Review

Ex-PSNI officers win court battle over injury award refusal

IODPA Admin newsflash, PSNI, Review, Scoffield
PSNI

PSNITwo former PSNI officers have won a High Court battle over being refused enhanced injury awards.

A judge quashed a decision by the Northern Ireland Policing Board to reject independent medical assessments on the level of their disablement.

Mr Justice Scoffield held that the authority misdirected itself on the meaning of relevant regulations and signalled that both cases should be reconsidered.

The Policing Board’s Resources Committee considered the IMR reports but refused the appeals, stating that the process applied was not consistent with current guidance.

Lawyers for the two officers claimed the decision was unlawful and irrational.

Ruling on the challenge, Mr Justice Scoffield held there was an obligation on the Board to treat the relevant medical practitioner’s certificate as determinative and to give effect to those decisions.

As reported by: Belfast Telegraph – https://www.belfasttelegraph.co.uk/news/courts/ex-psni-officers-win-court-battle-over-injury-award-refusal/1232935568.html

 

Essex Police Send Out Review Letters Before The Bank Holiday Weekend

IODPA Admin Review
Essex Police Send Out Review Letters Before The Bank Holiday Weekend

Essex Police have sent out their review letters a day before the Bank Holiday weekend. This was a common tactic used by police forces to cause maximum distress and upset to the recipient as they have nowhere to turn over the long weekend period to ask for advice and assistance. These methods were regularly used by Avon and Somerset Constabulary when they kicked off a programme of reviews back in 2014. After many complaints they agreed not to send correspondence before the weekend, thus allowing the pensioner the opportunity to seek assistance.

Essex police, it seems have learnt nothing from the experiences of others.

What is also particularly concerning is the fact that the letter informs the pensioner that the reviews will take place over a period of three years. So the pensioner now has to live with the prospect of further envelopes landing on their mat anytime over the next three years. How can this be conducive to their health and well being?

Finally, the letter quotes a recent court judgment by the name of ‘Goodwin’. Well, Essex Police may consider that for them and other unethical forces that it was a Good Win, but the pensioner concerned was called ‘Goodland’. If Essex police cannot even get the name of recent case law right, what hope is there that these pensioners will get a fair reconsideration of their pensions?

Questions have to be asked, who authorised this letter to be sent out in its current form? Was it BJ Harrington, M Gilmartin, or is this the work of Kevin Kirby, who appears conspicuously absent, but in all probability is still pulling the strings behind the scenes?

Here is a copy of the letter that has been sent.

Staffordshire Police Should Stop Digging

IODPA Admin medical records, Review
Staffordshire Police Should Stop Digging

If you find yourself in a hole, the first thing you do is stop digging

— William Penn Adair Rogers (1879–1935) was an American stage and film actor, vaudeville performer, cowboy, humorist, newspaper columnist, and social commentator.

You have to wonder, don’t you, what went through the mind of whoever recently decided to send out a letter to a disabled former officer which seeks consent to access their medical records?

Staffordshire Police Pension Authority (‘PPA’)(The Chief Constable in a different role) is currently awaiting a decision in a judicial review, a central issue of which is access to injury-on-duty pensioners’ medical records.

We can’t comment on the case, but we can comment on the letter, so let’s do just that.

 

It does have one thing to commend it – it is reasonably polite in tone, but that is about all that can be said in its favour. Any politeness is lost in the dark undertones of the message.

The letter advises the recipient that a review of his degree of disablement, which was commenced nearly two years ago, is being proceeded with. There is no reason given for the long delay, nor any apology for any inconvenience or distress caused.

Also absent is any reference to what is actually meant by a ‘review’. We have pointed out before that the word ‘review’ does not appear anywhere in the Police (Injury Benefit) Regulations 2006. This is the legislation which govern the administration of the police injury award scheme.

