suitable interval

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.

The talk of Essex

The talk of Essex

The world always makes the assumption that the exposure of an error is identical with the discovery of truth – that the error and truth are simply opposite. They are nothing of the sort. What the world turns to, when it is cured of one error, is usually simply another error, and maybe one worse than the first one.

H. L. Mencken (1880 – 1956)

 

Clever Cat, Stupid Cat

Police pension authorities, and the employees who act under their instruction, have consistently demonstrated a remarkable ability to make errors. Over the last few years we in the IODPA have seen some prime examples, and have sadly heard of the damage they’ve caused to disabled former officers and their families.

It is said that if a cat jumps up onto a hot stove, it will never do it again. Well, we can say with a good degree of certainty that some police injury pension scheme managers are nowhere near as clever as cats.

No sooner has one PPA or another had its errors corrected by a judicial review or by the Pensions Ombudsman, than another pops up and repeats the very same errors, or invents completely new ones.

 

A Most Unpleasant Letter

Essex have decided to conduct a programme of reviews of the degree of disablement of some of its disabled former officers who are in receipt of an injury pension. So, Mr Kirby, the Head of Governance & Compliance for Essex police pension authority, took on the task of writing to them. Which presents us with the opportunity to dissect his extremely unpleasant and inaccurate letter and point out the errors it contains. The letter can be read in all its full glory here.

 

Letter from Essex call to review

 

Scalpel Please, Nurse.

Let’s make the first incision by reminding ourselves, and Mr Kirby, that the letter is addressed exclusively to disabled people. Some of whom will have physical impairment, some will have mental impairment and some both. We see no signs this appallingly constructed glob of officialese was written by someone who gave any thought to its possible impact on the recipients.

It is not hard to imagine the sense of doom, the panic, the lonely desperation welling up in the minds of those who are made vulnerable by the symptoms of a mental or physical injury when this letter landed on their doormats. We know, because we get told these things, often, and know the mere sight of a letter on police headed notepaper can be enough to destabilise some pensioners. Yet Mr Kirby addresses them all as though they are not only fit and well, but also fully conversant with the intricacies of the Police (Injury Benefit) Regulations 2006.

We understand the main target of the proposed reviews are pensioners in band four. That is the highest degree of disablement, identified in the Regulations as ‘Very serious disablement’. Surely someone gave some thought to the impact of the letter on this group of people?

Before we go further we should assure Mr Kirby that we mean no personal insult to him. He may be a pawn in a larger game, and only doing what he has been commanded to do. He may be understaffed, untrained and unsure. He could be under pressure to produce results. However, he put his name to the letter and must take responsibility for its contents.

 

Apologise and Withdraw

If Mr Kirby has any moral core he will immediately apologise for sending out his letter, and the questionnaire and Appendix which came with it. He will withdraw it all, and sit down with local NARPO, Federation and injury pensioners, to consider very carefully the implications to the force and to the injury pensioners should the PPA continue on the disastrous course his letter has set.

IODPA has no issues with lawfully held reviews but we have to speak out when a PPA announces its intention to act outside the confines of the Regulations. This blog is intended to be as much an encouragement to Essex to realise its wrongheadedness and to think again, as it is a crib sheet for injury on duty pensioners, giving them points to use to challenge and question their police pension authority.

Mr Kirby’s letter contains so many errors and muddled inaccurate information that it is going to take more than one blog to deal with it and the accompanying Appendix and Questionnaire.

Mr Kirby’s letter begins with the phrase,

As you are aware . . .” and mentions the Regulations and something he calls an intention to “. . . review your degree of disablement earnings related capacity.”

We very much doubt pensioners are aware. In our wide experience it would be a rare individual who would know the detail of the Regulations or what a review might involve. If they were to think the letter would explain, in simple easily understandable language, what the PPA is aiming to achieve, they would be disappointed.

 

Fools Rush In

The letter seems to have little or no grasp of the Regulations. Yet it is written with a confident style which is misplaced and in terms which display inadequacies.

