Regulation 37

In the here and now

iodpa caselaw, Regulation 37, selected medical practitioner
In the here and now

“It’s being here now that’s important. There’s no past and there’s no future. Time is a very misleading thing. All there is ever, is the now. We can gain experience from the past, but we can’t relive it; and we can hope for the future, but we don’t know if there is one.”
― George Harrison

Imagine, if you will, that you are a 37 year old male police constable with 15 years service.  You weigh 75 kilos and have 32″ waist.  You have just run to work at a brisk 6 minute mile pace, performed a 14 hour shift and run home (or if you prefer cycling, you cycled the detour of 15 miles in a spritely average of 20 mph).  You are basically immortal.  Then you have an on duty injury, and after 18 months and numerous surgical interventions you are retired with an IOD award.

What relevance would your medical notes be at the time you were 37 and able to run the 5 miles to work in 35 minutes (or cycle 15 in 45 minutes) to  start that early turn?  How would looking to that past allow for an impression on your capacity to earn on the day you were retired?

Following this train of thought, how can your fitness or lack of it 3 months or 3 years ago be an indication of your present degree of disablement?  It can’t be.

Speculation into the future is forbidden when an IOD is awarded, and this speculation similarly is not allowed at a review.  The degree of disablement in relation to earning capacity shall be determined at the time of the decision and not make any reference to potential future earning capacity (South Wales Police Force vs Anton and Crocker)

The starting point is Regulation A12(3) [of the Police Pensions Regulations 1987]. It requires an assessment of how earning capacity “has been affected”, not of how it is likely to be affected. (1)

It goes without saying that a lot of people will have reports from the SMP saying, rather hackneyed, ‘might be capable of work in the future’ or at review, the vapid ‘has worked in the past’.  These opinions are unwarranted and contrary to the above case-law.  It is how you are now, not how you were before the review started, or 12 months ago, or in 12 months time.

This is important as the above melds  two things: (1), the argument that a great number of SMP decisions are unlawful if the above comments have been used to lower a band, with (2), the reason FOR a review.  If earning capacity in the ‘here and now’ is zero then the award should be 100% and if in the ‘here and now’ the former officer is still unable to work there is no legitimation to review.  At a review, past medical records do not speak of the ‘here and now’ – arguably very recent records do, but historical records do not.     The positive duty to review is a figment of the Police Pension Authorities’ imagination.  The duty not to refuse a review if circumstances change does exist and if in the ‘here and now’ there is substantial change then the award can be revised.

The regulations are not there for any force to regularly spend over a year punishing a former officer by dragging them through a protracted review.

Interestingly, how can a force make a decision 8 months after that person saw the SMP?  Surely after such a time of procrastination any decision can be appealed with an automatic appeal of  ‘change of medical condition’.  Life has moved on, health has ‘moved on’ but the SMP report looks in the past.  The person can not be reviewed again as an immediate review consecutive to the last is not a suitable interval.  The ‘here and now’ is important.

A review is time sensitive and should be finalised within a month of the assessment (if required) with the SMP.  Otherwise time makes a non-finalised review obsolescent.  It can not be any other way – if the detailed examination of the elements were conducted 6 or 8 months ago then the ‘here and now’ has ‘been and gone’.  The “[…]  assessment of how earning capacity [ ] has been affected”  is twisted into “will be affected” and this distortion does not conform to the regulations and is explicitly denied by case-law, so therefore is unlawful.

Any  decision made based on superannuated assumptions can and shall be appealed on basis of time without any need to question the content of the decision.

(1)

Substantial Alteration

iodpa Regulation 37, Scoffield, selected medical practitioner
Substantial Alteration

“When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”
― Edmund Burke, Thoughts on the Cause of the Present Discontents: Volume 1 Paperback: 001

A review of an Injury on Duty is an antonym to a Department of Work of Pensions assessment.  The latter is concerned with capability to work – it is often called a Work Capability Assessment.  It’s purpose is to determine whether disabled welfare claimants are entitled to Employment and Support Allowance.  It is a claimed benefit.

An Injury on Duty award is primarily an award for life in compensation for an injury sustained whilst on duty.  On-duty being defined as the following:

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received in the execution of duty.

It’s easy to keep repeating that the regulations state that the injury pension (award) is unaltered unless a substantial alteration is proved.  But what is substantial alteration?

David Scoffield QC raises this point in his report

“Broadly speaking, there appears to be two approaches to the interpretation of this word in case-law dealing with it in other contexts: that is to say, either that it means not insubstantial or other than de minimis; or that it means significant or large.“

“It is a known tactic that SMPs deliberately put people 1% above the neighbouring lowest banding in order to make it ‘easier’ for them to claim an alteration significant enough to reduce an award .Slight amendments to banding levels reducing from 26% to 25%, which could hardly be deemed substantial yet costs the individual affected thousands of pounds per annum.”

