caselaw

Introducing our new BAILLI Newsfeed Feature

Introducing our new BAILLI Newsfeed Feature

What is BAILII?

The British and Irish Legal Information Institute (BAILII) provides legal information, and especially reports of cases decided by courts, in the United Kingdom.   BAILII contains judgments, decisions, legal texts and commentaries of  British  case law and legislation.

What is RSS?

RSS is a technology that is being used by millions of web users around the world to keep track of their favorite websites.

In the ‘old days’ of the web to keep track of updates on a website you had to ‘bookmark’ websites in your browser and manually return to them on a regular basis to see what had been added.

What if you could tell a website to let you know every time that they update? In a sense, this is what RSS does for you.

RSS flips things around a little and is a technology that provides you with a method of getting relevant and up to date information sent to you for you to read in your own time. It saves you time and helps you to get the information you want quickly after it was published.

RSS stands for ‘Really Simple Syndication’. Many people describe it as a ‘news feed’ that you subscribe to .

IODPA has linked all the relevant searches concerning Police Pension and Injury Regulations  on BAILII into a single RSS search.

You can find this new feature on the right sidebar:

RSSCaselaw

Or click this link Caselaw RSS Newsfeed

Return to this page to see case-law as it is determined.

Referral to the Medical Authority

Referral to the Medical Authority

The price good men pay for indifference to public affairs is to be ruled by evil men.
Plato

The current Zeitgeist is for HR civilians to refuse applications of Injury Awards by just saying they think, in their view, that the application isn’t substantiated.  Of course they say this because they have an agenda … they would rather no-one has an Injury Award, and they made it a war of attrition and as difficult as possible for the injured officer to get what they are entitled to.

Quite often they use weasel excuses and  imagine up some make-believe duty  along the lines that the Regulations places the onus upon the Police Pensions Authority (PPA) in the first instance to decide if any injury award is payable, prior to any submission to a Medical Authority. i.e to determine if any incidents had occurred that would justify referral to a medical authority who would determine amongst other things, causation.

The trouble is that there is no such onus for the PPA to predetermine entitlement and the reality is quite the reverse.  It is not up to the PPA to decide on the merits of any claim for an injury award.

Let us examine Home Office Circular 34/1996.  Section D Paragraphs 6 to 9 covers the consideration of Injury Awards.

We can no longer recommend that a police authority undertake a preliminary consideration of these issues before formal referral to the medical practitioner

There you have it.  Clear as day.

The Home Office stated 20 years ago that a police pension authority must refer the question of an ill-health award or an injury on duty award to a medical practitioner for decision and their view is that such a referral must be made as soon as the authority is aware of either permanent disablement or injury on duty as an issue for consideration.

Interestingly the Home Office circular says “Although we are not aware of any court decisions, which have a binding authority, there has been a trend of decisions, which has now made it appropriate for us to revise our guidance.”  

Ever helpful, IODPA can happily say we can edify all those reading this to become aware of the court decisions that have binding authority on this matter. These decisions occurred after the prescient recommendations in HOC 34/1996.

Firstly there is:

R -V- Merseyside Police Authority Ex Parte YATES  CO/4181/97, [1999] EWHC Admin 157.

This case concerned the defendant Police Authority establishing that an application for judicial review of a police authority decision under the Regulations was not appropriate because the statutory provision in the Regulations provided an effective remedy for the applicant to appeal to the Crown Court.  The important point determined here is the fact that the remedy within the Regulations means that the decision has to  be always made by the medical practitioner.

Latham J stated:

I do not, however, consider that the Regulations permit anything other than a literal reading. The questions which are to be referred to the medical practitioner under Regulation H1(2) are unambiguous, and the answers given by the medical practitioner are, pursuant to Regulation H1(4) to be final. The answers will determine the claim subject to the rights of appeal. This produces an unsatisfactory result. If the claimant is dissatisfied with the answers of the medical practitioner as to the facts upon which his opinion is based, he has an appeal to the Crown Court; if he is aggrieved by reason of the medical practitioner’s opinion, then he has an appeal to the medical referee; if he is aggrieved by the medical practitioner’s conclusions as to law as to whether or not an injury was received in the execution of duty, it would appear that he can only challenge the matter by way of judicial review.

Latham J continues

It follows that a Police Authority is not entitled to pre-empt the answers of the medical practitioner by coming to adverse conclusions as to fact, or law, in relation to the claim in order to avoid reference to the medical practitioner

And then there is  Clinch -v- Dorset Police Authority Admn (Bailii, [2003] EWHC 161 (Admin)) where the judge reaffirmed the decision in Yates.

MR JUSTICE McCOMBE said:

In the end, on this first issue, in the light of the arguments and the decisions and dicta of persuasive authority before me, I propose to follow the dicta of Latham J in Yates’s case

…, in many cases in practice the questions that go to the doctors will be truly medical ones and the Claimant and the Authority will be able, if so advised, to make representations to the doctors on matters that are not truly medical in nature. It is, moreover, interesting to note that the true legal question arising out of the facts in Stunt’s case eventually reached the Court through the avenue of judicial review (as Latham J envisaged they would). There is no reason to think that if it had been the Authority that had been dissatisfied with the legal conclusions drawn by the medical authorities in that case , it would not have been possible for it also to seek a judicial review of those conclusions, so as to reach an appropriate forum for the resolution of questions of law.

The judge here is saying on matters of an application of an Injury Award that the decision is that of the medical authority only and if the police pension doesn’t like it then they can try to take it to judicial review.

To summarise, if the appellant considers the medical practitioner’s facts he bases his opinions upon are wrong then it can be taken to crown court; if dissatisfied with the medical practitioner’s reasoning then it can go to PMAB; matters of the medical practitioner’s error of law can be taken to Judicial review.

Note it is always the decision of the medical authority – never that of the police pension authority.

Twenty years is a long time and perhaps the Federation officers that had knowledge  of the home office circular, Yates and Clinch have long since retired.  The gap in the knowledge of Fed reps advising serving officer is a travesty in itself.  IODPA is aware of serving officers, not happy with the poor help they receive, seeking to arm themselves with awareness of caselaw and the Regulations.

The heinous  abuses performed by public servants in the administration of injury awards are unforgivable.  Those that administer the delegated responsibilities of the Regulations are  paid a salary to be aware of the statute that governs them.  Their bien-pensant manipulation of the Regulations ignores previous home office circulars and stated cases.  Deliberate ignorance means, intentionally ignoring a fact when one has every reason to believe about its existence, and this is happening now – to injured and disabled police officers.  It is capricious and should be viewed as nothing less than misfeasance in a public office.

IODPA will continue to work tirelessly and fully  prise the lid off all the injustice and cover-ups of what will prove to be a very large can of worms for police pension authorities.

 

Simpson Uncovered

Simpson Uncovered

“D’OH!”
― Matt Groening

This post is about the landmark judgement:

THE QUEEN on the application of SIMPSON (Claimant)
– and –
(1) POLICE MEDICAL APPEAL BOARD
(2) SECRETARY OF STATE FOR THE
HOME DEPARTMENT
(3) NORTHUMBRIAN POLICE AUTHORITY

Why is Simpson so important? (As an aside, regular readers of this blog will let out a sigh of frustration when they read that Northumbria was involved yet again).

