Regulation 37

Mark Botham Appears In NARPO News

Mark Botham Appears In NARPO News

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

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

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

Here is his article –

 

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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

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.

Police_Pensions_Board_Half_Yearly_Report_140318

 

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.

Recording Reviews

Recording Reviews

There are some things one remembers even though they may never have happened.

Harold Pinter – Old Times 

In an earlier blog, we highlighted some of the barriers which stand in the way of justice for disabled former officers in receipt of an injury pension, and serving officers seeking to retire due to injury on duty or disabling ill health.

We commented on how individuals are effectively prevented from securing their pension rights.

The system seems loaded against them due to the scarcity of information, support and professional representation. IODPA reaches out to those who would otherwise not secure their pension rights and in so doing we learn about and witness first hand the deficiencies of some of the doctors who are asked to provide medical assessments on behalf of police pension authorities.

One aspect of these assessments which our members have highlighted is the matter of the reports which these ‘selected medical practitioners’ (SMPs) produce. All too often they seem to bear little resemblance to what was said and done during the assessment.

The upsetting experience of one of our members might illustrate what we mean.

An injury on duty pensioner was being assessed by a SMP for the purpose of determining whether there had been any alteration in his degree of disablement.

The SMP referred the pensioner to a consultant neuropsychiatrist, who saw him some little time later. The pensioner had his wife present throughout the assessment. He was asked some questions about alcohol consumption,  and the pensioner stated that he, together with his wife, drank three bottles of wine a week.

When the consultant’s report was issued, the pensioner, and his wife, were shocked to see that the consultant had written that he drank three bottles of wine a day and believed he should be categorised as presenting with ‘Harmful use of Alcohol’. The consultant went on to comment that he should reduce his alcohol consumption and be prescribed thiamine – a drug given to alcoholics to help reduce vitamin deficiency.

It was bad enough that the consultant, who was not entitled to make any recommendations, or even comments on treatment, did just that, but worse was yet to come, for the error was not corrected.

When the pensioner pointed out the error to the consultant and asked for her report to be amended,  the consultant refused to do so. Thus this error, which essentially labels a sober man an alcoholic, has remained on file.

The point of this illustration is that, if the assessment had been recorded, then the error would have been revealed in evidential form and would have been corrected, either by agreement, or by compulsion through legal proceedings.

You might think it only common sense that medical assessments and interviews held in connection with police pension rights should be routinely recorded. That the doctors concerned be supplied with proper recording equipment, which produced a simultaneous copy for the medic and for the individual.

However, that is not the case, and is likely to remain the situation. Not least because some SMPs have voiced opposition to any form of recording of their sessions. Some have gone so far as attempting to stop individuals from making their own recording of the assessment or interview. We will comment on that situation below.

In our earlier blog we produced figures on the number of appeals made to Police Medical Appeal Boards concerning pension matters. For an appeal to be arranged, a police pension authority must accept that there is reason to believe an error of fact or law was made – by a SMP or by a police pension authority.

We believe that the number of appeals heard cast only a glimmer of light into the darkest of corners. It is entirely probable there are many more errors which have not been revealed and have not been challenged.

Of course, it is not only SMPs and consultants who can have faulty recollection. A study [1] revealed that patients only retain between 40% and 80% of what their doctor has told them during a consultation. It is not hard to understand that former officers with mental injury, placed under the huge stress of a medical examination and interview, the results of which will determine the amount of their pension, might find it even harder to recollect much of what went on.

It is partly for that reason IODPA recommends members always have someone with them during any process concerning their pensions.

We are aware of instances though, where certain SMPs have objected to anyone other than the individual being privy to what is said and done. Happily, the General Medical Council (GMC) has advised that doctors should not raise any objections to a friend being present.

Looking at the wider picture, it would be better all round if there were fewer appeals. There would be less stress and financial uncertainty for the individuals and less cost for forces. To achieve a reduction in appeals, however, there would need to be a decrease in errors, and we think that is unlikely to come to pass, given the fact that, by all the accounts we receive, SMPs and police pension authorities are, shall we say, rather prone to committing errors.

Errors should be corrected without the need for appeal to a PMAB. The Police (Injury Benefit) Regulation 2006 make that very clear, for regulation 32, parts (2) and (3) makes provision for SMP’s to be asked to reconsider any decision.

A reconsideration is an opportunity for the SMP to be made aware of any errors of fact or law, and to correct them. But, before an individual can bring such matters to the attention of a police pension authority and request a reconsideration the errors need to be identified.

IODPA therefore advocates that anyone who attends a medical interview or examination by a SMP, or any other doctor to whom they have been referred to by a SMP, should not only insist they are accompanied throughout by a friend, but should also make a recording of the entire event, and should do so openly.

We advise that the doctor be told the session is being recorded.