Scoffield cuts through this deviousness of the Police Pension Authorities and the SMP:  “

 1%-2%, which would otherwise not be considered to be a substantial alteration in the degree of disablement, might be considered to be a “substantial alteration” requiring revision of an IOD pension under regulation [37] simply because the percentage calculation happened to be on the borderline of two of the applicable bands. It seems to me illogical to say that such an alteration is substantial when, for instance, a percentage change of 20% or more would not be considered to be substantial, simply because the magnitude of change happens to be incorporated within one banding.”

So lets piece all of this together.  An example 6% drop for a band four originally on 80% is not significant or substantial by itself, so the reduction to band three is not permissible.  A 1% drop that straddles band 2 and band 3 is not substantial and no revision is permitted.

But arguing over the semantics of single figure percentages totally misses the whole-point – THE REVIEW SHOULD NOT HAVE OCCURRED IN THE FIRST PLACE.

For a review to progress to a SMP, there must be some change in circumstance. The PPA must ‘consider’ whether the degree of the pensioner’s disablement has altered, with evidence of an improvement or a worsening, in the medical condition resulting from the duty injury.  And that is the crux of it.

Substantial alteration is based on a comparator of the ‘here and now’ to the last decision.  Unlike an ATOS assessment it is not a measure of capability and entitlement, it is a measure of whether anything has changed – substantially.  Without any substantial alteration, it can not undo a generous award or uplift a miserly one.  If the person could work then and can work now, there is no change, irrelevant of the band previously awarded. No alteration to the medical condition, no change.  The status-quo does not amount to substantial change.  Managing a condition does not amount to substantial change.  A Police Pension Authority trying to rewrite history because medically retiring officers suited it’s recruitment policy does not amount to substantial change, nor does a PCC with a zealous chief finance officer.

If a tweak to a percentage is not permitted and a Lazarus type cure for a medical condition is unlikely to bordering ‘beyond impossible’ so what else can be classed as substantial change? Let’s discuss hypothetical new jobs that didn’t exist previously:  George Aldrich, Nasa’s “chief sniffer”  is a new position, but it’s filled. And it is arguably too similar to any other ‘taster’ say of wine or coffee; in any case when he’s not sniffing space dust he is a laboratory technician  – a job that has definitely been around for most of the modern era.  Space suit designer couldn’t be called a new job as it has too many overlaps with the existing position of a tailor.

It is hoped that the reader can see the tacit  finality of an award. A review is a rigorous and exceedingly stressful undertaking with a high standard to be able to revise it  – the regulations define it as an injury pension not a benefit.  The corruption that has allowed Police Pension Authorities to chip away at someone’s award by slowly reducing the percentage figure is not only unlawful but a horrendous breach of trust.

A Suitable Interval

iodpa Regulation 37, selected medical practitioner
A Suitable Interval

“Once obsolete, an automobile is thrown to the scrap heap. Once here and gone, the human life has likewise served its purpose. If it has been a good life, it has been sufficient. There is no need for another.”
― Luther Burbank

There is life after being medically retired with an Injury on Duty award.  There are new opportunities and experiences available that were not remotely imaginable whilst serving. Losing a vocation through no default of your own is hard enough and trying to rebuild a life with a disability  is a trial of Hercules … but it is possible and the rewards are there to be taken.

But how difficult is it to build a semblance of normality when you are constantly placed on a carousel of continuous reviews?  Reviews that have been instigated with an ulterior purpose  to reduce the award to the lowest permissible band as soon as possible.  Are you now a member of the public or are you still under the umbrella of a disciplined serviced with the compulsion to respond to an order of a review on the whim of the Police Pension Authority (PPA)?  How can you progress when there is an interruption of a zealous and watchful eye looking for any change even though any progress and improvement could be short lived and ephemeral.

Is a review 6 months post retirement suitable?  What about 18 months?  5 years?

A 6 month timeline may possibly be appropriate for a person with a band one or two degree of disablement to see if the condition has deteriorated perhaps, giving time to find some sort of employment and if none if forthcoming and  there is substantial worsening to the medical condition then the award can be revised upwards.

