration is already set out in existing case law.

We have, in recent years, seen a number of forces conduct a worrying trend of what can only be described as an unrelenting assault on these pensioners with review programs designed for only one purpose, and that is to reduce the pensions of these courageous officers in order to save money from their budgets.

There is notably a handful of Chief Constables, HR mangers, solicitors and SMPs who are constantly dreaming up inventive new ways to interpret, (or misinterpret we should say) The Regulations for no other reason than to reduce these pensions. How they sleep at night, we just don’t know.

We believe that members of the public would be shocked and disgusted, if they knew about some the way in which some of these unscrupulous individuals operate. The public seem to have this preconceived idea that police officers are well looked after by their forces should the worst happen to them and ‘they look after their own’. It causes us much dismay to shatter this illusion.

Whilst it is true that some pensioners, when no longer exposed to the policing environment may, to a degree recover, these are in the minority, and many have to battle with the scars of their physical and mental disabilities for the rest of their lives.

At the moment, it is a small number of forces that appear to have no respect for their former officers and one such force is Staffordshire. In April 2017, they sent out letters to every pensioner in receipt of an injury award, informing them that they were all to under go reviews. Despite this decision predating the appointment of a new Chief Constable it coincided with Gareth Morgan arriving at the force from the Avon and Somerset Constabulary who had themselves been conducting reviews for the previous three years. Was it any coincidence that as Gareth Morgan left Avon & Somerset, the new Chief Constable, Andy Marsh, brought reviews to a halt?

Despite The Regulations placing no obligation on the former officers under review to provide personal and private medical notes, Staffordshire Police demanded that they hand over a complete set of their doctors notes from birth. They also demanded that other personal and private information be disclosed in the form of a questionnaire.

The officers contested that these demands were wholly excessive and breached their human rights as they weren’t measured or proportionate to the purpose of the review. The only obligation that the regulations placed upon the pensioners was that they ‘submit [themself] to such medical examination or to attend such interviews’, which they all did by attending a prearranged medical appointment with a SMP. They also volunteered a letter from their own doctor stating that there had been NO change in their medical condition.

During the appointments, the SMPs (Dr’s Vivian, Yarnley and Nightingale) made NO attempt to medically examine the pensioners. They asked NO questions about their condition and for those with physical disabilities, made NO physical examination. All they demanded was access to full and non redacted medical records since birth. The reasons for this, we believe are three fold,

  • Firstly, Staffordshire police have LOST the medical records of many of these pensioners over a period of time, therefore they desperately need to obtain a replacement set, otherwise they knew nothing of the background and history of the pensioner.
  • Secondly, it has been common practice for some unscrupulous SMPs to forensically examine the entire patient history with to view to finding ‘something’ else that may allow them to reduce the pension.
  • Lastly, we believe that these SMPs were setting these pensioners up to fail.

In April 2009, the Home Office released a paper entitled ‘Review of police injury benefits government proposals’. Para 6.6. states,

Although this requirement ensures that the applicant must provide the police authority with an opportunity to have him or her examined and interviewed as necessary, it does not provide the authority with any express power to require the disclosure of relevant documents and medical records. Although it is not suggested that a police authority should be given such a power, it is clear that refusal to comply with such a request will oblige the police authority or the SMP, as the case may be, to consider the case on the available facts, and it is also reasonable for them to conclude in such circumstances that the claimant has something to hide which would damage his or her case.

 

The Home Office, further acknowledged this fact, when in 2011 they drafted a new set of regulations which suggested replacing this section,

Refusal to be medically examined

33. 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;

with this,

Refusal to co-operate in medical examination

32.—(1) This regulation applies where a relevant medical question is referred to a medical authority under regulation 29, 30 or 31 and the person concerned wilfully or negligently fails to—
(a) submit himself to a medical examination;
(b) attend an interview; or
(c) consent to the disclosure of medical records
which the medical authority considers necessary in order to enable him to make his decision.

 

It’s worth pointing out here, that Staffordshire Police, have acknowledged that there is no legal obligation for these pensioners to hand over their most personal and private of medical notes. They wrote to one of the pensioners solicitors with the following,

“It has been explained to your client that he does not have to give consent for access to his medical records the consent form states “you can refuse to give consent if you wish”

 

In addition to this the ICO also had a view on this stating,

20th April 2018 and the 5th September 2018 – “Although consent is not defined by the DPA, it should be freely given. Where an individual has no option but to consent to the processing of their personal data, it is unlikely that consent has been freely given. This therefore raises fairness concerns and in our view we do not believe that consent is an appropriate condition to rely on for the processing of sensitive personal data.”

 

It is probably worth noting here, that in May 2018, the Information Commissioners Office (‘ICO’), became involved in Staffordshire Police’s poor handling of data, and made the following number of recommendations for corrective action,

Urgent Priority recommendations – 5

High Priority recommendations – 52

Medium Priority recommendations – 37

Low Priority recommendations – 7

 

Despite the forces seeming inability to securely retain sensitive personal data, one of the pensioners even took a set of their doctors notes along to the appointment for the SMP to read, but unsurprisingly, the SMP refused to read them.