There is no mention of a ‘review’ in the Regulations. That word does not appear. ‘Review’ has become generally accepted shorthand, for those who deal with injury pension issues on a daily basis, for the process which is mostly set out in regulation 37 of the Police (Injury Benefit) Regulations 2006.  Police injury on duty pensioners can not be assumed to know what a ‘review’ is. Thus, the first error of the letter is a failure to properly explain what Essex PPA intends.

Nor is there any mention in the Regulations of reviewing something called a ‘degree of disablement earnings related capacity’. Now, this is something which IODPA would very much like to see Mr Kirby attempt to explain. We have no idea what he is referring to and neither will any pensioner, because it is an invented term which has no bearing on the Regulations.

Let’s get things straight. Regulation 37 confers a conditional power of discretion, not a duty, on police pension authorities to do this, in this order:

 

  1. For an individual pensioner, positively identify that a ‘suitable interval’ has passed since the time of the last final decision on degree of disablement.
  2. ‘Consider’ whether the individual pensioner’s degree of disablement has altered.
  3. If a police pension authority has good reason to believe it has altered, so that the pension payment may need revising, up or down, then refer for decision the question of degree of disablement to a ‘duly qualified medical practitioner’.
  4. If the selected medical practitioner decides there has been a substantial alteration, they can determine what the degree of alteration is, by setting the amount of alteration against the established degree of disablement and thus arrive at a new percentage degree of disablement.

Now, of course, there is much, much more to the process that this brief aide-memoire provides. There are many ways a police pension authority can come unstuck. However, to assist Essex and guide them away from the current disastrous approach we should just mention that it is vital that any ‘review’ is an individual process for an individual person. A PPA simply can not decide en bloc to ‘review’ a group of pensioners.

 

A Misplaced Sense Of Duty

We should also mention what Mr Kirby’s letter describes as,

‘. . . a duty as part of good governance to periodically review the degree of earnings capacity of pensioners in receipt of an injury award.’

We will return to ‘good governance’ in the next blog, but we need to deal with ‘duty’ first.  The duty placed on a police pension authority under regulation 37 is it, ‘. . . shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered . . .’

Essex is not the first police pension authority to use a misreading of the Regulations to support a false claim that it has a ‘duty to review’. It is true there is a duty to ‘consider’ at ‘suitable intervals’ whether there is any alteration in degree of disablement, but forces divert from the intention and purpose of regulation 37 when they leap ahead of this simple, restricted, conditional duty.

Mr Kirby’s letter tells us,

‘. . . the process requires the involvement of the pension authority’s selected medical practitioner’ and ‘In order to assess the degree of disablement the selected medical practitioner will need to take account of your skills and qualifications and what kind of employment you could undertake . . .’

Now to be fair to Mr Kirby, it could be that he genuinely, but mistakenly, thinks that the PPA can only properly ‘consider’ matters as per regulation 37 if it gathers in all the information it asks for in the questionnaire and gets their SMP involved in analysing it.

Trouble is, Mr Kirby is asking, sorry, requiring, pensioners to hand over information the PPA has no right to demand. Nor can he involve the SMP until the PPA is in a position to be considering revising an injury pension. As things stood at the time Mr Kirby wrote his letter, the PPA could have no reason at all to think that any pensioner had experienced an alteration in their degree of disablement.

A PPA has no legal authority, or ‘power’ as Mr Kirby would describe it, to require any information from former officers.

IODPA advises any Essex pensioner who has received the above letter, questionnaire and Annex from Mr Kirby not to respond to hand over any information, or give the permissions asked for.

Newsflash: The Lost Contract of Staffordshire

Newsflash: The Lost Contract of Staffordshire

Our investigative columnist has spent minutes in the labyrinth of long-forgotten archives and has discovered a contract that seems to rather undermine Staffordshire’s new found eagerness to recommence reviews. Click here to download: Staffordshire-Police-Injury-Awards-Agreement

Staffordshire-Police-Injury-Awards-Agreement-amended

A promise made not to review.