If any doctor objects, then the objection should be acknowledged and the doctor told they have no legal power to prevent the recording.

Doctors should have no cause to object, for a recording is as much a protection for them as is it is to the individual.

Recording is lawful because you are only processing your own personal information and are therefore exempt from data protection principles.

The recording remains the property of the individual, who may well find it could be admitted as evidence should they decide to appeal any decision made by the SMP, or if matters go to an industrial tribunal or judicial review. The GMC will also likely accept the recording as evidence in any complaint proceedings against a doctor.

A little bird has told us that a certain SMP thinks that they have the authority to ban individuals from making recordings of medical interviews and examinations.

That SMP is wrong.

Expert police pension solicitor Mark Lake advises on the argument that a recording, covert or otherwise, may not be admissible in legal proceedings:

I do not think such an argument can possibly succeed for 2 reasons. First, the SMP is acting as a public law decision maker in this interview and not as a treating doctor.

Second, any confidentiality in the consultation belongs to the patient and not the doctor.

Although a SMP may be considered to act in a quasi-judicial way, that is solely because any decisions made are binding unless appealed. By decisions we mean only those a SMP is tasked to make under the Regulations. A SMP is not a judge and does not have the powers of a court.

Essentially a medical interview or examination for pension purposes under the Regulations is just that – a doctor’s consultation with a person who they must respect as having the status of patient. The doctor must abide by the ethics of their profession and also with the law, with particular regard to the Access to Medical Reports Act 1988 and the General Data Protection Regulations.

Is the view of IODPA on the recording of these sessions a lone one? It seems not, for we can turn to the combined wisdom of the General Medical Council and to the Medical Defence Union, the Medical Protection Society and the Medical and Dental Defence Union of Scotland for their opinions.

All of these organisations recommend that doctors raise no objections to a patient recoding any interaction with them.

The GMC has confirmed there exists a doctor/patient relationship when a doctor is conducting a medical examination or interview for an employer or pension scheme manager. SMPs are obliged to follow GMC guidelines and advice, as failure to do so opens the door to civil claims and to complaints to the GMC.

In its guidance on good medical practice, the GMC states:

You must give patients the information they want or need to know in a way they can understand. You should make sure that arrangements are made, wherever possible, to meet patients’ language and communication needs.

Clearly, this is an endorsement of patients making recordings, which allow them to obtain the information they need in a form which enables considered analysis of the information.

The Medical Defence Union offered its opinion in its publication ‘Good Practice’ [2] The article says:

By recording a consultation to listen to again later, patients are less likely to miss something important.

And;

It would be a mistake to think they are trying to catch you out or that a complaint or claim will inevitably follow. If you are concerned that the patient’s actions are a sign they do not trust you, you may want to discuss this with them at a later date, but recording a consultation is not itself sufficient reason to end your professional relationship with them.

The Medical Protection Society gave its opinion in its publication ‘Practice Matters’ [3] The article says:

A recording would potentially provide even more detail to support the doctor’s professional position. There should be no reason therefore why you should have anything to fear from such a recording.

And;

A patient does not require your permission to record a consultation. The content of the recording is

confidential to the patient, not the doctor so the patient can do what they wish with it. This could include disclosing it to third parties, or even posting the recording on the internet.

In a press release dated 2nd July 2015 [4], the Medical and Dental Defence Union of Scotland stated:

In an ideal world, patients would not feel the need to covertly record a consultation and would be open about it, says Dr Peddie, however, doctors should not necessarily feel threatened when they become aware of a recording. Indeed, a recording may be helpful in avoiding misunderstandings.

So there we have it. Recording of medical interviews and examinations for any purpose concerning pensions or ill health retirement is lawful, and is encouraged by doctor’s professional organisations.

SMPs should take careful note of this and accept that an accurate record is essential to ensure errors of law or fact can be revealed and dealt with without the need to take matters to a PMAB.

As for PMABs, then IODPA urges the Home Office to make provision for official recording of everything said and done during an appeal hearing and to advise PMABs not to obstruct appellants or their legal representatives who wish to make recordings.

 

[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC539473/ – Journal of the Royal Society of Medicine, 2003

[2] https://www.themdu.com/guidance-and-advice/journals/good-practice-june-2014/patients-recording-consultations – Good Practice June 2014

[3] https://www.medicalprotection.org/docs/default-source/pdfs/uk-practice-matters/practice-matters-oct-2014.pdf – Practice Matters, Volume 2, Issue 3, page 6, 2014

[4] https://www.mddus.com/about-us/media-centre/2015/july/doctors-should-not-fear-covert-recording –

Abuse of Power

Abuse of Power

An abuse of any given power is a display of ignorance to the moral values of the position.

Ian T Sebàs

 

Essex police pension authority has recently announced the intention, in respect of former officers in receipt of an injury on duty pension,‘ . . . to review the percentage of earnings capability in relation to the injury award regulations.’