It is important as this particular judicial review is famed as being the one that put the nail in the coffin of the blatantly unlawful Home Office circular that stated that those aged over 65 have no earning capacity. Crudace and the pension ombudsman decision in Ayers raised the spectre of the unlawful guidance but in Simpson the Home Office itself was one of the defendants.  Shamefully it took from 2004 to 2012 to get the Administrative court to quash this guidance (even though it was known to be unlawful from the start).  But Simpson is more than this. Mr Justice Supperstone, in his findings, dismantles the illogical and twisted thought process of people like Nicholas Wirz (yes, him again) and the SMPs he has, and still is, unhelpfully giving guidance to.

Simpson reaffirms the findings in Turner (2009) and Laws (2010) and also substantiates the decision in Crocker (2003).  So it is more than the sum of its parts – Simpson goes beyond the earning capacity of those aged over 65 and is relevant to all those  with an IOD award.

How many more people with an IOD award have to go before a SMP and through the grinder with the vague and unrealistic job comparison of PEAM and other unsuitable and inappropriate jobs just so the SMP has a new ‘measure’ that they can then calculate a new percentage?  Judge Supperstone continues that using a new figure to compare against the old is unlawful.

I accept Mr Lock’s submission that the SMP and the PMAB cannot conduct a fresh review of the uninjured earning capacity and the actual earning capacity of the former officer and then, comparing the outcome of that assessment with the previously determined degree of disablement, conclude that there has been an alteration in the former officer’s degree of disablement. That approach is contrary to the analysis approved in Turner and confirmed in Laws and reverses the approach required to be taken by Regulation 37(1). 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.

It seems lately that some police pension authorities are reverting to type and seem to think that no one is looking when they sneakily and unlawfully try to conduct a fresh assessment upon  a regulation 37 review.  Simpson again reminds us that this is as unlawful as it ever was:

  1. In Laws the Court of Appeal approved the construction of the Regulations adopted by Cox J at first instance. As the judge put it at [2009] EWHC 3135 at 35, the Board erroneously conducted “…an entirely fresh assessment of the claimant’s degree of disablement and its causes, rather than directing their minds, as required by the regulations, to whether her degree of disablement had substantially altered since the last review in 2005.”

The only question is consideration of substantial change since the last decision and this isn’t concerned with adjusting a percentage.

The Court of Appeal in Laws expressly approved the decision in Turner. Rejecting the submission made by Mr Pitt-Payne for the police authority to the effect that the starting point for the Board or the SMP is to consider the pensioner’s current degree of disablement and compare it with the previous assessment

In any case the out-turn figure is not a measure of change – it is the substance of degree of disablement.

The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

In Simpson Judge Supperstone removes any lingering doubt from the mind of police pension authorities that an IOD award is in no way concerned  with the injured person ‘not’ receiving a salary as a police officer.

I also reject Mr Sanders’ submission that the purpose of an injury pension is to make up for the financial consequences of an enforced inability to continue operating as a member of a police force. Regulation 7(4) is the gateway into the benefit, defining disablement. Regulation 7(5) is concerned with the assessment of loss of earning capacity

This is picked up on the PSNI report on Injury Awards wherein the judgement made in Simpson was echoed by David Scoffield QC.

… represent a fundamental and deep-rooted finding about the nature and purpose of the statutory scheme, including that disability is a ‘gateway’ to the benefit; that once that gateway has been passed through, the officer is compensated for the impact of the injury on what he is capable of doing (irrespective of whether, realistically, he would have been employed to do what he is now incapable of doing); and that such an entitlement is designed to be a life entitlement.

It is compensation for work related injuries and how the injuries has affected the earning capacity of the individual.

Even with the strength of case law such as this, there seems to be still a concerted effort to undermine the regulations.  The evil intent of police pension authorities is simple – use pressure to suck out the willingness of those it has retired to fight any decision at appeal.  Despite the strength of case law such as Simpson, it is only as powerful as how far the plaintiff is willing to go to appeal.  Some police forces treat this as a numbers game – they will get away with unlawful behaviour as long as no one appeals.

Avon & Somerset is a case in point.  Of the 16 band 4s that have been put under review, so far 2 have been reduced to band 3.  It is no coincidence that the 2 that have been reduced are female.  In other words 67% of females reviewed by this force in 2014-2015, and only reviewed because of the force’s financial constraints, have had their injury award reduced; statistically this is a red and festering sore of an outlier as the total number of females reviewed only made up 19% of the 16.  Bullying and misogyny is rife in Avon & Somerset  and it seems the victims aren’t even free of this when they are medically retired.

Patient Zero

Patient Zero
ACPO colluded with the Home Office to introduce unlawful procedures
into injury pension reviews. We present the evidence

“Evil isn’t the real threat to the world. Stupid is just as destructive as Evil, maybe more so, and it’s a hell of a lot more common. What we really need is a crusade against Stupid. That might actually make a difference.”
Jim Butcher, Vignette

IODPA has often referred to Home Office circular 46/2004 as being the start of the rot and the beginning of the end for justice in applying the injury Regulations in the manner they were intended.  We have laid the blame mostly on ‘The Bureaucratium’ of the civil servants’ desire to save the ‘public purse’ by trampling on the rights of disabled former officers. The following years clearly evidenced that the more massive a ‘Bureaucratium’ becomes; it only becomes less caring and more potent.

Elements within the Home Office had built up their own sense of importance to such an extent that they saw nothing wrong in encouraging police authorities and chief officers to trample on the Regulations.  The rampage initiated by HOC 46/2004 was only brought to an end by the few brave individuals who took their individual cases to judicial review and the Pension Ombudsman.

But what if we say that it wasn’t just the Home Office that got us into this mess?  Of course, they lit the fuse.  But who provided the match?

Would you be surprised to hear it was a group of people who once held the office of constable themselves?   Back in the day, before they reached their halcyon career heights, these people could have been injured on duty.  So who were these monkeys to the Home Office’s organ grinder?

ACPO!

The HO asked ACPO for its feedback on the draft of what was to become Annex C to HO circular 46/2004. The Chief Constable of Staffordshire, John Giffard, replied for ACPO. He was the designated lead for ACPO on police pensions. He spoke for all Chief Officers when he told the Home Office:

‘I suspect that my original intention was always to deal with people reaching 65 years of age and that remains the most important part. We continue to think that at that stage anybody in receipt of an injury award should be automatically dropped to the lowest band or possibly even completely dropped.’
You may think it remarkable that such a group of very senior police officers would not understand that the Regulations do not allow an injury award to be ‘automatically dropped’ or ceased, as he suggests. One possibility is that they understood perfectly well, but were prepared to sell IOD pensioners down the river, as the HO appeared to be willing to support a raid on injury pensions.In 2004 this could have all been stopped.  
The dubious practice of manipulating the injury pension Regulations so as to attempt to save money could have been blocked, scuppered before it gathered any momentum. Instead, due in no small part to the ready acquiescence of ACPO, we have seen the rise and spread of corrupt practices where the purpose and intent of the Regulations are disregarded, to the very great detriment of both serving and retired officers.
This is what the Home Office wrote to John Giffard CBE QPM, aforementioned Chief Constable Staffordshire Police, asking for his views concerning the proposed new method of reviewing and thus reducing injury pensions of those reaching 65 years of age.