It seems to be saying that, as at 01/01/2008, anyone under state retirement age (SRA) and anyone over state retirement shall  “retain their existing injury award band“.  The former until SRA and the latter for life.

In a benevolent wave of a wonky wand, apparently everyone is “entitled to at least a Band 1 injury award for life“.  Which is nice given that it would be unlawful not to provide the injury award for life.

Home Office Circular 46/2004 couldn’t and didn’t change the legislation that defines a review under Regulation 37(1) of the Police (Injury) Benefit Regulations.  The statute and the discretional duty of the Regulation is the same now as it was then.

So why, do we ask, are those same people who signed this contract back in 2008, now eligible to be reviewed in the present day?  And how can the arbitrary cut-off of August 2008 be defended as sound?  One rule for one, and another rule for others never sits well with equality law.

Those with a band two award and above, in their fifties and so below SRA when their contract was signed, now face the traumatic shattering of their expectation to never be reviewed .  Some of this exact same cohort are now under the self-imposed age of 72 years and concurrently above state retirement age.

They basically had a promise that they will never be reviewed. Ever.  The guff about cogent reason and the nonsense on steroids about a review just because someone reaches SRA, read today in 2017, is contrary to case law.

Mr Justice Supperstone in the Simpson judicial review in 2013 made it clear that:

there is no justification for adopting a different approach to regulation 37(1) in respect of a former officer who reaches the age of 65 than in the case of a review for former officers of a younger age.

It was clearly known in 2008 that the 46/2004 circular was unlawful otherwise this Staffordshire contract would not have come into effect.  Staffordshire allowed it to come into being for it’s own self-preservation and as a means to get former officers to agree to the unagreeable.  What better way to reduce someone unlawfully when there is no invented cogent reasons stopping them, than to get that someone to sign a contract to agree that it’s OK to do it without the necessary substantial change to the medical condition demanded by the Regulations.

Oh, how quickly their positive duty evaporates when it means defending a court claim.

On the other side, it was an well-intentioned (albeit misguided) attempt by local NARPO and Federation to protect those retired with injury awards as best they could, all before the illegality of an automatic reduction at SRA and unlawfully invented so-called cogent reasons was judged by the Pension Ombudsman and in the High Court as being a travesty, and that actually the protection wasn’t needed.

But what the agreement now does is raise two major issues and several corollaries.

The first is Estoppel and the basis of reasonable expectation: Staffordshire is now asserting something contrary to what it has implied by a previous action or statement by them.

The second is direct age discrimination that those with an injury award are to be treated differently depending on the abstract variable of whether they were retired before or after the 1st August 2008.  Those with ‘the pledge‘ have to be treated the same as those without ‘the pledge‘, given those without are by default younger.

In other words, Estoppel stops those signatories from ever being reviewed and direct discrimination prevents anyone retired post this agreement from being treated differently.

Oh, what a tangled web Staffordshire weave.

 

A Suitable Interval is not Random

A Suitable Interval is not Random

“Anyone who considers arithmetical methods of producing random digits is, of course, in a state of sin.”
John von Neumann

It seems Avon & Somerset Human Remains Department just can not help themselves.  To select further IODs for review they are going to use a random number generator.

This is a quote from local NARPO’s report on the IOD Liaison Group Meeting 17th December 2015

8 more claimants have been chosen using an EXCEL random picker programme and letters should be sent out in January 2016 asking for them to engage in the process. If you receive such a letter and are a member of NARPO Bristol Branch, we would like to know, please contact me through […] the branch secretary. If you require it we can offer advice or assistance with the process.

Let’s ignore the unsavoury and nonfactual word ‘claimants‘ used to describe those with an injury on duty award  for a minute and focus on the words ‘random picker’.

No. It’s  not ‘Lancelot’, the mechanical soupedup tombola that the National Lottery uses, but a computer program.  A computer program cobbled together in a Heath Robinson manner using Microsoft Excel.

