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Northumbria Police Produce Guidance To SMPs

Northumbria Police Produce Guidance To SMPs

A man who works evil against another works it really against himself, and bad advice is worst for the one who devised it.

— Hesiod  (Greek poet, generally thought to have been active between 750 and 650 BC.)

 

We all receive advice as we progress through life.  Parents, teachers, doctors, financial advisers, police officers, lifestyle coaches, diet experts and many others – they all hand out advice. By all accounts, much of it is then promptly ignored.

Perhaps that reaction can be explained by an instinctive understanding that it can be difficult to spot bad advice, especially when it comes from an authoritative source. Essentially, advice is seen as not to be followed blindly, but to serve only as someone’s point of view, before making up your own mind what to do or not do.

With that in mind, this blog is about some seemingly professional advice issued as ‘guidance’ by Northumbria Police to the doctor or doctors who are tasked to make certain decisions in regard to so-called ‘reviews’ of the degree of disablement of former officers of Northumbria Police. 

The guidance is reproduced in full, below –

IOD Reviews and Reconsiderations Case Law Reference for SMPs

 

We should explain, for new readers, that officers who are injured on duty and as a result become disabled to a degree which prevents them continuing to perform the full range of ordinary duties of a police officer are retired, with an injury pension. The old phrase used for this involuntary retirement was that the individual was ‘cast from the force’. 

The amount of injury pension paid is tied, in part, to the ‘degree of disablement’ which is the extent to which an individual’s capacity to do paid work has been eroded by the disablement.

It is accepted there is a possibility the degree of disablement present at the point of retirement may alter at some later stage. The injury pension Regulations allow, therefore, for a police pension authority to consider, ‘at such intervals as may be suitable’ whether an individual’s degree of disablement has altered. If it has altered substantially, then the amount of pension paid can be revised. This process, of medical assessment and decision is commonly known as a ‘review’.

The Regulations require that the scheme manager, who holds the office of Police Pension Authority (‘PPA’), shall select a ‘duly qualified medical practitioner’ to decide whether there has been any alteration, and if there has been, decide the extent of the alteration. This doctor is known commonly as the Selected Medical Practitioner, or the SMP. The guidance issued by Northumbria Police is to those doctors. 

We understand the guidance has been widely circulated and has not been confined to only Northumbria’s SMPs. Thus, its influence, and potential impact, has spread far and wide, across many of the 43 police forces in England and Wales.

Can guidance from such an authoritative, seemingly professional source, be trusted? We suggest not. Northumbria has a long history of misunderstanding the Regulations. We need hardly remind ourselves of the disgraceful actions of Northumbria’s resident SMP, Dr Broome in reducing, at the stoke of his pen, the pensions of some 70 disabled pensioners.

We believe that Dr Broome, who describes himself as a ‘consultant occupational physician’ was undoubtedly guided in his actions by Northumbria’s resident solicitor, Mr Wirz.

An appeal, by way of judicial review, was made by several of the affected pensioners. They won their case. Here is what the court report has to say:

Dr Broome, the SMP, dealt with all 70 cases on the same day – 20th February 2009. In each case he reduced the degree of disablement to Band 1. In Mr Crudace’s case his reasons were expressed in a letter of that date which reads:

I am advised that the Pensioner has reached State Retirement Age and therefore, in accordance with the Regulations, the Pensioner “no longer has an earning capacity for the purposes of the Police Injury Benefit Regulations”.  Northumbria Police has also determined that there is no “cogent reason” why the Pensioner should not, therefore, be considered to have 0% loss of earnings capacity and as a consequence of their injury, and should be placed in the 0-25% Degree of Disablement banding. I confirm that the above recommendations are consistent with the Regulations and I attach a revised Statement of Injury

 

Dr Broome should have weighed more carefully whatever guidance was directed his way. For his part, and in our humble opinion, solicitor Wirz would have in turn relied on guidance issued by none other than the Home Office.

That guidance, contained in Home Office circular 46/2004, which one would think should  have been beyond critical appraisal given its source, was declared to be unlawful later and the Home Office withdrew significant parts of it.

It is worth nothing that both Dr Broome and Mr Wirz have had several other unsuccessful ventures in the appeal courts.  Indeed, it is hard to find any record of a successful outcome in the law courts for these two.

Yet they both continue to be employed by Northumbria Police, despite all the above.
The rub is, Dr Broome, being paid by Northumbria Police, can hardly be classed as impartial. He who pays the piper calls the tune.

It is all very well that Northumbria’s Chief Constable and the local Police and Crime Commissioner are content to have Dr Broome and Mr Wirz on the books. Perhaps their shortcomings are compensated for by excellence in other aspects of their duties. However, when bad advice is more than likely circulated by Northumbria to other forces – forces who may be blissfully unaware of the track records of Mr Wirz and Dr Broome. These forces may be tempted to take the guidance as sound, valid and watertight, and might recommend it to their own SMPs.

They would be wrong to do so.

The motives of Mr Wirz remain known only to him, but glimpses of his thinking can be caught from reading the guidance. It can be read on two levels – the visible and the unstated. For those who have knowledge of the history of police injury pension maladministration, the unstated theme of the guidance is obvious. It is, in our view, a cynical attempt to manipulate SMPs into applying the regulations in an unlawful manner.

We don’t propose to present a detailed critique of the Northumbria guidance, for that would take up too much space. Instead we suggest to any other force, and any other SMPs who might be tempted to adopt this guidance, that they would do well to treat it with circumspection and a healthy level of suspicion. 

It may though be helpful to sample the guidance at its start, in the middle, and at its end. A sample is all that is needed to demonstrate just how badly flawed is the entire guidance, and how any SMP or police pension authority who chose to rely on it could expect the certainty of successful legal challenge.

It is laughably ironic that the guidance warns, at the outset, that SMPs should not rely on Home Office guidance. The very guidance which Dr Broome and Northumbria Police failed to identify as flawed and unlawful back in 2009.

Although the Home Office withdrew parts of the guidance (46/2004 circular) they left virtually intact and in circulation a hugely more detailed and lengthy guidance which was composed by the same person. 

So, Northumbria is right to warn SMPs conducting reviews that,

. . . case law confirms that the approach to this issue contained in historic Home Office Guidance should not be relied upon.

 

But Northumbria is being partisan by omitting to caution that case law equally confirms that, given its track record, the approach to most issues of injury pension law by Northumbria police pension authority should not be relied upon.

Further into the guidance, speaking about reviews, it advises,

The SMP must establish, relying on admissible evidence, whether the pensioner remains disabled, and if so, whether the disablement caused by the qualifying medical condition is permanent.

 

This is not at all what ‘case law confirms’. The SMP is required to accept the previously-decided degree of disablement, and with that as the starting point, must then determine whether there has been any alteration from that level. 

We note the guidance neglects to cite the ‘case law’ it relies upon. We can put the matter straight by quoting from the case report of  Haworth and Northumbria Police Authority [2012] EWHC 1225 (Admin).

At paragraph 24, we see the court’s opinion:

Upon any such review the starting point on disablement has to be taken as that reached by any previous review as a matter of substance and a new review cannot lawfully seek to re-open questions on disablement, and in particular on causation, already determined by earlier decisions of the material medical authority.

 

Given that this was a judicial review case involving Northumbria, it seems all the more suspect that its Guidance to SMPs is so much at variance with the decision of a court and that it relies on unidentified legal authority here.