That is how it is announced in the minutes of the meeting of the Essex Police Pension Board held on 28th November 2017.

For the benefit of anyone who has only lately come across IODPA and these blogs, we had better explain what the Chief Constable of Essex Police has determined to attempt.

The Chief Constable holds, in addition to his office of constable, the office of police pension authority (PPA).  Amongst other responsibilities a PPA is required to ensure the Police (Injury Benefit) Regulations 2006 are properly applied and administered. These are the regulations, the law, which govern police injury on duty pensions. An important provision in these regulations is the PPA should ensure the correct level of pension continues to be paid, should there be a substantial alteration in any individual’s degree of disablement.

This provision is in regulation 37 of the Police (Injury Benefit) Regulations 2006. It is the so-called ‘review’ provision. Essex PPA would like to use this regulation now, having not used it much, if at all, since 2010. However, we have grave concerns that Essex PPA is approaching things not only in an unlawful manner, but also in a way which will undoubtedly bring much distress and upset to some very severely disabled former officers.

What the statistics say

Essex has some 250 or so former officers retired due to injury on duty. They each receive a pension, the amount of which is partly determined by their degree of disablement. An individual’s disablement may alter over time – it may worsen, or it may improve.

However, data obtained by the IODPA shows that the vast majority of pensioners do not experience any substantial alteration over the years of their retirement. The task of a PPA is therefore to make a sensible, humane arrangement which will allow it to discharge its obligation to ensure the correct level of pension continues to be paid, should there be a substantial alteration in any individual’s degree of disablement.

On the basis of the minutes mentioned above, there is some confusion and lack of clarity about what degree of disablement is, or what is required of the PPA should degree of disablement alter.

The minutes display an unfortunate indifference to the precise meaning of the regulations. There is no such thing as ‘percentage of earnings capability’. No mention in the regulations, nor in case law. We have to assume the PPA means to refer to a review of the degree of disablement of former officers in receipt of an injury pension, but if the PPA can’t even name it, preferring to use some meaningless replacement phrase, then it does not bode well for the way any ‘reviews’ will be conducted.

We said above, that a PPA is required to see that the Police (Injury Benefit) Regulations 2006 are properly applied and administered. Well, sadly, the wheel has fallen off that particular bike before the reviews have even really begun. In a response to a Freedom of Information Act request, which asked Essex Police the question,  ‘What is the selection criteria for identifying pensioners required for review?’ they replied, that is was,

Based on longevity cost to Pension Authority to determine first tranche.’

We have to pause again here to seek meaning. We think Essex is saying that pensioners will be selected to have their degree of disablement reviewed by picking out those who are younger than the median age of the total group of injury on duty pensioners, and thus liable to be paid their pensions for longer or those pensioners who receive the higher amount of injury pension, or some equation including both criteria.

That was pretty much what Avon and Somerset did, when that force set out on its costly and fruitless review programme a couple or more years ago. Essex is thus following an example which has been proved to be unlawful and doomed to failure.

Selecting individuals for a review of their degree of disablement on the basis of their age, or their level of pension payment is not lawful. It is discriminatory.

What is vitally important to note here is that Essex PPA makes it transparently obvious, beyond all possibility of reasonable doubt, that it is motivated to conduct reviews only by consideration of the ongoing cost of funding injury pensions.

That is why IODPA has to comment that the PPA is acting contrary to the intent and purposes of the regulations. The PPA seems to have lost sight of what the purpose of a review is, as intended by the regulations.

A review is intended to be a rare event, only undertaken when there is good reason to believe that an individual pensioner has experienced a substantial alteration in degree of disablement. Reviews should not be applied to a selected group of injury on duty pensioners as a means of discovering whether there has been an alteration in degree of disablement. A review is not intended to be a mechanism for a PPA to try to save money.

The Regulations

A PPA is required by regulations 37 of the Police (Injury Benefit) Regulations to do no more than, ‘. . .  at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered.’

In making that consideration a PPA is not empowered, or entitled to require any individual to supply personal financial or medical information. Nor can anyone ‘process’ any of the information held by the force, or any other agency or person for the purpose of making the consideration, without the express informed consent of the individual concerned. The Data Protection Act makes it very clear that information held can only be processed for the purpose for which it was first obtained and any further processing for a different purpose is not lawful without express informed consent from the individual concerned.

Instead of making a simple enquiry of pensioners, from time to time, we have a force which has applied an intrusive and potentially deeply distressing instrument in an attempt to use regulation 37. Moreover, it seems the prime intention of the PPA is not to ensure the correct level of pension continues to be paid, but to save money.

Police injury pensions stand to be paid from the police force budget. Chief Constables have a duty to be prudent with the public purse. Chief Constables are under pressure to reduce costs, to trim their budgets, but that does not empower them to raid the injury on duty pensions paid to disabled former officers.