But a 6 month interval invoked by the PPA to see if the person is in any employment is not appropriate as a band two award states that the degree of disablement is between 25% and 50% so it can be expected that some capacity to earn is possible, so what is the purpose of a review after such a short period?  What happens if the review triggers a relapse of PTSD and the stress of a review combined with the difficulties of starting a new working life post being a police officer,  causes the mental illness to manifest more strongly and the employment is lost as a result – the paradox of a worsening of the index injury but with recent employment will not be viewed favourable by the PPA, with  their closed minded and misguided intent to reduce their financial commitments surely thinking the latter trumps the former.  Therefore a fair and suitable interval could be a further 6 months into the employment, once things have settled down for the former officer and the the employment is established.  An IOD award is for life and the peaks and troughs do not give an excuse for a knee jerk reaction by the PPA to change a statutory award.  Ultimately the finality and a stability of an award is undermined by the PPA’s determination to ‘prove’ the original decision wrong; that is the singular purpose of a review as seen by the PPA – always to reduce, never to increase. **

**note:  The two above paragraphs, although reality in a pragmatic sense, falls into the same trap that SMPs often stumble into  – “lets give a banding as a punt and then get the chap in a few months to see if I got it right”.  The regulations are apathetic to whether employment materialises or not.  The capacity to earn does not tally with actual employment or earnings; both are irrelevant to a person’s capacity … the terms ‘economically inactive’, ‘under-employed’ and ‘over-qualified’ alludes to this fact.  The bottom line is that the SMP makes a final decision of the degree of disablement and only substantial alteration can justify a review.  There is nothing in the regulations that allows for a ‘suck it and see’ approach. Once made a decision to the banding is final.  The SMP has no room to think he might get it wrong – he makes the award in the here and now.  An un-appealed IOD award banding once given is right by its nature of being given, and can only be ‘undone’ by a regulation 32 reconsideration.

If the person’s wellbeing is in the forefront of their mind then a review after 6 months is not the answer.  Why not ask a welfare officer of the Federation to check in with the former officer?  Ask how they are coping, suggest to the person that if their condition has deteriorated then they can self-refer themselves for a review, in their own time and  when they feel strong enough to face such a daunting  prospect.

What about a review every 2 years?  Is that a suitable interval?  Not if you are a band four with a severe degree of disablement of earning capacity.  If a review takes up to 6 months to complete then a review every 2 years will mean that in a decade you will have spent a full 2 years ‘under review’.  Intolerable to be living a  life that way.

Fundamentally  the timing of a review needs to be  dependant on the individual’s circumstances.  The timing of subsequent reviews requires a judgement by the PPA to allow the former officer to live before being reminded of a past life.  If after 5 years there is no change to the circumstances of a band four then arguably there is a strong case for no further reviews in that person’s lifetime.  If nothing has improved after 5 years, then what can change in the autumn years of that person’s life?

The answer to these conundrums is to ask questions of the PPA. Whenever notified that a review is to be arranged, the first response of any pensioner should always be to ask, Why? Why me, Why now? Get the PPA to qualify its interpretation of a suitable interval. Chances are that the PPA (in reality some bod in HR) will not have given it a moment’s thought. Explain to the HR bod that ‘suitable’ infers that the interval must be right and appropriate for each individual. Ask them to explain their understanding of what constitutes a suitable interval, in general terms, and in the particular circumstances of your case. Ask if they have a policy, or a procedure for considering if a suitable interval has passed. If the PPA can’t answer the questions, then arguably the legitimacy of the review fails on the first hurdle.

It has been the habit of forces to think they have unlimited power to hold a review whenever they liked. Some even set up schedules or programmes when reviews would be conducted. As mentioned, others have a policy – reviews every two years, or five years. Tellingly, and ultimately fatal to all who claim that regular reviews are a ‘duty’ there is nowhere to hide from a history of having either held no reviews or having told people they would never be reviewed. It is as legal, and as legitimate, for someone to decide there will be no more reviews as it is, when done properly, for a PPA to decide to hold a review. They can’t claim a duty to review when it is evidential that they have not held reviews. They can’t have it both ways.

Let David Scoffield, QC have the last word. He is the eminent Queens Council who was commissioned by the Policing Board of Northern Ireland to look into the administration (shouldn’t that be maladministration?) of police injury pensions that side of the water, where the Regulations are pretty much identical to ours.

He recommended:

‘There should be a move away from automatic review for all cases at any fixed interval set in policy. The judgment as to when a review is appropriate should be made on a more case-sensitive basis, driven particularly by medical advice on this issue from the SMP and/or IMR (although it ought to remain open to an officer to request a review himself at any time and the Board should also retain the right to initiate a review at any time if information comes to its attention identifying an apparent relevant change in circumstances). SMPs and IMRs should expressly be asked to provide the Board with advice on this issue in their completion of reports.’

Fishy Business or When a Review Should Stop

iodpa Regulation 37, selected medical practitioner, smp
Fishy Business or When a Review Should Stop

Fishing Expedition
· Examples· Word Origin

noun, Informal.