Moving to the bottom of the guidance it can be seen that SMPs are being advised directly to divest themselves of a legal duty in certain circumstances.

Those circumstances are currently the subject of an ongoing legal case involving Staffordshire’s police pension authority, so we can’t comment in detail. Suffice to say that the issues revolve around the data protection rights of private citizens and the limits of authority of a Police Pension Authority in making decisions concerning degree of disablement.

We can point out though that the Police (Injury Benefit) Regulations 2006 place a duty on the SMP to make a decision. Regulation 30 states, very clearly a police pension authority. ‘. . . shall refer for decision to a duly qualified medical practitioner selected by them . . .’ certain decisions.

The Northumbria guidance, in complete contradiction, says this:


As SMP you should avoid attempting to make a determination in the absence of information which you, in your professional judgement, consider necessary in order to complete the determination.

 

It is IODPA’s informed understanding that a SMP must make a decision. The regulations offer no option where the SMP can decline to decide. There is a duty on the SMP to make a decision. If there is no evidence, for whatever reason, of substantial alteration in degree of disablement, then the decision of the SMP can only be, and should only be to declare there is no evidence of alteration.

The importance of Northumbria’s guidance on this point is that, if a SMP declines to make a decision, claiming certain information is not available, then an aggressive police pension authority might be tempted to claim the pensioner had wilfully or negligently refused to be medically examined. Thus allowing the police pension authority to turn to regulation 33 and make the decision itself.

That is the very crux of the litigation which is currently engulfing Staffordshire police pension authority.

Whilst that case is ongoing IODPA cautions all SMPs to be very careful in respect of the totality of the guidance issued by Northumbria. The guidance is adversarial in tone, emanates from a source with a record of losses at judicial review and is most probably penned by an individual who has an axe to grind.

We have said it before and we repeat it again. Forces need to ensure they, and their SMPs conduct reviews rigorously within the regulations, utterly fairly, without bias, and with the welfare of the disabled former officer firmly in mind in all that they do.

Post Summer Update

Post Summer Update

Now that Summer is slowly grinding to an end and we will soon be reaching the start of Autumn, our thoughts turn to the start of a new charitable year, which commenced on 1st September. IODPA, concludes, in our view, a second successful year.

The IODPA Trustees sincerely hope that our readers have had a good and peaceful summer; it doesn’t seem like two minutes ago that the children were breaking up for the holidays and the weeks lay blissfully ahead.

Normality resumes this week as the children go back to school and although things have been quiet publically, we have continued to be kept busy behind the scenes.

Reviews, on the whole, have quietened down at present.  We have two epicentres where the main problems seem to be centred; Northumbria and Staffordshire.  As our readers will know, there is a significant judicial review impending for seventeen injured police pensioners from Staffordshire, regarding the production of full medical notes at a review. The varying issues are now heading towards a court hearing so we will not be discussing any more of this case, suffice to say, once we are permitted to report anything in the public forum, we will do so.

We believe that many forces are waiting upon the same aforementioned judicial review before looking at whether or not to commence reviews of their own. We hope that all forces will do their own research rather than be blindly led by others who claim to be the font of all knowledge where Police Injury Benefit Regulations are concerned. There are other ways of doing reviews without causing extreme stress and pain to retired officers, that these two forces think is acceptable. Hopefully, the gentle approach to reviews will become the norm soon, similar to what we believe is happening in Thames Valley.

We will be here, always ready and waiting to support those pensioners who need assistance, should that day come for them.  As we have continued to say so many times previously; we have no problem with forces conducting reviews. They have a right to review, should they decide that there has been a ‘suitable interval’. What we ask for, is that those reviews are conducted lawfully, compassionately and abides by all relevant case law and not be just a cynical vehicle for saving money from those who gave so much.

There is also a growing need to support our serving colleagues who have had the misfortune of being injured whilst on duty. These disabled and vulnerable officers have to deal with an adversarial ill health retirement process, more often than not, alone with no support network in place. Often provided with misinformation, or not informed at all of their rights, we are referring more and more of them to legal support in the aim of them receiving a fair and equitable result at a time when many are having to leave the service they love, due to their duty injuries.

Fortunately, officers are now finding us and we are pleased to say that word of mouth regarding IODPA is spreading more and more within police forces around the country. We are assisting these injured officers and signposting where necessary. We are always very grateful for the help that Mark Lake of Taylor Law and Ron Thompson and Mark Botham of Havens Solicitors give to those who need their specialist knowledge.

As our third charitable year commences and we collate all we have achieved to date, we hope that this new year continues to show IODPA as a growing and improving organisation.

As well as hoping the year brings resolution for some of the issues we have faced over the last few years and new opportunities to help our growing membership, we will continue to support all those who need us, as well as those new members who have joined us over the last twelve months. We anticipate our membership growth will continue in this new charity year and as a result, we will be seeking to collaborative with other organisations to further our help and support for all injured officers.

Welfare for those who have served is still very limited and in some cases, non existent, so developing the charity in these areas will also be explored. It is sobering to think that from just a small group of former officers, who came together in one force area, IODPA has grown rapidly to cover the whole of the UK, with a large membership and it underlines the fact that there is still a large number of serving and retired officers who are in need of support.

So, to finish. If anyone knows of a retired officer who maybe in need, or if you are a serving or served officer with an injury sustained on duty, then please contact us.

2018 – A Year of Progress, Growth and Achievement

2018 – A Year of Progress, Growth and Achievement

This is the time when we look back over the past year and its events and achievements and forward to the New Year and the challenges and successes which lay ahead.

2018 saw Essex Police commence reviews to a large number of injured pensioners, all, we believe, to be on band four. Letters were sent to them with the Regulation 33 paragraph enclosed. Sadly, someone from within Essex Police had disingenuously given the impression the quoted regulation allowed pensions to be reduced to band one if a questionnaire was not completed. The questionnaire required personal financial information and the pensioners’ signed permission for the force to access HMRC and DWP records, and consent for the force to access full medical records.

IODPA, along with Essex branch of the National Association of Retired Police Officers (‘NARPO’), wrote letters to the Chief Constable in his role of Police Pension Authority (‘PPA’), and we were pleased to blog his reply to us.

Reviews in Essex were soon halted and we still await their next move.

Staffordshire Police have continued with their review process, bringing a number of pensioners in front of various Selected Medical Practitioners (‘SMP’). All three SMPs used have all subsequently ended their contract with Staffordshire for various reasons. We believe that a new SMP is currently being sought to take up what must be regarded in the medical profession as a poisoned chalice.

2018 ended, as many of you will recall, with seventeen pensioners having their injury pensions reduced summarily by Chief Constable Gareth Morgan, acting as PPA. The reason cited was that failure by IOD pensioners to allow access to their medical records amounted to a failure to attend a medical interview or examination. This was another example of an abuse of regulation 33.

All seventeen had willingly attended their review appointments, many of whom attended twice. IODPA solicitors acting for the seventeen pensioners immediately sought clarification from the police pension authority of its use of regulation 33.

Mr Morgan then promised to give his individual reasons for each decision to reduce and has meanwhile postponed the reductions.

We await the next stage in this legal fight but suffice to say, we wish everyone the very best of luck. You have one of the best legal teams behind you.

2018 has been a year of continuing growth for IODPA, We now have members from every one of the forty three forces in England and Wales plus Police Scotland and the Police Service of Northern Ireland.

We are very proud to say that our membership has increased over the last twelve months by a third from the previous year. We will continue to welcome new members on board, after all, there are over 13,000 IODs out there!!