For new readers – the scheme is a non-contributory compensation arrangement akin to an insurance plan. Should an officer be injured on duty to the extent they can not longer perform the full ordinary duties of a constable, then their Chief Constable has the option of requiring them to retire. In which case the disabled individual can be considered for grant of an injury award, which consists of a one-off gratuity and a pension payable for life.

The Regulations allow for the scheme manager to,

. . . consider at such intervals as may be suitable whether the degree of the pensioner’s disablement has altered, and if after such consideration the police [pension] authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

Such provision is sensible, as in some instances, a pensioner may find their disablement has worsened. In which case they may be due an increase in the injury pension. The opposite is also there, in that if a pensioner experiences a substantial improvement in their degree of disablement then the amount of pension paid can be reduced, on the basis that the individual is now better able to work and thus earn.

The Regulations do not tell police pension authorities exactly when it may be permissible to make the ‘consideration’ – to do so would place a fetter on the wide power of discretion police pension authorities have. However, whenever a power of discretion is exercised, it must be done so properly and with regard only to relevant factors. In the experiences of our members, it is rarely the case that police pension authorities manage to conduct these ‘considerations’ lawfully.

Faced with intransigent police pension authorities, who appear universally to have a complete lack of willingness to accept they have done anything wrong, it is not surprising that we have seen a steady flow of successful judicial review cases brought by pensioners.

Back to the letter. It commences with an inaccuracy, which does not bode well for the quality of the rest of its content. The letter says.

I am writing to inform you that your Injury Award . . . is due for review.

In fact, only the degree of disablement itself is liable for consideration. Not the ‘Injury Award’ which, as we know, consists of a pension and a gratuity. Other forces have made this mistake and have thus caused much distress to disabled former officers, many of whom are vulnerable and in poor health, for it gives the false impression that the gratuity may be under threat as well as the pension.

Staffordshire’s letter does redeem itself slightly, as it states, in bold, that, for this pensioner, the injury pension will not be reduced as a result of the ‘review.’

Now, this is where we see a bizarre aspect of the letter. The pensioner concerned is on the lowest level possible of injury pension. So, of course it can’t be reduced. Why then, we ask, is Staffordshire wanting to hold a ‘review’? Can it be they have reason to believe that the pensioner’s degree of disablement has worsened, and are anxious to provide a higher level of pension payment?

We think not. Staffordshire clearly have no idea whether that is the case or not, for they have ‘respectfully’ asked the pensioner to provide a raft of sensitive personal information, the purpose of which is to,

. . . enable the review to be undertaken . . .

Here is a copy of the questionnaire,

 

However, having asked for the information (of which more below) Staffordshire helpfully provide some ‘Frequently Asked Questions’ with the letter. The response to one question tells us that pensioners on the lowest band of injury pension will not have their pension reviewed.

We will repeat that, as it is noteworthy. Pensioners on the lowest band of injury pension will not see a ‘review’.

Yet, Staffordshire clearly tell this pensioner that his ‘injury award’ is due for ‘review’. They know the pensioner is on the lowest pension payment, so, according to their stated policy, the pensioner should not be subject to a review.

Very confusing.

Then there is the ‘Injury Award Pension Reassessment Questionnaire’ which also accompanies the letter. This asks the pensioner,

Do you consider that there has been a substantial alteration in your disablement since you were last assessed or reviewed for an injury award?

Any pensioner who had to work out what Staffordshire intends with this letter and accompanying material would come to the conclusion that whoever had a hand in putting the package together had no more than a feeble grasp of how to administer the Police (Injury Benefit) Regulations 2006.

We don’t mean to be unkind, and won’t critique much more of what was sent to this one pensioner any further other than to say it hardly helps foster any feelings of confidence that the Regulations will be followed fairly.

However, above all its other faults, one aspect stands out. We mentioned above that the letter came with a request for the pensioner to provide detailed sensitive personal information, including medical information, financial information and details of training, qualifications gained, employment, salary, other earned income, voluntary work and state benefits.