With this background in mind, what pensioner in their right mind would voluntarily hand over the medical history to a force that clearly had no right to demand it, and had a dreadful history of failing to secure or protect the integrity of sensitive information? It also became clear following numerous correspondence with the force that some medical data that had been submitted to the force was being trawled through the by HR staff, who had no right to do so. This is a serious data protection breach.

Mr Morgan wrote to the pensioners involved with a view to having a meeting. He withdrew from that meeting when the pensioners requested that their legal representative be allowed to attend. Such a strange decision if Mr Morgan was acting in good faith throughout the process.

Despite all the pensioners complying with the letter of the law, the Chief Constable deemed that the pensioners had failed to comply with The Regulations and invoked punitive measures under a different regulation, this being 33, thereby dropping every pensioner that had a physical disability to the lowest band, and those with mental disabilities by one band. Some pensioners have lost over £1,400 per month.

Whilst regulation 33 allows the PPA to make a decision, it has to be made ‘on such evidence and medical advice as they in their discretion think necessary’. NO evidence has been provided by the PPA to support the punitive decision that they’ve made. The decision to reduce still falls under regulation 37(1) where a ‘substantial alteration’ has to be found, and there is no such evidence to support the reductions. Instead, the reductions seemed to follow a pattern rather than looking at each case individually, and the PPA decided that many of the pensioners could perform the same full time role within the force.

With the assistance of IODPA and the Police Federation, the pensioners challenged the decision, which was heard on 15th and 16th July 2020 by Mr Justice Linden in the Administrative Court of England and Wales. His judgment was handed down on 16th September 2020.

You can read a copy of the judgment here –
Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 (Admin) (16 September 2020)

Unfortunately, the case was lost and the consequence of the judgment provides all police forces the ability to make unrestricted demands from all officers undergoing a review or they may face an incontestable financial penalty without the right of appeal.

We feel as though the judge in this case has ignored all the evidence, that there is no obligation in law for these pensioners to hand over their medical records. Had the judge applied the letter of the law, he would have come to the same conclusion that this is the case. We accept that this may cause a dilemma for the force, but this is for the legislators to resolve.

If this judgment, which we consider as ‘bad law’ is allowed to stand, ALL those in receipt of an injury pension will be at risk in the future, even if your force is not currently reviewing, although we are aware that a number of forces are looking at commencing reviews following this case being eventually finalised.

As a result of this, we have decided that we have no option, but to appeal this decision on behalf of all injured police officers around the UK. We understand that the Police Federation will not be financially supporting this appeal, although we would ask them to please urgently reconsider their position.

To give those in receipt of an injury pension an idea as to what they may lose, if this new ruling is applied across every force in the country we need to look at the impact upon their injury pension. The monetary awards in each band is not linear i.e. a band 4 pension is not exactly four times that of a band 1, but this method of calculation is a pretty good guide.

So if you’re on a band 2, your pension would be reduced by half, if you’re on a band 3, your pension would be reduced by two thirds, and if you’re on a band 4 your pension would be reduced by three quarters.

Now compare that huge reduction each and every month, for the rest of your life, with trying to get this decision overturned?

This ruling may even affect those on band 1 and whose condition worsens, as we believe that they will find it more difficult to secure an increase in their banding. Ironically Staffordshire Police had initially decided not to review those in receipt of a band 1 award. The cynical amongst us would believe that it it not possible to reduce them any further, and therefore it was a pointless exercise. It was apparent that this would have been unlawful not treat everyone with a disability the same, and so the policy changed, and they embarked on reviewing the band 1’s. Strange though it may seem, when Staffordshire wrote to the band 1’s they and asked if there had been any change in their condition, they accepted their word for it, when they said that there was none. However, they wouldn’t accept the word of anyone in bands 2, 3 or 4. Draw your own conclusions.

As a result, we  have launched an appeal to raise £75,000 to cover the legal costs of taking this dreadful decision to appeal.

We have created a donation page, which we would encourage you to use and also, where possible, please indicate, if applicable that we can claim gift aid on your donation, which means that HMRC will give us another 25% on top of what you donate.

The page can be found here – https://iodpa.org/appeal-for-justice/

Please support our appeal, and more importantly please support all those officers that had to leave their much loved career end through no fault of their own. If serving officers were fully aware of the way in which some forces consider their former officers are merely a financial burden, they may think twice before putting themselves in harms way.

Surrey And Sussex Police Have A Candidate For File 13

IODPA Admin Chief Constable, GDPR, HR, medical records, Regulation 37, smp
Surrey And Sussex Police Have A Candidate For File 13

“File 13” is a euphemism for the trash can or waste paper basket.

 

Our attention has been drawn to a document entitled “Managing Police Officer and Police Staff Ill Health Retirement Policy (Surrey and Sussex) (542/2019)“, which can be found on the Sussex Police website. It is a joint force policy between Surrey and Sussex Police on the management of ill-health retirement, injury awards and subsequent reviews. This policy document is annotated on the bottom as belonging to the “People Services Department (Occupational Health)” of Surrey and Sussex Police.

You can find a copy at the following link:

https://www.sussex.police.uk/SysSiteAssets/foi-media/sussex/policies/managing-police-officer-and-police-staff-ill-health-retirement-policy-surrey-and-sussex-5422019.pdf

Or you can read a copy, duplicated below.

 

There are so many things wrong with this document that it’s difficult to know where to start.