We are still a small charity, but we exert an influence and achieve results that are well above what might be expected. IODPA is uniquely placed to provide a quality of service to our members which cannot be found elsewhere. We focus entirely on the needs of former officers with varying degrees of disablement resulting from duty injury, and officers still serving but about to be retired because of ill health or injury on duty.

With our tight focus, IODPA  provides moral and practical support in the most effective manner. Members have the facility to be in easy contact with each other, no matter where they live. Through that contact they reach out to anyone who needs comfort. They help each other. They exchange experiences and knowledge – and we have some very knowledgeable members. Together our membership can call on hundreds of years of experience and skills for the benefit of all. Sometimes just knowing that you are not alone, that someone else is there to talk to is enough. When more is needed, we provide extensive in-depth advice and guidance on all aspects of police injury pensions.

IODPA has continued to hold regular meetings throughout 2018, all over the UK. We recognise the need to support those who are undergoing reviews. It is a highly anxious and stressful time, but particular so for those with mental health injuries.

IODPA campaigns to raise awareness and promote understanding of the correct application of The Police (Injury Benefit) Regulations 2006 so that those retired with injury awards receive fair and lawful treatment, respect, equality and inclusion. Our core aims are to:

 

Expose and challenge all aspects of illegality, unfair practices and improper conduct at all levels of injury award administration.

Share information about good practices and support individuals to effect actions for themselves to achieve lawful and fair outcomes.

To develop a wider awareness and acceptance that the continued use of unlawful policies and frameworks for the administration of injury on duty awards is failing everyone.

Provision of unconditional confidentiality and our promise of keeping everything between us. It is fundamental to our core aims that no-one outside of IODPA will know what members have confided.

To provide a secure support network and forum for retired injured officers.

 

Time was devoted to developing a deep working understanding of the new General Data Protection Regulations, which came into force in April 2018. IODPA had become aware that many forces have been lax to the point of illegality in their retention and processing of personal information concerning former police officers. We report below on an example of how the GDPR has been used to protect the legal rights of members.

Our excellent legal team have been kept busy too. We thank them all for their efforts, and congratulate them on their many successes. IODPA would prefer that police pension authorities never gave us cause to go to litigation, but it remains a sad fact that in some areas there is an unfortunate confluence of insufficient knowledge and understanding of the various pension regulations, a lack of training, and sometimes even a certain amount of ill-will towards disabled former officers. Perhaps worse of all though is the almost universal inability in some forces of anyone at any level to admit mistakes or to show any degree of willingness to work towards ensuring the lawful rights of pensioners.

Over the past year, we have continued to maintain our excellent professional relationships with Ron Thompson and Mark Lake.

We also have been working with Lawrence Davies, a solicitor who specialises in Equality Law, and whom is based in London. He has been instrumental in leading Employment Tribunal  test cases involving pensioners.

The public face of IODPA is presented via our own web site, and through Facebook and Twitter, where we post news, provide a portal to obtaining membership, present information and discussion on aspects of pension administration, and in so doing hopefully help to inform and educate employees in HR and Occupational Health departments how to avoid falling into error.  The web site underwent a complete renovation early in the past year, with a new look, new and enlarged content and a new dynamic. It has been met with approval by hundreds of people, and is now a point of reference for Federation reps.

We published twenty four blogs on our web site over the year which highlighted questionable tactics of various police forces around the UK in their treatment of injured officers. The blogs have been met with good interaction from the public, who are able to post their own comments on the site. As is the way of things, the comments were generally not at all complimentary to certain forces. However, IODPA firmly believes that the vast majority of employees who are involved in police pension administration are honest, decent and well intentioned. We applaud them and are sorry to see their reputations tarnished by the wrongdoings of the minority.

A  most important responsibility for the lawful administration of police injury pensions rests in the hands of the doctors employed by forces to make certain vital decisions required by the regulations. Medicine is a profession which demands high ethical standards. Acting as the SMP for a police pension authority requires not only a wide medical knowledge but also a deep understanding of the police pension regulations and other aspects of law. Sadly, some SMPs have shown themselves to be deficient in some or all areas.

IODPA looks to police pension authorities to correct this situation by ensuring that SMPs are all allowed to perform their task without influence or interference. Their decisions and opinions should be free of bias, arrived at from only relevant facts and be fully in compliance with the regulations and other law.

We have accompanied a number of pensioners to their reviews during the past year. We feel that this has had a positive impact, not only on the individuals subject to SMP decisions but on the SMPs themselves. When SMPs have been subjected to misleading information and training the presence of someone knowledgeable can help the SMP to avoid making mistakes which could result in damage to reputation, complaint or an appearance as a respondent in the Administrative Court.

In early spring of 2017, we championed the way for submitting complaints to the Information Commissioner’s Office, regarding breaches of data protection law.

In 2018 we concentrated particularly on pushing forward with a complaint regarding Avon and Somerset Police holding on to medical records indefinitely. This was pursued over a number of months and eventually the ICO give compelling advice that A & S should give back medical notes.

The ICO has also issued a decision concerning Essex Police which clearly sets out the limited amount of personal information any force is entitled to retain in respect of discharging its duties under the police injury benefit regulations.

This was in addition to a previous decision concerning Northumbria Police which advised them that asking for medical records from birth is excessive and in breach of the DPA.

These three decisions, together, were a huge achievement, as they open the way for many other pensioners to start pursuing the same issue with their own former forces, and  believe they will provide some much needed clarity for data protection managers within all forces.

We have had over seventy letters of thanks during our first year, which means a great deal to us. It’s endorsing that we are doing a satisfactory job and that we are having a significant impact on people’s lives.

During 2018 we made contact with a number of organisations and we intend on building those links over the coming years.

We met with the Executive board of NARPO in their HQ at Wakefield. Chief Executive Steve Edwards was present as was Alan Lees the Deputy Chief Executive, Brian Bardus, President, and Richard Critchley, Deputy President.

We shared honest views with each other and agreed we were all able to work together in the future for the benefit of all members of both organisations.

IODPA also attended the NARPO conference in September, which was over an enjoyable two days.

We will continue to work harmoniously with NARPO branches and look to doing similar with any others who wish to form links with IODPA.

We are also working together with some local Federation branches, which again, is excellent for all our members. We are stronger working together and welcome contact from other branches if we can assist you to advise your members.

Another connection we made during our first year, was with a Social Enterprise called Upledger UK. They specialise in treatment called Cranial Sacral Therapy and which is used successfully to treat people with PTSD and physical injuries,. The treatment originates from America and has been used on hundreds of army veterans.

Between Upledger and IODPA, we managed to facilitate a week’s therapy exclusively for our members in November 2017. It was gratis for our members to attend because of funds raised. All members who attended reported that the week’s treatment was life changing. One member who attended the course vowed to  raise funds so that others could have the chance of such brilliant treatment. He announced he was going to raise money by doing, ‘a little bike ride’ – from John O’Groats to Lands End.

In May 2018, after months of training, he set off from John O’Groats together with a large support team plus his son and another pensioner, who would do parts of the journey with him.

On Sat 9th June 2018, he cycled into Lands End, having pedalled over 920 miles. He raised £12,000 for the charity – a magnificent achievement which is applauded with gratitude by all members and Trustees.

Fundraising is now firmly on the agenda. Various initiatives throughout the year, always well supported by our members and their families and friends, brought in a steady stream of funds. IODPA also benefited from individual donations.

