Regulation 37

“Uncontrollable” Staffordshire Police

iodpa Disability Discrimination, Equality Act 2010, newsflash, PEAM, Regulation 37, Review
“Uncontrollable” Staffordshire Police

Oh Dear.  The force labelled by the Daily Mail* as “out of control” has decided to victimise those former police officers, now medically retired, who became injured on duty whilst serving for it. (*we know some people refuse to read the Daily “Fail” but occasionally it does serve a purpose for campaigning journalism  – Press Awards Newspaper of the Year for 2016).

Staffordshire is infamously renowned for continually using the discredited and neither “lawful nor unlawful”  ©NAMF  Police Earnings Assessment Matrix (aka PEAM) to make everyone, retired from it with an injury award, a band one. Don’t take our word for it, Staffordshire admit the Regulations don’t mention PEAM and that they use it in this freedom of information request:

PEAM is used along with police staff earnings and appropriateoccupational earnings information to calculate potential earnings. It is not necessary for PEAM to be in the regulations as forces can utilise differing methods for calculating earnings.

 

PEAM and Bad Maths

In an example of unprecedented lunacy, it seems  as though Staffordshire, with the current Chief Constable Jane Sawyer retiring, is looking at compulsory reviewing any former officer who ISN’T a band one!

The irony is unparalleled given the degree of disablement of the  majority of Staffordshire injury awards were calculated using a flawed methodology and therefore falls foul of the Fisher judgement that ruled that any “thin in the extreme” reasoning and lack of individual application means the decision should not stand.

PEAM by it’s nature removes individuality and covers all of those piped through it with a generic blanket of defaults – all variables predefined by a spreadsheet algorithm.

So it amazes us that these people can’t read?  If only the HR minions of Staffordshire viewed our blogs.  The legal bill of paying thousands upon thousands of pounds could be avoided.  Equality law exists to prevent this discriminatory use of a discretionary duty.

To give you a flavour of what unlawfulness to expect, look at the first line of their ‘policy’ here:

https://www.staffordshire.police.uk/ibr

The purpose of the reassessment of Injury Benefit (otherwise known as an Injury Pension or Injury Award) is to ensure that the recipient (the Injury Pensioner) receives the correct level of Injury Benefit.

Wrong from the get-go.

A review (under Regulation 37) is not a reassessment.  Only after evidence of substantial change can there be any revision to the degree of disablement and it is unlawful to calculate a new degree of disablement to find substantial change.  It absolutely has nothing to with regressing to the ‘correct level’ of benefit … whatever that is!

We covered the ridiculous “goldilocks” syndrome some HR directors grasp hold of over a year ago- read the dismissal of it here.

Someone in Staffordshire thinks they know everything there is to know about the Police Injury Benefit Regulations.

https://www.staffordshire.police.uk/article/6977/Legal-Background

Oh dear, Oh dear.

Whilst every other force steps backwards, Staffordshire jumps into the breach.  They even think Regulation 33 can be used to force people to complete their invented questionnaire.

https://www.staffordshire.police.uk/article/6981/FAQs—Injury-Benefit-Reassessment#answer6985

Interestingly Gareth Morgan, the Deputy Chief Constable of Avon and Somerset, will be appointed Chief Constable of Staffordshire next month.

Let us remind you of the February 2017 press release this future Chief gave concerning the historical abuses conducted by a police doctor, and subsequently covered up by senior personnel.

“Anyone requiring a police medical examination held on police premises by a police doctor should have had an expectation of being safe. It is clear that the conduct of some of these medical examinations fell well below this standard.Deputy Chief Constable Gareth Morgan

Plausible deniability can not be argued by Mr Morgan.  He was in a senior post whilst Avon & Somerset thought mass reviews were a good idea.  He was also the senior investigative officer on the 2015 College of Policing’s scathing report on the horrors of ill-heath retirement.

It looks like we will reporting extensively on Staffordshire and we will do whatever we can to show them the true path.

Wirz loses High Court challenge

iodpa caselaw, earning capacity, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, newsflash, Regulation 37
Wirz loses High Court challenge

BREAKING: Northumbria and PMAB’s Regulation 37 methodology DEFEATED in a judicial review.
Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455 (Admin) (08 March 2017)

Nicholas Wirz, Northumbria Police’s principal solicitor as well as the National Wellbeing & Engagement Forum’s (NWEF/NAMF) self-declared legal advisor, has suffered a humiliating legal defeat over his unlawful interpretation of comparators used by many SMPs and PMABs to calculate earning capacity.

A feature length blog on the implications of the Fisher v Northumbria judgement will follow soon.  This judicial review quashes the decision of a PMAB panel that, in 2016, reduced him from a band 3 to a band 1.  It is the culmination of a 11 year battle fought against Wirz and Northumbria police.

Shockingly this isn’t the first time Mr Fisher has had his injury pension unlawfully reduced.  The Journal (along with The Chronicle, it is part of the North East’s most popular newspaper group) printed in 2008 a feature concerning the odious vendetta of Wirz against this former officer.

In March 1998 The Journal reported that his injury pension had been reduced before, by £1200, only to be restored on appeal.  The article described how Mr Fisher was medically retired from Northumbria police after being called to the Kirkley Hall mink farm on the outskirts of Ponteland, Northumberland, to police an animal rights demonstration, when a cross-breed Rottweiler sank his teeth into his lower right arm. The animal had been fed on the remains of dead minks and Mr Fisher spent five days in hospital undergoing numerous emergency surgeries when the wound became infected.

He needed almost 40 stitches to the gash and his injuries were so severe he lost full control of the fingers in his hand.  This incident was the culmination of fighting the symptoms of PTSD after being injured in an on-duty knife attack in 1992.

The Chronicle recently published that on Wednesday 8th March, Mr Justice Garnham allowed Mr Fisher’s challenge against the Chief Constable of Northumbria and the PMAB:
Bitten policeman battles off bid to slash his pension

The grounds lost by Northumbria have implications on any SMP or PMAB decision where the earning capacity was based on comparative earnings as well as where the decision made fails to give sufficient reasoning to identify, at least, the basis for the medical authority’s conclusion on uninjured comparators.

We will keep our readers up to date on the ramifications and discuss how a reconsideration, or the Pension Ombudsman, can be used to relook at unsafe historical revisions to injury awards.

The decision of the PMAB has been quashed by Justice Garnham.  Points 1 & 4 (below) were won in favour of Mr Fisher and the PMAB decision has been overturned.  Points 2 & 3 failed but the judge made it clear in his judgment that a reasoned decision of uninjured earning capacity has to be made by the decision maker.  The corollary is that picking random jobs has to be justified and reasoned.

The PMAB, as a delegated decision maker on behalf Of the Chief Constable, made the following errors in reaching this decision:

  • The PMAB erred because it failed to use the Claimant’s potential police earnings as the uninjured earnings comparator;
  • Further the Chief Constable erred in back-dating the effect of the decision to 27 February 2015 and thus claiming that the Chief Constable had overpaid the Claimant when, in law, the decision only took effect at the date that it was made by the PMAB and so there no back-dating.

 

Blowin’ in the Wind

iodpa Freedom of Information, police injury award, Regulation 37, Review, Review
Blowin’ in the Wind

“I sit on a man’s back choking him and making him carry me, and yet assure myself and others that I am sorry for him and wish to lighten his load by all means possible….except by getting off his back.” ― Leo Tolstoy, What Then Must We Do?

…and how many times must they say they must review
Before there’s no savings to be gained?
The answer, my friend, is blowin’ in the wind

This song speaks about humanity, war and peace and other ambiguous questions which people refuse to answer. Bob Dylan claims that the answers are already there.  In his own words:

Too many of these hip people are telling me where the answer is but oh I won’t believe that. I still say it’s in the wind and just like a restless piece of paper it’s got to come down some …But the only trouble is that no one picks up the answer when it comes down so not too many people get to see and know . . . and then it flies away. I still say that some of the biggest criminals are those that turn their heads away when they see wrong and know it’s wrong. I’m only 21 years old and I know that there’s been too many . . . You people over 21, you’re older and smarter.

We at IODPA have been piecing together some of the pieces of the electronic paper trail left blowing in the wind by police forces, and they tell a story of their true agenda concerning reviews of injury pensions.