HO-2004

HO letter to CC John Giffard

Giffard should have replied, “Not on my life.  You are not allowed to do this  – the Regulations forbid it”.  But no. He gave  the Home Office ACPO’s rubber stamp of approval, and even went further. According to Giffard’s outrageous view, expressed on behalf of all Chief Officers across the land, injury pensions should actually be ceased at that age. He was not talking about some future, revision of Regulations, some new diminished injury pension provision. He was talking about subverting the current Regulations.

JG-HO-2004

Reply from CC John Giffard to HO

The line about “expecting, but not concerned with” a challenge from the Staff Associations is a nice touch and tells us something more about the moral bankruptcy of the man and of the organisation he represented. He obviously realised the significance of what he was suggesting but coolly calculated the Federation would be baffled and too impotent to do anything about the planned pension raid.

ACPO were quite willing to throw injured former officers to the wolves and to let the survivors do what they could to  rescue their pension rights by challenging maladministration at judicial review. Instead of supporting and protecting former officers – and serving officers, for they too might become injured on duty and have to retire on a pension – ACPO deliberately chose to side with the Home Office and agree to what it may well have realised was an unlawful abuse of the law.

I will conclude this eye-opening account of the duplicity of one Chief Constable, acting on behalf of all his peers, with the sobering reminder that all Chief Constables are now the Police Pension Authorities.  They have responsibility for the administration of the injury pension scheme.  Frightening isn’t it?  Having this fox in the police pension hen-house set-up is no different from trusting the organ grinder’s monkey to guard the money instead of spending it on bananas.

Scoffield recommendations

Scoffield recommendations

God   … [ Scoffield ] … has written His divine guidelines for your life right in the Bible  … [ Report to the Northern Ireland Police Board ] …
Elizabeth George (misquoted)

******

redacted_version_of_scoffield_report

Recommendation 8:
In the course of development of this further guidance, serious consideration should be given to abandoning the currently recommended method of calculating percentage disablement, including detailed reliance on the ASHE survey and comparison with the officer’s notional uninjured police salary, in favour of a much more basic approach, whereby the relevant medical authority would simply make a judgment in the round as to the severity of the impact of the duty injury on the officer’s earning capacity, so as to select the officer’s appropriate band without the need to calculate a specific percentage disablement figure.

******

Recommendation 10:
The guidance should also provide SMPs and IMRswith more detailed assistance, in as straightforward language as possible and drawing upon recent case-law, on how to avoid impermissibly revisiting matters finally determined in previous certificates and applying the concept of apportionment.

******

Recommendation 11:
There should be a move away from automatic review for all cases at any fixed interval set in policy. The judgment as to when a review is appropriate should be made on a more case-sensitive basis, driven particularly by medical advice on this issue from the SMP and/or IMR  (although it ought to remain open to an officer to request a review himself at any time and the Board should also retain the right to initiate a review at any time if information comes to its attention identifying an apparent relevant change in circumstances). SMPs and IMRs should expressly be asked to provide the Board with advice on this issue in their completion of reports.

******

Recommendation 14:
Those officers who were told in clear terms that they would not be subject to review, or words to that effect, should not be further reviewed in the absence of a request from them or some compelling reason why a review is considered appropriate (such a reason not to include merely their attainment of a particular age).

******

Recommendation 15:
SMPs and IMRs should not be precluded in future from designating a case as one for no further review but this should occur only very rarely and guidance should be formulated for them as to when this may be appropriate.

******

IMR = Independent Medical Referee PSNI equivalent to a Police Medical Appeals Board (PMAB)

Tell them everything or say nothing

Tell them everything or say nothing

“He who does not understand your silence will probably not understand your words.”
Elbert Hubbard

“Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact.”
George Eliot, Impressions of Theophrastus Such

A person undergoing a DWP assessment for benefits needs to provide evidence they are still entitled to that benefit. If they don’t do this then the DWP investigator has the power to remove said benefit.

An Injury on Duty award isn’t a benefit and can not be removed. If there is substantial change in the degree of disablement then the award can be revised, but it can never be stopped. There is no investigator or benefit claim. Nothing can be revoked or cancelled. When a review is held a police pension authority is to consider the sole question of, ‘is there any substantial alteration?’ Only If there is evidence which indicates there may be a substantial alteration then must the authority refer for decision the question of degree of disablement to a duly qualified medical practitioner.

On their fishing trip to elicit a response from IOD pensioners, Avon & Somerset tried to bluff that if they didn’t disclose any information requested, (such as how many cars you drive!) then they could stop the injury award (which they can’t) or prosecute you for providing misleading or inaccurate information (which would be something they might well regret trying).

Here’s the nasty little threat they sent to vulnerable disabled former officers, all  of whom have to bear the burden of very severe disablement.

liable

This supposed threat of prosecution was queried with a FOI request:

https://www.whatdotheyknow.com/request/injury_on_duty_pensions_2#incoming-620913

The force provided a classic example of corporate blather in response.

“The statement has been on the questionnaire relating to injury awards since 2003 (arising from a meeting of the Attendance Management Group held on 9 October 2002). The statement reflects the details included in the questionnaires provided by Essex and Sussex Police at that time and agreed with the Federation in January 2003.

The statement is intended to clarify that there are possible consequences should a former officer either omit information which is relevant to the consideration of the injury award and/or purposely provides misleading information which could possibly be fraudulent.

If the statement is not signed, it does not halt the review process, but if the details were found be fraudulent due consideration would be given to the next appropriate steps. It may be helpful to note that this statement has never needed to be actioned to date.”

This sinister, and wholly unfounded threat came from a police force,  for crying out loud !!

Threatening injured former officers with an invented prosecution?

Why would any IOD pensioner think themselves obliged to cooperate with a HR Department that thinks it can treat people like this?

What do the Regulations say about not engaging with a review?

The Police (Injury Benefit) Regulations 2006 Regulation 33

  1. 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.

The interpretation of this is that if you deliberately don’t turn up for an assessment by the SMP then the force is allowed to make a decision based on such evidence and medical advice that they think is necessary.

That’s it. No reduction or suspension of injury award.

If you decide to attend for assessment by the SMP, but also decide to refuse to agree to full disclosure of medical records, back to birth, confining agreement to release of only records made since the last decision on degree of disablement, then you have complied, albeit with conditions.

The SMP and the force might not think you have been as cooperative as they wish.

In either circumstance – complete refusal to engage in what we know is a mockery of what should be a lawful process, or limited, conditional cooperation – then the force might, if they are daft enough, try to use regulation 33.