We are very proud and delighted to announce that in June of 2018 we welcomed our first patron of the charity.

Pete Conway, better known as father of Robbie Williams, agreed to be our patron. He is a big supporter of injured police officers, having been a police officer In Staffordshire in a previous life. He has been active in supporting the charity and its aims, he has lent his support to us throughout the year by attending functions where he can, he also advertises our fundraisers on his Twitter account, which is helpful as he reaches a large audience around the world. Pete is a kind, generous, approachable and big hearted man and we look forward to working alongside him in the coming year.

Since IODPA became a registered charity it has achieved a huge amount of success throughout the past year.

We anticipate some pivotal legal challenges in the New Year, not least with Staffordshire’s police pension authority which seems intent on testing its own peculiar interpretation of an important aspect of the injury benefit regulations. We are more than prepared for that contest and are fully supportive of our members.

So, to all our members, friends and supporters, and to all people of good will we wish a very Happy New Year.

The only way is not Essex

The only way is not Essex

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

He writes,

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

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

He writes,

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

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

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

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

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

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

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

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

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

A Year Under Review

A Year Under Review

Coming together is a beginning: keeping together is progress; working together is success
 Henry Ford

As 2017 draws to a close we at IODPA have been reflecting on events over the last year.

Before we summarise what has been a most busy, productive and successful year for all involved with IODPA, we pause to salute all IOD pensioners who have joined IODPA. Some have bravely fought individual battles with wayward HR departments and Chief Constables.

For Many of you 2017 has been intensely stressful. We pledge to work tirelessly to help ensure all IOD pensioners are not Scrooged by their respective police pension authorities.

We also offer our best wishes and seasonal greetings to all in HR departments across this fair land who have continued to actively oppose the scope and purposes of the Police (Injury Benefit) Regulations 2006.

We anticipate that 2018 will be the year when you all come to your senses, recover your moral core and pledge to act not only lawfully but with care and compassion for disabled former officers. IODPA to you is the ghost of Christmas past, present and future. Watch and learn. Absorb and change.

2017 saw IODPA and individuals achieve many successes in various areas in the arena of police injury pension maladministration: a significant judicial review won; one force abruptly stopped their mass review programme whilst another one started them up; IODPA became an official charity and continues to grow at a rate of knots; our membership base grew rapidly; we arrived firmly on the radar of all forces, and we know that our blogs are read and circulated widely.

Let’s look at the year now closing and review all it has produced for us.

2017 began extremely well with the first judicial review (JR) of the year. In FEBRUARY, former Police Constable Stanley Fisher took his former force, Northumbria, to Leeds Admin Court, and won the two main points his legal team, Ron Thompson of Haven Solicitors and David Lock QC, put forward.

Mr Fisher’s successful JR addressed highly important issues with universal application and has huge implications for all Injured on Duty Pensioners.

We admire Mr Fisher’s strength in continuing his fight with his former force. The so-called regulation 37 review of his degree of disablement by Northumbria was one of the longest ‘reviews’ to have been conducted, stretching eleven years in total.

Wirz loses High Court challenge

APRIL saw Staffordshire drop a bombshell announcement on their pensioners that they were rolling out a mass review programme.

This had the effect of IODPA increasing membership numbers hugely as Staffordshire pensioners, concerned at what lay ahead of them, joined in their droves.

In JUNE, the next big news to hit us was the unexpected announcement by Avon and Somerset Constabulary that they were stopping their review programme. They had spent the previous three years unlawfully reviewing a cynically selected handful of pensioners, who are predominantly all band fours and under the age of fifty. (No prizes for working out why this particular group of people were picked on.)

Newsflash: Avon & Somerset Stops Reviews

The news from A&S was welcomed by all their pensioners. However, there was a lot of disgust at how some pensioners who had been in the review process for over three years have never received any any apology for the distress the force had caused.

In JULY, Ron Thompson gave a press release which revealed how Merseyside Constabulary had agreed to a Consent Order regarding the issue pensioners receiving demands to provide full lifetime medical notes to the police pension authority and SMP, and the issuing of intrusive and threatening questionnaires.

A pensioner had had his IOD pension taken away from him as what appeared to be an extra-regulatory punishment for not providing the said documents.

Mr Thompson’s services was engaged and very soon after, Merseyside signed the order and the pensioner’s money was reimbursed and payment of his pension recommenced.

Breaking News: The Tyranny Of The Questionnaire Ends

The summer saw IODPA launch their first Crowdfunding campaign. With the generosity of the public, we raised over £4,200. The funds have already helped to support a number of pensioners, who have expressed their grateful thanks.

In SEPTEMBER, IODPA became a registered charity. This was the highlight of our year. It marks years of dedication to supporting Injured pensioners and serving officers and it was wonderful to be acknowledged as a charity.

Also in SEPTEMBER, the Information Commissioners Office (ICO) gave advice to an IODPA member regarding his former force retaining full medical notes ‘just in case’ they might be needed The ICO advised that this was excessive retention of sensitive personal data and Avon and Somerset Constabulary was asked to return all medical notes back to the pensioner.

This was an instance of the ICO looking at the full facts and giving reasonable and advice, which should in theory apply to all forces. The ICO’s advice gave hope to a number of former officers that they could also ask for their personal and sensitive data to be returned to them. Sadly, many pensioners are still in dispute with their former forces over this issue.

3 Big Data Myths: Busted

NOVEMBER saw IODPA’s first collaboration with another charity, Upledger. Five IODPA members who suffer with PTSD went on an intensive five day therapy course which has helped them to develop ways of living with their mental injury. All who attended report that the course was extremely beneficial and has helped them immensely moving forward.

IODPA was able to financially help the members to attend the course of which we are very proud of.

NOVEMBER also saw eminent QC Mr David Lock, write two very relevant comment pieces on his Linkedin page, in relation to IOD reviews and the processes surrounding them.

Perhaps not so surprisingly, they were read by thousands of people, showing that this issue concerns a vast number of the public.

When David Lock QC Speaks the World Listens

In DECEMBER, Northumbrian Federation Rep, Inspector Adrian Smiles, released ICO advice, again, regarding the subject of medical notes. This time, it was about Northumbria (and other forces) demanding pensioners full medical notes on review. Once again, the ICO stated that this was excessive and that Northumbria were potentially breaching the Data Protection Act.

Northumbria Police Federation Wins ICO Assessment Notice

Also in DECEMBER, we were able to break the news that Dr Vivian, the chosen SMP for Staffordshire, had abruptly withdrew from conducting reviews, citing that doing them was proving too stressful and burdensome. This was indeed hot news, particularly as Dr Vivian notified IODPA direct to inform us.

Icarus – Injury reviews, too hot to handle.

Leading on from Dr Vivian’s abrupt departure, just before Christmas, Chief Constable Gareth Morgan of Staffordshire Police, released an open letter astoundingly stating that he believe reviews were being conducted lawfully. He went on to claim, with no evidence or explanation that there was a campaign by a small number of individuals which was trying to ‘besmirch’ the reputation of Staffordshire Police.

His letter was felt to be intimidating and threatening by many and stands as a remarkable insight into the peculiar defensive and negative mindset of this individual. It brought the year to a close and stiffened our resolve to stand up for the rights of IOD pensioners and to deflate the enormous egos of all bullies who think they are above the law.

Chief Constable Morgan’s open letter

We in IODPA look forward to what 2018 might bring. We are confident that it will be twelve months of continuing success and growth.