Thus, in the light of the ongoing judicial review, which will examine whether a police pension authority has any right to access a former offer’s medical records, we can only say that it is inflammatory and ill-advised for Staffordshire to seek the pensioner’s consent to approach the pensioner’s ‘Doctor/Consultant’, requesting ‘. . . a Medical Report or Medical Records . . .’.

Staffordshire should know that such information is classified under the General Data Protection Regulations as ‘special category’ data, which is robustly protected by means of detailed provisions within that legislation. If Staffordshire police pension authority thinks it has a right to such data, then there would be no need to ask for permission to access it. Asking for permission is about as clear an admission as can be that the police pension authority knows it has no regulatory or statutory right to such information.

The consent form is a cynical attempt at bamboozling a disabled former officer into signing away all rights which protect his special category information.

Whist the judicial review remains open, and pending any appeals, any decent, humane and sensible police pension authority surely would not be continuing with ‘reviews’ .

We will leave the last word on the matter to Will Rogers, who wrote, ‘There are three kinds of men. The ones that learn by reading’. The few who learn by observation. The rest of them have to pee on the electric fence for themselves.’

Mental Health Awareness Week 2019

IODPA Admin Chief Constable, Police Pension Authority, Review
Mental Health Awareness Week 2019

 

Hosted by the Mental Health Foundation, Mental Health Awareness Week 2019 takes place from Monday 13 to Sunday 19 May 2019.

We often associate the word ‘bedlam’ with raving madness and chaos, whilst forgetting that it derives from the name of a hospital, Bethlem, which was established in 1247 in London.

Now called the Bethlem Royal Hospital, it is a well-regarded psychiatric hospital providing a wide range of clinical services for people with mental health and / or substance misuse problems. Its history is, however, very colourful and is perhaps a microcosm of how mental illness has been viewed, and treated, over the centuries.

As far back as the middle of the sixteenth century, friends and relatives were allowed to visit the ‘inmates’, not least to bring food and other essentials for their survival. Public and casual visitors with no connection to the inmates were also routinely allowed in. It would be easy to think that there was entertainment to be had in viewing the extraordinary behaviours of the mentally ill, but the original rationale behind allowing the public access was rooted in financial considerations.

The governors of the hospital aimed to encourage ‘people of note and quallitie’ to visit and be moved by moral benevolence to make generous donations to aid the running of the hospital. They succeeded in this aim, but it soon became obvious that visitors came mostly for the entertainment value. What drew the visitors was, “the frisson of the freakshow” where Bethlem was “a rare Diversion” to cheer and amuse. It became one of a series of destinations on the London tourist trail which included such sights as the Tower, the Zoo, Bartholemew Fair, London Bridge and Whitehall.

Attitudes to mental illness have shifted somewhat since those dark days, and in generally the right direction. But within the police service it seems there may still be a mountain to climb.

A recent study of almost 17,000 police across the UK found that 95% of officers had been exposed to traumatic events, almost all of which were work-related. Civilian staff too were affected, with  67% of operational police staff reporting they had experienced trauma.

The study showed that 20% of the respondents reported symptoms which were typically experienced by sufferers of PTSD or complex PTSD.

Disturbingly, some 66% of respondents were unaware they might be suffering from PTSD or other anxiety related illness.

The study appears to indicate a widespread lack of awareness by senior managers of the presence of mental health problems among officers and staff.

Gill Scott-Moore, chief executive of Police Care UK, the charity which funded the research, has said,

The service has real challenges around recognising and responding to the signs and symptoms of trauma exposure and is heavily reliant upon generic NHS provision that isn’t equipped for the specialist treatment needed.

 

 

View the study here

 

 

Meanwhile, in April a national police wellbeing service was launched. Branded as ‘Oscar Kilo’ (OK) it is funded by a £7.5 million investment from the Government through the Department of Health. Chief Constable Andy Rhodes of Lancashire Constabulary heads up the new initiative. He announces on the Oscar Kilo web site that it

. . . was created and designed to host the Blue Light Wellbeing Framework and bring together those who are responsible for wellbeing. It is a place to share learning and best practice from across emergency and blue light services so organisations can invest the very best into the wellbeing of their staff.