It is probably fair to say that the overall feel of this official multi-force policy is one of dislike or even contempt of injured officers, as is evident from its frequent references to any non-defined ‘failure to co-operate’ being met with punitive measures.

We’ve selected, replicated and highlighted some of the worst sections of this policy document with our comments under each section. However, we will begin with the one section which is uncontentious.

 

3.1 This is a sensitive issue with personal and financial implications for the individual and the force. It must be
administered with sensitivity, understanding and confidentiality

The policy starts off well and we agree with their sentiments whole heartedly. Sensitivity, understanding and confidentiality are all words we use when describing how forces should be treating their injured officers, but it all goes downhill after here.

 

3.10 An individual will remain on their current pay status (full/half or nil pay) once they have made their application for IHR, unless they fail to co-operate with the process. Once authority is given for the individual to be ill health retired, they will revert to full pay.

Note: Chief constables have the lawful discretion to reduce the pay of officers who are ill or injured and thus not able to perform the full ordinary duties of a constable.

There are two things wrong with this statement, the first is that the policy states that if officers have already had their pay reduced, they will remain on their current level of pay until they have completed the ill-health retirement process and it is confirmed that they are likely to be retired; secondly, there is clear intent within this statement that if the officer fails to co-operate with the process, they will be further reduced.

The circumstances under which an officer’s pay may be reduced derives from section 28 of the Police Regulations 2003, which allows the chief constable discretionary powers to retain or reduce an officers pay during periods of sickness.

Police Negotiating Board (‘PNB’) Circular 05/01 provides specific guidance to chief constables to grant discretionary sick pay to officers who have been on sick leave for more than six months.

Section 7 of this guidance reads –

7. Whilst each case must be considered individually, the PNB considers it would generally be appropriate for chief officers to exercise the discretion favourably where:

  • The chief officer is satisfied that the officer’s incapacity is directly attributable to an injury or illness that was sustained or contracted in the execution of his/her duty or
  • The officer is suffering from an illness which may prove to be terminal; or
  • The case is being considered in accordance with the PNB Joint Guidance on Improving the Management of Ill Health and the police authority has referred the issue of whether the officer is permanently disabled to a selected medical practitioner
  • The Force Medical Adviser advises that the absence is related to a disability as defined by the DDA* (*”A physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day-to-day activities.”) and the chief officer considers that it would be a “reasonable adjustment” to extend sick pay, generally speaking to allow (further) reasonable adjustments to be made to enable the officer to return to work.

Whilst there is no explicit statutory obligation on the part of chief officers to have regard to this guidance, in the case of Weed, R (On the Application Of) v Commissioner of Police of the Metropolis [2020], it was accepted that it would have been unlawful to ignore the guidance.

It is clear, under point three (above), that once an officer has been referred for consideration of ill-health retirement, the chief constable should seriously consider reinstating the officer to full pay.

What has to be realised here is that officers can become ill through no fault of their own with physical or mental injuries, or sometimes a combination of both. It is not uncommon with mental health injuries for the officer to suffer from severe PTSD. This can seriously impair their cognitive function and ability to comply with requests or process information. Despite this, it is clear in the policy that there is no compassion or support regardless of the officer’s injury, but instead there is a clear statement that that non-compliance will trigger a further reduction.

Our point is that non-compliance may not be deliberate, negligent or willful, but may well be caused by the effects of the injury or illness. The policy makes no recognition of this possibility

The PNB guidance goes on to say there should be monthly reviews of the officer’s situation. This policy document ignores the guidance as there is no mention of monthly reviews.

 

5.2
…
Where such claims are substantiated at a later date and the application has been made within a year of the date, of the last day of service, for the officer, payment of the injury award will be backdated to the day after, the last day of Service.

This section unmistakably implies that if an application for an injury pension is not made within a year of the retirement date of the pensioner, the force will not backdate payment to the applicant. We’d be interested to hear from Surrey or Sussex where in the regulations or current case law this approach is permitted?

Regulation 43 of The Police (Injury Benefit) Regulations 2006 (‘PIBR’), states that the pension of a member of a police force under these Regulations shall be payable in respect of each year as from the date of his retirement.

It is widely accepted (by most forces) that an injury pension is payable from the date of retirement, unless the date of injury cannot be established, in which case, it would be the date of claim.

If Surrey and Sussex police need further persuading, we suggest that they look at the cases of Tully and North Wales police and Kelly and Chief Constable Of South Yorkshire Police.

In Tully, The court decided, ‘First, we are satisfied that Parliament intended that, generally speaking, pension entitlements under these regulations should be payable from the date of an officer’s retirement unless or until that was limited or excluded by operation of an express provision to that effect elsewhere in the same regulations.’

In Kelly the court held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the chief constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension. The Judge held that the scheme of the regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement. Hence, he directed the chief constable to pay the backdated pay in full and with interest from the date of the award

 

5.3
…
This is to be illustrated as the percentage by which the individual’s police salary would fall, in order to reach the level of salary likely to be commanded in another occupation despite the injury. The SMP in such cases may be the FMA.

The suggestion that the Force Medical Adviser (‘FMA’) may act in such cases is not good practice, and we don’t know why it has ever been suggested. The whole purpose of the Selected Medical Practitioner (‘SMP’) is that they are supposed to be non-partisan and independent.