Does anyone spot the major flaw here?

Is their mistake that the numbers generated by Excel are not truly random, but pseudo-random?  This is the output of program code that churns out numbers that appear to be random. Excel RAND’s output is only  a simulation of a truly random process. Chance can not be programmed.  That is why lottery providers use gravity pick or air mix mechanical machines. These 2 machine types have  things in common.  They are designed and proven using statistical analysis to produce random combinations of numbers.

Nope.  Although correct, the above isn’t their ‘pig in the poke‘.  They fail to grasp the  mistake magnitude of their cunning ‘brainwave’.

The elephant in the room is that a suitable interval is not and can never be random.  The Scoffield report dictates:

There should be a move away from automatic review for all cases at any fixed interval set in policy

A truly random selection would mean it is possible for a single former officer to reviewed consecutively.    As Murphy’s Law wisely says, what-ever can happen will happen if there is enough trials.

Let’s give them the benefit of the doubt.  Perhaps this supposed ‘random selection’ performed  by A&S means that they have determined that everyone should be automatically reviewed and they are just randomising the order.

That doesn’t fit in with the interpretation of the Regulations either.  An eminent Queen’s Counsel has determined an automatic review for all cases is not appropriate and reviewing everyone ‘randomly’ is just that – an automatic review based on ‘policy’.

A selection of any IOD for any review has to be made based on the individual.  Some should never be reviewed.  Time itself is not the determiner of a suitable interval – the circumstances of the individual  and the detail recorded on the last final decision determines whether any interval is suitable.

But A&S has to wrongly rely on Excel and their fallacy of random selection because they have lost occupational health records and they can not read the handwriting of the doctor notes made in the records they do have.  So they are unable to determine a true suitable interval. That is their problem – their faults should not and can not be passed on to a former officer.

IODPA will look forward to reading the future judicial review transcript where it is mentioned that the plaintiff was selected by a computer program and not on the medical merits on whether it was suitable to review.

Any letter sent by A&S to any individual has to be answered with a curt:

“Why me? Why Now?”.

If the answer from them is because ‘our Excel workbook’ says you’ve won the review lottery, then you can laugh your way to legal representation.

On a side note – IODPA wonders about the Data Protection Act and the use of names in a tool designed for pseudo-random selection.  Perhaps Subject Access Requests should be made to determine if a person’s name exists on their list.

This DPA principle seems to suggest it is not right to use personal data in a list to unlawfully select someone for the wrong reason:

Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

 

 

 

 

 

Misguidance

Misguidance

“The mastermind is driven by his own boundless conceit and delusional aspirations, which he self-identifies as a noble calling. He alone is uniquely qualified to carry out this mission. He is, in his own mind, a saviour of mankind, if only man will bend to his own will. Such can be the addiction of power. It can be an irrationally egoistic and absurdly frivolous passion that engulfs even sensible people. In this, mastermind suffers from a psychosis of sorts and endeavours to substitute his own ambitions for the individual ambitions of millions of people.”
Mark R. Levin, Ameritopia: The Unmaking of America

Those that have read the posts on this blog know all about the now unlawful Home Office circular 46/2004.  It’s a fact that numerous police pension authorities have not updated their own internal ‘guidance’ concerning the administration of injury awards.  It is absolutely clear that the regulations always take precedence over any form of guidance but why do some police forces think they can interpret the regulations in their own sweet way?

Any freedom of information request asking for local guidance will reveal  that rarely is there a force that uses procedures that  are in-line with the regulations.  As the Home Office has capitulated and realised it can’t tell forces how to subvert the regulations, it is odds-on that the floundering force will have either out-of-date or blatantly wrong internal guidance. Even the College of Policing admits that:

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

The only required guidance  is that forces shall abide by the regulations.  To all those concerned – just stop inventing your own made-up connotation of the regulations – abide by the legislation literately and as it is stated.

