Review

Staffordshire Police Put The Brakes On

Staffordshire Police Put The Brakes On

Whoa!!!

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

We have breaking news…

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

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

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

Mr Morgan’s decision was robustly challenged by our solicitors, acting on behalf of the IOD pensioners concerned.

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

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

 

Our solicitors have been told that Mr Morgan,

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

 

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

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

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

Staffordshire – The Story To Date

Staffordshire – The Story To Date

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

Alexander Woollcott (1887-1943)

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Morgan letter redacted

 

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

It is worth reproducing regulation 33 here:

Refusal to be medically examined

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

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

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

 

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

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

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

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

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

We will provide updates as the situation evolves.

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

 

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

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

 

Mark Botham Appears In NARPO News

Mark Botham Appears In NARPO News

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

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

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

Here is his article –

 

img20181105_18341676

 

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

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

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

The Staffordshire Saga

The Staffordshire Saga

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

― Mark Twain

 

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

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

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

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

 

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

Such expectations have proved to be illusory.

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

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

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

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

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

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

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

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

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

Police_Pensions_Board_Half_Yearly_Report_140318

 

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

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

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

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

Abuse of Power

Abuse of Power

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

Ian T Sebàs

 

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

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

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

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

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

What the statistics say

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

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

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

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

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

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

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

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

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

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

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

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

The Regulations

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

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

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

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

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

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

Essex replied,

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

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

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

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

Chief Constable Kavanagh of Essex Police responds to IODPA

Chief Constable Kavanagh of Essex Police responds to IODPA

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

 

Letter to Essex CC

 

Here is the reply that Mr Kavanagh provided.

 

CC Kavanagh Reply

 

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

Essex Questionnaire – The answer is NOT to answer

Essex Questionnaire – The answer is NOT to answer

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

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

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

Essex Police questionnaire

The only way is not Essex

The only way is not Essex

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

He writes,

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

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

He writes,

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

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

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

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

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

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

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

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

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

The Scandal in Staffordshire

The Scandal in Staffordshire

Alea iacta est”  (“The die is cast”) — Julius Caesar on January 10, 49 B.C as he crossed the Rubicon river

November 9th 2017 was a black day.  It was the day Staffordshire police, Andrew Colley and Charles Vivian crossed the Rubicon.

The answer will be found in the courts and injustice will be vanquished, as it always is, but still Staffordshire police wants test their ruinous interpretation of the law whilst ignoring the collateral harm it is deliberately causing to those injured in their police service.

Why are we here and why wasn’t this stopped when the wickedness was embryonic?  What follows is a timely reminder.

Lionel Shriver’s 2003 novel “We Need to Talk About Kevin” describes how when behaviour worsens, those with the power to do something go on the defensive, convinced there is always a reasonable explanation for why what they could have stopped was done to others.

On the 7 June 2017 at court room in North Shields, employment Judge Buchanan heard how David Curry, a former police officer retired on a pension awarded for disabling brain injury suffered in the line of duty had been pursued since 1998 by his former force. Mr Curry had his injury pension reviewed in 1989, 1991, 1994, 1996, 1998, 2010 and continually from 2016 to 2017. The fact that he was sectioned and admitted into a psychiatric ward wasn’t enough to persuade his former force there had been no change in his capacity to earn.

David’s experience is sadly not an isolated instance. The charity Injury on Duty Pensioners Association (IODPA)1 has gathered a large and growing body of personal accounts by the victims of maladministration. So much is wrong with so many aspects of police injury pension management that the situation is little short of a national scandal, which requires the attention of Police and Crime Commissioners.

Disabled former officers such as Mr Curry can never be free from the police.  The new £7.5m Police Federation of England and Wales (PFEW)  welfare fund is helping those serving but neglects those already injured and retired.  Ill-health retirement is sadly an acrimonious and bureaucratic process and this doesn’t cease once permanence has been proved and the warrant card handed back. Every time the postman drops a letter through a letterbox carries the risk of adversity; a letter from the force causing the injured to relive the trauma of how they left the police.

Through a fluke of mailroom efficiency, often these letters drop on a Saturday when week-day mental health support has closed. No other occupation has such a toe-hold on those leave through medical retirement.  They are being treated as though they are cheats or liars. Some, including those with severe mental injury, have been subjected to hours-long aggressive ‘medical inquisitions’ by doctors appointed by their former force throughout their life outside of the police.