1. a legal proceeding mainly for the purpose of interrogating an adversary, or of examining his or her property and documents, in order to gain useful information.

2. any inquiry carried on without any clearly defined plan or purpose in the hope of discovering useful information.

So, imagine you are a well paid, supposedly professional and experienced HR manager, (let’s say you have the initials of CJ), who knows the difference between a haddock and a kipper, who has been given orders from your Business Manager (with perhaps the initials of CW), who in turn has had instruction from the Chief Finance Officer and the Police and Crime Commissioner.

You have been tasked to send review notifications out to disabled former officers who have had no contact from the force since retiring due to injury on duty for at least a minimum of 12 years ago and some, in fact most, who have been out of the job for 15 to 20 years. You’ve been told to start a programme of reviewing injury pensions, beginning with those which have the potential to cost the most over the long term. According to the bean counters, who have less knowledge than even you of the Regulations governing police injury pensions, these are the pensions which offer the tempting best prospect of providing the greatest savings – if only a way can be found to reduce the payments. It might take a bit of imagination, but let’s say, for instance, that you could get a patsy in the form of a ‘duly qualified medical practitioner’ who would be prepared, in return for a fat fee of around £500 a time, to find a way around the ethics of the medical profession and the Regulations and declare that this person and that person has had a miraculous substantial improvement in their disability. Bingo! Kerching! Three cherries in a row! Done up like a kipper!

You know nothing about these disabled former officers, as in many instances no personnel records exist, having been destroyed due to the force’s retention policy. And there’s no way you are allowed to view the occupational health records due to an irritating little impediment called the Data Protection Act. You can’t quite understand why anyone would object to letting you read all about their private personal medical history. Patient confidentiality – it’s a bugger, (shame that). You only know these people are on band four so are severely disabled in regards to earning capacity. The fact that some may have mental illness such that that the stress of a review could send them into a catastrophic life changing adverse reaction. Tough, you think, much as did the train driver to Belsen-Bergen, I’ve got a job to do, and by golly I’ll do it no matter who objects.

Do you pause for a moment and think that it might be appropriate to ask the force medical officer to review the medical notes the force does have, to see if a review is in fact appropriate? No, that would be the right thing to do, but you’ve got targets imposed on you by the higher powers. The train is in motion and you can’t stop it – more than your job is worth – someone else’s responsibility. You may have even been told that everyone retired with an injury on duty award are earning 6 figure salaries and driving Porche Cayennes and ought to be reviewed – how dare they be retired on an ‘award’ you might think.

So you send the letters out. But not before you spice the letters up and say you are reviewing the recipient due to the financial constraints to the force is under. Nothing like telling them your agenda from the start. As an added incentive to make the pensioners take your cunning plan seriously, you throw in a questionnaire which asks them how many cars they drive and how much they earn and threatens them with either prosecution if they make an error with their answers or reduction or suspension of their injury award if they mess you about. Never mind there is no lawful way of doing that – they won’t know as they are just dumb ex-cops. And, oh, while I am at it, can I have your signed permission to contact the DHS and HMRC so I can get to see how much money you have?

You realise that you might be onto a sticky wicket when the former officers start asking questions. Like, why are we being reviewed now? You have ignored me and my welfare for the last twenty years so why the sudden interest? Where is the individual case by case objectivity? You give out some baloney about a SMP will look at your medical records and decide whether a review is actually required (whilst crossing your fingers behind your back), fully aware that your pet stooge SMP fully intends to interrogate every single one of them without exception no matter what they say.

Despite having no circumstances to justify a review, no evidence to indicate whether there has been any improvement in any individual’s degree of disablement, no evidence of the substantial alteration needed by law before an injury pension can be revised, you know that your SMP will find the ‘evidence’ by hook or by crook. He’ll even try to con his way into getting agreement to let him look at medical records that date from birth to see if he can give his expert opinion that the back injury was given by the midwife’s forceps, not during the reported polacc.

But you come across a problem. You’ve made someone extremely ill as a direct response of your actions. Someone who has just been trying to survive for the past 15 years, barely hanging on to life by their fingernails and who can’t deal with the process. If you’d got the force medical officer to read the notes beforehand you would had known that this person’s health is in such a delicate state that he is unreviewable. Nevertheless, you think that what you haven’t bothered to look into you can’t be blamed for, so you demand he attends the occupational health unit and you get your SMP to grill him like a turbot for 90 minutes anyway.