Some forces are two-faced.

With their public face, HR managers bang on about how they have a duty to hold reviews. They point to the Regulations in support of this claim. With their hidden, private, yet so revealing face they chatter away about the cost of injury pensions and how reviews might save them money. The hidden face reveals attitudes towards disabled people which are close to being hateful.

So many times have disabled former officers been told about the supposed positive, statutory, power to review an injury award, whenever the fancy takes them, and we have seen how certain police pension authorities relish the task. They, just like Tolstoy’s piggy-backer, claim in the same breath that they are a reluctant agent; that their hands are tied and they have no choice in the matter.

Blow the health and sanity of those caught up in the review roller-coaster.

On every opportunity we’ve argued against this hogwash.  Repeating our assertion that the Regulations intend that a review should be a blue moon event solely dependent on the circumstances of the individual.

And then yet another piece of paper flutters down in front of us.  This time from Cambridgeshire Constabulary.

The latest IOD policy from Cambridgeshire is that as there are no savings to made then the ‘proactive’ review policy of the force will be suspended.

“That in the absence of current national guidance on Injury Award Reviews and the diminishing likelihood of accruing further savings, the current proactive review process be suspended. “

How very interesting.

It seems then, from this that the attitude of those in authority is the review provision within the Regulations is there to allow them to save money. This is about as far away from the true purpose and intent of the Regulations as it is possible to bend one’s thinking. According to Cambs, they review to try to save money, then stop reviewing when it becomes clear that there will be no savings.

Thus the ‘proactive’ review policy was always down to a desire to make financial savings and with the intention to reduce the band of those reviewed.

2.5       The process of carrying out first reviews has generated some savings through the reduction in bandings of allowance for some recipients.  However, experience shows that any further reductions in bandings is less likely as a result of second and further reviews.

Their ‘positive power’ to review evaporates as easily as turning off the tap.  When there are no savings they think there is no point.

Our message is, and has always been, that the true purpose of the review provision within the Regulations is nothing to do with ‘making savings’.  Any attempt to review on this basis is blatantly unlawful.

Cambridgeshire police pension authority has clearly fallen far short of the statutory legal requirements set out in the Regulations.

Cambridgeshire cannot say they inadvertently carried out a lawful duty defectively.  Once those defects become apparent or the authority was made aware of the legal issues, if, those defects go uncorrected and the action continues, it is our understanding from that point onwards those people working for the authority, and/or the authority itself, then commit the criminal offence of misconduct in public office.

Read their latest policy and decide for yourself.
http://iodpa.org/wp-content/uploads/2016/10/FOI-0871-2016-Injury-Awards-August-2016-FEB.pdf

(To go to page two move your cursor to the bottom left and click the arrow.)

 

“Preposterous” Awards

iodpa police injury award, Regulation 37, Review, selected medical practitioner, smp
“Preposterous” Awards

“Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well- warmed, and well-fed.”― Herman Melville

Were Melville commenting today, he might well have had disabled former officers in mind as the ‘poor’ and the Force Medical Adviser of Avon and Somerset Constabulary as their well-warmed and well-fed critic.  In Moby Dick, Melville frequently uses biblical and mythological allusions.  Like the Biblical Ahab, in Melville’s Ahab (and our well-fed critic) there is a desire for something that he isn’t entitled to and that isn’t good for him to have, to try to get it by foul means, and then to get his comeuppance in the form of an ironic reversal of his own evil deed.

Although not all injured-on-duty pensioners are in the dire straits of penury, they are all poor in respect of the way their injury pensions are administered. The habit of the pensioners is to be in constant bemusement over how those who have a duty to administer injury pensions within the law so easily, and so enthusiastically seek to pervert the meaning and intentions of the Regulations.

As we have repeatedly said on these pages, IODPA is not against reviews of degree of disablement. Chief Constables have a wide discretion on whether or not to conduct a regulation 37 review of degree of disablement. They can consider the matter at such intervals as may be appropriate. However, it is not appropriate to initiate a review as a potential cost saving measure.

Reviews can not be used to undo the finality of the last final decision even if a certain force medical officer considers the award to be “preposterous” (see below). We can only wonder just how he managed to come to that opinion. On what evidence did he base his consideration?

No matter what a FMA might think about any individual’s injury pension payment he surely must be aware that only a substantial alteration to the degree of disablement can permit a revision of the level of pension paid. Is the verdict of “preposterous” informed by a generalised assumption of some deficiency in the process of granting an injury award? The FMA must know that the causation and the substance of the award always remains final and can not be revisited at review.

We are writing here about not just any old FMA, but one Dr David Bulpitt MRCGP FFOM, who is the Force Medical Adviser of Avon and Somerset Constabulary. It is a telling reflection of the rather nasty and lawfully inaccurate attitudes prevalent in some quarters, that Dr Bulpitt appears to have an inflated ego of such magnitude that he wants to rewrite history and convert the decisions of his predecessors, into becoming his decisions.

Dr Bulpitt is not shy about voicing his rather skewed opinions on injury awards.  He is not even a run-of-the-mill force medical adviser.  He has a national platform – as the police representative for the Association of Local Authority Medical Advisers (ALAMA).  Listed as a speaker in past ALAMA conferences for Occupational Health physicians who are “set on delivering the highest quality services and the best standards in patient care in the most effective manner”, you’d have thought his words would always exemplify the motto of ALAMA: “communication, education, consistency and quality of clinical practice of doctors providing Occupational Health Services” .  Unfortunately for Dr Bulpitt, his words may well come back to haunt him.

As Will Rogers put it, “After eating an entire bull, a mountain lion felt so good he started roaring. He kept it up until a hunter came along and shot him. The moral: When you’re full of bull, keep your mouth shut.”

In an intemperate email rant to the Police Workforce & Capability Unit at the Home Office, Dr Bulpitt displays his frustration and impuissance.

It seems he might well be vexed over his inheritance of the historical legacy of decisions that he thinks ‘he’ would not have made, conveniently ignoring that such attempts at historical revisionism is forbidden by the Regulations.  An interesting stance, given Dr Bulpitt is not privy to the Zeitgeist and full facts which swayed the decisions of his predecessors.

His ego asks for more.  The finality demanded by the Regulations is an affront to his wishful view of how things should be if he were in charge, and he can’t control his craving to fuel his desire to remove the injury awards of those retired from the force he represents, sacrificing his medical professionalism and independence in the process.

Frustrated by his impotence to alter history, he contacted the Home Office to tell them how hard-done-by he his.

 

[…] I suspect that you might be aware that we have a group of pensioners that are organising a campaign to resist having their pension reviewed.

So blinded by his own peculiar view of the Regulations, Dr Bulpitt actually thinks that a group of disabled former officers, who in their working lives were intent on seeing that the law was upheld, are now campaigning against reviews, per se.  Dr Bulpitt not only has hold of the wrong end of the stick, he has the wrong stick altogether. We guess he is referring to IODPA. In which case, how has he missed the plainly, and oft-repeated, statement of our mission, which is to challenge all aspects of unlawful reviews and maladministration?

IODPA has never sought to frustrate legitimate, lawful review process, but, in Avon and Somerset, and elsewhere, finding a legitimate review is about as difficult as finding an honest, decent and professionally competent FMA or SMP  (difficult but not impossible – they do exist but the good ones tend to avoid the debacles and imbroglios that always shadow bulk review programs).

Dr Bulpitt’s email continues in a manner that, perhaps unintentionally for him, actually answers his question of why pensioners do not want their injury award reviewed by Dr Bulpitt or anyone connected to Dr Bulpitt.

 

The issue is largely one of the Constabularies making in my view because they are on preposterous awards, frequently 100% and have hardly ever been reviewed if at all. One appears  to never had anything wrong with them and another had a certificate stating they did not have a permanent condition but got an injury award anyway.

Who are the ‘they’ that Dr Bulpitt refers to? The group ‘resisting having their pensions reviewed’ are all medically retired former police officers unfortunate enough to be retired from Avon & Somerset and other forces across the country where the review process is clearly being managed contrary to the Regulations.