Published on the 4 May 2007, a Home Office (‘HO’) paper entitled “GUIDANCE ON MEDICAL APPEALS” states the following,

5. Where the police authority decides to refer the case to the SMP it should normally be via the force medical adviser (FMA). The purpose of the FMA’s advice is to inform not determine the assessment by the SMP on whether the officer is permanently disabled.

Yet again, it seems as though the author of this paper is blissfully unaware of any of the HO or PNB guidance.

Note: Police Pension Authorities would be negligent if they failed to consider guidance, but guidance is not law and need not be followed. Surrey and Sussex’s policy makes no reference to any guidance, so we are left in the dark as to whether it was considered or not. We add that certain Home Office guidance has in the recent past been determined to be flawed, to the point of being unlawful. PPA’s need to be cautious of blindly following guidance to the same degree that they need to be sure to consider it. The various Regulations are the law which PPA’s must abide by, and this policy document is deficient in that respect.

Surrey and Sussex’s policy casually departs from statutory limitations. Bells and whistles are added with no apparent rationale, and devoid of legal underpinning.

 

6.1 When an officer disagrees with the decision of the PPA not to accept a claim for ill health retirement or injury award and to refer questions to an SMP, the officer may appeal the decision to the Crown Court (PPR and PIBR refers). In such cases the police officer will be asked to complete an appropriate medical records consent form and such records will be sought from the officers GP.

Whilst it is correct that if the Police Pension Authority (‘PPA’) refuse to admit a claim for an injury award, the officer may refer the matter to the Crown Court for arbitration, there is no provision under the PIBR for forces to be able to demand medical records as a consequence. We have to question why the force would only be requesting the necessary medical records at this stage? Surely they would have needed them in order to have made a balanced decision to refuse the application to start with?

 

6.2 Where the officer is considered permanently disabled, the SMP will complete a report, relevant to the questions raised by the PPA in accordance with the relevant PPR that affect that officer and the officer will be formally notified of the decision in writing, by the PPA.

Medical reports completed by the SMP should be released to the officer first, who should be able correct any factual errors before it is released to the PPA.

 

7.3 Where an injury award is payable, the PPA shall consider whether the degree of disablement has substantially altered in accordance with the advice of the SMP who determined the injury award and if it has, the award will be revised accordingly in accordance with PIBR.

In determining the degree of disablement in this process, the PPA shall refer the matter to an SMP (the FMA may act in this role), who will be required to deal with it in accord with PIBR and will issue a report accordingly.

Let’s compare what has been written in the policy with the actual PIBR. The policy states “the PPA shall consider whether the degree of disablement has substantially altered“, whereas regulation 37(1) actually says “the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered“.

A small, but important omission, as the PPA is not entitled to conduct a reassessment of an injury pension unless there has been a suitable interval. A suitable interval is not defined, but in “The Queen on the Application of Turner v The Police Medical Appeal Board” it was said “suitable intervals suggests that this is not a matter which should be revisited every year, nor is it.”

This means that it is not open for the force to simply review at will without due consideration as to whether a suitable interval has passed. The policy thus puts the cart before the horse. It intimates that a SMP will exercise a remarkable ability to predict the future by recommending to the PPA when a disabled officer’s degree of disablement might alter substantially. The plain fact is that nobody, not even a doctor, can tell what the future holds.

The policy places a fetter on the discretion required of PPAs as to whether or when to consider the matter of substantial alteration in degree of disablement. It commits the PPA to a future action, based on nothing more than the opinion of a SMP.

This latter section, again suggests that it is appropriate for the FMA to act in the role of the SMP, when it is not. See the answer we gave to 5.3

 

7.5 The final part of the review process will involve an assessment by the SMP who will initially address the apparent disablement of the individual being reviewed, if necessary during private consultation and examination.

Reading this one line caused us outrage. The use of the word ‘apparent’ is highly offensive and clearly speaks volumes of how these two forces value and think of their injured and disabled pensioners. One dictionary definition of ‘apparent’ is ‘seeming true but not necessarily so’. So their obvious suggestion here is that pensioners are ‘pulling a fast one’ and there are no real injuries or illnesses.

Let us also point out that this approach is also unlawful. Once an SMP makes a determination in relation to a pensioners level of disability, that position is a given, and any subsequent reviews are a comparison exercise between that stated position and today. No ifs, or buts, you cannot question or revisit previous decisions or conduct a fresh assessment.

 

7.7 An individual subject to a review and living abroad, may be directed to see an SMP within reasonable travelling distance of their homes, after consultation by the OHWD with British Authorities overseas (e.g. Embassies, Consuls, Armed Forces). Alternatively, the individual may be advised to attend a meeting with the SMP within the UK. Failure on the part of the individual to co-operate may be addressed in accordance with the PIBR.

Firstly, this section suggests that the force has the right to ‘direct’ the pensioner to do things, which is not the case. They are no longer serving officers taking orders. More importantly, it suggests that pensioners who may be living abroad can be made to return to the UK for a medical consultation. We’d be interested to see where in the PIBR it allows forces to order pensioners to return for the purposes of a medical examination? Yet again, there is the threat of consequences if they fail to co-operate, so what are those consequences?