Their first problem though would be to satisfy the stringent test of ‘wilfully or negligently’. This is a high hurdle to jump and a hard condition to prove. How could any IOD pensioner be said to be wilfully or negligently refusing to engage with a process which he or she has very good reason to believe is unlawful? That is more than enough of a rational reason for refusal.

Their second problem would be trying to make a determination on such evidence and medical advice as they could obtain. The force seems to have lost or destroyed a lot of files and even if they have a full set most of them will contain information which has not been added to for many years. What evidence could there be of any alteration in degree of disablement?

The force can only use factual information – your notes when you retired for instance – to prove that there is a case for substantial alteration. They can’t pull a fresh assessment out of thin air as this inevitably revisits causation and apportionment and is forbidden. The High Court says so.

If there is no evidence of a substantial alteration in your degree of disablement then the status quo continues, no alteration means no revision of injury pension.

Instead of politely enquiring with pensioners whether their medical condition resultant from the duty injury had improved or worsened substantially over the intervening years since the last time degree of disablement was decided, the force thought it best to ask sneaky, irrelevant questions in the hope that it might provide cover for what was a predetermined decision to conduct a full review involving referral to a duly qualified medical practitioner.

When debating any issue, there is an implicit burden of proof on the person asserting a claim. An argument from ignorance occurs when either a proposition is assumed to be true because it has not yet been proved false (no evidence of change so the condition must have improved) or a proposition is assumed to be false because it has not yet been proved true.

This has the effect of shifting the burden of proof to the person criticizing the proposition, but is not valid reasoning.

You don’t have to tell HR or the SMP what car you drive, how you spend your day, what you submitted on your last HMRC return. The evidence required to determine alteration in degree of disablement is medical. If a SMP wants to know whether you are able to drive despite your disability, then he should ask you straightforwardly and not rely on information obtained under threat by the HR Department.

HR or the SMP have no power to try to get you to tell them your life story. What you did before the time of the last final decision is not relevant to the task in hand, which is only to look for any alteration in degree of disablement. What if the SMP takes an innocent comment out of context? You then find yourself fighting a nightmarishly complex, bizarre, and illogical game of trying to prove there is no alteration to your medical condition, whereas the burden of proof of any change is the responsibility of the SMP.

Just imagine, if you will, what might happen if you get notification that you will be reviewed. You might feel impelled to ask HR, why me? why now? What makes you think my condition has improved or worsened? Instead of an honest answer, namely that they intend to review everybody so as to try to see if they can save some money, you get the usual glib response from HR, claiming they have a right or a duty to review, blah, blah, blah. They are determined to review you and justifying their reason does not concern them. Giving a reason is not something we do. Don’t ask again or we will treat you as being vexatious, you cheeky bastard.  So you comply: you sign consent for partial disclosure of medical records. You might decide to refuse to answer their loaded questions on the questionnaire, for after all, you didn’t fill in a questionnaire when you were retired so how can they compare the here and now to the past with a new set of answers?

You then get a date to see a SMP. You turn up, wish the good doctor a pleasant hello and sit twiddling your thumbs. You answer whatever query of medical fact the doctor wishes to talk about but only concerning your medical records relating to duty injury and decline to answer anything you think is not relevant.

A review is not the Spanish Inquisition and an SMP is not supposed to behave like Tomas de Torqemada. It is not for you to prove you continue to qualify for the amount of injury pension you receive: it is for the force to determine whether or not there has been any alteration in your degree of disablement. It needs a substantial alteration before an injury pension can be revised.

It my well be that some of you think that full, unquestioning, cooperation is just fine – that you know you are not any better and you trust the SMP and HR and those that pull their strings to stick to the Regulations and case law and that everything will be just fine and dandy.

Sorry to say, that has not been the experience of most of the IOD pensioners who so far have been assessed by a SMP.  With the notable exception of those who saw Dr Jo Judge they all report abrasive and intrusive interviews, delving into areas which have nothing to do with determining whether there was any alteration. Most have not had a decision months after the event, and the SMP is trying to blame them for the delay.

So, it is up to you. Go along with a process which has about as much in common with a lawful review as does a rotten cabbage to a slice of apple pie, or give partial, conditional cooperation, or do you downright refuse to have anything to do with people who prefer to offer threats rather than ask honest questions, and who are happy to put you in front of a doctor who seems to know little about the Regulations and whose bedside manner would do justice to the little old ladies who used to knit as the guillotine did its grisly work.

What can they do if you refuse to cooperate? Downband you because they haven’t got any evidence that there is any substantial change and they feel you’ve been less then helpful? Not according to regulation 33 they can’t.

Pensioners accept that a police pension authority can hold reviews. But when reviews are not held lawfully, and when pensioners are not treated with dignity and respect, and are threatened and treated with contempt, then we need to remind ourselves that an injury pension is a right, enshrined in legislation, agreed by successive Governments, and is compensation for injury received on duty. It is not a State benefit, which we have to prove our continuing right to receive. It is part of the quid pro quo of police work. We readily put ourselves in harm’s way, and we held up our part of the bargain to the extreme extent of being damaged in body or mind, only to see some weasel with an eye on the balance sheet pressure ignorant and untrained HR types, and venal SMPs into abusing us, and the Regulations. Meanwhile, Nero fiddles as Rome burns.

The simple truth is that the drafters of the Regulations intended that reviews should only be held rarely – ‘at such interval as may be suitable’, is what they wrote. The status quo should be that no review is contemplated. When circumstances change, then a review might be appropriate. What we see in Avon and Somerset is a mind-set which thinks that a sizeable number of IOD pensioners are somehow not entitled to their pension, and that leads to the belief in certain quarters that no regard whatever need by given to the suitability or appropriateness of arranging a review in each individual instance, and no concern need be given to the health-damaging effects of putting vulnerable disabled people through the meat grinder of an unlawful process

How the rot set in

How the rot set in

“To keep any great nation up to a high standard of civilization there must be enough superior characters to hold the balance of power, but the very moment the balance of power gets into the hands of second-rate men and women, a decline of that nation is inevitable.”
Christian D. Larson

Police Injury Pensions: Maladministration or Criminality?

A Call for an Independent Enquiry.

This paper is intended primarily for former UK police officers and their families, serving officers and perhaps also any HR managers with responsibility for administration of police injury pensions who might have a conscience.

It is a call for an independent enquiry into the causes and consequences of the recent unlawful administration of police injury pensions, which started in 2004, eased to (nearly) a halt in 2010, and is now showing signs of having evolved, like a super-bug and is again threatening injury pensions.

It asks if the maladministration became criminal, with offences committed against Section 4 of the Fraud Act – fraud by abuse of position. It is motivated by a desire to see justice done and the guilty named and shamed so that disabled former officers and their families can finally draw a line under the issue.