Among everything else wrong in his email, Dr Bulpitt has the nerve to call the deliberate unlawful actioning of recommendatory Home Office guidance that reduction to 0% of the degree of disablement all former police officers once reaching sixty-five years of age as, ‘acting in good faith’.  

Oh!  That’s OK then – it’s fine to carry out a public duty unlawfully as long as it is done in good faith.  It’s perfectly fine to make an almighty cock-up, so long as it was done in good faith. It is acceptable to drive a coach and horses through the Regulations, bringing huge distress to disabled former officers and their families, so long as it is done in good faith.

This may be arguable in a pursuit of proving misfeasance in public office, an intentional tort rooted in bad faith, but the tone of Bulpitt’s email shows his intent is as far a polar opposite to a ‘good faith’ mistake as is possible.  Dr Bulpitt’s unsolicited use of the term ‘good faith’ clearly shows he has the spectre of misfeasance in his mind; just saying it is all in good faith doesn’t make it so.

As sure as eggs are eggs, Dr Bulpitt wants to globally revise the award downwards of all those retired by Avon & Somerset.  If this isn’t bad-faith then what is?

Do you think Dr Bulpitt paused for a minute and thought, as he typed his email, that it’s no wonder that people don’t want to be unlawfully reduced just because he, as the current force medical officer with only the scantiest knowledge of the circumstances, thinks there is nothing wrong with them and they shouldn’t have the award in the first place?

Or perhaps he feels he has sufficient knowledge. If so, he has been trawling through sensitive personal medical data which he has no right to access. The implication from his remarks amounts to a self-admission that Dr Bulpitt freely rummages around in the personal sensitive medical records of former police officers without consent. If that is the case, it is shocking to say the least.  How else can he justify his generalisation that those retired in the past, ‘have nothing wrong with them’?

The bunker mentality seeps through the words of Dr Bulpitt.

 

Apart from a coordinated campaign of FOI  requests, subject access requests and so on, they have been put in complaints to the GMC about  our SMP. Not too dissimilar from the picture in many forces that I have worked with but this one  is far more venomous and a lot of work has gone into worrying pensioners and frankly trying to smear the OH unit and the SMP by the Pipin group

Hold on there, Doctor. It sounds like you are saying that all complaints, all requests for information, and every attempt by injury on duty pensioners to shine some light into the murky recesses of the shambles that is the administration of their injury pensions, is done to annoy and smear? What utter hogwash! What a frankly outrageous attitude to display by someone who is supposedly trained and skilled in the art of diagnosis. What an example of bias overcoming logic.

Doc, your diagnosis is wrong. YOU, and the other people who have not got a clue about how to properly administer police injury pensions, are the disease. IODPA is the cure. We challenge because we have been attacked. We seek information because none is freely given out. We point out deficiencies because nobody has the wit or the will to remedy them unless backed into a corner.

 It is people such as Dr Bulpitt and Dr Johnson, the SMP used by A&S, who are smearing the Occupational health unit. They are dragging the unit into disrepute by abusing the Regulations.  Uncovering the truth of what is really going on cannot be twisted into smear campaign.  Smear tactics differ from normal discourse or debate in that they do not bear upon the issues or arguments in question.  On this website you will only find disclosure and arguments that always bear upon the focus of unlawful administration of injury awards.

The unguarded admission by Dr Bulpitt is another example in a long line of examples of how far some public officials will go in attempting  to undermine legislation.

Frustrated that Avon & Somerset legal services advise that it is unlawful to reduce an injury pension banding where an IOD pensioner disagrees with the SMP’s report and withdraws consent for it to be disclosed to the police pension authority, Dr Bulpitt states that he is at a ‘crunch point’.

Prevented by the GMC to force the release of a report that a SMP makes on an individual and unable to revise an award without it, his considered reaction is to ask the Home Office to change the law for him to provide immunity for SMPs from oversight by the GMC.

 

I know that others have written about this but surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their  interests first?
…
Their insistence that we have to offer to share our report with the pensioner/applicant first is very difficult and potentially will prevent the review  of pensions if, as my legal department tells me, we cannot alter the pension without that report  and the pension authority cannot insist on it being released. They (the GMC) are adamant that  we must put the pensioner first and if that means not adjusting a pension to the correct level  then so be it.  My concern is also that this is getting so unpleasant for doctors we are getting very limited in our  selection of SMPs. FMAs are now very rarely employed and tend to turnover very quickly.

“We cannot alter the pension without that report”.  Rather a conspicuously revealing and graphic sentence.  He uses the accusation of a conspiracy to save money in a dismissive throwaway comment concerning a pensioner who was unlawfully reduced in – cough! – ‘good faith’ three years ago.

 

[redacted] is being investigated over a decision [redacted] took 3 years ago when [redacted] had been instructed to review a pensioner who had reached the age of 65 and drop their award (we now know that is incorrect of course but [redacted] acted in good faith at the time). [redacted] contacted the GMC but has been frustrated by the apparent lack of any understanding of the role. The pensioner had his pension restored at appeal but has now gone on a crusade, accusing [redacted ] of “colluding with the pension authority to save money”.

But “we” (not the independent and supposedly impartial SMP) want to alter the “preposterous” award, he says!

You can make your own mind-up whether Dr Bulpitt is seemingly in cahoots with others.  The use of “we” in the above context goes nowhere in quashing any suspicion that the SMP is not totally his own man and the goal is to alter the pension in all circumstances.  You don’t need to be a clairvoyant to predict the direction of the desired alteration.

The Faculty of Occupation Medicine, of which Dr Bulpitt holds the FFOM post-nominal, has a ‘Competency 4‘ that governs the relationship between the occupational health doctor and the patient.

The absence of the usual therapeutic relationship between patient and doctor does not exempt the doctor from his/her professional duties imposed on all members of the profession..

Dr Bulpitt appears adamant that this should not apply to some members of the public and it seems he thinks that the required doctor-patient relationship is absurd.

 

surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their interests first
…
The role is described as quasi-judicial but I see  little that is “quasi” about it. Surely it is not a doctor-patient relationship as we would understand
…
They (the GMC) are adamant that we must put the pensioner first and if that means not adjusting a pension to the correct level then so be it.

But it is not just the demands of the GMC, is it?  To be a FMA or a SMP the National Attendance Management Forum demands a prerequisite of membership of the Faculty of Occupational Medicine.  It is Dr Bulpitt’s own specialty designated body that demands the same compliance.

Given the Regulations are paramount and the Home Office refuses to release any central guidance in relation to injury awards, Dr Bulpitt continues forlornly, with a sigh of desperation and acknowledgement that some forces refuse to review contrary to the Regulations.

 

Can anything be done about this because we are in danger of the whole thing grinding to a halt?
So far as I know the Met are still not carrying out any reviews and have stated publicly that they  will not be doing so.

The Home Office sensibly skirts over the rant and calmly explains to Dr Bulpitt that the Regulations require a medical authority and the GMC therefore have primacy over the behaviour of any medical professional.

 

Hi David,
Thank you for your email. Whilst I understand your concerns and appreciate your comments it remains that as SMPs do fall within the remit of the GMC. You said that the GMC have been contacted to explain this issue but that the GMC do not seem to be understanding the role. Have any further attempts been made with the GMC to explain the role in further detail?
The Regulations state that the SMPs are being asked for a medical opinion and the fact that they sit under the remit of the GMC is something that cannot just be overridden through amendments to our legislation. It would be interesting to know more about the discussions which have been had with the GMC regarding this issue.
Kind Regards

Dr Bulpitt, and others with similar mindset, appear to have a clear appreciation or understanding of the laws that regulate their conduct in this area, but still they do their utmost to get around them.  When challenged, as we have so often witnessed in instances of other outrageous maladministration by public officials, they consistently fail to acknowledge that they have done anything wrong.

 

We are lucky here because our GMC liaison officer is very understanding and I took the  precaution of warning him that he would start seeing complaints. Thus far the GMC has not felt  any of the complaints against our SMP warranted investigation.  This has not necessarily been the case elsewhere

It is worrisome that Dr Bulpitt has apparently arranged an ‘understanding’ with the local GMC liaison officer.  Does this mean any complaint of wrongdoing is dismissed by the GMC responsible officer, regardless of the strengths and merits of the complaint?