 

8.1
…
If the individual wilfully or negligently fails to submit to a medical examination, or to attend such interviews as the SMP may consider necessary in order to reach a decision, the PPA may make their determination on such evidence and medical advice, as in their discretion, they think necessary.

We have already mentioned in section 7.3 how the omission of a word from the regulations can change their original meaning. With that in mind, lets look at what has been written in the policy “the individual wilfully or negligently fails to submit to a medical examination“. That’s not what the PIBR say. What it actually says in regulation 33 is the the following “the person concerned wilfully or negligently fails to submit himself to such medical examination“.

Have you spotted the difference? The word “himself” is missing. So what is the significance of this? The word “himself” implies “the person” i.e. the pensioner should attend in person where they may be questioned or examined about their current level of disability. The statement “failing to submit to a medical examination” is far broader than just the person. It implies and could be argued that the medical examination also includes the authority to demand and examine medical records or other medical information about the pensioner which is not a requirement of the regulations.

SMPs can request, but not demand, access to medical records. They can ask a pensioner any relevant questions they think necessary to their task. However, we see nothing in the Regulations that allows anyone, SMP or other, to require or demand access. Nor do we see any legal authority in any other legislation which allows access without express informed permission from the data subject.

 

8.2 To assist with this determination, individuals who fail to co-operate, or only co-operate conditionally, will be provided with an appointment to see the SMP at their clinic, or other location specified by the PPA.

This section is absolutely nonsensical. It’s suggesting that pensioners whose injury pensions are being reviewed that are not co-operating will be referred to an an SMP in order to assist the PPA make a determination under regulation 33.

However regulation 30(2)(d) is clear, that if the PPA is considering revising an injury pension, the PPA has an obligation to refer the matter to the SMP,

30(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—
…
…
…
(d) the degree of the person’s disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

This means that the PPA should have already referred the pensioner to the SMP for the purposes of regulation 37(1), that being the case, why would they then refer the pensioner in order to determine regulation 33? If our understanding of this section is right, and they wish to refer the pensioner to the SMP purely for the purposes of regulation 33, then we’re happy to inform them that there is no such authority.

 

8.3 If they attend but have not completed a medical review questionnaire as supplied by OHWD, they will be provided with one by the SMP and asked to complete it forthwith. Once completed the SMP will conduct the consultation and examination but will delay any decision until the information on the questionnaire is examined by the OHWD and the appropriate report completed.

What!??? They will be “asked to complete it forthwith“. Once and only once they complete it will the SMP conduct the examination. Let’s make it unequivocally clear to the chief constables of Surrey and Sussex, there in no requirement under the PIBR to complete any medical questionnaire. Furthermore, the disclosure any of such medial questionnaire to the Occupational Health and Welfare Dept (‘OHWD’) as suggested is a series breach of ‘special category’ personal data under the General Data Protection Regulations (‘GDPR’) and will make the force liable as the data controller for this serious breach.

Let’s make it perfectly clear to Surrey and Sussex Police,  a 37(1) reassessment of an injury pension is a medical decision, and as such can only be made by a medical practitioner. It is our view, that medical data should ONLY be requested and viewed by the SMP. There is no authority or provision in the regulations for OHWD staff to paw over the personal, sensitive and private medical notes provided by a pensioner. Is this clear enough?

 

8.4 Should the individual fail to attend any meeting with the SMP, or fail to co-operate at all, the injury award percentage will be reduced to 0%, unless there are clear and unequivocal reasons for not doing so. Any subsequent appeal will be defended, or the case may be reassessed if the individual is then able to co-operate

Wow! Let’s say that again, WOW! What regulation allows the PPA to reduce the injury award to 0% if the pensioner fails to attend an SMP meeting or if they fail to co-operate at all? This is fantasy land stuff and is UNLAWFUL. Again, we believe that this is clear indication as to the contempt in which they hold those in receipt of any injury award. They should bow their heads in shame!

 

9.1 An individual will remain on their current pay status (full/half or nil pay), once the PPA have granted permission for the IHR application to proceed, unless the individual fails to co-operate with the process. Once authority is given for the individual to be medically retired, they will revert to full pay from the date the PPA authorised the ill health retirement.

In closing, we would draw your attention to the comments we made in relation to 3.10 (ante).

Clearly someone has taken a lot of time and effort in producing this dreadful document, and we can only assume that the Chief Constables of Surrey and Sussex have viewed and authorised this policy.

Chief Constable of Surrey – Gavin Stephens Chief Constable of Sussex – Giles York

We started this blog by saying that “File 13” is a euphemism for the trash can, and we’ve found a prime candidate for the use of such a receptacle.

We’d love to hear the hear the conversation between one of the chief constables and the author of this policy document when they’re summonsed to his office.

Chief Constable: “So how long did it take you prepare this policy?”

Author: “About a week.”

Chief Constable: “Well, that’s how long you’re not going to be paid for!”

Author: “Oh, okay. What do you want me to do with the policy?”

Chief Constable: “Put it in file 13, on the way out!”