 

 

Find the Blue Light Wellbeing Framework here

 

 

Elsewhere, between 2015 and 2019 MIND, the mental health charity, had thousands of volunteers across the emergency services actively challenging stigma, and learning more about mental health. The charity says they made positive changes for themselves and colleagues and the charity learned how organisations can improve mental health support, tackle stigma and increase workplace wellbeing.

 

 

Back in January 2017, Police Oracle, the online publication which covers policing matters, launched its ‘Blueprint  Campaign’. Under that banner Police Oracle says it,

. . . accuses the government of failing to meet its obligation of protecting our officers both in the job and particularly, when they have been forced out of the service because of physical injuries or mental trauma.

 

Read the announcement here

 

 

It’s of some significance to note that only the Police Oracle initiative makes any mention of the thousands of former officers who were ‘forced out of the job’ as a result of disabling injury whilst on duty. Once out, their forces have generally done nothing to assist them in overcoming their disabilities. In some forces, quite the opposite. Some forces have instead chosen to hound and harass disabled former officers by a misplaced enthusiasm for conducting ‘reviews’ of their degree of disablement – an enthusiasm driven entirely by a callous desire and foolhardy expectation of easing the pressure on force budgets.

IODPA’s constantly growing membership includes serving officers who are on the cusp of retirement due to injury on duty. Their accounts reveal just how inadequate are the levels of training and awareness of mental health among line managers and more senior officers, as well as civilian staff. The accounts of pensioners are also extremely harrowing, and lay bare the true state of affairs, which is that in some forces no regard or concern is shown for the impact on them of reviews and of the financial uncertainty and anxiety engendered by the prospect of repeated reviews continuing over their lifetimes.

All of IODPA’s members have suffered, and continue to suffer, with a diversity of injuries incurred in the course of performing their ordinary duties. Many of those injuries are of the mind. Notably, depression and PTSD feature highly on the list, but the entire spectrum of anxiety disorders are represented.

In some cases, mental injury is the sole recorded ‘duty injury’ but members who have only physical injuries recorded as ‘duty injury’ also experience resulting mental damage. Hence, it is unusual to find anyone who has been retired with an injury pension who has not suffered some form of mental illness, at some level.

IODPA is pleased to see a greater emphasis on safeguarding the mental health of officers and staff, but is disappointed to see no official government-led initiatives to improve the situation of former officers with psychiatric damage who are retired on an injury pension.

We suggest this shortcoming urgently needs to be addressed. There is a need to start at the top, with the senior managers of forces. Chief Constables have the office of Police Pension Authority (‘PPA’) and are responsible for making all the decisions concerning the injury award scheme. Some of them, thankfully currently only a handful, are actively harming disabled former officers through abuses of the injury pension regulations.

We could fill many pages here with examples of truly appalling behaviour by individuals who clearly have absolutely no comprehension of the need to apply  care and compassion to any dealings with disabled former officers with psychiatric damage. We know, from a study of force management of ill health retirements, injury on duty awards and police medical appeal boards overseen by Chief Constable Morgan and sponsored by  the College of Policing, that,

Many forces are struggling due to the lack of expertise within their organisations.’ and, ‘The structure of some force HR facilities do not support the management of the process… and …issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.

 

What concerns our members is that whilst the inadequacies highlighted by Mr Morgan can be addressed, unless positive and impactful action is taken to significantly change attitudes towards mental illness and injury, then disabled former officers, and officers about to retire due to mental illness or injury, will continue to suffer at the hands of the likes of Mr Morgan. For it is Mr Morgan, in our opinion, who is spectacularly failing in his duty of care for his disabled former officers.

