Scoffield

Immeasureable Loss

Immeasureable Loss

“Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a police officer” – Regulation 7(5) The Police (Injury Benefit) Regulations 2006

We often trust experts blindly, because we’re programmed to do so practically from birth. Call it the “Wizard of Oz” effect: first with our parents, then our teachers, and then on to the authoritative voices in our textbooks and on TV news, we’re brought up to believe there are always people whose knowledge and judgement should be taken over our own.

Even when you are swimming in treacle during the ill-health retirement process and the police service’s inability to  deal with your situation means your view of them has crumbled further into a disillusioned, sometimes lazy, ineffective, unrespected and undisciplined organisation, you still remember when you were at training school and you were taught that with authority came responsibility and accountability.

Doctors have a special power over our brains’ decision-making capabilities.  We get discombobulated and our rationality put on hold when we’re presented with what an expert with a stethoscope thinks they should be doing, regardless of how bad the thing is.

When a Selected Medical Practitioner (SMP) demands of a Human Resources minion to supply them with job profiles what is actually happening is a measurable assessment of loss.   The bad news for the occupational health doctor and Human Resources is that measurable future (or potential) earnings has no place in the Regulations.

One of the most complex concepts within the Regulations is the notion of ‘degree of
disablement’.  Earnings do not dictate earning capacity.

The doctors employed as SMPs find this concept exceptionally hard to grasp.

David Scoffield QC succinctly lays down this confusion as the main reason why he was commissioned to perform the PSNI “Review of the present arrangements for the payment of ill health pensions and injury on duty awards to former police officers”

Put shortly, however, the degree of disablement relates to the consequences of the duty
injury for the officer’s capacity to earn money. It is the calculation of this element which has given rise to many of the difficulties which have led to the need for the present review.

The law is quite exact in determining Earning Capacity.   Courts use something called heads of loss or heads of claim to pinpoint how much damage has been done which influences the amount of compensation a claimant will receive.  In civil claims the head of damage of ‘earning capacity’ cannot be awarded if ‘loss of future earnings’ is awarded as, if a claimant is not working by the time of trial or is already in a lower paid employment, he will be compensated under the loss of earnings head of damage.

Where the evidence that the former police officer is not able to earn as much as he or she would have done BUT for the injury then the compensation is loss of earning capacity.  The injury award compensates, in the here and now, for the injury and the affect that this has had on earning capacity.

The test for earning capacity is that there must not be a measurable loss.  If there is a measurable loss then this is loss of future earnings.  Billett v (MOD) [2015] EWCA Civ 773 (23 July 2015) was a case about loss of future earning capacity, not future loss of earnings.

Paragraph 53:

In Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40 Lord Denning MR explained the difference between loss of earnings and loss of earning capacity in this way:

“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.

The courts can see the distinction but SMPs and HR directors are blind to it.  The Regulations provide a minimum income guarantee in the form of the award that is in effect ‘damages’ for the injury causing ‘diminution in earning capacity’.

Interestingly the appeal court in Billet v MoD found that when considering what constitutes a substantial adverse effect on a person’s ability to carry out normal day to day activities the focus should be on what the person cannot do, as opposed to what he can do.

Paragraph 89 Billet V MoD

Those statements are all true. But, as Mr Poole points out, those submissions fall into the trap which Langstaff J identified in Aderemi. They are directed to what the claimant can do. The focus of the inquiry should be upon what he cannot do as a result of the injury to his feet.

This is the total opposite to the standard approach of a SMP who, more often than not, brazenly proclaims that if you are able to dress yourself and make a cup of tea, in their view, you should be able to work full time as an Intelligence Analyst at Force Headquarters. (One of the mysteries of the universe is why are there so many vacancies of Intelligence Analysts given HR minions always provide them to SMPs as one of the three job profiles that they think a disabled former police officer can do! )

Loss of future earnings is quantifiable.  It is measurable with some precision.  David Scoffield QC clarifies that the earning capacity in relation to the Regulations has no provision for exactness:

there is nothing in the Regulations which specifically requires an SMP to give a percentage figure in any individual case. Their obligation under regulation 29(2) is to give a decision on “the degree of the person’s disablement”, which could just as easily mean a decision as to whether the disablement is slight, minor, major or very severe. Regulation 29 could have been drafted to indicate that the medical authority had to specify a precise percentage disablement; but it is not.

If the Regulations meant for an injury award to be compensation for loss of future earnings then the injury award would be calculated using the Ogden tables, paid at the start and as a one-off lump sum.  It doesn’t and so it isn’t.

The major difference is that earning capacity is not usually affected by voluntary, non-binding, choices made by the worker. The ability remains whether the individual chooses to exercise that ability or not.  In other words, any earning capacity remains whether or not the person chooses to exercise it or not.

So, to consider the earning capacity of an doctor who earned tens of thousands of pounds in a fruitful year being a gun-for-hire SMP for a particular police service with a mass review program and has built up such a massive nest-egg that they’ve now chosen to stay home with pre-school children (or even sail a yacht around the Caribbean given the humongous amounts paid out) rather than enter or remain in the labour market, we need not investigate the process by which such a decision is made, nor attempt to estimate the year-by-year probability  of returning to the labour market. A focus upon future or expected earnings would lead directly to such questions.  It is irrelevant to earning capacity.

