The Regs – and what they mean to you

The Police (Injury Benefit) Regulations 2006

Regulation 37

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.

And what it means to you …

Often quoted by police pension authorities as an unrestricted positive power to review, regulation 37 is, in fact, a provision for a police pension authority (PPA) to ‘consider’, when appropriate, whether an individual’s degree of disablement has substantially altered.  It does not entitle a PPA to intrude upon people’s lives and submit them to interviews and medical examinations without there being a very good reason to do so.

The courts have made it very clear that the Regulations demonstrate an overriding intention that there should as far as possible be finality and certainty in decisions.  Once degree of disablement has been decided, it should be left alone. Reviews are supposed to be rare events, triggered only by substantial change.

The default position intended by the Regulations is that there should be no reassessment of anyone’s degree of disablement unless there is very good reason to believe there has been a substantial alteration in degree of disablement.

What some HR managers erroneously interpret as the ‘implied’ duty on the PPA to review comes from the word ‘shall’ in regulation 37. But this is a qualified duty – a discretionary duty, caveated by the words ‘ at such intervals as may be suitable’.

A PPA does not have unrestricted power to conduct reviews as and when it wants. It must make an individual decision, in each instance, that it is appropriate to hold a review. A PPA has a conditional power of discretion, and it must use that discretion properly, which means only to promote or further the scope and purpose of the Regulations. A PPA cannot simply decide to review all injury pensions. The mere passage of time is not sufficient reason to hold a review. Nor is the band (amount) of pension paid, or the age of the individual. A PPA cannot conduct a review as a means of speculatively hoping to discover a substantial alteration. Pressure on police budgets is most certainly no reason to hold reviews.

Choosing not to review is as much a use of a discretionary power as choosing to review. The Home Office agrees: See this letter from the then Police Finance and Pensions Unit.

Alderman letter

So, how, exactly, is a PPA to ‘consider’ whether there has been a substantial alteration in degree of disablement? The Regulations are silent on the matter. In our dictionary, ‘consider’ means ‘To think carefully about (something), especially before making a decision.’

Some HR managers think they need to demand personal sensitive financial, medical and lifestyle information from disabled former officers. From this they think they, or a doctor in their employ, can decide the level of probability of there having been a substantial alteration in degree of disablement.

Other HR managers rely on a ‘recommendation’ made by a SMP, often years previously, as to when a review might be held.

A few HR managers think they can arrange a review for reasons other than those for which regulation 37 was written. Prime among those reasons is the hope and intention that by manipulating the Regulations they can reduce the amount of pension paid.

Some HR managers cynically use these ploys, for which there is no authority within the Regulations, to cloak an already decided intention to have their SMP interview and examine the selected pensioners.

IODPA wonders at the devious thought processes of these HR managers. Why has it apparently never crossed their minds to simply ask pensioners to advise them should their medical condition resulting from duty injury substantially worsen or improve?

Of course, trusting former police officers, who held positions necessitating personal qualities of sound morals, sense of justice, honesty, discretion, courage, responsibility, and integrity is something that does not occur to them. Yet, by way of complete contrast the DHS trusts everyone, regardless of their personal character, to report any changes which may affect their state benefits.

A review, under regulation 37 is really two separate actions. There is the consideration and then, only if there is good reason, can there be a referral to a duly qualified medical practitioner for a decision on degree of disablement. That referral may mean a personal interview and medical examination.

If, after consideration, there is no evidence of substantial alteration then the review stops.  There can be no referral, no interview, no examination, no revision of the degree of disablement.

Fresh assessments of the degree of disablement, revisiting the cause or causes of the disablement and apportioning the effects of other non duty illness or injury to the degree of disablement are all unlawful. No second-guessing is allowed. A final decision is just that – final. A review must confine itself to whether there has been substantial change from the last decision to the time of the current consideration.

Here are some more, brief, explanations of what regulation 37 means.

‘At such intervals as may be suitable’ means that a suitable period should have passed. This period is not defined in the regulations, but was defined in The Queen on the Application of Turner v The Police Medical Appeal Board – “suitable intervals suggests that this is not a matter which should be revisited every year, nor is it.

‘After such consideration’ dictates that a review is not always necessary.  Ill and disabled people do not need to dragged in front of a poorly-trained – we would say misdirected and ignorant – SMP and given the full Spanish Inquisition.  In may instances, a brief look at an individual’s occupational health record can determine whether there is a need to put someone through the trauma of a review.