When a force wants to review the principles of the Data Protection Act are often forgotten. As are the Access to Medical Reports Act, and General Medical Council and Faculty of Occupational Medicine guidelines. Pensioners are facing unlawful demands for access to their medical records and see reports written by said doctors, which contain gross errors in fact and law, delivered to HR departments without their permission. Pensioners have been threatened with stoppage of their injury pensions if they fail to complete questionnaires demanding sensitive financial and medical information having no relevance whatever to the management of their pensions.

Age can never be a factor.  Slavishly following a “policy” is unlawful.  It is never justifiable to threaten compliance or consent. A SMP can’t have a predetermined decision based on averages of prognosis for the general population.  Causation can not be touched upon  It is not about earnings.

All these things happened in Staffordshire on the 9th November 2017.

Those injured and disabled have to contend with pension scheme administrators who have little to no understanding of the Regulations which govern police injury pensions and whose automatic reaction to any enquiry or query concerning mismanagement is to circle the wagons and to deny, delay, obfuscate and obstruct. Complaints are brushed aside, and are labelled as vexatious, or an abuse of the complaints system.

Of major concern is a widespread misapprehension by senior officers and Police and Crime Commissioners that the Regulations permit regular mass reviews of the degree of disablement of injury pensioners. Mass reviews have been held, in some forces areas, causing very great worry and inconvenience to disabled former officers and their families. Mass reviews are unlawful, as decisions made on degree of disablement are intended to be final and only subject to review where the PPA consider that there has been an alteration in the pensioner’s degree of disablement.

There are 43 regional police forces in England and Wales. The picture is mixed, with the majority of forces not conducting reviews, whilst others have actively set about wholesale abuse of the discretionary power to conduct reviews. IODPA has been told by pensioners in these areas that they fear they are caught up in a grotesque game, where a handful of people on a mission are using them to test the boundaries of what they think they can get away with – all with the misplaced and illusory objective of saving money.

IODPA has no objection to lawful reviews, which it insists should be rare events, triggered when the PPA consider that there has been an alteration in the medical condition of any individual. Research conducted on behalf of IODPA produced data on reviews held covering the five year period 2010 – 2015 revealing that 83% of all reviews held resulted in a decision there had been no alteration in degree of disablement, and thus no revision of the amount of injury pension paid. Some 10.29% of reviews resulted in a decrease in pension, whilst 6.82% were increased. Just six forces accounted for the majority of the reviews, conducting 781 out of the total of 806. Merseyside alone conducted a staggering 502 reviews, all of which are believed to have been unlawfully held.

It can be concluded from the research that some forces wasted a great deal of public money conducting unnecessary reviews, which cost around £2500 each, with other, more substantial costs resulting from appeals and legal challenges.

Avon & Somerset has paid one SMP, a Dr Phillip Johnson, £94,500 in twelve months from August 2016 to August 2017.  Add this to the £54,600 paid to Johnson from December 2015 to August 2016 and the £146,667 between June 2014 to November 2015, and the sum totals just under three hundred thousand pounds.  Given Johnson works as the force medical officer for Dorset police and Avon & Somerset already pays a salary of over £150k per annum to Dr David Bulpitt, the scales of money exchanging hands is staggering.

In one force3, pensioners were selected for review by what was essentially an automated lottery, with no evidence whatever to believe their degree of disablement had altered. In one force a civilian member of staff was given free access to the medical records of police injury pensioners. It seems this force allowed, even encouraged attempts to reduce injury pension payments. The civilian’s job description2 commenced thus:

Job Purpose. To manage the investigation and process of police and support staff retirement on the grounds of ill health. To ensure maximum savings to the force budget through the robust investigation of injury award applications, injury award reviews, medical appeals and reviewing permanently disabled officers who have been retained in service.

It seems this force has wrongly tied what should be the administration of injury pensions within the content, scope and purposes of the Regulations to the management of the force budget. Disabled pensioners are to be subjected to ‘investigation’ rather than be treated with respect and consideration.

The fact of the unlawful reviews is cause enough for concern, but there is a widespread and justified belief among pensioners that the reviews are motivated solely by a misplaced desire to save money from hard-pressed police budgets.

There is also uneasiness regarding the unhelpful attitudes of HR staff, the some doctors, and senior officers, some of whom are politely aggressive, or arrogantly dismissive of pensioners’ concerns.

It is unacceptable that that the rights of injured on duty pensioners should be trampled on by the failures of those responsible for the legitimate management of the scheme. Retired disabled officers deserve better. Attitudes need to change.

When a police officer is injured on duty, to such an extent they can no longer perform the ordinary duties of a constable they can be compulsorily medically retired. Injury can be physical or mental, or a combination of both. The retiring officer can be awarded a one-off gratuity and an injury pension, which is payable for life. The test for qualification for the award is whether the person concerned is disabled, whether the disablement is likely to be permanent and whether the disablement is the result of an injury received in the execution of duty.