Let’s look at Northumbria (remember this is where Nicholas Wirz, Principal Solicitor Northumbria Police, thinks up the course material to bamboozle and groom SMPs into thinking they are all-powerful Coroner ‘judicial warranted’ investigating type deities – which they surely aren’t … SMPs are just vanilla Doctors with zero special powers).   This is Wirz’s guidance for his home force.  This same man runs training courses for SMPs nationally.

FOI 804 11 Northumbria

“Northumbria Police is under a positive duty to periodically review Injury Awards at intervals considered appropriate. Once a decision has been taken to review an award the former officer is required to comply with the injury award review process. A former officer may request for their injury award to be reviewed at any point, upon submission of relevant medical evidence”

Fail. The PIBR states that after a suitable interval the police pension authority should consider whether the degree of disablement has altered.  A suitable interval isn’t defined by the PIBR and this is by design. It is unique to the circumstances of the individual and not dependent on banding or age.  It works for both parties and nowhere in the regulations does it state it shall be unilaterally decided by the authority. A suitable interval could be never – it definitely isn’t dictated by a revolving calendar schedule.  How come Northumbria thinks only it can decide, not solely if the interval is appropriate, but also that said  retired officer has to justify his/her own self-referral by submitting evidence just to get a review.  The one-sidedness is sickening; they are basically saying we can review you whenever we feel like it but you have to convince us by proving substantial change before we decide if we think you have a need to be reviewed.  ‘Only once you prove it, will we then decide if your proof is our definition of any change’.

‘Required to comply’ … quite a forceful phrase.There is nothing in the PIBR that supports such acquiescence.  Regulation 33 talks about refusal to be medically examined but there is no  compulsion or penalty for non-compliance.  Only discretion to make a judgement on the available medical evidence.

If this part of Northumbria’s guidance was the aim of the regulations then it would be explicitly defined in the PIBR legislation.  But it isn’t.

The designated Support Services Administrator, Human Resources Department will run a monthly report to identify which former officers are due an injury award review that month

Ahh !  The truth of it.  The suitable interval is actually a spreadsheet run by an administrator.  So no medical justification there then, is there? !

If this part of Northumbria’s guidance was the aim of the regulations then it would be explicitly defined in the PIBR legislation.  But it isn’t.

Human Resources Department will send out the Notification of Injury Award Review Letter (Appendix 15 – Notification of Injury Award Review Letter) to the former officer, along with the Injury Award Questionnaire and medical consent form. This should be completed and returned by the former officer within 28 days

Fail.  No mention of a questionnaire in the regulations.  If they need to fish for information to justify a review then surely the interval is not suitable.  What if a questionnaire has never been filled in when the person was retired?  How can a non-medical HR administrator consider any alteration by a comparator when there is only an ‘after’ and no ‘before’.  At this point Northumbria has made its mind up that a review will happen (because the spreadsheet says so)  but no doctor has looked at this former officer’s occupational health file.  These people have no idea whether a letter from their organisation to a sufferer of mental illness will cause a catastrophic relapse.

If this part of Northumbria’s guidance was the aim of the regulations then it would be explicitly defined in the PIBR legislation.  But it isn’t.

if it is indicated from the injury award questionnaire that the former officer’s current salary will place them within the lowest banding it will not be necessary for the Injury Award Team member to complete an Injury Award Review Summary Report. In these cases the questionnaire should be forwarded to the SMP, indicating that the former officer’s current earnings place them within the lowest banding

Fail. Only after consideration of alteration of the degree of disablement can the question of whether it is substantial  be passed to a selected medical practitioner. This isn’t what Northumbria is doing here. HR have decided on the basis of an answer to a question that the person now has no loss of earning capacity. And they think it’s OK for HR types to then decide and for this to be passed to the the SMP for rubber-stamping? A clear abuse of the PIBR.

If this part of Northumbria’s guidance was the of the regulations then it would be explicitly defined in the PIBR legislation.  But it isn’t.