‘substantially altered’.  No substantial alteration, no revision of the award.  The status-quo remains. Schedule 3 of the Regulations describes degrees of disablement in four bands. They are ‘slight disablement’, ‘minor disablement’, ‘major disablement’ and ‘very severe disablement’. The Regulations, as confirmed by the High Court, require only that the SMP, acting for the PPA, need decide that the degree of disablement falls within one or other of the four bands. Thus a substantial alteration would need to of a magnitude that moved the disablement up or down by a band or more.

Crafty SMPs and their HR managers have got into the habit of calculating a percentage which places a pension close to the border of a lower band. Thus, at the next review, a minor calculated alteration in degree of disablement of just a few degrees is sufficient to reduce the pension. This is unlawful.

So too is the convoluted, speculative and manipulative comparisons of wages. HR pluck a job out of the want ads which they think an individual is qualified to do, then compare that wage with either the former police salary or a mean or average figure taken from the National Earnings Survey. The difference is then named as the degree of disablement.

A blog concerning regulation 37 can be found here.

The Police (Injury Benefit) Regulations 2006

And what it means to you …

There are therefore 4 qualifiers under statute that need to be fulfilled, entitling a person to a Injury on Duty award.  If someone has been medically retired from serving as a police officer then conditions (a) and (b) are inferred and in place – arguably why would a medical retirement be enacted if the person wasn’t permanently disabled?  If it is decided by the SMP that the injury is due to an injury received in the execution of duty then the final prerequisite needs to be answered before the award is granted: the degree of disablement.

Regulation 30(2) PIBR clearly states that the police authority must refer the question to the SMP for decision.  In other words the decision has to be made by a qualified selected medical practitioner and the report that is produced by the SMP is final (not to be amended or revised in anyway by Human Resources).

Regulation 37 allows for re-access into reg 30 via  the review of (d) and this point in isolation and only after consideration of a suitable interval.

Regulation 30 is important as the decisions made under its power have finality.  Here the apportionment and the index injury are defined and if the diagnosis is wrong or apportionment is applied incorrectly then the decision will affect the retiree forever (unless reconsidered under a regulation 32).  A review under reg37 can not ‘fix’ an incorrect original decision under reg30.  New injuries can not be reintroduced, causation can not be revisited and apportionment is closed once a regulation 30 report has been finalised and not appealed.

The thing to consider is that most regulation 30 decisions are made when the former officer is shell-shocked after just leaving their vocation and therefore not in a position to make sound judgements.  A reg30 decision if incorrect on any level should be challenged within 28 days of the final report and brought in front of a Police Medical Appeals Board.

The Police (Injury Benefit) Regulations 2006

And what it means to you …

The power to reconsider or quash a previous final decision – this can be the original regulation 30 decision or a regulation 37 review. Haworth V PMAB determined that there is no time limit restriction on a regulation 32 so in other words if there is a valid reason to reconsider a previous decision then the police pension authority is unable to avoid the reconsideration by declaring a statute of limitations.  The selected medical practitioner for such a reconsideration has to be mutually agreed by the appellant and the authority.

“regulation 32(2) 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 regulation”

If a previous decision was unsound then it can ‘undone’ by a reconsideration under regulation 32.  Further, if a reasonable request for regulation 32 is denied then that in itself is a decision that can be challenged at Judicial Review.  If quashed, the previous decision reverts and this can mean back payments plus interest.  A more detailed explanation of regulation 32 will appear in its own blog post soon.

The Police (Injury Benefit) Regulations 2006

Disablement gratuity

12.—(1) This regulation applies to a person who—

(a)receives or received an injury without his own default in the execution of his duty,

(b)ceases or has ceased to be a member of a police force, and

(c)within 12 months of so receiving that injury, becomes or became totally and permanently disabled as a result of that injury.

(2) Subject to the provisions of regulations 22 and 23 (abatement), the police authority for the force in which a person to whom this regulation applies last served shall pay to him a gratuity of an amount equal to whichever is the lesser of the following amounts, namely—

(a)five times the annual value of his pensionable pay on his last day of service as a member of a police force;

(b)the sum of four times his total remuneration during the 12 months ending with his last day of service as a member of a police force and the amount of his aggregate pension contributions in respect of the relevant period of service.

And what it means to you …

Simply if totally disabled to perform any work you should receive tax free sum of up to 5 times your last salary.  Read here for more information.