It would be proper for a Chief Constable seeking savings, to do what was practicable to lessen the chances of officers becoming injured and disabled, or to make provision for the best care and treatment being available to any officers injured on duty, so they could avoid being retired on an injury pension. It is most certainly not proper, nor lawful, for a Chief Constable, acting as PPA, to seek to review the most costly injury pensions with what can only be an intention to see some of them reduced.

Conformation this is a driving objective behind the proposed reviews is found in a further response from Essex Police to a Freedom of Information Act request. When asked, ‘Can you confirm if all pensioners in each band will be reviewed?

Essex replied,

Since no reviews have been conducted since 2011 the suitable period for review as determined by the smp at previous review has elapsed. It is therefore envisaged reviews will be conducted for all pensioners in band 4, 3 and 2.’

Once more, we need to decode. Essex seem to be making a causal link between lapsed recommendations made by medical practitioners employed by the force some time ago as to when a review might be appropriate in individual cases, and the fact of Essex now commencing reviews. In plain language, they say, ‘We failed to make any considerations as to whether the degree of disablement of any of our injury on duty pensioners had altered, so now we have to play catch-up.’

As with the flawed and unlawful motive for holding the reviews – to save money – here Essex reveal a concerning abuse of the intent of the regulations, allied with a truly shocking exhibition of disability discrimination. Essex say they won’t be reviewing pensioners who are on band one. These are the pensioners who are paid the least amount of pension, and whose pensions can not be reduced, but could only be increased.

IODPA has had an indication that Essex PPA is willing to rethink its approach, and we will be reporting on this in a future blog. We will be following events as they unfold and will be ready to assist any injury on duty pensioners whose pension rights are under threat. We think Essex ought to call a halt to its proposed reviews and sit down with people who can explain the regulations to its HR managers and other staff. It is not in the best interests of Essex police, or of the disabled former officers who receive an injury on duty pension, to allow unlawful application of regulation 37 to proceed as currently proposed.

Chief Constable Kavanagh of Essex Police responds to IODPA

Chief Constable Kavanagh of Essex Police responds to IODPA

Following the recent announcement of Essex Police to start reviewing injury pensions, and after reviewing documentation sent out by Kevin Kirby, we were sufficiently disturbed to formally write to the Chief Constable, Mr Kavavagh. Here is a copy of the letter that we sent.

 

Letter to Essex CC

 

Here is the reply that Mr Kavanagh provided.

 

CC Kavanagh Reply

 

We are grateful to Mr Cananagh for taking the time to reply, but still feel as though there are lot of unanswered questions.

The talk of Essex

The talk of Essex

The world always makes the assumption that the exposure of an error is identical with the discovery of truth – that the error and truth are simply opposite. They are nothing of the sort. What the world turns to, when it is cured of one error, is usually simply another error, and maybe one worse than the first one.

H. L. Mencken (1880 – 1956)

 

Clever Cat, Stupid Cat

Police pension authorities, and the employees who act under their instruction, have consistently demonstrated a remarkable ability to make errors. Over the last few years we in the IODPA have seen some prime examples, and have sadly heard of the damage they’ve caused to disabled former officers and their families.

It is said that if a cat jumps up onto a hot stove, it will never do it again. Well, we can say with a good degree of certainty that some police injury pension scheme managers are nowhere near as clever as cats.

No sooner has one PPA or another had its errors corrected by a judicial review or by the Pensions Ombudsman, than another pops up and repeats the very same errors, or invents completely new ones.

 

A Most Unpleasant Letter

Essex have decided to conduct a programme of reviews of the degree of disablement of some of its disabled former officers who are in receipt of an injury pension. So, Mr Kirby, the Head of Governance & Compliance for Essex police pension authority, took on the task of writing to them. Which presents us with the opportunity to dissect his extremely unpleasant and inaccurate letter and point out the errors it contains. The letter can be read in all its full glory here.

 

Letter from Essex call to review

 

Scalpel Please, Nurse.

Let’s make the first incision by reminding ourselves, and Mr Kirby, that the letter is addressed exclusively to disabled people. Some of whom will have physical impairment, some will have mental impairment and some both. We see no signs this appallingly constructed glob of officialese was written by someone who gave any thought to its possible impact on the recipients.

It is not hard to imagine the sense of doom, the panic, the lonely desperation welling up in the minds of those who are made vulnerable by the symptoms of a mental or physical injury when this letter landed on their doormats. We know, because we get told these things, often, and know the mere sight of a letter on police headed notepaper can be enough to destabilise some pensioners. Yet Mr Kirby addresses them all as though they are not only fit and well, but also fully conversant with the intricacies of the Police (Injury Benefit) Regulations 2006.