Dr David Bulpitt’s position as Force Medical Officer has, we believe, become untenable with these shockingly offensive comments. He has demonised the entire population of disabled former officers who have injury awards, and his comments show extremely poor judgment and a surprising lack of sensitivity.

It is important that a doctor in a position of trust who is dealing with injured police officers and medically retired former officers enjoys public confidence and this is at risk with his continuing in the important role of Force Medical Officer.

We are so appalled at this insight into the recesses of the mind of Dr Bulpitt, and are so concerned about the bias and discriminatory attitudes which are revealed that we call for Dr Bulpitt to either resign quietly, or if he will not, for him to be dismissed.

If Avon and Somerset wishes to see a return to normalcy in its relationship with injury on duty pensioners and the emergence of good governance of police injury pensions, then this stumbling block named Bulpitt must go.

This is the full email chain.  Keep in mind if this is what Bulpitt sees as a measured email to the Home Office, what is he saying and doing in the privacy of his own office?

http://iodpa.org/wp-content/uploads/2016/08/38800-Annex.pdf

[hover the cursor over the page to read all 4 pages or to download pdf]

The Law of Laws …

iodpa Regulation 37, Review, selected medical practitioner
The Law of Laws …

“I am the law and you’d better believe it!” – Judge Dredd: 2000 AD prog 40.

We haven’t discussed for a while the landmark decision in the appeal of Metropolitan Police Authority (Appellant) – and – Belinda Laws (Respondent)- and – Police Medical Appeals (Additional Party).

A timely revisit of the basic principles has been provided to us by the Lake Jackson legal team involved in both the first judicial review and the appeal.

It’s important to remember that this opinion relates to the duty of the SMP, when the decision to revise the injury award has been passed to the medical authority – in other words the police pension authority has already considered, that there has been an alteration (“shall” so are referring the question of degree of disablement to the SMP: Regulation 30(2)(d)).

Police Authority v Laws is the leading authority on the correct application of injury award reviews under Regulation 37 of the 2006 Police (Injury Benefit) Regulations 2006. The leading judgement was given by Lord Justice Laws.

In the course of his judgement Laws LJ approved the decision of Burton J in MPA –v- Turner. 

The correct interpretation of Laws is that the Regulation 37 duty of the SMP (or logically the PMAB on appeal) is primarily a comparative exercise.

The SMP must consider the pensioner’s current degree of disablement [Regulation 30(2)(d)] at the date of grant or last review and then compare it with the pensioner’s current degree of disablement.

A revision of the pension, upwards or downwards, is only permissible where there has been a substantially alteration (paragraph 18 Metropolitan Police Authority v Laws 2010) in the degree of the pensioner’s disablement.

This may be occasioned by some substantial improvement or substantial deterioration in his/her medical condition or because of external factors such as the availability of a job or jobs which were not available previously but which are now available to the pensioner either because of the advances in medicine;  e.g. a very ergonomically friendly chair which allows those with chronic back complaints to sit and work at a desk for longer periods and/or changes in the employment market [‘The law degree point in Laws’] such as for example the greater availability of jobs in the private sector for officers with Counter-Terrorism training and experience. 

The right question for the SMP is not “what jobs can this person do today” because that would be a re-assessment of the degree of disablement and not a review.

Further the SMP is forbidden from calculating any quantification on the present degree of disablement unless the SMP has first concluded that there is a substantial alteration in the former officer’s degree of disablement even though HR used to instruct an SMP and often send them a list of suitable jobs before the examination had even taken place. 

‘Degree of disablement’ is defined under Regulation 7(5) as loss of earning capacity. Thus any earnings (or salary) in itself cannot be used to calculate a new degree of disablement and then be used to compare against the previous assessment to prove substantial alteration. 

This is consistent with the purpose of the statutory scheme as outlined by Cox J at first instance in Laws. The scheme recognises that police officers undertake an inherently dangerous job and the purpose of the scheme is to compensate officers for the loss of their careers and any loss of earning capacity going forward past compulsory retirement age and beyond.

Thus the earnings comparator is usually police pay whilst the ex officer is still within CRA. Afterwards the comparator becomes more subjective but the equation is usually the earning capacity of an injured officer as against that of an uninjured officer.

Another heresy is that an ex officer has no earning capacity at state retirement age. It is in any event inconsistent with state retirement being gradually increased to age of 70.

Project Fear

iodpa medical records, morale, Regulation 33, Regulation 37, Review
Project Fear

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

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

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

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

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

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

remove award

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

The questionnaire is a work of pure villainy.

Such guff deserves an appropriate response:

Dear Chief SuperNintendo Markey

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours Sincerely and with love

XX

 

 

 

 

Merseyside Police do not review Band 1 Injury Awards

iodpa police injury award, Regulation 37, Review, selected medical practitioner
Merseyside Police do not review Band 1 Injury Awards

“The people heard it, and approved the doctrine, and immediately practiced the contrary.”
― Benjamin Franklin, The Way to Wealth

The most glaring source of scepticism towards Merseyside Police’s affection for the Police Injury Benefit Regulations can be summed up in  five words: ‘they never review band ones’.

Merseyside Police recently set about conducting a mass review of the degree of disablement of former officers retired due to injury on duty, and who exist on an injury pension paid as compensation for those injuries. Merseyside conducted 502 such reviews last year.

We in IODPA have good reason to believe that these reviews were motivated by an intention to try to save money, and not by any concern to ensure that the pension Regulations were being properly applied. Merseyside was not looking to see if anyone was being paid their injury pension at too low band or too high a band, which would be appropriate if there had been some substantial alteration in their medical condition. No, they set out to see if they could reduce pension payments.

They accordingly started their review programme with those pensioners who are on the highest band of degree of disablement. The highest band pays the highest level of pension attainable, and, can’t be increased, but, Merseyside reasoned, might be reduced.

We revealed in an earlier blog how ‘only’ 25 individuals had their injury pension payments reduced. We don’t know by how much. We pointed out that it was beyond belief that not a single disabled former officer was found to be in a worse condition and given an increase in injury pension payment. Statistically, this lack of any increased pension payments is not possible.

The overall impression is that despite the fact that the Regulations impose on Merseyside’s Chief Constable (as the Police Pension Authority) a duty to ensure that police injury awards are administered fairly and lawfully, the Medical Retirement Officer (MRO) is happy to ignore the law when it suits him. It was the MRO who instigated and managed the reviews, and he has placed his Chief Constable in a very difficult position.

There are 880 individuals retired from Merseyside who receive an injury pension, 502 have been reviewed.  The remaining 378  are all on band one pensions – the lowest payments – and this force has a policy not to review people who have no possibility of having their awards reduced.

Merseyside has ensured our cynical view of its motives by admitting they don’t review band ones. This admission is the clearest possible illustration that it is Merseyside’s view that if there are no pips to squeeze, why get the juicer out of the cupboard?

Here is the admission, obtained via a Freedom of Information Act request.

FREEDOM OF INFORMATION REQUEST DJ 092/14 – RESPONSE merseyside
REQUEST RESPONSE
The Medical Retirement Office of Merseyside Police recently sent out a number of letters, together with a questionnaire, to former officers who are retired and in receipt of an injury award pension.

The letters requested that the recipient complete the enclosed questionnaire with a view to considering whether his/her injury pension should be reviewed.

The questionnaire is entitled, ‘Review Of Injury Award Questionnaire’

I am requesting the following information in relation to these letters and questionnaires:

1) How many have been sent out?

2) How many is it intended to send out within the next two months?

3) What criteria were used to select the recipients? When answering please pay particular attention to whether recipients were selected by reason of their age, or by reason of them being at or around what would have been normal compulsory retirement age for the force, or for reason of the degree of disablement of the recipient.

 1) The process commenced in 2014 and a total of 35 questionnaires have been sent out to date.

2) Within the next two months it is anticipated that a further thirty questionnaires will be sent out.

3) The criteria for selection of injury award review were based on Band 4, then Band 3, then Band 2. Band 1 will not be reviewed unless requested by the former officer and in that case they would be seen as a priority.

