Know your rights

Have you been called for review and need to know what to do, and what your rights are?

The first thing to do is not panic. It can be a very distressing time, even if you’ve been called to review before.

Let’s firstly look at the mechanism, or legislation which allows a force to call you back for review. It is Regulation 37(1) of The Police (Injury Benefit) Regulations 2006. These were derived from The Police (Injury Benefit) Regulations 1987, and they are essentially the same, so it matters not what set of regulations you may have retired under, we are now all subject to the 2006 Regulations. So this is what they say,

 

Reassessment of injury pension

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

 

Often, when a force send you a letter informing you for a review, they will enclose all sorts of other paperwork. Most of this is is usually asking you for information about yourself and your condition. So, at this point STOP! … do NOT complete ANY information that they are asking for.

Amongst other things, they may ask you for the following,

  • To complete a consent form to ask whether they can obtain a full (or partial) set of medical records from your doctor since birth – do NOT consent. There is no legal obligation for you to provide any medical records. As a review is a comparison exercise from your last review, there is also no need to for them to have access to any medical information prior to this.
  • For your permission, to contact the DWP for a copy of your file in relation to any benefits that you may receive – do NOT consent. They do not need access to your DWP file, they are looking to access medical information, which they are not entitled to have.
  • For your permission, to access your HMRC tax returns – do NOT consent. The PPA are supposed to assess your earning capacity, not your earnings capacity (note the ‘s’ on the end of earnings). This is private and confidential information which they have no right to ask for.
  • To complete a questionnaire, which will often ask about what type of car you may drive, how you get about and how you spend your day etc. – do NOT complete it. Most of these questions are intrusive and totally irrelevant. Again, there is no requirement in law to complete such a document

Why is the current legal advice saying that you should not, or do not need to complete this information? We suggest you read Regulation 37(1) again. Where does it say that there is a legal requirement for you to provide ANY of the aforementioned information? It doesn’t, and that means that you don’t have to.

David Lock QC, is probably regarded as the country’s leading authority on the Police(Injury Benefit) Regulations 2006, and this is what he wrote about providing medical records,

 

David Lock - Medical reviews of former police officers on injury pensions

 

You also have to understand, how the review process works. Let’s look at the first part of regulation 37(1), which says that the Police Pension Authority (‘PPA’) have to establish “substantial alteration“, via the SMP, before they can revise your pension. Alteration from what, I hear you ask? It is alteration from the granting of your original award, or any subsequent review, whichever is more recent. The case of Belinda Laws confirms that the PPA cannot look back further in time than the last occasion that the force reviewed you and issued an H1 certificate or SMP report. This further re-enforces the fact that the force have no right, and indeed no need for medical records prior to your last review,

The Information Commissioners Office (‘ICO’) have also recently provided advice to Northampton Police Federation over this very issue, stating that forces asking for this amount of information was unnecessary and excessive.

 

1 ICO DECISION RE NORTHUMBRIA 10.11.17

 

Forces, will often issue you veiled threats, that if you do not comply with their process, then your pension is at risk of being reduced or removed. They rely on Regulation 33 to enforce their position. So let’s now look at that section, which states,

 

Refusal to be medically examined

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

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

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

 

I’m sure you’re already asking yourself, where in this regulation does it say that they may reduce or remove your pension if you do not comply with their demands? It doesn’t. There is nothing in the regulation which would allow them to remove your pension for non compliance.

What it says is that if “the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews“. The key word here is “himself“, which refers to a physical person, not an inanimate object such as medical notes, questionnaires or consent to go trawling through any personal and private information of yours.

Even if they consider that you have breached Regulation 33, what are they entitled to do with you injury award? Again the answer is in the Regulation itself, where it states that the PPA “may make their determination on such evidence and medical advice as they in their discretion think necessary” This means that they can only make a decision based upon the medical evidence that they have. So, if they have no medical evidence, how could they make a determination that there has been a “substantial alteration” in your condition? The answer is they can’t!

This matter has previously been tested by Merseyside Police, and the issue was going to be decided by way of a ‘Judicial Review’, but the force withdrew after seeking legal advice, and agreed to a consent order, which is similar to a court hearing the matter and a judge making a ruling. Here is a press release from Haven Solicitors who represented the Merseyside officer.

 

PRESS RELEASE 20.07.17

 

We would however always recommend that you agree to physically attend any medical appointment that may be arranged for you.

We would also recommend that if there is no change in your condition regarding your index injury, that you ask your doctor for a letter stating this fact.

Now it is possible that the PPA will already have some medical information on you, which would have been obtained either during your service, your retirement, or your last review. So, are they entitled to use this? The answer to this is NO. We know that forces continue to hold vast amounts of personal sensitive information on their former employees. We also know that they continue to process, or use your data regardless of whether they have your consent. You may ask them to stop processing your data and return it to you. The ICO has given advice on such a case in the Avon and Somerset Constabulary, where they deemed that by continuing hold such large volumes of data, they were breaching the Data Protection Act 1998.

 

ICO - Avon and Somerset - redacted

 

We’ve already stated that a review is a comparison exercise from your last known review, so it is important that you know upon what information your force is going to compare your current condition to. The way to achieve this is via a Subject Access Request  (‘SAR’). This is how the Information Commissioner’s Office (‘ICO’) describe it,

A subject Access Request (‘SAR’) is simply a written request made by or on behalf of an individual for the information which he or she is entitled to ask under Section 7 of the Data Protection Act 1988 (‘DPA’). The request does not have to be in any particular form.

In simple terms it means that you can apply to any organisation and obtain a copy of all information held by them about you. It is a simple process to make an application to which they have to comply under the law.

It is quite simple to make an application, in fact, we’ve made it even easier by providing a template letter which can be found here,

Example SAR

Simply edit the letter to suit your individual circumstances, enclose some ID, and a cheque for £10. The force have 40 calendar days upon receipt of the request to comply. Ensure that you send it recorded delivery, to prove the posting date, and subsequent receipt of the request.

 

We hope you found this brief guide helpful, if you have any questions then please make contact with us at admin@iodpa.org or use the contact form above.