We understand the main target of the proposed reviews are pensioners in band four. That is the highest degree of disablement, identified in the Regulations as ‘Very serious disablement’. Surely someone gave some thought to the impact of the letter on this group of people?

Before we go further we should assure Mr Kirby that we mean no personal insult to him. He may be a pawn in a larger game, and only doing what he has been commanded to do. He may be understaffed, untrained and unsure. He could be under pressure to produce results. However, he put his name to the letter and must take responsibility for its contents.

 

Apologise and Withdraw

If Mr Kirby has any moral core he will immediately apologise for sending out his letter, and the questionnaire and Appendix which came with it. He will withdraw it all, and sit down with local NARPO, Federation and injury pensioners, to consider very carefully the implications to the force and to the injury pensioners should the PPA continue on the disastrous course his letter has set.

IODPA has no issues with lawfully held reviews but we have to speak out when a PPA announces its intention to act outside the confines of the Regulations. This blog is intended to be as much an encouragement to Essex to realise its wrongheadedness and to think again, as it is a crib sheet for injury on duty pensioners, giving them points to use to challenge and question their police pension authority.

Mr Kirby’s letter contains so many errors and muddled inaccurate information that it is going to take more than one blog to deal with it and the accompanying Appendix and Questionnaire.

Mr Kirby’s letter begins with the phrase,

As you are aware . . .” and mentions the Regulations and something he calls an intention to “. . . review your degree of disablement earnings related capacity.”

We very much doubt pensioners are aware. In our wide experience it would be a rare individual who would know the detail of the Regulations or what a review might involve. If they were to think the letter would explain, in simple easily understandable language, what the PPA is aiming to achieve, they would be disappointed.

 

Fools Rush In

The letter seems to have little or no grasp of the Regulations. Yet it is written with a confident style which is misplaced and in terms which display inadequacies.

There is no mention of a ‘review’ in the Regulations. That word does not appear. ‘Review’ has become generally accepted shorthand, for those who deal with injury pension issues on a daily basis, for the process which is mostly set out in regulation 37 of the Police (Injury Benefit) Regulations 2006.  Police injury on duty pensioners can not be assumed to know what a ‘review’ is. Thus, the first error of the letter is a failure to properly explain what Essex PPA intends.

Nor is there any mention in the Regulations of reviewing something called a ‘degree of disablement earnings related capacity’. Now, this is something which IODPA would very much like to see Mr Kirby attempt to explain. We have no idea what he is referring to and neither will any pensioner, because it is an invented term which has no bearing on the Regulations.

Let’s get things straight. Regulation 37 confers a conditional power of discretion, not a duty, on police pension authorities to do this, in this order:

 

  1. For an individual pensioner, positively identify that a ‘suitable interval’ has passed since the time of the last final decision on degree of disablement.
  2. ‘Consider’ whether the individual pensioner’s degree of disablement has altered.
  3. If a police pension authority has good reason to believe it has altered, so that the pension payment may need revising, up or down, then refer for decision the question of degree of disablement to a ‘duly qualified medical practitioner’.
  4. If the selected medical practitioner decides there has been a substantial alteration, they can determine what the degree of alteration is, by setting the amount of alteration against the established degree of disablement and thus arrive at a new percentage degree of disablement.

Now, of course, there is much, much more to the process that this brief aide-memoire provides. There are many ways a police pension authority can come unstuck. However, to assist Essex and guide them away from the current disastrous approach we should just mention that it is vital that any ‘review’ is an individual process for an individual person. A PPA simply can not decide en bloc to ‘review’ a group of pensioners.

 

A Misplaced Sense Of Duty

We should also mention what Mr Kirby’s letter describes as,

‘. . . a duty as part of good governance to periodically review the degree of earnings capacity of pensioners in receipt of an injury award.’

We will return to ‘good governance’ in the next blog, but we need to deal with ‘duty’ first.  The duty placed on a police pension authority under regulation 37 is it, ‘. . . shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered . . .’

Essex is not the first police pension authority to use a misreading of the Regulations to support a false claim that it has a ‘duty to review’. It is true there is a duty to ‘consider’ at ‘suitable intervals’ whether there is any alteration in degree of disablement, but forces divert from the intention and purpose of regulation 37 when they leap ahead of this simple, restricted, conditional duty.

Mr Kirby’s letter tells us,

‘. . . the process requires the involvement of the pension authority’s selected medical practitioner’ and ‘In order to assess the degree of disablement the selected medical practitioner will need to take account of your skills and qualifications and what kind of employment you could undertake . . .’

Now to be fair to Mr Kirby, it could be that he genuinely, but mistakenly, thinks that the PPA can only properly ‘consider’ matters as per regulation 37 if it gathers in all the information it asks for in the questionnaire and gets their SMP involved in analysing it.