Mr Morgan is not alone in his unawareness, but it is Mr Morgan who has given us the most glaring example of how bad things can be when senior managers fail to understand how to engage with people who are suffering mental health damage. We have reported elsewhere, in earlier blogs, on the situation in Staffordshire, where Mr Morgan is Chief Constable and Police Pension Authority. He wished to conduct mass reviews of the degree of disablement of injury on duty pensioners. When deficiencies and alleged unlawful procedures in the process, as applied by Mr Morgan’s staff, were brought to his attention he reacted in a way which could only possibly be the result of deep ignorance of mental health issues.

He ‘invited’ a number of those pensioners under review to a meeting in summer of 2018. He could have arranged a neutral disabled-friendly environment to meet, listen and discuss issues with those who had raised concerns about the way review process was being conducted. Instead he announced he would be holding the said meeting, at police headquarters,
to which pensioners – all disabled in some way or another, – were invited. His invitation reads
more like a summons.

Here are the original blogs –

https://iodpa.org/2018/07/13/chief-constable-morgan-sends-letters-to-vulnerable-pensioners/

and

https://iodpa.org/2018/07/23/cc-morgan-refuses-pensioners-legal-representatives-to-attend-a-meeting/

Mr Morgan described the proposed meeting thus: ‘The meeting is to explain the next stage of the process.’ There could not have been a clearer indication that the meeting would never be about clearing the air through informed discussion.

When pensioners asked if their legal representatives could attend, and were met with a refusal, the pensioners all decided there would be no point in attending if Mr Morgan wished to use the meeting only to ‘explain’ what he intended to do. Pensioners felt they would be exposed to pressure in the anxiety-inducing environment of police headquarters.

In our opinion, Mr Morgan’s actions seem to be those of a man who is by instinct adversarial and dogmatic. They appear to be the actions of a man who cares more about defending a flawed process into which he has inserted allegedly unlawful demands, rather than caring for the health and wellbeing of disabled former officers. They seem to be the actions of a man who wishes to hear no other views than his own.

His force is now facing a legal challenge to his decision to reduce the pensions of the seventeen pensioners who questioned his review process. It may cost the force many tens of  thousands of pounds and will do nothing to foster good relationships with injury on duty pensioners.

Just as Bethlem became bedlam and a meme for historically inappropriate mental health care, so too has the ‘review’ provision within the police injury benefit scheme regulations become, in the hands of the likes of Mr Morgan and a few others, a meme for the entrenched institutional insensitivity and disregard for disabled former officer’s mental health.

Bethlem reformed itself over the years and became a shining example of modern healthcare. We have to hope that the police service and the government will do more than announce initiatives and studies and will take positive and far-reaching action to eradicate the negative attitudes exemplified by Mr Morgan and others who we have identified and named in these blogs.

Show Me The Money

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

Show me the money!

— Tom Cruise in ‘Jerry Maguire’ (1996)

 

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

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

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

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

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

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

Here it is –

 

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

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

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

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

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

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

Reassessment of injury pension

37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police [pension] authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The reason is money…

 

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

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

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

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

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

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

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

Staffordshire Police Put The Brakes On

IODPA Admin newsflash, Regulation 33, Review
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 Ron Thompson and Mark Botham of Haven Solicitors, and Mark Lake of Cartwright King 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

IODPA Admin Regulation 33, Regulation 37, Review, smp
Staffordshire – The Story To Date

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

— Alexander Woollcott (1887-1943)

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

It is worth reproducing regulation 33 here:

Refusal to be medically examined

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

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

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

 

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

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

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

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

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

We will provide updates as the situation evolves.

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

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

 

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

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

 

Mark Botham Appears In NARPO News

IODPA Admin newsflash, police injury award, regulation 32, Regulation 33, Regulation 37, Review
Mark Botham Appears In NARPO News

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

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

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

Here is his article –

 

 

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

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

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

The Staffordshire Saga

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

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

― Mark Twain

 

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

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

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

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

 

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

Such expectations have proved to be illusory.

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

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

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

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

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

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

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

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

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

 

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

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

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

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