The mental anguish of someone already suffering from PTSD means they are unable to deal with abnormal events such as a review. The experience is so traumatic that after the grilling by the SMP they have to go to the community mental health crisis team. The relapse is huge and his clinicians write to you to say this person is no better this year than he was last year, or the year before that, or the year before that. In fact, the duty injury ruined his life and his health and your review is making things worse. But you wouldn’t know, because you and your predecessors have not bothered to enquire after him or to ask him how he is coping. This person is borderline suicidal. Clinicians write to you some more, pleading for you to back off. But you and your tame SMP are adamant that just because an expert psychologist says someone has deteriorated there is no reason to believe it.

So you’ve waited a year since first notifying the intention to review and 6 months since dragging this person before the SMP. He must be stewed enough now you think. You have a brainwave. Send him a letter saying he is too ill to be reviewed now but you’ll postpone the review for 3 months until there is some improvement. Yes that’ll do it. If these people aren’t better then we will wait until they are better! Brilliant! No matter how long that takes I’ll keep the review open until I get the result I want. Why ever end a review with a decision when we can keep a review going for infinity? Don’t have to bother with a suitable interval or a PMAB appeal this way, I will surely get my bonus this year, you think, and maybe some recognition from the HR professional associations. Sheer HR genius – I ought to write up a presentation on this to give to the next meeting of the NAMF. Nothing fishy about that.

Note: This is a true story and the protagonist HR professional is employed by Avon & Somerset Constabulary.

NB: The sassy gallows humour tone of this post is a front to cope with the true fiendish actions of HR. It is no way intended to lessen, or be disrespectful of, the horrendous affect it is all having on the former officer mentioned.

What they know …

iodpa Regulation 37
What they know …

Do you know what is in your occupational health?  Could there be a memo. a letter or some handwritten notes that show that the force did not act within their lawful duty when they made the decision to retire you?

It is foolhardy to attend a review they have instigated upon you without knowing what information they have on you beforehand.  A Subject Access Request (SAR) under the Data Protection Act is a method to get full disclosure of personnel records and occupational health files and should be the first action if ever called to a review of your injury on  duty award

https://ico.org.uk/for-organisations/guide-to-data-protection/principle-6-rights/subject-access-request/

Once submitted with a form of identification (such as a photocopy of a passport)  and a £10 cheque, you should receive within 40 days the required information. Then you will not be entering the process blind.  Indeed there may be something within the file that indicates that any previous decisions were unsound.

A template letter can be found here:

https://ico.org.uk/for-the-public/personal-information/

There is nothing stopping you from putting in a SAR once notified they are starting a review process and then another SAR once the review has completed.  The second request should specify all handwritten notes made by SMP during the assessment.

You might also discover that they have destroyed your personnel file under some internal  retention policy.  If so it can be argued how they are going to compare your skill set when they have no record of what skills you gained during your service.

Just don’t go there …oh! Too late, you did.

iodpa Regulation 33, Regulation 37, Review, selected medical practitioner, smp
Just don’t go there …oh! Too late, you did.

Just Don’t Go There

“A fishing rod is a stick with a hook on one end and a fool at the other.”

Samuel Johnson (1709-17840

When a police pension authority decides to hold a review of an injury pension it is not entitled to pack some sandwiches and a flask of tea and go on a fishing expedition. It can’t itself, or via the SMP, try to second-guess or overturn earlier decisions, whether made when an injury award was first granted or at an earlier review.

Regulation 37 is perfectly clear on this, yet foolish forces mysteriously seem unable to grasp the fact. The quote below is from the Court of Appeal judgement in the case of The Metropolitan Police Authority vs. Belinda Laws, where the court was considering the fishy argument of the Met that the SMP could revisit, and thus come to a different view of the factors which led to earlier decisions. The court rejected this argument, stating, in effect, that earlier decisions were very much final, as were the facts on which the decisions were made:

“18. So much is surely confirmed by the terms of Regulation 37(1), under which the police authority (via the SMP/Board) are to “consider whether the degree of the pensioner’s disablement has altered”. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

19 In my judgment, then, the learned judge below was right to construe the Regulations as she did. Burton J’s reasoning in paragraph 21 of Turner, which encapsulates the same approach, is also correct. The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners. Strictly that is so. But the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.

Why then do doctors Johnson and Bulpitt think they are permitted to look for information in someone’s medical history which might reveal something about apportionment or causation?  The former is the SMP put in post by Avon & Somerset Police Pension Authority and the latter the substantive Force Medical Officer from Avon & Somerset Police.

Take a look at the email below, in which Dr Bulpitt actually mentions in the same sentence, ‘apportionment’ and ‘attribution of cause’! He is arguing that the SMP should have full access to any individual’s medical records back to the year dot. He wants to see if something is ‘concealed’ which might let the SMP come to a different view which would allow him to call into question earlier final decisions.