There is no statutory definition of maladministration, but it is described by the Local Government Ombudsman as including but not confined to:

delay

incorrect action or failure to take any action

failure to follow procedures or the law

failure to provide information

inadequate record-keeping

failure to investigate

failure to reply

misleading or inaccurate statements

inadequate liaison

inadequate consultation

broken promises

There are numerous ‘watchdog’ organisations that provide a conduit for complaints of maladministration and a means of resolution and redress, usually when other attempts have failed. The Pensions Ombudsman has dealt with numerous complaints from former officers and it it worth noting that it is not necessary for consequential injustice to be alleged.

There is no fixed definition of injustice but it can consist of:

financial loss or unnecessary expense;

hurt feelings, distress, worry, or inconvenience;

loss of right or amenity; and

time and trouble in pursuing a justified complaint.

Thus, injustice may well have been present in all the cases where former officers in receipt of an injury pension were caused inconvenience, distress, worry or even suffered hurt feelings due to maladministration. I am sure we would all agree pensioners have had to take considerable time and trouble in pursuing their forces and police authorities over the maladministration of injury pensions and many have suffered adverse financial consequences.

To date, it seems clear that most IOD pensioners would have no difficulty agreeing that there has been widespread maladministration and injustice. However, it may well be that we should now consider if the actions and, just as importantly, the inaction of forces, police authorities and certain individuals went beyond maladministration and stepped over a line into criminal behaviour.

There is plentiful information available online about the background to the recent difficulties surrounding police injury pensions, so it is not the intention here to go too much over old ground, but rather to propose a course of action that will help the healing process and help ensure future good administration of injury pensions.

It is also time that those who were responsible for visiting such widespread distress were made to face the consequences of their appalling behaviour. It seems to be a modern attitude which pervades the police service that nobody is ever to blame and nobody need ever take responsibility for failings. An apology is seen as a sign of weakness which may have adverse effects on one’s career. The truth is, it takes strength of character to apologise.

Over the last few years we have witnessed, or been subjected to, maladministration resulting in dramatic and damaging reduction in the amount of injury pension paid. Disabled former officers, and their nearest and dearest have been dragged into an intensely stressful nightmare and have been forced to make strenuous efforts to protect their rights, and have incurred expense in so doing. Family relationships have been strained and quality of life diminished.

It has been a long, slow and painful process, but decisions in the High Court and determinations by the Pensions Ombudsman have finally had the effect of forcing pension administrators to refund money unlawfully taken, and to restore pensions to their proper former level. However, there is no way of knowing for sure that every disabled former officer has had matters put right.

It should be noted that in no instance did any force nor any police authority voluntarily take steps to put matters right. However, the saga is not yet over and the priority now must be to ensure that pensions are never again subject to similar maladministration.

Whilst this fiasco ran its lengthy course some of our colleagues have died whilst waiting for a resolution. Confidence in Chief Officers, HR managers, police authorities and SMPs has been shattered. There needs to be a healing process, bringing with it a restoration of confidence. Injury pensioners need to know they will be treated with dignity and respect and any future review of their pension will be conducted with scrupulous attention to the requirements of the Regulations. Serving officers, who at any time might be propelled suddenly into the ranks of retired, disabled, and on a pension, need to know that they too will be protected by the lawful administration of the Regulations.

Anyone reading this who is aware of the wide-ranging attack on the pensions granted to police officers injured in the line of duty must surely have thought, ‘But how could this happen?’ A good question, and one to which we have some part of the answer, but not yet the full picture. For that we need a comprehensive independent investigation.

It seemed, looking back over the last few years that a sort of collective madness had seized those in charge of the administration of police injury pensions. Some 17 forces, together with their police authorities, made a choice to abandon common sense and the Regulations and to follow guidance issued by the Home Office: guidance which said It was a good idea to reduce all injury pensions to the lowest possible level when pensioners reached the age of 65. The guidance also proposed the use of a device (ASHE) at normal force retirement age that would reduce pensions at that point. We know that the Home Office guidance, issued in August 2004 in the form an Annex C to HO circular 46/2004 was the trigger. The target was to reduce pension payments made to disabled former officers. So, who are those who fired the gun?

They are everyone who either actively took up the HO guidance or stood idly by, neglected their professional duty and allowed what has been dubbed the great pension robbery to take place. They are those who issued the guidance, and those who gave it tacit or specific approval. The people with prime responsibility must be Chief Constables, who are expected to prevent and detect crime and who held delegated responsibility from the now defunct police authorities for the lawful administration of injury pensions. Also responsible are senior HR managers, who would be expected to advise the Chief Constable and, as qualified professionals, understand the requirements of the Regulations.

Now Police Pension Authorities (in most forces, the Chief Constable) have taken over statutory responsibility for decisions over whether and when reviews might take place. We have to wonder if that was a sensible move, as it means the very individual whose budget stands to benefit should injury pensions be reduced by calculated manipulations of the Regulations is empowered to make decisions which make difficult demands on his impartiality.

The SMP, who acts in an independent statutory quasi-judicial role is expected to understand the Regulations and not to take instructions on what decisions he should come to. Yet there is worrying evidence that some SMPs have been and remain all too ready to be ‘guided’ or ‘advised’ by HR managers, and others, who should have no part in his independent decision-making role.

Depending on the local situation, other people may also have played a part in the historic maladministration, especially where they would be expected to ensure correct procedures or warn of deficiencies in process. And here I sadly have to include dormant Federation reps and local branches of NARPO where ignorance of the Regulations was never allowed to interfere with coach trips and golf tournaments.

If any one of these people had hacked into your bank account and set up a standing order to divert thousands of pounds a year into their own accounts, they would, quite rightly, face being arrested and charged and could expect severe penalties. Yet, not one person seems to have been disciplined, admonished, or given even a mild ticking off. Nobody has lost their job, though one or two have ‘retired’ or moved on elsewhere.

We have no indication that pension administrators have been given extra training, or that better systems of supervision and oversight have been put in place. There seems to be no change in the fundamental deficiencies that allowed the maladministration to run unchecked for so long. There seems to be little or no change in attitude, with pensioners still seen as an expensive drain on resources rather than as honoured former colleagues.

We are led to believe that it was all just a simple, understandable and forgiveable slight error of administrative process. We are asked to believe that people were doing what they thought was the right thing at the time.

Hogwash!

To me, and I suspect, to many other injury pensioners, this does not seem like justice. Yes, we have had our pensions restored, and yes, some forces have apologised, but until the guilty are brought to justice and required to account for their behaviour there can be no hope of reconciliation and no removal of the nagging concern that it could all happen again.

You see, I think it entirely possible that what we were forced to undergo was not plain vanilla maladministration. That alone would be bad enough, but I believe there may also have been criminality. Injury pensioners, and their representatives, should be looking at the evidence and making firm demands for an independent enquiry under the supervision of the Police Complaints Commission and Crown Prosecution Service.

A constant theme running throughout the difficulties has been suspicion by the pensioners, and denials by the administrators, that a desire to save money lay at the heart of things. We have, however, seen documents where calculations were made, working out how much money might be saved, or spent, in conducting reviews of injury pensions. To its credit, National NARPO made public its opinion that the desire to save money was the driving force behind the HO guidance being implemented.