Advocating a 100% Fresh Assessment in All but Name

Advocating a 100% Fresh Assessment in All but Name

“Isn’t it nice to think that tomorrow is a new day with no mistakes in it yet?”
― L.M. Montgomery

Here’s the problem. A force brainwashed SMP won’t say a medical examination has occurred without seeing the former officer stagger into the office with bulging* Lidl bag (other supermarkets are available) with papers sticking out of it. *Note: More than likely the physical carrying of such bag will be used as sly evidence of substantial change.

We don’t know if it had the words ‘all my medical records ever, since birth’ written in Magic Marker on the side of the bag. Anyway, a little later, the SMP says a mild bout of flu when 6 years old is the real cause of the missing limb and subsequent PTSD, and causation is revisited.

Later again, surprise is expressed that the SMP had been able to get through with his primitive bag of tricks. In this new-age we are continually exhorted by HR minions such as  Staffordshire’s Andrew Colley that it’s not the force that wants the medical records, it’s the SMP.  Always the SMP.  ‘Our hands are tied!’ says Colley, the doctor is a doctor, he can ask for whatever he likes.  Don’t shoot the messenger … nothing to do with the PPA (honest ‘guv).

We are told to be vigilant on disclosure of sensitive personal information, so why wasn’t the SMP told he can’t have what he’s not entitled to? Did nobody think it looked a bit suspicious?  That the question of what happened prior to the last decision is time-barred and irrelevant.  What maybe reasonable to a nice and pleasant doctor is not lawful in the world of the Regulations where nice and pleasant doctors are as rare as unicorn droppings.

We have the feeling we know the answer to that. Just think of the howl-round, the furore, if the SMP decided to say the person should not have an injury award in the first place or said the previous decision wrong. This would be a clear breach of Law Court of Appeal in Metropolitan Police Authority v Laws and the PMAB [2010] EWCA Civ 1099, in which it was held that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations, and had merely to consider whether the degree of disablement had substantially altered.

But by demanding full medical records from birth, this is exactly where we are, right now. Pinned to our seats by perceived medical decision immunity, as the train enters the darkness of the tunnel of the Laws case law, next stop a zero percent band one.

Forces like Staffordshire are trying to bypass Laws and revisit causation by pointing the finger at Dr Vivian by proclaiming that it’s not them (the police pension authority, PPA) that is demanding full medical records, it’s Vivian – and Vivian is a doctor, and all doctors are nice and pleasant and wouldn’t breach the law.  The flaw in this is the SMP, as a delegated decision maker, is synonymous with the PPA.  They are not two separate entities … one is culpable for the other.  What the PPA can’t do, the SMP can’t do.

But the “let’s look at full medical records from birth” is when the SMP brings in other illnesses even when there are no said illness – such as age! (We aren’t joking here, this recently happened). And the reduction is formalised behind the mask of so-called expert medical opinion.

Where did this process of radicalisation start, and what has had done to counter it?  Our blogs shine a light and the narrative is clear:  the Regulations do not support the interpretation that is placed upon them by police forces.  They get it wrong and that’s why they continually lose in judicial reviews.

The National Well Being & Attendance Forum sets its people apart from the rest and, in all too many cases, this apartness leads to a hatred of the function of the Regulations:  to provide those injured on duty with an injury award.

NWEF prefers to think the Regulations as a means to stop those injured on duty from getting an injury award.

The NWEF September 1st 2017 minutes are a case in point.  The minions in attendance obviously, quite rightly, have the willies about consent because they get the consent issue so wrong it hurts.  They talked about being GDPR ready (the GPDR is the new General Data Protection Regulations and is the new legal framework for data protection coming into force in 2018) but just prior they chat about the SMP can have anything the SMP asks for. NWEF says:

The general view was that it is the SMPs process so it is up to the SMP to direct what information or evidence they require,

We’ve read the GPDR and having ‘everything’ ever, because ‘everything’ is asked for, and not giving ‘everything’ will be seen as non-compliance and dealt with by punitive action, doesn’t seem to fit.  Actually enough faux understatement, let’s not beat around the bush; it’s unlawful.

And the questionnaire!  Oh my, the questionnaire.  Even though a 2017 consent order against Merseyside touched on this as well as full medical records from birth, NWEF still thinks a questionnaire is a legitimate means to fulfil the comparison test.

3) Refusing to complete a questionnaire for the purposes of Reg 37(1)
It was felt the exchange of information between the pensioner and SMP is essential to identify substantial change.
There was comment that the case of Laws set the principle that a case cannot be referred for degree of disablement to be reviewed without evidence of substantial change; the questionnaire assists with the gathering of evidence.

Let us quickly mention that the purpose of a review is never to fish for change to find evidence for a reduction and that a questionnaire is an invented device and is outside the statutory framework.  But let us roll with the juxtaposition of the Laws judgement and whether the questionnaire assists with the gathering of evidence.

Surely for the questionnaire to be a tool in the way NWEF suggests, there will have to be two questionnaires.  One completed on a previous date, and one completed in the present day. And then the answer to the questions could be balanced against the previous answer.

But no … there is only ever one questionnaire.  So tying to mask this unlawful device as permitted by Laws is just probably the worse thing ever written about anything to do with the Regulations. Ever.

Feel free to read the rest of the September minutes.  Have your tutting hat on.  You will be doing a lot of tutting!

NWEF September 1 2017

 

Dismissed PTSD Officer wins right to sue for discrimination

Dismissed PTSD Officer wins right to sue for discrimination

A former Metropolitan police officer who suffered post-traumatic stress disorder (PTSD) following an assault while on duty, but was dismissed by a misconduct panel who failed to take the PTSD into account, has been given the right to sue her bosses for discrimination at an employment tribunal.

The officer – named in court only as ‘P’ – said the misconduct panel which ended her career in 2012 had been guilty of disability discrimination because it failed to take her PTSD into account.

Previously, police officers could not bring proceedings in an  employment tribunal, to challenge the actions or decisions of the Panel, because it’s a judicial tribunal.

The Supreme Court ruling on Wednesday over-ruled this.  The ruling is a game-changer that determines that police internal misconduct panels do not enjoy judicial immunity and victims of discrimination on the grounds of race, gender or disability can now pursue discrimination claims against the police at an employment tribunal.

P (Appellant) v Commissioner of Police of the Metropolis (Respondent) – The Supreme Court

Case details

It is apparent that this judgement has further implications on other professions, panels and tribunals, including Police Medical Appeal Boards (PMABs).

The Supreme Court is highest authority in the interpretation of UK law and can not be appealed.  Such a judgement shines a light on the thought processes and current paradigm of our leading judges in how, and to whom, the Equality Act applies.

uksc-2016-0041-press-summary

 

Chief Morgan’s Conundrum

Chief Morgan’s Conundrum

“A sum can be put right: but only by going back till you find the error and working it afresh from that point, never by simply going on.”
C.S. Lewis, The Great Divorce

Gareth Morgan, the newly appointed Chief Constable of Staffordshire, who takes up his post on the 19th June, has a problem.

During his tenure as Deputy Chief Constable of Avon and Somerset Police he will have become well aware that maladministration of police injury pensions leads inevitably to increased costs, litigation and disaffection amongst serving officers. Gareth witnessed how attempts to subvert, twist, or bypass the Regulations governing injury pensions achieved nothing more than the transfer of large amounts of ratepayers’ money into the pockets of a certain Dr Phillip Johnson.