The foolishness of these two medical worthies inquisitiveness is disturbing. They may know the difference between a wart and a boil (not that I would trust either one of them to remove or lance any such disfigurements on my body) but they seem to known diddly-squat about the seminal appeal court decision in the case of Laws.

The simple fact is that SMPs conducting a review of an injury pension are not allowed in any way to revisit apportionment or causation. (Apportionment is the tricksy ploy of saying a disablement is partly or wholly due to a non-duty injury or pre-existing condition, and causation is the SMP looking for something other than injury on duty having caused the disablement.)

bulpitt

Ha!

Has there been substantial alteration in degree of disablement since the latest of either the last review or original award? That is the only question the SMP is allowed to consider. Medical history prior to the injury award being given (or prior to the last review) could not speak to that, only to the question of the correctness of the original award or the award on review. That is the very thing which the case of Belinda Laws rules unacceptable. Further, Laws was followed and confirmed in the case of Simpson vs. Police Medical Appeal Board in the High Court in 2012. The principle is beyond doubt. The SMP can not access whatever medical records he wishes. That is the very thing that Avon and Somerset is getting wrong at the moment. (Unfortunately, it is not the only thing.)

In a later email, Dr Johnson says he will be ‘robust’ on those former officers who refuse to disclose full medical records.

johnson

Regulation 33, of the Police (Injury Benefit) Regulations 2006 states that if any person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then the police pension authority has the discretion to make their determination on such evidence and medical advice as they in their discretion think necessary.

A pensioner is being neither wilful nor negligent should he or she point out the law to an erring SMP, nor does the regulation mention access to medical records. In fact, drawing the attention of the SMP to the fact that not only has his hook got no bait on it, but his dog is eating his sandwiches is doing him a great service, as it should prevent him from acting unlawfully.

There is nothing in the law which would suggest to former military gynaecologist Johnson that he could say the Regulations allow him to have a full picture. His statement is either a bare-faced lie, or a display of pure ignorance.

Surely even a pilchard like Johnson has the ability to read the Regulations and see that?

Regulation 32

iodpa caselaw, pmab, reconsideration, regulation 32, Regulation 37, selected medical practitioner
Regulation 32

Everyone in receipt of an Injury on Duty award mostly understands the implications of the discretionary power to review, namely regulation 37.   As described previously on other posts it is frequently an abused power with reviews instigated by the police pension authority, on their whim, so that they can fulfil financial constraint reduction targets.   Rarely does a pensioner with a substantial deterioration in their medical condition request a review themselves – Avon & Somerset has only received 2 self-referred requests for a regulation 37 review in the past 10 years. https://www.whatdotheyknow.com/request/pensions_6

The same story is repeated nationally. Too many IODs are living their lives with degenerative conditions brought on by their qualifying injury received in the execution of their duty without wanting to resurrect the pain of dealing with their former force’s bureaucracy.  So they continue on, living on an award banding lower than what they should be entitled to.  The point I’m clumsily trying to make is that if no IOD recipient thinks of requesting a review, it is not surprising to hear that no one knows that there is a power to ask for a reconsideration.

Regulation 32 became more widely known as a direct result of the the unlawfulness of home office circular 46/2004.  Between 2003 and 2009 hundreds of reviews were used to reduce former police officers to the lowest band due to the fact that they had reached the age of 65.  Despite the hardship this caused only a few had the mental strength to appeal and it wasn’t until the first Judicial review in 2009 that the light was shined on the illegality of what had happened.  By then those affected had missed the strict deadlines to lodge appeals.

The case of Haworth explains this clearly.  This was Northumbria again on their mission to ruin lives, guided in their quest by their legal advisor Mr Wirz.  Susan Haworth was retired on an injury on duty award and medical pension in 1995.  In 2005 she was reviewed and had her injury award reduced.  The decision was taken to the police medical appeals board (hearing in 2006) whereupon the board further reduced the award to the lowest band, a band 1.  Both the SMP in 2005 and the board in 2006 revisited causation and unlawfully attempted to claim that Susan had pre-existing conditions and then applied apportionment.  This was not permissible and was outside the task which they had to undertake under regulation 37.  Susan did not take the fight further (she was unaware she could challenge it at the time) until she realised several years later, after Laws V PMAB in 2009, that the decision made against her was unjust.  So in 2010 she sought advice and submitted a request for the 2006 decision to be reconsidered under regulation 32.