As the self-proclaimed architect of  Merseyside Police’s retirement policy, it seems that the MRO enjoys the privilege of making up the rules to suit himself, and ignoring the Regulations whenever the fancy takes him. We understand that he, as a matter of common practice, acts completely outside the restrictions of the Regulations and makes decisions that he is not empowered to make.

We hear that he decides who will get an injury award and who will be refused. He does this without benefit of medical qualifications, or any meaningful input from the force’s tame SMP or FMA. We believe that the 502 reviews of degree of disablement were done similarly, with little to no consideration of medical matters, and were decided on the basis of a person’s income.

Some police forces have been quick to declare they have a duty to review degree of disablement, citing a positive power to do so, often quoting that a SMP has ‘recommended’ when an individual might be reviewed.  However, these forces do not exhibit moral consistency when they ignore where a SMP may have advised, on a decades old retirement certificate, not to ever review the individual concerned. How many of the 502 who Merseyside reviewed had ‘no reviews’ or ‘no further reviews’ on their certificates? Where was the individual consideration whether a review was indeed appropriate?

The stench of of hypocrisy hangs heavily over Merseyside, but proves nothing about the topic – in reality there is no legal authority for Merseyside to say they won’t review band ones, en masse, just like there there is no legal requirement for a SMP to recommend when a review might take place, or to exempt someone from reviews.

Merseyside completely misses the point, which is that the PPA is required – legally required – to exercise discretion in each individual case. If the PPA (in reality the MRO with one eye on a bit of brown-nosing and career enhancement) decides to review all injury pensions, except for band ones, then there clearly has been not even an imperceptible nod in acknowledgement of the need to decide whether a review would be appropriate in each individual instance.

Below is the result of a recent Freedom of Information request which provides damning evidence that Merseyside will not rest until all injury awards have been reduced to the bare minimum.

FREEDOM OF INFORMATION REQUEST Ref. SM4011/16

REQUEST RESPONSE ADDITIONAL INFORMATION
In FOI request SM322/15 you state that the review was restricted to band 2 and above. Please provide me with the reasons that band 1’s were not reviewed. We can confirm that historically Merseyside Police have not reviewed Band 1 Injury Awards unless the review has been requested by the ex officer themselves The rationale for this approach is that the Force Medical Advisor, acting in the role of Selected Medical Practitioner, records on their certificate “No further review”. The pensioner is provided with a copy of this certificate confirming that this is the case. Therefore they have been formally advised that there will not be a review of their award.

The proposition that an administrative authority must act within the powers conferred upon it by the legislature may well be considered the foundation of Administrative Law. In Latin, ‘Ultra’ means beyond and ‘Vires’ means powers. Thus, the expression ultra vires means an act beyond the powers.

A Selected Medical Practitioner who writes ‘never to be reviewed’ on a former officers H1 certificate is acting beyond their statutory duty. They might have decided the person being assessed for an injury award will never work again, or their condition may likely never improve, but the Regulations do not bestow any authority to allow the SMP to declare that someone should never have their degree of disablement reviewed. Merseyside has seized on these ‘recommendations’ as reason to abandon the over-riding duty of the PPA to ensure that the correct level of injury pension continues to be paid.

What a SMP thought, some years ago, can never be more than a guess. Maybe an informed guess, but as nobody can predict the future, it is plain wrong to claim that a guess, made outside the Regulations, as a sort of extra-regulatory add-on to a certificate, should bind a PPA as to its future actions. If the PPA is claiming that these recommendations are binding, then the PPA is wrong. If the PPA fails to consider, from time to time, for each and every individual who is in receipt of an injury pension, whether their degree of disablement has altered, then the PPA is fettering the power of discretion which the Regulations require he exercise.

We also must question the reason behind any SMP recording on a certificate or in a report his opinion that an individual need not be reviewed. It is not beyond the realms of possibility, given the rampant corruption that we know is the norm in some forces, for the SMP to make that recommendation with the deliberate intent of ensuring that someone who should properly have been placed in a higher band of disablement is never seen by any future, more honest, SMP who would conduct a review and see that the original decision was flawed.

We pause here to speak directly to all the Merseyside pensioners who are on band one. We say, if you have reason to think that you should have been placed in a higher banding when granted your injury pension, or if you feel that your degree of disablement has substantially worsened since you retired, then you should seek professional advice – via IODPA – as any earlier decision on degree of disablement can be challenged by means of regulation 32-(2). That regulations allows the reconsideration of any earlier decision, without limit of time. So, even if you have been retired for many years, you can request that the PPA arrange for any earlier decision to be looked at again.

We recommend that you think carefully about the benefits of using regulation 32-(2) over simply asking the PPA to conduct a review. A review may increase your banding, but any increase in pension payment will commence from the date of the review. If you ask for and get a successful regulation 32-(2) reconsideration of an earlier decision, where the SMP decides you should have been placed on a higher band all those years ago, then you stand to be paid all monies lost by underpayment for all those years, with interest added.

When we look at what Merseyside are saying in the above FOIA response, we have to point out that  it is scurrilous to claim that pensioners were advised they were never to be reviewed. Merseyside could not make that ‘promise’ (or was it a threat?) without breaking into pieces a fundamental part of the Regulations, which is the provision for the PPA to exercise discretion over whether or when to hold a review. Merseyside could not bind any future office-holder’s power of discretion, nor could Merseyside effectively say that the individuals concerned would never experience any alteration in their degree of disablement.

The point is that the Regulations definitely do not allow a band one to be treated any differently from a band four. Merseyside has deliberately set out to deny all the people who are on band one injury pensions any chance of having their pension increased. The recent mass review unfairly discriminated against all former officers who are on band one.

Some HR managers may ask, ‘Why can’t a former officer be labelled as ‘exempt from review’?  The answer is that the Regulations do not confer the power of exemption upon the decision  maker. The decision maker under the Police Injury Benefit Regulations is the Selected Medical Practitioner (SMP) but the decision itself belongs to the PPA.

The way that decisions are to be made has been clarified by cases which went to Judicial Review, but it is still surprisingly common for HR managers to still not understand the profound subtlety of what His Honour Judge Behrens declared in paragraphs 66 and 68 of Crudace, R (on the application of) v Northumbria Police Authority [2012] .  HR managers seem to think that the decision is only for the PPA to make.  It isn’t – the decision is owned by the PPA but it is delegated to the SMP.

  1. He accepts, of course, that the actual decision is made, in the first instance, by the SMP or on appeal by the PMAB. He also accepts that both the SMP and the PMAB are independent. However he submits that the decision is still a decision of the Police Authority albeit a decision that has been delegated to the SMP/ PMAB by regulation 30(2) or 30(3). He referred me to paragraph 18 of the judgment of Laws LJ in Laws where he referred to the decision as being of the Police Authority (via the SMP/board). …

…68.It seems to me that the wording of regulation 37 makes it clear that the decision to revise the pension is the decision of the police authority. It follows, in my view that the decision of the SMP and/or the PMAB on appeal can only be as the delegate of the Police Authority. This is so even though they are independent and the Police Authority is bound to accept their decision as final (subject to reconsideration under regulation 32(2) and/or judicial review).

If the SMP records that it is his opinion that a person should not be reviewed for medical reasons then that is well within his medical judgement to say so and this shall carry weight in any future considerations but the SMP as the promise maker, nor the promise recipient, has any power to enforce it.

That being said there will have to be exceedingly strong and compelling evidence to allow a review if the previous SMP had declared that such a review would be harmful to the former officer’s health.  Just being a band one is not a medical reason and is as opposite to compelling as can possibly be.

The decision maker can declare that a review should be avoided if at all possible:  A SMP might well want to write,“In my medical opinion this former officer should never be reviewed as it will be to the detriment of his health” but such sentiment, or opinion, is worlds away from writing, “I have made a promise to this former officer that he shall never be reviewed”.  Some people reading this will have documents stating exactly that this –  that the last SMP they saw made such a promise to them – but unfortunately a substantive promise cannot be upheld if it is ultra vires.

A declaration made on a medical certificate recording “No further review” giving formal advice that there will not be a review of an individual’s degree of disbalement just because they are a band one is a travesty of not only the Regulations but also the foundations of administrative law.