This less than eminent medical practitioner, was paid to carry out reviews on the degree of disablement of former officers who are in receipt of injury pensions. In over three years and forty-six billed days he managed only six for which he was paid £146,000 Avon and Somerset Police Pension Authority (PPA) , which is none other than the single personage of the current Chief Constable, has been forced to make a humiliating u-turn and has announced that the planned mass review programme is abandoned.

The force has no will to attempt any further reviews. So, when Gareth becomes the PPA in Staffordshire, what will he make of that force’s plans to hold a similar unlawful programme of mass reviews? He can’t claim he is not very well aware of the issues, for in November 2013, the College of Policing started a scoping review of forces’ management of Police Medical Appeal Boards (PMAB). Gareth agreed to act as the Senior Responsible Owner (SRO) for the exercise. Tellingly it was then Chief Constable Mike Cunningham of Staffordshire Police, in his capacity as the Workforce Development Business Area Lead, who for reasons unknown, requested this commission.

The College of Policing soon increased the scope of the review from the original issue of PMABs to the management of police officer ill health retirements and injury on duty assessments, as these areas form the basis of any appeal to a PMAB. And the conclusions Morgan’s College-backed enquiry came to? Given pride of place was the startling figure that appeals against the mistakes made by HR managers and SMPs had cost forces some £4.3 million pounds since 2008. The enquiry revealed that the ill health retirement process is in chaos, with poorly trained personnel performing functions they don’t understand, regularly failing police officers.

It is recognised that these processes are complex and expensive to the force and potentially led to a disservice of officers who have been injured in the line of duty.

Morgan also accepts there have been a number of occasions in recent years when the established practice of police forces, supported by the Home Office, in interpreting the meaning of the 2006 Regulations, has been found to be inconsistent with the true wording of the Regulations!

6 At the time of writing, very few forces are currently engaged in performing
reviews of previous IoD decisions, many having not done so since the Home
Office correspondence in 10 March 2010 following critical case law. The issues
relating to the appropriateness of conducting reviews notwithstanding, the
decision not to review has resulted in a significant degradation of the skill level of those staff members who had previous experience of this work. Many of whom, as a result of ongoing financial cuts to relevant departments, are no longer working for the police service.

The ‘Home Office correspondence’ referred to was a letter from the HO advising that all forces cease reviews, pending a seminal judicial review upcoming in the Administrative Court. That case concerned a former Met officer, Belinda Laws. She won her case. The reviews then being conducted in some forces were unlawful as they were based on the infamous guidance issued by the Home Office in Annex C to its circular 46/2004.

The Home Office later suffered a hammer blow when it had to concede the guidance was unlawful and withdrew it. The Home Office gave a clear indication in a later judicial review case that it was unlikely to want to issue any revised guidance, or indeed, any further guidance whatever concerning injury awards and ill health retirement processes.

Peter Spreadbury, then Head of the Police Pensions and Retirement Policy Section within the Home Office gave a witness statement in the case of Simpson held at Leeds High Court in February 2012. He stated,

‘Should it appear that repeated legal challenges and uncertainty are likely to continue in this area, one possible option is the withdrawal of the relevant guidance and the abandonment of any attempt to give central guidance on the topic.’

Well, legal challenges have continued apace, and uncertainty within HR departments has increased, and the Home Office has withdraw its guidance, and it remains sensibly silent on all matters concerning injury pensions. The ball is firmly in the court of each PPA. They can expect no overt help from the Home Office, though we know that august Department of State sends a representative to meetings of the National Welfare and Engagement Forum. We believe this is more to keep an eye on the rampant idiocy which is displayed there than to try to advise more unlawful attempts to subvert the Regulations.

It is reasonable to assume then that Gareth Morgan is more acquainted than most Chief Officers with the institutional failures of HR departments to properly administer the police injury benefit Regulations.

Gareth also knows first hand of the most vile abuse foisted on vulnerable disabled officers, for it was in Avon and Somerset that the now deceased Dr Reginald Bunting was allowed free rein to practice his sexual perversions on officers and former officers who he was called upon to examine.

Speaking about Operation Hay which investigated the historical abuse he went on record as saying:

“Anyone requiring a police medical examination held on police premises by a police doctor should have had an expectation of being safe. It is clear that the conduct of some of these medical examinations fell well below this standard.~Deputy Chief Constable Gareth Morgan

Wishful thinking on Gareth’s part, for the day after Avon & Somerset decided enough was enough in their abuse of those injured on duty, the Bristol Post reported that more victims have come forward:

Investigation into pervert doctor continue as more victims come forward

The police investigation into a pervert Bristol doctor is being continued as more potential victims have come forward. Dr Reginald Bunting was said to have been ‘inappropriate’ towards 52 police recruits and staff while he worked for Avon and Somerset Constabulary. Investigations into the doctor’s behaviour and complaints made about him ended this year after a two-year probe.

So, Gareth Morgan’s problem as he takes up his new post is this: he now has a choice to make. Does his follow the lead of his former boss in Avon and Somerset, Chief Constable Andy Marsh and halt the reviews, or does he continue to zealously pursue Staffordshire’s review program as if nothing has happened?

Will we see Morgan fall back on repeating the tired and empty mantra in respect of reviews where various administrators have falsely claimed the Regulations say they “shall“ conduct reviews, or that they are “obliged to review“ as they have “a positive duty” to review? Will Morgan chose to ignore the looming disaster that Staffordshire’s proposed mass review programme will bring? Will he chose to ignore all the evidence which proves most, if not all, forces are utterly incapable of administering police injury pensions within the law?

To add to his problem he has to take ownership of the ill-judged and illegal Staffordshire 2008 “agreement“ which favoured certain IOD pensioners at the expense of others. He will have a tangled mess to attempt unravelling now that Staffordshire’s IOD pensioners have realised the agreement was not worth the paper it was written on. Staffordshire will have to deal with that before it could even contemplate holding any reviews – unless of course Gareth has the stomach for a costly round of appeals and trips to the Administrative Court.

We hope that new Chief Constable Gareth Morgan will look back on his time with Avon and Somerset and reflect on the sour sans-apology June 12th letter to all IOD pensioners from Julian Kern on behalf of Avon & Somerset Police Pension Authority cancelling what he called the “automatic reviews“.

Of course the term “automatic review” is an euphemism for holding reviews only for the purpose of discovering whether there has been substantial alteration in degree of disablement, without any pre-consideration as to whether the degree of the pensioners disablement has altered. This, as regular readers of these blogs will know, is not a lawful process. A review held without first deciding there has been a suitable interval since the previous decision on degree of disablement is unlawful. A review held without any individual consideration of individual circumstances is unlawful. A review held with a view to saving money is unlawful.

The Regulations prohibit anything which might be called an ‘automatic review’. The fact that Kern used this phrase, in what we sincerely hope will be the last letter he is allowed to pen for Avon and Somerset Police Pension Authority, sums up all we need to know about the sheer incompetence of the man. He knows nothing about the Regulations.

We will touch in later blogs about Kern’s reference to suspension of reviews pending future legislation or Home Office guidance but suffice to say IODPA is confident there will be no retrospective legislation, nor will the Home Office ever offer any more central guidance.

Avon and Somerset’s climb-down suspension of all reviews sends a strong signal to Staffordshire, and the other few forces which are still mistakenly in thrall to the idea that reviews can save them money. It also tells anyone who cares to listen that the hugely ignorant and dangerous guidance issued by Nicholas Wirz via the the National Wellbeing and Engagement Forum is a poisoned chalice.