Here is an excerpt of the letter from her solicitor requesting the reconsideration:

‘It is against the background of the decisions of the SMP and the PMAB that Mrs Haworth is seeking a reconsideration under Regulation 32(2) of the Police (Injury Benefit) Regulations 2006. The detailed reasons for seeking this review (sic) are set out below, however in essence the decisions of both the SMP and the PMAB were not made in accordance with the relevant regulations , as it is clear that the SMP…..revisited causation as to the original final decision made at the time of Mrs Haworth’s ill heath retirement in May 1995, and the,PMAB ….then proceeded to apply an apportionment, again to a final decision made in May 1995. Both of these decisions are therefore unlawful, and not made accordance with the Injury Benefit Regulations.”

Typically and acting to type, Northumbria refused the reconsideration.  The refusal was taken to judicial review and Haworth won the right to have a her case heard under regulation 32.

The importance of Haworth is not only that it brought to light that a police pension authority needs a robust reason to refuse a request for a reconsideration – more than Northumbria’s claim of “It is important that final decisions, once taken, remain just that” and that Mr Wirz’s submission to the court that ‘re-opening of old-cases will affect the authorities budget’ is irrelevant to the matter at hand .  But also that there is no time limit to restrict the use of regulation 32:

“I cannot accept that it is lawfully open to a police authority to refuse a retired officer its consent to refer a final decision back to a medical authority for reconsideration under regulation 32(2) simply on the grounds of delay, even inordinate delay, in other words passage of time since the decision was made, without any consideration of the underlying merits of the matters which the former officer seeks to pursue on such a consideration”.

The power to demand a reconsideration is therefore unfettered by time and is always available as a viable option.

So what advantage does a reconsideration (reg32) have over a review (reg37)?   If a review (or the original decision that the review is based upon) is using the wrong diagnosis, if there is undue apportionment, if causation is incorrect, if a previous final decision was contrary to regulations; a further review can not fix the fault.  That fault will remain now and in future reviews for eternity – the comparator always is the last final decision whether or not that final decision was wrong. A review is blind to the legitimacy of the last decision.   So the only way to wipe the slate clean and have future reviews looking at the correct factors is to have the previous decision(s) quashed and regulation 32 provides a mechanism for this to happen.

The opening of Pandora’s box

iodpa Regulation 37
The opening of Pandora’s box

“They gave Pandora a box. Prometheus begged her not to open it. She opened it. Every evil to which human flesh is heir came out of it.
The last thing to come out of the box was hope. It flew away.”
― Kurt Vonnegut, Timequake

Its been previously mentioned on these pages that a injured officer is rarely injured out on good terms with their former force.  Quite often management are uncaring and HR professionals become  zealous and officious during the administration of the retirement process.  Then the former officer has to adjust to the outside world without any assistance.  The silence from the force is then deafening – exiled and forgotten. Life moves on, years pass and some resemblance of normality mists over.  Grievances are shelved but not forgotten.  Any thoughts on the major maladministration of the medical retirement  is suspended, if the decision was unlawful, a pragmatic view of letting sleeping dogs lie is the default option for the former officer.

Decades pass.  The force has no intention to invoke any review.  It doesn’t care.  Until it sees a way to save money.

Then the gloves are off.

  • Was the original decision lawful?
  • Did the force summarily dismiss the injured officer on a injury process without following due process?
  • Has any previous review been unlawful?
  • Did the force collude to put the officer on an artificially low banding?
  • Is there a potential of a civil claim – something lurking in the former officer’s personal file that shows the force has acted dishonestly?
  • Will a review re-ignite the mental illness of the former officer?
  • Does Estoppel apply?  Was the former officer promised he/she would never be reviewed?
  • Is the former officer entitled to a gratuity that the force deliberately never told him about when originally retired?

It’s not a simple as ‘there is a duty to review’.  There should be other factors considered and not just ‘We need to cut costs.  The database says the ex officer is a band x.  Lets get the occupational health and personnel files out of storage and call him/her in’.  No matter the former officer has a mental illness aggravated by stress; that there is a PTSD driven phobia about attending police premises; that the former officer is currently on the inpatient waiting list; that the former officer is undergoing a high-stress personal life event.   All these examples are true of Avon & Somerset’s current review process.  And also of untold other forces nationally

On the shoulders of Giants – Laws & Turner

iodpa caselaw, Regulation 37, selected medical practitioner
On the shoulders of Giants – Laws & Turner

It is no understatement to say that without Stephen Turner (versus PMAB 2009) and Belinda Laws (versus PMAB 2009 & Appeal Court 2010), police injury on duty pensioners would be in an extremely precarious position with police pension authorities riding roughshod over the regulations without impedance.  There was a wave of successful judicial reviews after them (regarding automatic reduction to band 1 at aged 65) but Turner and & Laws reaffirmed the regulations and arguably gave others the strength to challenge unlawful guidance.  They are truly the 0.001% who stood up and were counted and their efforts are held high in esteem.  The case-law can be found here

But what does Turner and Laws mean?