Winning the lottery or becoming the beneficiary to the estate of a recently deceased long lost Aunt are both factors that can voluntarily affect the decisions and choices of the worker.  Both are irrelevant to earning capacity.

How can we measure the immeasurable, we hear SMPs ask?

The good news is SMPs don’t have to.

Let David Scoffield have the last words:

Indeed, the fact that the degree of a person’s disablement is a “medical
question” under regulation 29 of the 2006 Regulations may also suggest that (what I have referred to as) the mathematical approach is not the correct way of determining degree of disablement under the Regulations; but that, rather, it is a broad judgment to be made by a clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data. This approach seems to me to draw support from the Crocker judgment, particularly at paragraph [56] where Ouseley J noted that the approach he was suggesting (in relation to an issue of apportionment in that case):

“… reflects the statutory question which has to be answered. It is a straightforward
approach which fits with the process for making the assessment, which is comparatively informal, and one in which doctors, and not lawyers or philosophers, make the decisions.”
[underlined emphasis added]

 

 

Scoffield recommendations

Scoffield recommendations

God   … [ Scoffield ] … has written His divine guidelines for your life right in the Bible  … [ Report to the Northern Ireland Police Board ] …
Elizabeth George (misquoted)

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redacted_version_of_scoffield_report

Recommendation 8:
In the course of development of this further guidance, serious consideration should be given to abandoning the currently recommended method of calculating percentage disablement, including detailed reliance on the ASHE survey and comparison with the officer’s notional uninjured police salary, in favour of a much more basic approach, whereby the relevant medical authority would simply make a judgment in the round as to the severity of the impact of the duty injury on the officer’s earning capacity, so as to select the officer’s appropriate band without the need to calculate a specific percentage disablement figure.

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Recommendation 10:
The guidance should also provide SMPs and IMRswith more detailed assistance, in as straightforward language as possible and drawing upon recent case-law, on how to avoid impermissibly revisiting matters finally determined in previous certificates and applying the concept of apportionment.

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Recommendation 11:
There should be a move away from automatic review for all cases at any fixed interval set in policy. The judgment as to when a review is appropriate should be made on a more case-sensitive basis, driven particularly by medical advice on this issue from the SMP and/or IMR  (although it ought to remain open to an officer to request a review himself at any time and the Board should also retain the right to initiate a review at any time if information comes to its attention identifying an apparent relevant change in circumstances). SMPs and IMRs should expressly be asked to provide the Board with advice on this issue in their completion of reports.

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Recommendation 14:
Those officers who were told in clear terms that they would not be subject to review, or words to that effect, should not be further reviewed in the absence of a request from them or some compelling reason why a review is considered appropriate (such a reason not to include merely their attainment of a particular age).

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Recommendation 15:
SMPs and IMRs should not be precluded in future from designating a case as one for no further review but this should occur only very rarely and guidance should be formulated for them as to when this may be appropriate.

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IMR = Independent Medical Referee PSNI equivalent to a Police Medical Appeals Board (PMAB)

Substantial Alteration

Substantial Alteration

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

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

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

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

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

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

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

David Scoffield QC raises this point in his report

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

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

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

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

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

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

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

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

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

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

The Scoffield Report

The Scoffield Report

The Police Service of Northern Ireland has the same worded Injury Benefit Regulations as England and Wales.  The statute has a different name ( POLICE SERVICE OF NORTHERN IRELAND AND POLICE SERVICE OF NORTHERN IRELAND RESERVE (INJURY BENEFIT) REGULATIONS 2006)  but the content is identical to the mainland’s PIBR 2006.  Given the fact that serving PSNI police officers face a high number of incidents of public disorder along with the unique policing challenges of Northern Ireland it is not surprising that the province has a high proportion of Injury on duty awards.  The system of injury duty applications and reviews however were in chaos.  Largely due to the Police Board’s insistence on invoking Home Officer Circular 46/2004 but also with the number of applications compounded by the frequency those retired were called back for reviews.  The whole system was broken and the consequences of recent case-law (Simpson et al)  finding that the guidance it has imposed on it’s former officers was unlawful, was the proverbial straw .  Something had to be done.  David Scoffield QC was asked to write an independent report on the  administrative process concerning IOD awards:

https://www.nipolicingboard.org.uk/scoffield-review-injury-duty-award-scheme

Scoffield Review of the Injury on Duty Award Scheme _ Northen Ireland Policing Board

Following a number of concerns raised by former officers and various representative groups a decision was taken by the Board in March 2013 to suspend the review of IOD awards. A working group chaired by the Board’s Chief Executive and comprising of various stakeholders was also established.

In July 2013 the Board agreed to engage Senior Counsel to review the Board’s existing administrative process within the current statutory and policy framework. Mr David Scoffield QC was appointed to carry out the review. Terms of reference for the review were provided to Mr Scoffield QC.

The broken processes in PSNI are no different to what is happening in England and Wales other than the same issue has reached critical mass sooner given the higher number of IOD awards.  The Senior Council review has the same relevance on both sides of the Irish sea.

There was some attempt by the establishment to not publicly disclose the fully published report.  Pressure from interested parties managed to  overturn this and here it is:

redacted_version_of_scoffield_report

Over the next few weeks we will be discussing the points raised by the Scoffield report in more detail.