Trouble is, Mr Kirby is asking, sorry, requiring, pensioners to hand over information the PPA has no right to demand. Nor can he involve the SMP until the PPA is in a position to be considering revising an injury pension. As things stood at the time Mr Kirby wrote his letter, the PPA could have no reason at all to think that any pensioner had experienced an alteration in their degree of disablement.

A PPA has no legal authority, or ‘power’ as Mr Kirby would describe it, to require any information from former officers.

IODPA advises any Essex pensioner who has received the above letter, questionnaire and Annex from Mr Kirby not to respond to hand over any information, or give the permissions asked for.

Essex Questionnaire – The answer is NOT to answer

Essex Questionnaire – The answer is NOT to answer

Here is the questionnaire as recently sent out by Essex Police following their decision to commence injury pension reviews. It is intrusive almost to the point of being offensive.

Whilst they have every right to send out such a document, the pensioner has every right to place it straight into the bin. There is no legal requirement to provide ANY information regarding these reviews.

Have a read and familiarise yourself with the document. We will be putting up a series of blogs regarding this and other paperwork that has been sent out by the force.

Essex Police questionnaire

The only way is not Essex

The only way is not Essex

What we’ve got here is failure to communicate.
 Cool Hand Luke (1967)

It seems there has been a rush of blood to the heads of certain people in the higher echelons of Essex Police. For reasons as yet unknown to the Police Pension Authority, which is an office vested in none other than the sole personage of the Chief Constable, Steven Kavanagh (pictured), has decided to commence a programme of reviews.


For anyone who has not kept up with ongoing events in the long drawn out and sorry saga of police injury pension maladministration which has blighted the lives of far too many disabled former officers, here is a brief recap.

A ‘review’ is shorthand for what happens when a Police Pension Authority (PPA) exercises a power of discretion conferred on it by Regulation 37 of The Police (Injury Benefit) Regulations 2006. A PPA decides to check whether the degree of disablement of an officer, retired with an injury pension, has altered.

It sounds simple, and it is simple. All a PPA has to do is follow the Regulations and be familiar with the ample case law which provides clarity should explanation be needed. Or, if they fancy a lighter but no less helpful read, HR managers could do no better than study the blogs which IODPA has thoughtfully provided to help educate them.

Yet despite this ready access to information PPAs have consistently managed to muck things up. You would think they were doing it deliberately.

In Essex, it is almost as though everyone who has had a hand in setting up this programme of reviews has been secured in a bubble, kept separate from the rest of the world, so they have no idea whatsoever about recent events.

Events such as the disaster in Avon and Somerset, where much public money was wasted in attempting to hold a review programme, which in our opinion was unlawful.

Events such as the Information Commissioner’s advising that Avon and Somerset and Northumbria had no right to continue to hold excessive historical personal information about retired officers.

Events such as the binding opinion of the Honourable Mr Justice Supperstone in the 2012 case of Simpson v. Northumbria Police Authority and others, where he made it very clear that,

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

So, what is going on in Essex? What has prompted the idea to review batches of injured pensioners? And why has nobody – absolutely nobody – in management had the common sense and nous to look at the regulations and case law to see why their plan is likely to spectacularly fail.

It is indeed a failure to communicate on an epic scale.

More than a failure of communication, it is a failure of awareness, a failure of reason, a failure of professional competence, a failure of decency, a failure of knowledge and a total failure to treat disabled former officers with respect and consideration. There is so much wrong with what Essex is doing that in the space of this blog it won’t be possible to cover all aspects. We can, however, focus on a few elements which demand special attention due to their sheer crassness.

Let’s look at the letter and questionnaire which Kevin Kirby, Head of Pension Governance & Compliance has sent to the first of the injury pensioners who have been selected to undergo a ‘review’. Just who does he think he is, and just who does he think he is talking to?

He writes,

‘We will require a full update on your medical status since your retirement which requires you giving consent for release of your GP records.’

No, you can’t do that Mr Kirby. A review must only determine if there has been any alteration in the specific disabling effect of the recorded duty injury or injuries. One’s ‘medical status’ does not come into it. And neither does the record of a pensioner’s health since retirement.

He writes,

‘Please observe that the pension authority has full powers under the above regulations to undertake this review. It requires openness and transparency concerning your requirement to provide the pension authority with your consent and accurate information.’

Wrong again Mr Kirby. What are you talking about? The PPA has ‘full powers’? What do you think the PPA is – the dictator of some backward country bogged down in the Middle Ages? The only, very limited, power a PPA has, under regulation 37, is to ‘consider whether the degree of the pensioner’s disablement has altered.’ Where is the individual consideration in your sending out of letters and questionnaires to multiple recipients, all of whom are in the highest bands and thus represent the best prospect for the PPA to make reductions?