The injury on duty pension scheme is governed by the Police (Injury Benefit) Regulations 2006. The explanatory memorandum3 to that legislation makes it clear that injury awards, ‘. . . are in effect compensation for work-related injuries.’

In making provision for injured officers to receive a pension, successive Governments have consistently acknowledged that entitlement to a police injury pension is a key element of the remuneration of police officers to enable them to undertake their role with confidence. Officers need to know that if they have to be retired due to disabling injury they will not suffer financial detriment. Currently, that certainty is slipping away, and if this trend continues, then morale of serving officers will suffer.

If there was no injury pension scheme, it is reasoned that Chief Officers would inevitably find themselves subjected to litigation, with allegations of negligence, and claims for compensation for injury. Given that there are currently over 12,000 former officers retired with an injury on duty, the potential cost of litigation should there have been no injury award scheme could well have run into thousands of millions.

No amount of pension can ease the difficulties retiring injured officers face. The consequential mental trauma of injury can be severe. There is the loss of an occupation which for many officers is seen as a vocation more than a means of earning a living. There is the loss of the comradeship, and loss of the sense of belonging, of being engaged in a worthwhile enterprise with noble aims and purpose. With the shock of injury and retirement comes the need to construct a new life. Some disabled former officers manage the transition with minimal difficulty. They find a new job or a new career. They adapt to the restrictions the disablement brings.

However, for many, especially those with very severe disablement, IODPA is well aware that transition to life outside the police can be a lengthy and distressing experience. Despite positive changes in attitudes by employers, encouraged by anti-discrimination legislation, disabled former officers, especially those with a mental injury, may well find themselves to be unemployable.

The Regulations governing police injury pensions are not concerned with these problems. They address only the one issue, that of providing a minimum income guarantee in retirement, and on that issue they are adequate for purpose. An injury pension scheme is only effective where it is properly managed. The Regulations are not hard to understand. Yet they are being woefully misunderstood by some who have responsibility for managing the police injury pension scheme.

In November 2013 the College of Policing arranged a review of forces’ management of ill health Retirements, injury on duty awards and police medical appeal boards4. Amongst other conclusions, the resulting report found that:

Many forces are struggling due to the lack of expertise within their organisations.’

The structure of some force HR facilities do not support the management of the process. When managed by shared service pools rather than through specific dedicated individuals, personnel are unable to build up experience in dealing with these case.’

The above issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.’

We have to look back to 2006 to see the origins of this sad state of affairs. Due to a change in tax legislation, and to preserve the tax-free status of injury awards they were separated from the general police pension schemes. The injury pension scheme became a non-contributory scheme, and award payments now stand to be met from the budget of each force.

This immediately brought about a focus on the cost of meeting existing injury pension payments. Some chief officers sought to reduce what was seen as a burden on scarce resources by manipulating the review provision.

Then the Police Reform and Social Responsibility Act 2011 abolished police authorities, which had hitherto held the legal obligation to administer the police injury award scheme. In practice, authorities had delegated the administration to Chief Constables, but they continued to provide an important oversight. The 2011 Act created the office of police pension authority and vested it in the sole personages of each Chief Constable.

There seems to be a built-in conflict of interest in having Chief Constables, who must dutifully manage their budgets, having to attempt to set aside all considerations of cost when acting as the police pension authority. The Police (Injury Benefit) Regulations 2006 do not say that a pension can be reviewed because a Chief Constable is concerned about the cost of paying it. Some Chief Constables have failed to make the necessary separation of their duties, to their great shame and to the detriment of disabled, and often vulnerable, former officers.

In Lionel Shriver’s novel, it was too late to save Kevin and those he massacred. The opportunity to make things right had passed. It is not too late for disabled former officers like David. IODPA suggests that Police and Crime Commissioners urgently should look closely at the human and financial cost of these issues and help ensure that police injury pensions are managed within the law.

1 https://iodpa.org/

2 See: http://iodpa.org/wp-content/uploads/2016/04/000.JDQ-Medical-Retirement-Officer.pdf

3 See: https://www.whatdotheyknow.com/request/injury_on_duty_reviews_the_next#outgoing-510456

4 See http://www.legislation.gov.uk/uksi/2006/932/pdfs/uksiem_20060932_en.pdf

5 See: College of Policing Review of Force Management of Ill Health Retirements, Injury on Duty Awards and Police Medical Appeal Boards