Thames Valley Police Lead The Way With Ethical Injury Reviews

IODPA Admin Chief Constable, Federation, NARPO, newsflash, Regulation 37
Thames Valley Police Lead The Way With Ethical Injury Reviews

Thames Valley Police (‘TVP’) lead the way in how Injury on Duty reviews should be carried out and if they do indeed, follow the process as described by their National Association of Retired Police Officers Secretary (‘NARPO’), they should be applauded and praised.

We are extremely pleased to read this publication from TVP’s NARPO Secretary.  NARPO and the Federation have been involved from the outset and it appears that Reg 37(1) reviews will be conducted in exactly the way we have been campaigning for.

TVP IOD pensioners have been well represented by both organisations and we thank them wholeheartedly.

IODPA have never had a problem with reviews being held as long as they are conducted fairly, compassionately and in accordance with the Regulations and all relevant caselaw.

We are delighted that it seems that TVP are going to do just that.

Thames Valley NARPO have released a circulation explaining how the process will be carried out, how the procedure was agreed following consultation with NARPO, the Police Federation and the Force administration.

Here is the relevant section of the NARPO newsletter –

 

We commend the approach by Chief Constable Habgood (pictured above) and his team for showing the way the review process should be carried out. We are forever hopeful that other reviewing forces will take note.

If anyone is concerned at any impending reviews, please contact us at using our contact form above where we will be able to support and assist.

Show Me The Money

IODPA Admin Police Pension Authority, Regulation 37, Review
Show Me The Money

Show me the money!

— Tom Cruise in ‘Jerry Maguire’ (1996)

 

IODPA understands that Chief Constables are having a hard time currently. They have had to reduce their spending and learn how to manage with reduced budgets.

Budget cuts since 2011 up to 2015 amounted to a reduction of 20% in the amount allocated by the Home Office to policing. From 2015 more cuts were imposed.

According to estimates compiled by the National Audit Office, police funding fell from 2010/11 to 2018/19. Overall, funding fell by 19%, taking inflation into account.

This varies a lot locally. That 19% average ranges from an 11% fall in Surrey police force to a 25% fall in Northumbria. This is mainly because some forces, like Northumbria, rely more heavily on government grants and don’t raise as much locally.

With that difficult financial background in mind, we turn our attention how one particular force, Northumbria, chose to deal with the situation by seeking to grab money from the pensions paid to disabled former officers who were forced to retire due to injury received in the execution of their duty.

In June 2015 the force Executive Board was presented with a report written by Jocelin Lawson, Director of Human Resources. Its title was ‘Introduction of Injury Award  Reviews, Regulation 37(1) Police (Injury Benefit) Regulations 2006’

Here it is –

 

For new readers, we need to explain that a ‘review’ is a term which has come into general use to identify processes taken by a Police Pension Authority (‘PPA’) to ensure the correct level of injury pension continues to be paid.

The report states there is a ‘legal obligation’ for ‘The Force’ to consider at suitable intervals whether there has been an alteration of the pensioner’s degree of disablement, by means of a medical assessment.

However, this statement is unfortunately misleading, despite its apparently factual delivery. It is mistaken.

The above Regulations actually allow not ‘The Force’ but a Police Pension Authority – which is an office vested in the sole personage of the Chief Constable – to use unfettered discretion over whether or when to take action under regulation 37 (1). There is no blanket ‘statutory obligation’ as claimed.

By failing to differentiate between ‘The Force’ and the Police Pension Authority, Ms. Lawson provides a revealing insight. The Chief Constable of Northumbria has allowed his concerns over his budget to influence detrimentally his duties as the Police Pension Authority.

Let’s do what the report fails to do, and show you the actual wording of regulation 37(1):

Reassessment of injury pension

37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police [pension] 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.

Note well – there is no mention of a ‘medical reassessment’ nor of setting up a programme to review each and every injury on duty pension. A PPA is to do no more initially than ‘consider whether the degree of the pensioner’s disablement has altered.’

The regulation does not assist the PPA by defining what form the consideration might take. That is no oversight, as it is apparent the regulation intends that the PPA will use its discretion whilst promoting the scope and purposes of the Regulations as a whole. That does not extend to conducting medical reassessments of all recipients of an injury pension, in the hope of finding substantial alteration.

The very wording of regulation 37(1) indicates unmistakably that any consideration must be an individual undertaking. It is a singular thing, a reaction to a change in circumstances affecting an identified pensioner’s degree of disablement.

What Northumbria forgets, or perhaps chooses to ignore, is that the Regulations (specifically, regulation 30 which is rather too lengthy to reproduce here but which can be viewed via this link only permit the PPA to appoint a duly qualified medical practitioner to determine the extent of any alteration when the PPA is considering revising an individual’s injury pension.

An injury pension cannot be revised unless there has been a substantial alteration. Therefore, Northumbria is utterly out of order in thinking it can task a doctor with conducting ‘medical reassessments’ before it has gone through the required individual consideration of the likelihood of alteration in degree of disablement.

IODPA advises any injury on duty pensioner of Northumbria, or of any other force, to bear this in mind should they be asked to attend a medical interview and/or examination. We can offer sound practical advice on what to do, and what not to do. Advice which comes from the most expert and authoritative legal sources.

Now let’s look at a glaringly obvious logical flaw in the report. Northumbria ceased reviewing in the early part of 2010.  The report places the blame on the Home Office for advising all forces to cease planned reviews, ‘until case law provided clarity on the law.’