In line with Police Injury Benefit Regulations 20 2(a), (b), and (c), the SMP will then look to establish: 1. Whether the former officer is disabled; and if the answer is yes;
2. Whether the disablement is permanent; and if yes,

Fail. Did I just read this right? They wish to revisit the question of permanence? They are not allowed to this. Only part (d) of regulation 30 can be regarded upon review.  This is limited to the degree of disablement. Everything else decided previously is a given and can not be redetermined.

If this part of Northumbria’s guidance was the of the regulations then it would be explicitly defined in the PIBR legislation.  But it isn’t.

The letter also contains a recommendation for when the former officer’s injury award should be next reviewed. In some cases it may be recommended that no further reviews are undertaken e.g. when the former officer is already over State Pension Age and is in the 025% banding

Fail. Oh, the hypocrisy ! Northumbria are happy never to review again if they have managed to get the person down to band 1. I think this shows their agenda quite starkly. Is their spreadsheet so magical that once their nefarious objective is achieved, the spreadsheet can overrule Northumbria’s ‘positive duty to review’ and make the regular calendar events disappear when the force are unable to reduce any further.  The formulas in the Excel cell seem unable to cope with the logic that a condition can worsen no matter what band they are. 

If this part of Northumbria’s guidance  was the of the regulations then it would be explicitly defined in the PIBR legislation.  But it isn’t.

Following the decision, the relevant member of the Injury Award Team will notify the former officer of the outcome in writing (Appendix 29 – Standard Notification to Former Officer of Management Decision). In these circumstances the former officer has no right of appeal other than to the High Court

Fail.  Let’s imagine that the force has made a discretional determination based in the available medical evidence using regulation 33 (failure to be medically examined).  Northumbria’s guidance saying the only right of appeal is a judicial review is an outright lie.  Any determination of a police pension authority can be appealed  to a police medical appeals board.  But if the appellant does not submit to medical examination to the PMAB then the appeal is closed.   Why isn’t this made clear I hear you ask?  You can envisage the pensioner saying to Northumbria:

  • IOD: “I don’t agree to that because you want my medical records from birth but the last decision can not be revisited.  You can have partial disclosure from the last decision”
  • Northumbria:  “If you don’t give us full records from birth then that is failure to comply.  You are now a band 1”
  • IOD: “Thats unlawful.  I want to appeal”
  • Northumbria: “You can’t. Tough. Take it to judicial review”

Double Fail. Northumbria doth protest too much.  In the real world the IOD can take it to PMAB.  The appeals board will decide that only part d of regulation 30 can be considered and full medical notes since birth are irrelevant.  The pmab may even query why this person was ever reviewed in the first place. The question is always and only alteration – substantial – since the last decision.  Medical records since birth are silent to this therefore the appeal is upheld.  No need for judicial review.  Northumbria are trying to bully the IOD into compliance.

If an SMP considers the following steps necessary: a former officer does not fully complete and return a review questionnaire; supply consent to access medical records; follow directions of an SMP; give consent for an SMP to provide an advisory letter; attend any appointment or fails to do anything else deemed necessary by the SMP by the date specified within correspondence this may be considered a refusal to be medically examined

Fail. Where does the regulations anoint the SMP with such super powers? “Fails to do anything deemed necessary by the SMP” … the targets of the power-crazed doctor are injured former officers with varying and individual afflictions.

Some are elderly, some have PTSD, all are no longer warranted police officers and are now members of the public with an injury pension; not a benefit or a means-tested allowance – an injury pension with finality. The term ‘pension’ is important, the meaning of which is lost on Northumbria. The PIBR is clear in that only a substantial alteration merits a review and this is not a trivial matter. Tellingly ‘substantial’ is a word not to be found in Northumbria’s guidance.

substantial

If this part of Northumbria’s guidance is the aim of the regulations then it would be explicitly defined in the PIBR legislation.  But it isn’t.  Not only that, but the regulations, GMC guidance,  data protection, case-law and civil liberties stop the victimisation of pensioners on the arbitrary whim of a police pension authority.  If only they woke up to this fact.