You can’t have your SMP make any assessment until you have carefully considered, in each individual case, whether a suitable interval has passed which will give good reason for the PPA to think a review is appropriate. You have not done that. Instead, you have gone straight to a process which is obviously intended to allow an unspecified someone to decide whether there has been an alteration in degree of disablement, largely on evidence of employment and earnings.

We do not think you have an inkling what degree of disablement is, or how any alteration is to be determined. Here is a clue for you. It is a medical matter, not a financial matter.

IODPA suspects that pensioners will be all too familiar with the authoritarian tone of a man who thinks he is in a position to order people to do his bidding. Pensioners, however, will know that he has no such authority. He has no power whatsoever to require anything of any private citizen, which is what all former officers are. He can ‘draw attention’ to the police pension regulations as much as he likes but even the most detailed reading of the regulations will not reveal anything which confers on a PPA the power to ‘require’ a single thing from any injury pensioner.

The questionnaire runs to six pages. IODPA will return to this most ill-intentioned document in full later. But for now, be amazed at how misguided the man is who thinks it is his business, his right, to ask you for details of your earnings, and then, astoundingly, requires you to sign consent to let him have HM Revenue hand over all details of your tax position, earnings and employment – since the date you retired.

To bolster up his empty demands for information, Mr Kirby then sees fit to issue what is an all too familiar nasty, and equally empty threat. He provides an Appendix A with his letter in which he seeks to tie his demands for information with a blatant but totally erroneous indication that failure to comply with all of his requirements will result in your pension being dropped to band one.

So, let’s round this up. We know that we are wasting our breath in trying to shock Mr Kirby into realising that he is just so very wrong in so many respects. He will, like all his colleagues across the country who have trodden this rocky road, go automatically into full defensive intransigent position at the first signs of any questioning of his plans. The only thing which will move Mr Kirby is when the PPA and SMP are ‘required’ to attend as respondents in a judicial review. And as sure as eggs are eggs that’s where Mr Kirby is taking his PPA and SMP.

Instead of trying to educate those who are deaf to reason and blind to accurate information, let’s close this by advising all injury on duty pensioners in Essex to file away Mr Kirby’s letter, questionnaire, and Appendix A for future reference. On no account complete the questionnaire. On no account give signed permission for the PPA to obtain medical or financial information.

Chief Constable Morgan’s open letter

Chief Constable Morgan’s open letter

Today Chief Constable Gareth Morgan, the Staffordshire Chief Constable placed an open letter on his website regarding the forces recent Police (Injury Benefit) Regulations 2006 reviews under Section 37(1), and the recent resignation of his Selected Medical Practitioner (SMP) – Dr Vivian, who informed us last week that performing the role of a SMP in relation to these reviews had, “been a major burden”.

It was our intention to seek permission to reproduce the open letter here, but as Mr Morgan who is a prolific Twitter user, has previously blocked us, we were unable to ask. The article has been marked as an open letter, and so we will reproduce it here in it’s entirety, and also provide a link to the original so you may read it in all it’s glory.

Open letter

21.12.2017

Pension review of retired Injured on Duty (IoD) officers

On 26 April 2017 Staffordshire 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. Injury Benefit pensions (commonly known as Injury Awards) are granted to retired officers who have been medically assessed as being between Band 1 (slight disablement) to Band 4 (very severe disablement). By law a review cannot result in an injury pensioner being reduced to less than Band 1 so they are never removed in their entirety.

Since this time, and after confirming my intention to continue the reviews after my arrival as Chief Constable, there has been misinformation and misrepresentation of facts in what appears to be an attempt to besmirch the professional reputation of independent medical practitioners and Staffordshire Police. A small number of individuals have set out to campaign against these reviews in a manner which my staff have described as akin to harassment and intimidation – much of it on line and in the public domain.

I have always recognised that these reviews can cause concern and we have committed to expediting the process for that reason. I recognise that everyone is entitled to a view and are allowed to express it. However, the conduct of individuals is such that the independent Senior Medical Practitioner (SMP) no longer wishes to conduct injury assessments for retired officers at this time. The assertion circulating that the SMP left because he was being required to follow the instructions of the force and act unethically is entirely without foundation.

Every care is taken to ensure the Police (Injury Benefit) Regulations 2006 and related case law are adhered to. I reviewed the process and sought legal and HR advice before confirming my intention to continue the reviews. I am entirely confident that the procedures comply with the regulations and are lawful, both in the way Staffordshire Police conducts itself and in the actions of the SMP.

So far, reviews have commenced for 34 people. To date, 13 have been completed and have reached outcomes, of which four IoD pensioners have had their banding reduced to Band 1. To date, three of these pensioners have stated their intention to appeal as is their right in accordance with the Regulations. Appeals are conducted by the Police Medical Appeal Board, which is independent of Staffordshire Police.

The pension benefit review has not been held in the interests of money saving and no savings are assumed in our forecast budget plans. In fact, the total cost to Staffordshire Police for IoD pensioners amounts to £3 million per annum.