Indeed, the potential savings must have looked very inviting to the bean counters who whisper in the ears of Chief Constables. Perhaps sufficiently inviting to cause some people to decide to break the law. How tempting must it have been to read in guidance from the Home Office that ‘Authorities may wish to consider using the lowest banding for injury awards from age 60 because of the expectation of lower earnings from this age.’ How easy to then persuade Chief Officers that the guidance must be right.

When I was very small, my mother told me, ‘If someone told you it was fine to stick your hand in a bucket of boiling water, would you believe them?’ This was a lesson not learned by many HR managers. Did they bother to read the Regulations to see whether this revolutionary advice had any support from the legislation?

On the 18th May 2004, a date which should go down in infamy, a date which was but a few short weeks before the unlawful HO circular 46/2004 was issued, Mr Giffard, then Chief Constable of Staffordshire, writing on behalf of the Association of Chief Police Officers told the Home Office,

We continue to think that at that stage [age 65 years] anybody in receipt of an injury award should be automatically dropped to the lowest band, or possibly even completely dropped . . .’

How could such a senior officer, representing all the members of ACPO, make a statement that essentially was a call to others to break the law?

It could be argued that from the moment HO circular 46/2004 was published, back in August 2004, alarm bells should have sounded. It was so obviously proposing actions that nobody had previously taken that it must have caused honest folk to doubt the lawfulness of following its advice  We have proof that this is what must have happened in the majority of forces, for only 17 or so out of the 43 forces in England and Wales implemented the guidance. Those forces which rejected the guidance did so, we would like to think, for good reason. Yet other forces did not take this majority rejection of the Home Office guidance as an indication that they ought to consider why.

From that date it was soon made obvious that many misgivings were being aired not least from NARPO and the Federation at national level, but also from individuals. Again, an honest person would have revisited the issue in the light of those misgivings. Nevertheless, some 17 forces set about implementing the guidance and began a ‘more robust’ approach to reviews, with some forces setting out to review all injury pensioners, and others targeting those aged 65 and over as the best, fastest, way of reducing pension payments.

It began to look like the Home Office’s cunning plan to reduce the ‘burden’ of injury pension payments had stalled. Instead of a sweeping victory and home in time for Christmas Mr Gilbert’s little piece of paper was seen by some as worthless and by others as a licence to print money.

On Wednesday the 4th November 2009 the Rt. Hon. Sir Alan Beith, MP for Berwick upon Tweed

Mr Prime Minister, is the government aware that several police authorities, including Northumbria, are using Home Office guidance as a basis for cutting the  pensions of police officers who have been forced to retire early when they have been seriously injured on duty, and on the principle that we should stand by those who have risked their lives and face serious injury protecting us, whether in the armed forces or in the police, will you take a personal interest in this and investigate this?

The Prime Minister replied:

I shall obviously look at this matter. When policemen or women retire they receive the pension. I see no reason why their pension entitlement should be broken, if it is indeed an entitlement, and I shall look at what he says.

Reviews nevertheless continued. By now, an alert and honest Chief Constable, HR manager, CEO or Chair of a Police Authority, any ethical SMP or honest force solicitor, would have perhaps decided that a close look at the Regulations vis a vis the HO guidance would be in order. Perhaps they might have also felt that a quick bit of research into any relevant case law and a phone call to the Pensions Ombudsman might be a sensible move to make if maladministration were to be avoided.

If anyone had bothered to do so, they would have found the Administrative Court case of Crocker. If nothing so far had shaken their confidence in the rightness of the HO guidance, this case should have rattled it into fragments. It was heard in the High Court in December 2003: that is eight months before the Home Office guidance was issued. The case is a complex one, but two passages would leap out to any professional, such as a Chief Constable, or a member of a police authority with law degree, an alert SMP or an honest force solicitor:

The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers. I consider that what has to be disregarded is every factor which has affected the loss of earning capacity other than the duty injury.

Reading that, and noting that the whole underpinning for the HO guidance was the assumption that every injury pensioner would experience a total loss of earning capacity merely because he or she had reached the age of 65, any honest person would have wondered how the HO could have issued such guidance. Reviews nevertheless continued. Nobody though fit to act to suspend reviews until the situation was clarified. Inaction is itself capable of causing maladministration. When a person or a body has a statutory duty to safeguard the financial rights of others, then inaction becomes criminal.

Research into Annex C of HO circular 46/2004 showed that its author had been ‘economical with the truth.’ It was claimed in the guidance that a ‘recent survey’ had shown that there was ‘diverse‘ practice when former officers reached normal force retirement age. It stated a ‘recent survey‘ had found that, ‘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.’

This was a complete lie. There had been no survey. The Home Office was eventually brought to admit this, and to reveal that nothing more than one or more non-minuted discussions had taken place at meetings of the National Attendance management Forum.

The facts differed diametrically from the Home Office version of the situation. From 1987 to 2003 not a single injury pension was ever reduced as a result of the former officer attaining either normal force retirement age or state retirement age of 65, contrary to the claims of the Home Office.

The research findings were therefore compelling. They caught the Home Office out in a lie, and acting in an underhand and manipulative manner, and should have caused anyone in a position of responsibility for the administration of injury pensions to consider whether or not the guidance could be relied upon and whether the advice it offered was lawful or not.

The research was presented to the Home Office, which made no comment and made no move to attempt to challenge any of the findings of the research. Nor did the Home Office move to amend or withdraw the guidance: a stance it maintained until the relevant parts of the guidance were declared unlawful by the High Court in 2012.

The research was also presented to numerous Chief Constables, police authorities and others. It was posted on the Internet for public consumption. Not a single voice raised any challenge to the research findings. And not a single force or police authority made any move to revisit their approach to reviews of injury pensions. Unlawful reviews continued.

One Chief Constable, now thankfully retired, was reported as writing that the Home Office guidance was ‘mandatory‘. She must have known that not to be the case. Her explanation, when asked why then were so many forces not actioning the guidance, was that they were breaking the law!

Readers of this blog, and those who take an interest in police injury pension maladministration will be familiar with the High Court cases that began to question the legality of the way some forces were administering police injury pensions – all of which found in favour of the pensioners.

The first of these were Pollard, in February 2009 followed by Turner, in July 2009. In August 2009, the Pensions Ombudsman made a determination in the case of Ayre, that, ‘. . .the Guidance cannot override the relevant Regulations.’

He also made it clear that at age 65 any assessment of degree of disablement could not assume there had been a total loss of earning capacity. Unlawful reviews nevertheless continued.

On the 11th September 2009 the then Minister of State for Security, Counter-Terrorism, Crime and Policing, David Hanson, announced at the annual conference of NARPO that he had ordered a review of the guidance. The promised revision never materialised and unlawful reviews continued.