Turner V PMAB concerned substantial change and apportionment (the level of the index injury causing the degree of disablement when other non-IOD injuries are present).  It can be summarised into these points:

  • Causation can not be revisited at review.
  • A review of the degree of disablement can only occur if there is medical evidence of an alteration to the condition.
  • Apportionment can only be a factor if there was apportionment at the original decision.
  • No other illness can be considered at review other than that on the original certificate of disablement.
  • New skills or functional capacity can be considered if substantial alteration has been evidenced.

Laws reaffirmed Turner and, as it was challenged by the police authority and went to the appeal court, it is now the primary case-law that defines the application of the regulations at review.

  • A review does not allow the SMP or the Board to redetermine the merits of any earlier decision. They are only to decide whether there has been an alteration since the last decision.
  • The earlier decision as to the degree of disablement is a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”.
  • Acquisition of new skills can be a factor that determines how a disability of a duty injury affects the capability of work.  But the effect on earning capacity must be proven and more than speculative.
  •  The clear legislative purpose of the regulations is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.
Laws stipulates that a review is a comparative exercise  this means a comparison of the degree of disablement between the date of the grant or the last review.   The natural corollary of this is that medical records prior to the last decision are unnecessary.
There will be a post soon about what the SMP actually can and can’t do.

Regulation 37

iodpa caselaw, Regulation 37
Regulation 37

The ‘positive duty to review’ and the weapon to ‘protect the public purse’

There’s an introduction to regulation 37 here on the ‘The Regs – and what they mean to you’ page.

It’s quite difficult to explain what is meant by earning capacity and how this is the measure of the degree of disablement.  It’s even harder to convince people that the regs do not directly correlate ‘physical disability’ to its meaning of ‘degree of disablement’.

A problem is that reg37 is silent on the detail on how individual forces shall measure the loss of earning capacity.  It has quite simply stated the banding of slight, minor, major and severe is enough instruction, but just like mankind has a tendency to do, something simple has be turned into something complicated.  The complication is the ‘guidance’ that police forces use in an effort to justify their defiled view of what it is to ‘protect’ the  public purse.

The thing is that to be given an IOD award, a high bar has already been passed.  There are 4 levels of attainment to qualify:

(a)whether the person concerned is disabled;

(b)whether the disablement is likely to be permanent,

(c)whether the disablement is the result of an injury received in the execution of duty, and

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

If a former officer has an IOD and ALL of the above wasn’t satisfied (retired off, wink, wink, nudge, nudge…) then that says more about the force that did it than the former officer it was done to.

In reality an injured serving officer lives a  hell once injured.  Treated like a malingerer, put on surveillance, reduced to half pay.  The full weight of bureaucracy is put against them and that injured person has to prove everything – permanence, whether the injury was on duty, whether it was in the execution of their duty and all the rest.  An award may be begrudgingly given.  More than likely a civil claim against the force is ongoing as well as the ‘injury in the execution of their duty’ was down to poor management, being single crewed, having defective equipment. Once gone the retired officer has to justify his or her level of loss of earning capacity when they apply for an award so another fight with the HR department starts.

Now retired, the former officer wants to live their life in peace often with a deep resentment of how they were treated.  But every 2 years a letter pops through their postbox calling them to attend a review of their degree of disablement as the police force claims they have to protect the public purse under regulation 37. The insinuation is that the award is something you have to prove for life.  Not much of an award is it?

It’s no wonder that those retired on the lowest tier, a band 1, who’s condition and earning capacity deteriorates rarely if ever ask for a review.  They haven’t the strength.  It can be said that that are more IOD retirees with a banding lower than is strictly appropriate than a banding higher. But that’s the nature of beast – the SMP gives a subjective figure using his qualified medical judgement. If and when circumstances dictate on review here has been substantial change, in other words an substantial improvement or a substantial deterioration, then a revision is permissible, down a band or up a band respectively.  Retrospective attempts at cost-saving redress by HR and Finance teams because they think in hindsight the original banding wasn’t the right one is unlawful as much as it is it impossible.  The award was given at the Zeitgeist of the original decision and if there is notable substantial alteration it is a SMP alone that performs the revision; not for HR departments to interfere and influence the SMP or to attempt to rewrite history.

Case-law deals with the finality of the banding: Laws Appeal 2010

The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners

Imagine a person with PTSD and severe mental illness.  A constant review program will lead the person to being sectioned under the mental health act.  Military veterans aren’t treated with this level of disrespect so why are retired former police officers?