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