A Police Medical Appeal Board, one of many that had resulted from implementation of the HO guidance, was convened in January 2010. This was a seminal hearing, chaired by Dr David Wallington, one time Director of Occupational Health for the Metropolitan Police. He concluded:

The Board, in recognising the Police Authority’s case in respect of the Home Office Guidance and the Guidance to Police Medical Appeal Boards, nevertheless consider that they have no alternative but to observe the Police Benefit Regulations [sic] where there is no mention of such an argument as cogency, or indeed no specific mention of degree of disablement after age 65. There is no mention in the Regulations that a review of degree of disablement at any time requires an alternative methodology.’

The Police Medical Appeal Boards were effectively giving due notice to all concerned that they recognised the Home Office guidance was flawed. Unlawful reviews nevertheless continued.

On the 12th of November 2009 former Metropolitan Police officer Belinda Laws won her case in the High Court. It clearly signalled that forces had better clean up the way they handled injury pensions.

Towards the end of 2009 several forces unilaterally suspended reviews.

Thus, after five years and numerous lost opportunities to take corrective action, finally some forces realised they ought to act. Too little, too late. The suspension of reviews was not accompanied with a restitution of unlawfully reduced pensions, nor an apology, nor a review of procedures.

On the 10th of March 2010 the Home Office wrote to all forces advising that reviews be suspended, as yet another court case was pending.

At this point one would have anticipated that all forces who had been caught up in the enthusiasm for implementation of the HO guidance would have realised the time had come for them to commence a complete rethink. Instead, they remained as though transfixed, apparently waiting for some direction from the Home Office. There was no reason to wait for any further guidance or advice from that source as everything necessary to bring about a return to a lawful administration of police injury pensions was readily available in the form of the Regulations, recent case law and Pension Ombudsman determinations. Reviews ceased, but disabled officers and their families, continued to suffer uncertainty and anxiety. Those pensioners whose payments had been reduced did not have them reinstated.

On the 13th October 2010 the Metropolitan Police Authority appealed against the Belinda Laws decision, and lost.

Nothing much happened throughout 2011.Forces and police authorities remained largely inactive on injury pension issues but there was then a rash of forces making provision for pensions to be repaid and restored to previous levels.

The case of Crudace was decided in January 2012. His Honour Judge Behrens released a judgement quashing the decision of the Northumbria police to reduce Mr Crudace’s pension when the former Inspector reached the age of 65. He decided the Home Office guidance was unlawful because it was inconsistent with the statutory scheme under which the pensions were paid. Judge Behrens also confirmed former police officers who have had their pensions reduced in this way were entitled to apply to the police authority for the decisions to be reversed and for their pensions to be restored.

This was shortly followed by the case of Simpson in February 2012, which also declared that parts of the HO guidance was unlawful.

The situation now is confusing for some injury pensioners. Most have had their pensions restored to previous levels but none, save in one force, have witnessed any movement by their Chief Constable to consider how injury pensions will be administered in future. This is not good enough, for it does not inspire confidence that further attacks on pension payments won’t be made. Indeed, in Avon and Somerset an ill-thought out attack has begun.

Mr Gilbert has graciously retired, but in a Kafkaesque twist, the force solicitor and the SMP for Northumbria, who were actively responsible for the unlawful ‘reviews’ and consequent reduction of the injury pensions of some 60 disabled former officers which featured in the case of Crudace, now are reinvented and appear as the experts responsible for a training event for some SMPs at the College of Policing.

The time line above is only a brief outline of the major events. Locally, former officers will know of other events that all chart the progress of the maladministration, highlighting intervals where needs to be weighed against Section 4 of the Fraud Act, where any person who occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person

‘. . . may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.’

Pensioners will no doubt have, or can obtain, letters, emails and records of conversations, minutes of meetings and other documents that provide the fine detail of evidence of inaction. Did people in positions of responsibility omit to voice concerns, or respond to your concerns? Did they fail to act, when action was called for? Pensioners might care to consider if there is evidence of dishonesty and fit their local evidence into the wider picture.

The questions to be asked are, ‘Why did my force or police authority not act sooner to suspend reviews and restore pensions?’ and ‘Why did nobody in a position of responsibility not question the lawfulness of what was going on? A further question, to be asked with the combined voices of all the injury pensioners and their families is, ‘How did this happen?’

These questions deserve answers, and I believe they should be sought by an independent investigation by a body supervised by the Independent Police Complaints Commission and the Crown Prosecution Service.

Pensioners might therefore see it as their duty to ask locally for such an enquiry. We were all sworn officers once and could not stand idly by whilst a crime was being committed, nor fail to take action if a crime was complained of.

Two such requests have been made, in Cambridgeshire and in West Yorkshire. Both have fallen on deaf ears. What Chief Constable willingly would agree to expose his or her force to such scrutiny, knowing that there are so many skeletons hidden in so many closets? One Chief Constable was so bold as to claim that a barrister’s advice was that nobody responsible for police injury pensions was in any position to be held liable for section 4 fraud.

It is readily anticipated that a local enquiry would have to very quickly extend to investigating the role of the Home Office, the National Attendance Management Forum, the SMPs and the limited companies providing SMP services, and also the Association of Chief Police Officers. The purpose of the enquiry would be to determine to what extent, if any, maladministration spilled over into criminality. If widespread calls for enquiries are made, then perhaps the need for a national enquiry would become obvious and irresistible. Only when pensioners can be assured that the stables have been cleaned and that no-one remains who is still secretly wishing to find future ways of subverting the Regulations and visiting misery on disabled former officers and their families can we begin to feel confident in those who administer our pensions

.Write, if you feel it the proper thing to do, to your Chief Constable, with a copy to your Police and Crime Commissioner. Ask for an independent enquiry. Briefly explain that you have concerns there may have been criminal offences committed. Quote Section 4 of the Fraud Act. Explain that implementing the HO guidance when it was so obvious to you and many others that it was unlawful, failing to engage in consultation before implementing the HO guidance, failure to act to suspend reviews when there was so much controversy, failing to respond to the decisions in the High Court and by the Pensions Ombudsman, are all failures to act which all seem to indicate fraud by abuse of position. You don’t need to provide all the evidence, for all that is needed is to raise the concern that there may have been offences. Uncovering the evidence would the job of the enquiry.

Under too many carpets there is the dust of misdeeds. In too many seats of power sit too many straw Chief Officers. Second-raters to a man and woman, who are pale shadows, more politician than police officer and who prefer past misdeeds to remain buried in fear that, revealed, they might bury them.

In the here and now

In the here and now

“It’s being here now that’s important. There’s no past and there’s no future. Time is a very misleading thing. All there is ever, is the now. We can gain experience from the past, but we can’t relive it; and we can hope for the future, but we don’t know if there is one.”
George Harrison

Imagine, if you will, that you are a 37 year old male police constable with 15 years service.  You weigh 75 kilos and have 32″ waist.  You have just run to work at a brisk 6 minute mile pace, performed a 14 hour shift and run home (or if you prefer cycling, you cycled the detour of 15 miles in a spritely average of 20 mph).  You are basically immortal.  Then you have an on duty injury, and after 18 months and numerous surgical interventions you are retired with an IOD award.