IODPA wishes Mr Morgan well in his new role in Staffordshire. We hope that once he is his own boss, free of the shackles of being merely the number two he was in Avon and Somerset, that he will make some sensible decisions and not only halt the proposed mass review programme, but set about clearing up the historic mess that is the administration of police injury pensions in that area.

Update: Staffordshire Agreement

Update: Staffordshire Agreement

The Staffordshire branch of NARPO has, quite correctly, asked the Police Federation of England & Wales (PFEW) about the “agreement” that was sent out to those as a consequence of being paper reviewed almost a decade ago.  Remember this “agreement” was signed at the time by the individual, local NARPO, local PFEW and Staffordshire police.

Legal Advice March 2008 Agreement

Legal Advice March 2008 Agreement

There is a stand-out point that seems to be missed here …  The test whether the contract is a stand-alone, legally binding thing of absolute validity is arguably the wrong question to apply.  It matters not whether the contract, on it’s own, is a legal document of authority.  What matters is the context underpinning how the signed paper came into being and the legitimate expectation such a document provides as a consequence of the processes that occurred before it.

If the conclusion is flawed  (the “agreement“), then the process (a review conducted under Regulation 37) that led to that conclusion is compromised.

So the real significance lies in the gap between the very start of process (including the motivation behind why it commenced) to the finality of the Staffordshire 2008 mass review program, the conclusion of such being the “agreement“.

If the context of the “agreement” is flawed then it opens the fact that the paper review that underpins the “agreement” is unsound.

All those mass paper reviews conducted a decade ago by Staffordshire, in an attempt to limit their exposure to the illegality of the 46/2004 Home Office guidance, were finalised without the knowledge contained in the later judgements found in the Pollard, Turner and Laws judicial reviews.

A mechanism to fix such wrongs is a Regulation 32 reconsideration and the legal advice of the PFEW, however it is interpreted, is a gateway that brings to stark realism the judgement of Justice King in Haworth, R (on the application of) v Northumbria Police Authority [2012]  that a reconsideration …

should be construed as a free standing mechanism as part of the system of checks and balances in the regulations to ensure that the pension award, either by way of an initial award or on a review to the former police officer by either the SMP or PMAB, has been determined in accordance with the regulations and that the retired officer is being paid the sum to which he is entitled under the regulations.

…and that refusal of the police pension authority to allow such right to a mechanism to fix a wrong is:

potentially unlawful interference with a ECHR right

We could have saved the effort of the PFEW by telling those who asked that the “agreement” is not congruent with the “checks and balances” demanded by the Regulations.  Excuse the use of deliberate tautology, but the point is so important that it needs to be repeated with different words: the “agreement” is a dubious result caveated by Staffordshire Police’s 2008 mass review program that was itself, by its very nature, not congruent with “checks and balances” demanded by the Regulations.

Before a person  starts to think they should ever acquiesce to any review there needs to be answers.  Not only shall the review be justified to the individual, a suitable interval needs to have elapsed and individual discretion applied based on that person’s circumstances.  The disabled former officer also needs to fix the damage done by any previous unlawful paper review.

We will be pleased to field any questions you may have about the information contained in this post and the PDF above.  Either comment below, so others can benefit from the conversation, or email us for a private chat admin@iodpa.org

Battle of the ALAMA

Battle of the ALAMA

“I am at liberty to vote as my conscience and judgement dictates to be right, without the yoke of any party on me… Look at my arms, you will find no party hand-cuff on them. ”
David Crockett

In 1835, Mexican President Antonio Lopez de Santa Anna (1794-1876) threw out the nation’s constitution and made himself dictator.  Many Americans in Texas, as well as Tejanos (Mexicans in Texas), hated this blow to their liberty and the growing tensions between Mexico and Texas erupted into violence when Mexican soldiers attempted to disarm the people of Gonzales, igniting the Texan war for independence. Like other states discontented with the central Mexican authorities, the Texas department of the Mexican state of Coahuila y Tejas rebelled in late 1835 and declared itself independent on 2 March 1836.

The Battle of the Alamo (February 23 – March 6, 1836) was a pivotal event in the Texas Revolution. Mexican troops under President General Santa Anna attacked the Alamo Mission near modern-day San Antonio, Texas, United States, killing all of the Texian defenders, one of whom was the famous Davy Crockett.

In an ironic twist of events, Santa Anna had fought for Mexico’s independence from Spain, only to decide to crush the independence desired by the people of Texas.

The Texas revolution finally ended at the battle of San Jacinto on April 21, 1836. It had been an uprising in defence of liberty.

Santa Anna shared a characteristic common to many other dictators. He was as contemptuous of the views, and rights, of the people of Mexico as he was towards the Texians. In 1824 Santa Anna gave his opinion as, ‘A hundred years to come my people will not be fit for liberty. They do not know what it is, unenlightened as they are, and under the influence of a Catholic clergy, a despotism is the proper government for them, but there is no reason why it should not be a wise and virtuous one.

In 2016, a senior representative of an organisation named the ALAMA, which boasts a membership of just 300 occupational health doctors, seems to have experienced a fit of pique. He lobbied the GMC in an attempt to get it to change its rules so as to exclude a certain class of people from the principles of confidentiality and respect for patients’ privacy that all doctors are expected to understand and follow. That class of people was disabled former police officers.

The ALAMA representative wished to prevent them from exercising their right to see a copy of any report written by a SMP before it is sent in to the commissioning authority. He wished to see disabled former police officers also lose their right to withdraw their permission for any such report to be sent in should they find fault with it. (See the guidance on line at http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality_contents.asp)

The lobbyist was Dr Bulpitt, who is Force Medical Advisor for Avon and Somerset Constabulary. He is is the official police representative of ALAMA –  the Association of Local Authority Medical Advisors. He is no Santa Anna, but from him there emanates more than a whiff of the characteristics which distinguish dictators. His approach to the GMC demonstrates that he is contemptuous of the considered democratic view of the eminent GMC, which sets the standards which the more than 281,000 doctors registered with the GMC are required to follow. We are also suspicious that his lobbying was a personal campaign, and does not truly reflect the views of the members of ALAMA.

In ALAMA’s name, Dr Bulpitt has discarded the self evident truth that the GMC guidance follows legislation and complies with legislation. He fails to see that when the law isn’t applied to some, it doesn’t apply to any.

But is it the position of ALAMA, or the views of one man?  We can’t tell if it is the organisation as a whole which is intent on destroying the rights of disabled former police officers, or whether Bulpitt’s lobbying is an example of an individual unilaterally abusing his position within ALAMA to perform some sort of ‘Game of Thrones’ politics of power play.  

Dr David Bulpitt’s position and influence within this small organisation does not just have local consequences within Avon and Somerset. ALAMA represents many of the doctors who work as SMPs across the country. Should Dr Bulpitt’s views sway the GMC to amend its guidance, then that will affect every injury award review and injury award application nationwide.

Unlike Davy Crockett, who solely relied on his conscience and judgement, this particular doctor has the yoke of best practice defined by a regulatory body to adhere to –  best practice that he wants to have the ability to choose when to park aside and who and when to exempt, to suit his own agenda.

ALAMA was founded after a conference on inhalation hazards in Firemen held in Edinburgh in March 1979. In April 1980 a follow-up meeting for local authority doctors in Manchester saw the start of an ALAMA steering committee.