The statute is clear that there are only two agents involved in the decision making process, the PPA and SMP – so how little weight shall be put on the decision of a civilian medical retirement officer who is telling the force medical officer to write on a certificate to never review someone purely because they can’t be reduced further?

Until Merseyside performs the necessary checks to make sure all the band ones retired from that force are receiving the correct award entitlement, that none of them have suffered  deterioration in their degree of disablement in relation to their earning capacity, and as a result of  these checks a relative proportion of the band ones are increased up a band, then scepticism of their true illegal intentions will forever remain.

Merseyside’s claim that band ones can self-refer themselves if they ever want to be reviewed is ridiculous, given many will not realise the option is open to them, and those that do know will not want to flagellate themselves by dealing with corrupt elements of an organisation which are determined to abuse the scope and purpose of the Regulations. Not a convincing argument by Merseyside Police to encourage a band one to volunteer to put themselves forward.

Remember, pensioners, and take note Chief Constable, that in 2015, in all the reviews of bands two, three and fours, not a single award was increased. Something is rotten in Merseyside, and the smell will only get worse unless someone takes a broom and a shovel and does some stable cleaning.

Nottinghamshire Injury On Duty Reassessment Program – Part 1

iodpa NAMF, National Attendance Management Forum, police injury award, Regulation 37, Review, selected medical practitioner
Nottinghamshire Injury On Duty Reassessment Program – Part 1
              A hypocrite is the kind of politician who would cut down a redwood tree, then mount the stump and make a speech for conservation.”

Adlai E. Stevenson II

Another definition of a hypocrite is someone who uses PowerPoint slides to say one thing to others although they value and believe something else entirely.

Recently Dr Ralph Sampson and Stephen Mitchel of Nottinghamshire Police (Notts) gave a presentation (perhaps using PowerPoint – other presentation software is available) at a National Attendance Management Forum conference (NAMF) to fellow NAMF delegates.

They were talking about how they do things in Notts.  The bad news for them is the former officers reviewed by them inform us that, not only are they confused about their statutory duty, they are selective in their own rules and advice.  Notwithstanding the rules used in Notts by Sampson and Mitchel, those that they wax lyrically to the NAMF audience, are predominantly worthless.

The presentation concerned how Notts are reviewing those former officers they have medically retired and awarded Injury Awards.  We have obtained the slides for the presentation and have put it out into the public domain. The talk given by Sampson & Mitchel sets out their intention to conduct reviews because of concerns over their obligated cost of paying the awards until the former officer expires at an average of 83 years of age. It also says that reviews are intended to assess degree of disablement. Both premises are wrong.

Constant readers of these pages will not be surprised to hear the conflict of interest of having Dr Sampson as not only the reviewing SMP, but also as concerned with cost savings as his Notts paymasters. Notts-IOD-Presentation.pdf

*click image & use arrows to view all pages

There are 17 pages to the presentation so we intend to spread the talk about the slides over a couple of blog posts.  But before will delve into the first few slides, let’s have a quick look at the words used by Sampson & Mitchel.

As expected with a NAMF presentation where the audience are eager to hear ways to reduce their financial commitments, ‘salary‘ is one of the most frequent words in the presentation.  This table shows the 6 words most prevalent:

programme salary medical band review smp
Word frequency count 6 6 7 8 10 10

The frequent use of ‘salary’ just shows what their real agenda is.

We can’t find fault with slide one.  It just contains the title of the presentation. [edit: A reader has found fault. The use of ‘reassessment’ (unlawful) in lieu of the correct term ‘review’ is indicative of a Freudian slip – thank you Whendie]

Slide two starts with the ‘background’ and mentions ‘earnings’.

2.Background

  • Reg 37(1) of Police (lnjury Benefit) Regulations 2006 Forces can undertake a review “at such intervals as may be suitable, to consider whether degree of …disablement has altered”
  •  SMP to make a determination if/ how much earnings capacity has been affected
    Band 1 (<25%)
    Band 2 (25% – 50%)
    Band 3 (50% to 75%)
    Band 4 (>75%)
  • Minimum = Band 1

The red highlighted text shows that either Sampson is ignorant of the Laws case (unlikely) or he is intentionally willing to review former officers contrary to it’s judgements.  They fail to explain how it is beyond all improbability that the interval is suitable to all the people they intend to review  by pure chance alone.

‘Earnings’ is a word synonymous with salary and has no place in a review. Use of salary as the only measure is a failure to  follow the judgement of Court of Appeal in Metropolitan Police Authority v Laws and can only amount to an unlawful reassessment where a former police officer could find his injury pension being reduced because of a difference of medical opinion on his capability for work rather than there being any real alteration in the officer’s degree of disablement.  Sampson can not just ‘assess’ the degree of disablement.

The finding of Laws is that the SMP (or board) is not allowed to consider the pensioner’s current degree of disablement and then compare it with the previous assessment. The duty – the only duty – is to decide whether, since then, there has been a substantially altered change.

The right question for the SMP is not “what jobs can this person do today” but the comparative exercise of “has the impact of the index injury on the jobs she/he can do today substantially changed from the position at the last review date”.

The Laws judgement was reaffirmed in the case of Simpson. The conclusion in Simpson is clear. There can be no new consideration of notional earning capacity (i.e. what the officer would have been capable of earning but for his injury) unless and until there has been a substantial alteration in his physical condition or his present job opportunities, that is to say that something has actually changed since the last review, other than the mere passage of time.

But this isn’t what the NAMF delegates want to hear so Sampson & Mitchel play to the desires of their captivated audience.

3.Numbers / cost

  • 380 + pensioners in receipt of an IOD award
  • £3.36 million per year
  • No programme of review for significant period of time, therefore no up to date medical information to ensure pension payments more accurately reflected up to date individual circumstances and ensure public money being spent wisely.
  • Notts Force Executive Board decision to commence programme of review – all Bands included; age under 70 for this programme of review

Slide three mentions the annual spend on injury awards (just to emphasis their mission to reduce this figure).  The point of ‘not having a reviewing program for a significant amount of time‘ is a non-sequitur. A decision not to review is as much an exercise of a discretional power as a decision to review.  Notts admit that they had consciously chosen not to review, and now they have changed their mind.  Not knowing the individual circumstances of any given former officer is down to them and them alone.  Never do these people think that once someone leaves the police service, they want to live their private life without the constant forensic examination and prying into their personal matters by their former force.  Not having a review program is no reason to justify a new programme – quite the opposite.

Not performing any reviews gives a legitimate expectation that is based on the principles of natural justice and fairness, a maxim that seeks to prevent authorities from abusing power.  A substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of expectation that they will be not have to undergo the trauma of a force reviewing them.  Not reviewing is as much a lawful representation as reviewing itself.

The last bullet point on slide 3 is revealing.  It was the force executive board that decided to start a review program, not the police pension authority.  In other words finance officers, estate directors and HR directors all decided it was a good idea.  The police pension authority is not a committee – it is the Chief Constable wearing a different hat.

4.Preliminaries

  • Letter sent to eligible pensioners Dec 2013 advising that a programme would commence
  • Tendering process for SMP (OJEU – with Derbyshire and Leicestershire) – SMP appointment Spring 2014
  • Process – Liaised with Federation; NARPO;
    Regional Legal Services
  • Retained HR Admin support identified
  • No Regional OHU involvement

Slide four talks about who Notts have liaised with. It also mentions that there has been no regional occupation health unit involvement.  Could this be because they have destroyed all the occupational information data they have and are reviewing people ‘blind’?  They have apparently briefed local NARPO as well as the local Federation.  This is mentioned in the slide as if such an action provides their review program with legitimacy.  There is no mention of how the liaison progressed or whether any objections were raised.

5.Process

  • Sequence of review – eligible former officers who saw SMP furthest ago
  • Batches of 15 – approx six weekly intervals
    Former officer sent (1) GP consent ; (2) OHU file consent; (3)questionnaire to complete
  • Letters – 3 stages – 28 days /14 days / 7 days
    Following receipt of consent form, GP records requested
  • With completed paper/work, SMP undertakes ‘paper review” to make a determination if there has been potential ‘substantial alteration’ since assessment / last review
  • If no substantial alteration – end of process
    lf substantial alteration indicated – former officer requested to attend meeting with SMP
  • Following assessment, SMP produces report and officer has 28 days to indicate whether they contest findings

Slide five exposes the process.  The bullet points allude to substantial change but here is where the hypocrisy lies.  There is no mention of change to the medical condition.  It is about salary and nothing else.