What relevance would your medical notes be at the time you were 37 and able to run the 5 miles to work in 35 minutes (or cycle 15 in 45 minutes) to  start that early turn?  How would looking to that past allow for an impression on your capacity to earn on the day you were retired?

Following this train of thought, how can your fitness or lack of it 3 months or 3 years ago be an indication of your present degree of disablement?  It can’t be.

Speculation into the future is forbidden when an IOD is awarded, and this speculation similarly is not allowed at a review.  The degree of disablement in relation to earning capacity shall be determined at the time of the decision and not make any reference to potential future earning capacity (South Wales Police Force vs Anton and Crocker)

The starting point is Regulation A12(3) [of the Police Pensions Regulations 1987]. It requires an assessment of how earning capacity “has been affected”, not of how it is likely to be affected. (1)

It goes without saying that a lot of people will have reports from the SMP saying, rather hackneyed, ‘might be capable of work in the future’ or at review, the vapid ‘has worked in the past’.  These opinions are unwarranted and contrary to the above case-law.  It is how you are now, not how you were before the review started, or 12 months ago, or in 12 months time.

This is important as the above melds  two things: (1), the argument that a great number of SMP decisions are unlawful if the above comments have been used to lower a band, with (2), the reason FOR a review.  If earning capacity in the ‘here and now’ is zero then the award should be 100% and if in the ‘here and now’ the former officer is still unable to work there is no legitimation to review.  At a review, past medical records do not speak of the ‘here and now’ – arguably very recent records do, but historical records do not.     The positive duty to review is a figment of the Police Pension Authorities’ imagination.  The duty not to refuse a review if circumstances change does exist and if in the ‘here and now’ there is substantial change then the award can be revised.

The regulations are not there for any force to regularly spend over a year punishing a former officer by dragging them through a protracted review.

Interestingly, how can a force make a decision 8 months after that person saw the SMP?  Surely after such a time of procrastination any decision can be appealed with an automatic appeal of  ‘change of medical condition’.  Life has moved on, health has ‘moved on’ but the SMP report looks in the past.  The person can not be reviewed again as an immediate review consecutive to the last is not a suitable interval.  The ‘here and now’ is important.

A review is time sensitive and should be finalised within a month of the assessment (if required) with the SMP.  Otherwise time makes a non-finalised review obsolescent.  It can not be any other way – if the detailed examination of the elements were conducted 6 or 8 months ago then the ‘here and now’ has ‘been and gone’.  The “[…]  assessment of how earning capacity [ ] has been affected”  is twisted into “will be affected” and this distortion does not conform to the regulations and is explicitly denied by case-law, so therefore is unlawful.

Any  decision made based on superannuated assumptions can and shall be appealed on basis of time without any need to question the content of the decision.

(1)

The Scoffield Report

The Scoffield Report

The Police Service of Northern Ireland has the same worded Injury Benefit Regulations as England and Wales.  The statute has a different name ( POLICE SERVICE OF NORTHERN IRELAND AND POLICE SERVICE OF NORTHERN IRELAND RESERVE (INJURY BENEFIT) REGULATIONS 2006)  but the content is identical to the mainland’s PIBR 2006.  Given the fact that serving PSNI police officers face a high number of incidents of public disorder along with the unique policing challenges of Northern Ireland it is not surprising that the province has a high proportion of Injury on duty awards.  The system of injury duty applications and reviews however were in chaos.  Largely due to the Police Board’s insistence on invoking Home Officer Circular 46/2004 but also with the number of applications compounded by the frequency those retired were called back for reviews.  The whole system was broken and the consequences of recent case-law (Simpson et al)  finding that the guidance it has imposed on it’s former officers was unlawful, was the proverbial straw .  Something had to be done.  David Scoffield QC was asked to write an independent report on the  administrative process concerning IOD awards:

https://www.nipolicingboard.org.uk/scoffield-review-injury-duty-award-scheme

Scoffield Review of the Injury on Duty Award Scheme _ Northen Ireland Policing Board

Following a number of concerns raised by former officers and various representative groups a decision was taken by the Board in March 2013 to suspend the review of IOD awards. A working group chaired by the Board’s Chief Executive and comprising of various stakeholders was also established.

In July 2013 the Board agreed to engage Senior Counsel to review the Board’s existing administrative process within the current statutory and policy framework. Mr David Scoffield QC was appointed to carry out the review. Terms of reference for the review were provided to Mr Scoffield QC.

The broken processes in PSNI are no different to what is happening in England and Wales other than the same issue has reached critical mass sooner given the higher number of IOD awards.  The Senior Council review has the same relevance on both sides of the Irish sea.

There was some attempt by the establishment to not publicly disclose the fully published report.  Pressure from interested parties managed to  overturn this and here it is:

redacted_version_of_scoffield_report

Over the next few weeks we will be discussing the points raised by the Scoffield report in more detail.

Neither Lawful or Unlawful

Neither Lawful or Unlawful

“If it doesn’t say it’s not, then its allowed” to misquote and paraphrase Dostoyevsky’s  “If there is no God, everything is permitted” .

Without a rule of law as a higher authority  – so the story goes – there is nothing ultimately to prevent us from ruthlessly exploiting our neighbours, using them as tools for profit and pleasure, or enslaving, humiliating and killing them in their millions.  This isn’t the case in truth – an action can be known to be unlawful even though there isn’t an exact line of text that defines without ambiguity it’s legitimacy.  Just because an esoteric Law or Regulation is silent on a particular transgression does not mean that the transgression is permitted.

The Police and Injury Benefit Regulations 2006 does not allow for the interpretation that on reaching 65 years of age a former officer has no earning capacity.  However nowhere is this explicitly mentioned; but it is still a given.  A given because the nature and purpose of the statutory scheme is to provide an entitlement of an award for life.

The Police Pension Authorities and the Home Office knew this and were ‘trying it on’ hoping that their illegality wouldn’t be challenged. And it was,  and they lost.

They are at it again…

The minutes of the National Attendance Management Forum hosted by West Midlands Police on Friday 27th March 2015 has this to say about PEAM (Police Earnings Assessment Matrix):

neither lawful or unlawful

If a matter is not lawful then it must be unlawful.  The opposite of lawful is unlawful, illegal, illegitimate, incorrect,unacceptable, wrong, illicit, prohibited, taboo.  So there is nowhere for NAMF to go on this; they state themselves that PEAM is not lawful.

Not lawful because it is up to the SMP to decide the degree of disablement as a medical matter by assessing the impact of the duty injury to the former officer’s earning capacity – it is a medical question not an accountancy exercise.  It is a broad judgement to be made by the clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data,  and that his/her decision is final.  When has a SMP ever used PEAM?   – the bad maths is always performed subsequently by a HR functionary.  That is not lawful.

The travesty is that they know such an artificial earning matrix is unlawful but they will not stop using it until a former disabled police officer is disadvantaged, agonised and tormented by an unjust calculation to such an extent that they have no option but to challenge it in judicial review.  Why should something known to be unlawful need to have a court to reaffirm it’s unlawfulness?  Because NAMF is on a crusade to undermine the regulations.