The declared aims of the Association were to hold an annual meeting, to develop some kind of link with the Society of Occupational Medicine, the Faculty of Occupational Medicine and the British Medical Association.

Plainly, its founding aims were not to lobby the GMC to discriminate against certain cohort of people! So, what is the exact lobbying we are talking about?

The GMC are currently reviewing their 2009 Confidentiality guidance – making sure it is “relevant to doctors’ needs and to be compatible with the law throughout the UK.”  The public consultation on the revised draft of the guidance on confidentiality closed on the 19 February 2016.

In January 2016, almost three months after he had professed to the Home Office that he had already contacted the GMC, Dr Bulpitt used ALAMA headed notepaper to belatedly write to that organisation.

bulpitt-gmc-disclosure-28012016
(select and use arrows bottom left to navigate pages)

Within his letter he compared the right of certain specified members of the public – who happen to be people retired from the police service – to withdraw consent for medical reports (under the Access to Medical Reports Act) to being synonymous to condoning a repeat of the 2014 Glasgow bus catastrophe that killed six and injured fifteen others.

Just like the Tejanos in 1835, we are understandably appalled at the attack upon our liberty. Such purging of protection under the law for chosen targets leads inevitably to greater and greater abuses and more and more destruction of rights. This process was aptly chronicled by  Martin Niemöller … to misquote this pastor, “First they came … for the people with disabilities. And I did not speak out because I did not have a disability”.

Dr Bulpitt sets his scene by first constructing a diversionary straw-man argument. Ignoring the contentious and unlawful mass review programs instigated by a minority of police pension authorities to reduce their ‘financial exposure’ to the cost of police injury on duty pensions, the doctor starts with smoke and mirrors by saying the OHP (occupational health practitioner, in other words the SMP) is only concerned with the fitness to work, in an attempt to sway the GMC Assistant Director for Standards & Ethics away from his true agenda.

Why let the truth get in the way of a good yarn? That his lobbying has no basis in fitness to work, dealing as it does with the destruction of the rights of people pensioned off from the police service, doesn’t cause Dr Bulpitt to see the irrelevance in his narrative.

Clinical Information obtained and recorded by OHPs, especially during a one off assessment, is exclusively for the purpose of advising employee and employer on fitness for work.  Therefore the consent to request this information is made in that context. Clinical  information is not obtained to provide clinical care and therefore the basis of the consent to  request it is quite different from Drs who provide clinical care.

According to the Introductory Memorandum to The Police (Injury Benefit) Regulations 2006  the Police injury awards do not depend on membership of the Police Pension Scheme, but are in effect compensation for work-related injuries (the degree of disablement in relation to capacity to earn).

Continuing to omit things which irritatingly do not tally with his story, Dr Bulpitt fails to say that a great many SMP’s have in fact become of late a pale shadow of the independent and impartial decision-makers which they are required to be in law.  He leaves out the inconvenient fact that he regularly demands clinical information including full medical records since birth; expunges from his lobbying of the GMC the information that the occupational health unit almost always did provide clinical care to the injured police officer whilst injured and still in service.

Apparently, in Dr Bulpitt’s version of the parliamentary process, it is only civil servants in the Home Office that ‘sets down’ legislation, conveniently forgetting the role of the Houses of Commons and Lords.

The Police Pension Scheme serves as a particular example of where clarity is urgently needed as to whether additional consent is necessary once an individual has requested their employer to enter them into the process for health assessment, and consideration for payment related to ill health. At present GMC guidance appears to sit uncomfortably with the Regulations for the Police Pension Scheme which are set down in Legislation via the Home Office.

Rather peculiarly, the official ALAMA representative’s letter goes from faux concern for Council employed drivers; Police Officers using Firearms; Teachers with responsibility for children, on directly to his real bugbear – the Police Pension Scheme.

Could it be that mention of other local authority aspects were just a diversionary tactic?  Is his real true agenda purely to convince the director of ethics that there is an imagined disconnect between GMC guidance and the Police Injury Benefit Regulations?

At present GMC guidance appears to sit uncomfortably with the  Regulations for the Police Pension Scheme which are set down in Legislation via the Home  Office.

IODPA would like to see evidence of where this proclaimed inconsistency lies. We believe there is no evidence. Dr Bulpitt chooses not to explain himself, and presents as fact something which is wide open to critical challenge. We believe that the current GMC guidance is based on a careful and rational analysis of the Regulations and of relevant court cases which have addressed the issues of confidentiality and consent in respect of reports commissioned by employers and pension scheme managers.

We have witnessed too many instances of reports written by SMPs which contained factual inaccuracies, incorrect application of the Regulations, and which exceeded the limitations of the brief of the SMP to see very readily why Dr Bulpitt wants these reports to be winged direct to the commissioning authority without scrutiny.

He fears that injury on duty pensioners have finally become aware that their rights under the law, and under GMC’s guidance, have consistently and widely been denied. He fears that a high percentage of reports will be subjected to withdrawal of consent and will not land on the desks of HR managers. His ambition to manipulate the Regulations so as to effect reductions of pension payments would be thwarted.

His letter to the GMC exposes very clearly that this doctor has only the wishes of his paymasters in mind, and cares nothing about the health and well being of disabled former police officers, nor cares anything for their right to continue to receive the level of pension their injuries deserve.

Current GMC guidance requires that the patient is offered a copy of the OHP’s report about  them before it is sent. Many Drs consider that the guidance leaves ambiguous whether the  patient is then able to withdraw consent at that point and thus prevent release of the report  to whoever commissioned it.

We would like to request that the GMC consider an additional section in future guidance
advising Drs and patients specifically for situations where health assessments are requested  by third parties from specialist OHPs and which particularly recognises the impartial role of  OHPs making clinical assessments generally and especially in
The context of Health and Safety Legislation.
• When instructed in accordance with the terms of insurance typically in a Pension
Scheme
• When instructed under Regulations set down under legislation e.g. by Home Office

In their reply the GMC calmly proclaims that Dr Bulpitt’s grotequese bus tragedy analogy is already covered by the guidance and the exception Dr Bulpitt demands is given short-shrift.

Our understanding is that patients are entitled to withdraw consent for a  report to be disclosed to a third party unless there is legal requirement to disclose the information, or disclosure can  be justified in the public interest (for example, because failure to disclose the information could leave others at a  risk of death or serious harm).

So what can the ALAMA learn about the Alamo?

After he defeated the rebels at the Battle of the Alamo, President General Santa Anna unwisely divided his forces, allowing Sam Houston to surprise him at the Battle of San Jacinto.  Santa Anna was captured and forced to negotiate with the Mexican government for recognition of Texas’ independence and sign papers saying he recognised the Republic of Texas. He returned to Mexico in disgrace and retired to his hacienda. The people of Texas fought on for freedom and, eventually, on December 29, 1845, Congress admitted Texas to the U.S. as a constituent state of the Union.

Perhaps members of ALAMA will think it wise to consider how this particular representative is behaving and see fit to distance themselves from his lobbying techniques. The majority of conscientious and hard-working occupational clinicians do not deserve to have their ethics sullied by the machinations of one doctor.

One of Crockett’s sayings, which were published in almanacs between 1835 and 1856, was: ‘Always be sure you are right, then go ahead’

Every time we observe the lengths some twisted minds go to subvert the rights of others, IODPA is reinforced that we are right to keep going ahead.

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...