Note that Notts expect the whole procedure for the 3 stages to be completed in 49 days!  Notts also wants full medical records as well the notorious questionnaire to inaccurately condense decades of life into unrepresentative bite-sized chunks.  The true agenda here is to examine the smallest details: a minute examination to enable apportionment and to revisit the original decision.

How can a questionnaire determine the existence of substantial change when there is no previous questionnaire, completed back-in-the-day, that can be used as a base line? The closed questioning leads to answers being interpreted in such a way that you can accomplish much more on the good days than on the bad days, the HR functionary will ignore any detail concerning your bad days and focus ONLY on what you can achieve on a good day.

Be in no doubt that the SMP will not be the one to perform this paper shift. An health professional is too expensive to contemplate and  slide four stated that regional occupational health units will not be involved.  Using a SMP at this stage will cost at least £500 per person if a competent preliminary valuation of the former officer’s condition is conducted.  It is ludicrous to insinuate that for 380 former officers they will spend £190,000 just to consider whether there has been substantial change before they call the person to attend a face to face assessment with the SMP.

Mass reviews, blanket reviews, wholesale review programmes; they are all names for the same thing – always an attempt to reduce, never to increase an award.  They are a conveyor belt with a predetermined agenda.  For the former officer it is equivalent to entering a Mafia controlled casino where the dice man, pit boss and croupier all have complete control over the outcome.  The review casino is selling an illusion that they are paying due regard to the medical condition correctly and that they are abiding by the Regulations.

That’s it for part one.  Part two will follow in the next couple of weeks.

Merseyside’s Hatchet Man

iodpa Chief Constable, police injury award, Regulation 37, Review, selected medical practitioner
Merseyside’s Hatchet Man

Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my lords, that where laws end, tyranny begins.

William Pitt – Case of Wilkes. Speech (January 9, 1770)

A hatchet man is a person employed to carry out controversial or disagreeable tasks, such as the dismissal of a number of people from employment. Merseyside Police employ a hatchet man with the grand title of Medical Retirement Officer (MRO) whose role is more sinister and which adversely affects vulnerable disabled officers and former officers.

His task is to prioritise maximum savings to the force budget, ‘through the robust investigation of injury award applications, appeals and reviews‘.

We quote above from his job description. This is what the man is hired to do.  Not placed there to help injured and distressed people obtain their lawful rights, but to ‘investigate’ them with the objective of reducing the amount of money which would otherwise be paid them by way of recompense for injuries incurred in the line of duty.

There is only one way to read the intention behind the role of MRO. It is a perversion of what the Regulations governing injury on duty pensions were intended to achieve. We fully accept that no public money should be awarded without due diligence. All well and good if ‘robust’ was taken to mean that great care should be taken to comply with the Regulations, but we see that in Merseyside they believe that ‘robust’ means doing whatever they think they can get away with to deny injured officers and former officers their rights.

What Merseyside’s MRO is doing is unlawful. And it is shameful.

We in IODPA are not naïve.  We understand all too well that there has to be some form of administrative procedure regarding Injury Awards which requires management by a functionary of some sort.  That being said, the functionary needs to be neutral with no set agenda other than the lawful application of the statutory duties imposed upon the organisation by the Regulations.

We are, frankly, appalled to see that the job description of the Medical Retirement Officer ignores this principle and imposes an agenda upon the position which prioritises the needs of the organisation over the rights of the recipient. The job description includes sentences such as:

[. . . ] ensure that any changes to pension payments are implemented and financial savings made where appropriate.

There should be no thought given by the Medical Retirement Officer as to the financial consequences on the force of helping to ensure the Regulations are applied lawfully. His role is an abuse of the scope and purpose of the Regulations.

When we see that the Medical Retirement Officer’s main objective is to save money for the Chief Constable it becomes clear that he can not possibly be acting lawfully.

We know, for example, that he takes it upon himself to decide whether any applicant for an injury award application is seen by the selected medical practitioner (SMP) or not.

On behalf of the Police Pension Authority, who is in farcical fact, not an impartial body, but is none other than the Chief Constable wearing a different hat, the MRO blithely breaches the Data Protection Act by forensic examination of the confidential medical records and reports of individuals.

No wonder the Chief Constable of Merseyside finds it hard to arrange for the Regulations to be administered lawfully. He is under pressure to reduce spending, and police injury pensions consume a significant part of his budget. But, that is a pill he just has to swallow. He is under a legal obligation to administer the Regulations properly. He is not entitled to look upon them as an expense which can be trimmed.

I refer the Chief Constable to the case of The Police Federation of England and Wales v. The Secretary for the Home Department (Neutral Citation Number: [2009] EWHC 488 (Admin) Case No: CO/7612/2008). This case concerned the date when new commutation factors for police pensions were brought into law.

Justice Cox stated:

‘The Home Secretary’s undoubted interest in the expenditure of police authorities does not in my view enable her to alter those rights and liabilities which arise under the Regulations.’

And:

‘Affordability and public expenditure implications are therefore, in my judgment, irrelevant.’

It is not within the remit of any Chief Constable to direct an employee to save money by means of unlawful manipulation the Regulations. It is an abuse of his authority to specify in a job description that the MRO must approach his task with the objective of making financial savings. The over-riding intention of the Regulations is that people should be paid at the level which is appropriate to the individual circumstances. There is ample mechanism within the Regulations to ensure that this is achieved. Nobody should receive more that their due, and nobody should receive less than their due.

Merseyside has deliberately set out to ensure that the latter situation is the norm.

The MRO decides regulation 37 reviews without the benefit of any input from the SMP. He decides who has experienced a substantial alteration in degree of disablement, and who has not – and does this, not on the basis of medical evidence, but on whether the individual has increased earnings or not. He operates a rule of thumb, whereby if someone has seen an increase of over 10% in their earnings then, ipso facto, they must have had a substantial alteration in degree of disablement.

This is what he instructs former officers who are on an injury pension:

‘. . .  if you commence work or if you are currently working and your gross salary increases by over 10% you are required to inform this department as soon as practicable.’

We have to comment that the MRO has no authority whatever to ‘require’ any private citizen to inform him of a salary increase. Moreover, we feel like shouting at the MRO that a pay increase does not in any way signify that there will have been a substantial alteration in degree of disablement.

What the MRO is doing is creating an iron link between wages and disablement, when, under the Regulations, no such link exists. Disabled former officers are free to earn whatever they can, and their employers are entitled to give them a pay rise if they wish. A pay rise can have no possible link with the level of an individual’s degree of disablement. The MRO is using this as a means of reviewing degree of disablement, as an excuse for holding a review with no good reason, and as justification for reducing the level of pension paid.

Merseyside have corrupted the purpose of the Regulations and turned its provisions on their head for the sole purpose of ensuring that disabled former officers are robbed of their correct level of injury pension payment. The medical basis of assessment of degree of disablement has been abandoned in favour of an actuarial exercise where the cost exposure to the force is the bottom line.

While any question under the Police Injury Benefit Regulations is medical by nature and always requires the opinion of a SMP, in Merseyside the SMP seemingly does not make the decisions. The SMP acts only as a rubber stamp for the pre-made determination of the Medical Retirement Officer.  The Medical Retirement Officer is like an injury award hitman-by-proxy, getting paid to maximise cost savings for the Chief Constable, with no fear of any comeback.

Disabled former officers and serving officers seeking an injury award are kept in the dark. It seems very successfully, for few of them have the knowledge required to realise that they are being ripped off. Many of them are in no fit state to raise a query, and thus accept the decisions conveyed to them with no realisation that the decisions have been unlawfully arrived at. Put simply, they trust their force to do the right thing by them when injured on duty to the extent that they can no longer perform the ordinary duties of a police officer.

Clearly, that trust is sadly misplaced. There are some 880 former officers from Merseyside Police who are paid an injury pension. They need to wake up to the fact that they have, in all probability, been denied their proper pension rights.