The review is to ensure we are ethical and proportionate in the way that we use public money and to ensure there is a fair and consistent approach to all. The review will ensure that the pensioners continue to receive the appropriate level of award.

I acknowledge we have a duty of care to support IoD pensioners and we are fully committed to providing that support to the most professional of standards. This covers all 360 IoD pensioners we have in Staffordshire. I also have a duty of care to my staff which is why I am writing this letter to iterate that I will not tolerate the treatment they have recently received.

I would ask that everyone reads the information that clearly outlines the review process on our website pages. Appeals, complaints and concerns should be submitted through formal channels and not aired in such a way that discredits the working practices of my colleagues who are simply carrying out their lawful and legal duties.

Gareth Morgan

Chief Constable, Staffordshire Police

21 Dec 2017 17:00:08 GMT

https://www.staffordshire.police.uk/article/8802/Pension-review-of-retired-Injured-on-Duty-IoD-officers

He has stated that reviews are not being conducted to save money.

He has also stated that no-one can be reduced below a band one, despite Staffordshire Police clearly threatening to suspend awards if the IOD does not comply with their demands. (here is the before and after).

What saddens us is the need to blame extremely poorly pensioners for the reason for Dr Vivian to withdraw from the process.

We wonder how the Regulations and case law is being adhered to when we read there are at least three pensioners who are appealing.

Also, what was the end result of the other nine pensioners?

We notice that Mr Morgan has blocked any comments being placed after the article on the Staffordshire Police website, which sort of makes his rant one way. Never mind, we’ll be happy to accept your comments! As always, please make them constructive.

Finally we have to ask, is a “Senior Medical Practitioner”, a SMP who is somehow superior in position or authority to an ordinary “Selected Medical Practitioner”? Answers on a postcard.

Icarus – Injury reviews, too hot to handle.

Icarus – Injury reviews, too hot to handle.

Icarus : the son of Daedalus, tried to escape imprisonment by flying with artificial wings made of feathers glued together with wax. He flew too close to the sun, which melted the wax. Icarus fell into the sea and drowned.

Wednesday 13th December is a day that injured on Duty Pensioners in Staffordshire and across the country will remember for a long time to come.

On that date Dr Vivian, the SMP contracted to conduct Reg 37 reviews, has with immediate effect, RESIGNED from the process, stating that it has, “been a major burden”.

By a strange twist of synchronicity, Dr Vivian conducts his business through his company called Icarus Ltd. It seems that Dr Vivian has found things too hot for him. We have no wish to see him come to harm and his resignation may well be an honourable reaction to being in a situation which compromised his ethics.  But, will his departure cause those in charge in Staffordshire Police to give any thought to the adverse physical and psychological affect that the reviews are having on the disabled pensioners themselves?

Many of you will know, that since the summer, Staffordshire Police have been ruthlessly pressing ahead with reviews, with virtually every reviewed pensioner being reduced in banding or having been unlawfully threatened with loss of their pension for not providing their full medical notes or completing a questionnaire.

Dr Vivian has been at the heart of these reviews. Although pensioners are stating that he has been nothing but courteous and polite, he has been reducing people unlawfully and he has been making outrageous demands for medical records to which he, and the police pension authority, are not entitled. It is bad enough that Dr Vivian and his employer have been acting outside the law, but it is beyond all bounds of normal decency that the actions are accompanied with threats.

We believe that Dr Vivian is a decent physician who appears to have been misled by those paying his fees. His attendance at the laughingly mis-named National Welfare and Engagement Forum (NWEF), lair of the infamous and erroneous Nicholas Wirz and cronies, suggests that his independence is questionable. At those meetings he will have been subjected to abundant bad advice and copious misinformation concerning the duties and legal restraints which apply to the conduct of injury pension reviews.

A doctor should always look after his or patients without causing harm or unwarranted distress. Did Dr Vivian come to realise that he was being forced to sell his soul?

We understand that Dr Vivian has recently been under an enormous amount of stress over performing the role of the SMP during these reviews. This may have been caused by Staffordshire Police putting pressure on him to obtain the results that they want rather than leaving to him providing a fair independent expert assessment.

Dr Vivian has stated of SMP work that, ‘. . . it has a reputation of being highly contentious“. We at IODPA say in response, that If all reviews were conducted properly and fairly under the Regulations, then then there would be no need for stress and contention.

The SMP’s departure leaves Andrew Coley and Chief Constable Morgan in a predicament.

Do they now follow Avon and Somerset Constabulary who terminated reviews in June this year or do they continue to waste tax payers money on pursuing reviews?

IODPA continues to closely monitor events and sincerely hopes that Dr Vivian’s resignation will signal the beginning of the end of unlawful reviews and the abhorrent threats and intimidation which too many vulnerable disabled pensioners have been subjected to.