So,  from 2010  to date, Northumbria was content to set aside what it now claims is a ‘legal duty’.

Even the most warped legal mind would know that Home Office advice is not law. It does not have to be obeyed. Northumbria could have continued to conduct reviews, and could have done so without falling foul of ‘case law’ if only it followed the Regulations. Moreover, Home Office advice ought not to be such that it tells a PPA to ignore a ‘legal obligation’.

Ms. Lawson’s report to the Executive Board effectively says that Northumbria, having blindly followed what turned out to be unlawful Home Office advice in 2008, and having once more blindly followed Home Office guidance by ceasing reviews in 2010 is now intent on intruding into the lives of its disabled former officers and their families by conducting a mass review of injury pensions.

It seems that Northumbria thinks it can have its cake and eat it. It thinks it can not review, or it can review as it wishes. It is mistaken.

There is a vast and dangerously dark difference between making a decision to review or not to review based on the wrong reasons, and making that decision properly based on only relevant and lawful reasons.

From 2010 to date, there may well have been pensioners who were entitled to have their degree of disablement reviewed, and to have their pension payment revised upwards due to a worsening of their condition. Northumbria was content to ignore them.

We can see from the report why Northumbria ceased reviews. We can see the misleading claim that it now needs to dust off what it thinks is a ‘legal obligation’ and recommence reviews. However, the report reveals the real reason why all injury on duty pensioners, whether elderly, vulnerable, in delicate balance of mental health, whether informed of their legal rights or kept in deep incognizance will now be put through a most distressing and intrusive process.

The reason is money…

 

On reading Ms. Lawson’s report, it very obviously concentrates on the financial aspects of the planned mass review programme.

It also very obviously absent of any serious consideration of the human impact of reviews. The silence speaks loudly of the single-minded purpose of the review programme and dismisses any adverse human impact in a single sentence. Ms. Lawson models her thinking along the lines of the First World War generals who saw soldiers as mere units to be sacrificed for the gain of a few yards of ground.

The report attempts to illustrate various financial outcomes. Needless to say, they all confidently predict savings for the force. In that it is also mistaken.

IODPA believes that Chief Constables, and those who advise them, should take more care to understand the differing, and sometimes conflicting, requirements and duties of the office of Chief Constable and that of Police Pension Authority. The latter is supposed to focus on ensuring injured disabled officers receive the appropriate level of compensation as provided for by the Regulations. That focus should be divorced from any consideration of the financial outcome to the force.

Chief Constables quite properly need to manage their budgets prudently, but they should see injury pension payments as a debt of honour, as ring-fenced, kept entirely separate from their attempts to save money. Instead of turning on people who are generally among the least able to defend themselves, they should be lobbying the Government for direct assistance in meeting their obligations under the police injury benefit regulations.

Where, we ask, are the rehabilitation programmes designed to help injured disabled officers adapt to life outside the force? Where do we see HR providing support and care to the families of injured disabled officers? Where is there any assistance in helping injured disabled pensioners finding work?

It seems to be the case that in Northumbria the Chief Constable – Winton Keenen (pictured) has forgotten entirely about his duty of care towards former officers. We suggest that if he wishes to save money by reducing what is clearly seen by him as the burden of injury pension payments, he would do better to achieve that aim by helping disabled former officers rather than by hounding them.

Staffordshire – The Story To Date

IODPA Admin Regulation 33, Regulation 37, Review, smp
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.

 

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.

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

IODPA Admin Chief Constable, newsflash, Regulation 37, Review
Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

 

Gareth Morgan (pictured) has sent out letters to seventeen Staffordshire police pensioners informing them he is dropping their injury pensions based on his interpretation of Regulation 33 of The Police (Injury Benefit) Regulations 2006. He is also intending to back date his decision.

We cannot comment on this any further for legal reasons, but here is what Staffordshire Police have posted on their website –

 

Mark Botham Appears In NARPO News

IODPA Admin newsflash, police injury award, regulation 32, Regulation 33, Regulation 37, Review
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 –

 

 

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

The Staffordshire Saga

IODPA Admin Chief Constable, Regulation 37, Review
The Staffordshire Saga

Never let the truth get in the way of a good story.

― Mark Twain

 

Staffordshire Police is one of less than a small handful of forces which remain determined to abuse the ‘review’ provision contained within The Police (Injury Benefit) Regulations 2006.

Chief Constable Morgan, fresh from his experiences with attempting to run a mass review programme of injury pensions in Avon and Somerset, has committed Staffordshire to a similar enterprise.

Mr Morgan’s story in Avon and Somerset, which he has repeated in Staffordshire, is that there is a duty to review the degree of disablement of all former officers who are in receipt of an injury on duty pension. In an open letter dated 21st December 2017 CC Morgan writes,

On 26 April 2017 Staffordshire (sic) Police began a pension review of retired Injured on Duty (IOD) officers in accordance with Reg. 37 (1) of the Police (Injury Benefit) Regulations 2006 which places a duty upon the Police Pension Authority (the Chief Constable) to review whether the degree of the pensioners’ disablement has altered.

 

There is a duty, which is subject to a discretionary process before being acted upon, which allows a Police Pension Authority (‘PPA’) to,

. . .  consider whether the degree of the pensioner’s disablement has altered . . .