Of course, a few individuals do raise queries with the MRO. They question his decisions. Some even manage to take matters to appeal via a Police Medical Appeal Board. Merseyside plays the numbers game. A deliberate calculation has been made, which concludes that those few individuals who do request an appeal to a Police Medical Appeal Board are far outnumbered by the majority who have no idea that they are being denied their rights.

The Medical Retirement Officer makes the decisions but never has to face the consequences. He never has to account for or justify his actions, as he is not the one who would have to be listed as the respondent at a PMAB, or at a judicial review.

The French have a term for such a position: éminence grise (French: “grey eminence”), a powerful advisor or decision-maker who operates secretly or otherwise unofficially.  An apt English phrase is ‘the power behind the throne’, someone who does not have the ultimate official position in a government or organization but who secretly controls it.

The Medical Retirement Officer is not a qualified medical authority – but is deciding what are essentially medical matters. He is making decisions for the Police Pension Authority, and we question whether he has the delegated power to do so. The Chief Constable has already delegated the day-to-day operation of his role as PPA to the head or director of Human Resources. Delegata potestas non potest delegari is Latin for a constitutional and administrative law, translated as, ‘no delegated powers can be further delegated’ and may well apply here.

According to Merseyside, a Medical Retirement Officer as well as having the skills to save the force money should also have:

‘A good knowledge of investigative procedures [. . . ].  Knowledge and understanding of the Regulation of Investigatory Powers Act with regards to surveillance and investigation of officers and pensioners believed to be falsely claiming compensation.’

Not only shall the Medical Retirement Officer have the principle duty to reduce financial costs to the expense of those injured on duty, but he is also let loose with RIPA.

Judicial approval should be the norm, not the exception, for placing members of the public under surveillance and public authorities should be compelled to report how and why they are spying on disabled persons by abusing powers that were introduced to protect us from terrorism and serious crime.

There is no room for RIPA in the administration and lawful application of the Police Injury Benefit Regulations.  Medical evidence is paramount. If the PPA has any cause to think that any individual is working the system, the regulation 37 allows for a formal review of the degree of disablement. The individual can be medically assessed by a duly qualified medical practitioner, selected by the PPA.

The SMP alone should make an assessment, and a decision, and once made that decision is final. Should there be any attempt to exaggerate one’s medical disability a qualified clinician should have little difficulty in spotting it.  If  fraud is suspected then this would be a matter for a serious criminal investigation and prosecution.  It is not open to a Medical Retirement Officer to use RIPA as a means to maximise the financial savings to benefit the force budget.

An injury award is not a benefit that has to be reapplied for – it is an entitlement for life and is final once the high bar of the initial grant has been attained.

Is all the above too hard to believe? Can you bring yourself to realise that a police force, whose job it is to prevent crime, could allow disabled former officers to be put at the mercy of a MRO whose objective is to unlawfully reduce their pensions, and to do whatever it takes to prevent injured serving officers being granted an injury award?

Here is the job description of Merseyside Police’s Medical Retirement Officer  as obtained in a recent Freedom of Information act request.

This job description shows all that is wrong with the way Merseyside, and some other forces, are administering injury awards.  The glib references to following Home Office guidance is a poor attempt of virtue signalling – making a statement that blithely mentions the requirement to ‘follow guidance’ because it thinks it sounds right and it will garner approval, rather than because anyone will actually believe it.  This job description was created in February 2015.  The Home Office partially withdrew their central guidance for injury reviews in March 2012 and then completely in February 2014.  There is no Home Office guidance to follow.

Instead, the Home Office now prefers to keep away from the misdeeds of Chief Constables and their hatchet men. The Home Office now says,

‘We would advise, in the event that such reviews are being conducted or considered, that police authorities should satisfy themselves that they are acting in accordance with the regulations and the relevant case law in the light of the decision in Simpson.’

IODPA suggest that the Chief Constable of Merseyside take a long hard look at what has been done, and continues to be done in his name by the Medical Retirement Officer. If the Chief Constable fails to act then our suspicion, that every breach of the Regulations committed by the MRO is done with his approval and encouragement, will be justified.

There are 880 individuals retired from Merseyside who receive an injury pension. There needs to be conducted and independent and scrupulously fair and impartial appraisal of how each and every one of their injury pensions have been administered.

 

Snakes, no Ladders

iodpa Degree of Disablement, morale, police injury award, Regulation 37, Review
Snakes, no Ladders

The only way is up down, baby
For you and me now
The only way is up down, baby
For you and me
Read more: Yazz – The Only Way Is Up Lyrics | MetroLyrics

“The Curious Case of Benjamin Button” is a short story written by F. Scott Fitzgerald and first published in Colliers Magazine on May 27, 1922.  The film version stared Brad Pitt but wasn’t as good.

Fitzgerald wrote a comic farce, which the film turned into a forlorn elegy. The film’s approach makes Benjamin the size of a baby at birth. Fitzgerald sardonically but consistently goes the other way: The child is born as an old man, and grows smaller and shorter until he is finally a bottle-fed baby.  He starts as infirm and dilapidated and becomes more healthier and youthful as he ‘ages’.

And? … you say, whether Benjamin started as a baby-sized old man or old man sized newborn is moot as both versions of Benjamin Button’s story is a fantasy – and what’s your point anyway? I hear you ask.  

A tragic story in the style of the great Fitzgerald could be written in the modern day as the telling of the story of the disabled former officer, injured on duty through no fault of his or her own, who as they age, they can only get better. In other words their degree of disablement can never, ever deteriorate by means of a substantial alteration and their degree of disablement never spirals upwards.

Is this still fiction?  No.  It’s happening in Merseyside.

No single person on a band one in Merseyside was reviewed in 2015.  Of the 502 reviewed they were all band two or higher, of these 25 were reduced and 477 unaltered.  But this force has 880 IODs, so what happened to the remainder?  The stark answer is that the 378 that were left alone and not reviewed were all band ones – just like Fitzgerald’s Benjamin Button, Merseyside has taken the view that they can only become healthier as time progresses.

Hang on though.  Is there more devious and nefarious  plotting going on here.  Could it actually be that Merseyside hasn’t reviewed band ones because this opens them up to the possibility of increasing the awards of those they review?  Enough of the grimly mocking  tone.  This is real and is exactly what has happened.

The Merseyside review process has deliberately ignored the tranche of IODs that can only have two responses if ever reviewed – increased, or kept the same.  This is not down to chance – this is overt maladministration in its dirty and unambiguous obloquy .  The blue in the below chart shows the band ones that were not reviewed against those higher bands that were.

MerseysideReviewedByBand

As mentioned before on these pages, we have data from most other forces concerning recent reviews and, overall, nearly 7% resulted in an increased injury pension payment – so, of the 502 reviewed, we should have seen approximately 35 people increased in 2015.   Not only are Merseyside deliberately failing to review those band ones whose degree of the pensioner’s disablement can alter only by virtue of his or hers earning capacity deteriorating, of those that they did review not one person was increased.  The probability of no person out of 502 being increased when 35 should be expected to be increased is 0.0000000049 (chi-square test). In context, the probability of winning the National Lottery is  0.0000000222.

In other words there is no fluke here,  no bizarre influence of chance that saw not a single increase in banding – it was deliberate.  As deliberate as ignoring all those who are band one.  Merseyside has acted totally contrary to the purpose of the Regulations and are unlawfully using reviews as a cost saving device.

If mass reviews could ever be fair then there is a prerequisite that it is more likely for someone to be increased as there is for someone to be reduced.  After all, time is by it’s nature degenerative – only Benjamin Button enjoys the opposite. It is a travesty that band ones are likely to remain trapped in the lower realms of percentages, unable to become upwardly mobile because they are deliberately ignored purely as a review of them will increase the forces injury award commitment and, in the absence of any knowledge that they can ask to be reviewed, likely to continue to struggle with an award too low in relation to their lost capacity to earn.

Too many snakes and no ladders.  For every snake, there should be a ladder; for every ladder, a snake.  But not in Merseyside – here there is one snake: the HR department.  And this creature is greased with slime.  Once down, there is no way back up.   This is not the purpose of the Regulations.  Merseyside are blatantly abusing their position as the administrator of the injury award system and should be held to account.

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...