 

A PPA must, for each individual, first determine whether it is appropriate to consider whether their degree of disablement has altered. It must first identify a suitable interval has passed since the time of the last final decision was made on degree of disablement. In some instances, there may never be a suitable interval.

Let’s  put this as simply as possible. Unless a PPA can show, with a record of its reasoning process, that there has passed a suitable interval then a PPA is not entitled to make any consideration on degree of disablement.

This aspect of the Regulations was settled way back in 2003, in the case of Crocker. The court opined,

I regard the review provision as the key.  There is no need to speculate.  As and when circumstances dictate, the pension is reviewed.  The doctors, the Medical Referee, and Selected Medical Practitioner can, and here did, indicate when they thought that that should happen.  Such a power is wholly inconsistent with a need to forecast the future and then to test the calculation of the forecast against the actual out turn on a number of occasions.  The means by review of correcting the pension when circumstances change obviates the need not just to speculate, but to speculate and review as well.

 

That determination is not hard to understand, but in plainer English, the court decided that doctors, medical referees (now PMAB’s) and SMPs should not speculate about when any alteration in an individual’s degree of disablement might occur. A PPA should not use those speculations as reason to conduct a ‘review’.

Moreover, the court decided that any ‘review’ should be a reaction to a perceived change in circumstances of an individual.

Staffordshire Police, and others, should note well the deliberate use of the singular pronoun in regulation 37, which identifies – ‘the pensioner’. Not, ‘all pensioner’s degrees of disablement’ or even, ‘pensioner’s degrees of disablement‘.

When the Regulations speak of the singular person they intend a singular consideration, not a mass consideration.

The PPA should therefore conduct a full review only after having considered that the degree of the pensioner’s disablement has altered.

We have to comment too, that a ‘consideration’ is a very different concept to a ‘review’. In fact, the word ‘review’ does not appear anywhere in the Regulations.

What Staffordshire Police mistakenly reads into the Regulations is a carte blanche duty to intrude into the lives of disabled former officers. They think that they can demand a range of sensitive medical and financial information to which they have no legal right. They think that they can task their HR or Occupational Health departments to collude with the doctor hired by the force to conduct medical assessments and examination with a view to influencing what should be an independent medical decision by the SMP.

Staffordshire Police set about their plans to conduct a mass review programme in the manner of a surgeon removing a leg to treat an ingrowing toenail.

The truth is, all Staffordshire Police are entitled to do is to make a polite enquiry of only those pensioners where there my be a strong indication of alteration. Their duty is discharged entirely once they get the answer that there has been no alteration.

We can for the moment leave aside well-founded suspicions that wherever a force has decided to hold mass reviews the decision to do so has been based entirely on an expectation of saving money.

Such expectations have proved to be illusory.

The facts are that over a ten year period, up to 2015, across the country, when most forces were conducting reviews, the vast majority resulted in a decision there had been no alteration in degree of disablement.

Even if Staffordshire Police’s intentions were entirely based on an altruistic desire to comply with the basic concept that a police pension authority needs to ensure the correct level of pension continues to be paid, should circumstances alter, then conducting a mass review is not the way to go about it.

So, what has happened so far? What progress has been made since Mr Morgan’s announcement in April 2017?

A recent Freedom of Information request has revealed some interesting facts.

A company called IMASS/Medigold was contracted to provide a doctor or doctors to conduct the medical aspects of the reviews. This company’s doctor commenced his work with Staffordshire in February 2018.

A doctor assessed 26 injury on duty pensioners. He made a decision there had been no alteration in degree of disablement in 6 cases. In the remaining 20 cases he decided he could not make any decision. No former officers were decided to have experienced any alteration in degree of disablement.

There is no option in the Regulations for a SMP to discharge his task by not deciding. Once a PPA has commenced a consideration it must ensure a decision is made. Staffordshire PPA is in breach of its duty in respect of those 20 pensioners who have no finality.

Surely, common sense should prevail in these circumstances. A PPA has only one realistic option, which is to record the SMP’s ‘no decision’ as a decision there has been no alteration. It is inhuman to leave pensioners up in the air with the uncertainty a failure to decide engenders.

Other evidence of what has resulted from reviews is contained in a Progress Report dated 22nd March 2018.

 

It states a total of 45 injury on duty pensioners had been reviewed, or were in the process of being reviewed. Of them, 13 were decided to have no alteration in degree of disablement. In 4 cases, the pension was reduced due to a decision there had been a substantial improvement in degree of disablement. Of the remaining 28 pensioners there was no news.

Each review will have cost at least £500 to £600 and if there are appeals and court cases resulting from unlawful application of the regulations the experience of Avon and Somerset will be repeated in Staffordshire. When Mr Morgan was DCC in Avon and Somerset he saw a bill which ran into hundreds of thousands of pounds.

IODPA finds it hard to understand why Staffordshire police pension authority is happy to waste so much public money in conducting ‘reviews’ as currently constructed, when it is open to it to devise a process which will allow it to comply with regulation 37 at minimal cost, and without visiting anxiety and real harm on vulnerable disabled former officers.

Staffordshire Police tell a good story, but just like those of Mark Twain, it is complete fiction. And not even slightly amusing.