David Lock QC

David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

David Lock QC has released a paper – “Police Ill-health and Injury Pensions: A guide through part of the maze”.

The original article can be viewed here – https://www.linkedin.com/pulse/police-ill-health-injury-pensions-guide-through-part-maze-lock-qc

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

Police Ill-health and Injury Pensions

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

Court holds that Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP for IOD assessment on retirement if the officer “may” have an entitlement to a police injury pension.

In a ruling on 20th July 2018, that may have significance for many other disabled former police officers, HHJ Moore has decided that Chief Constables who require a police officer to retire on the grounds of permanent disablement can be under a legal duty to refer the officer to an SMP to decide whether the officer is entitled to a police injury pension.  The Judge decided the legal duty will arise in a case where the SMP report contains information which indicates that that the officer may have a right to a police injury pension.  This positive duty means that the Chief Constable is required to take the initiative by making an SMP referral in appropriate cases, and cannot just wait until the officer makes a request.

This important principle was decided in the case of former Sergeant Lloyd Kelly who was serving with the South Yorkshire Force.  After a long career of public service, Sgt Kelly was required to retire after developing a permanent medical condition in 2005.  The SMP report showed his condition was clearly duty related, but no referral was made by the Chief Constable to an SMP to make a decision whether he was entitled to an enhanced police injury  pension.  Police pension rights are complex and, as with many officers, Sgt Kelly was unaware that he may have been entitled to an IOD award as well as his standard ill-health pension and so did not request an SMP referral.

In 2016, Sgt Kelly learned that he may be entitled to an injury award and so applied to West Yorkshire Police to have his case considered by an SMP for the first time.  He was assessed by a new SMP and awarded a substantial police injury pension.  But contrary to Regulation 43(1) of the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”), the Chief Constable refused to pay a backdated award from the date of his retirement.  Sgt Kelly, supported by the Police Federation and Slater and Gordon Lawyers, appealed that refusal to the Sheffield Crown Court under Regulation 34 of the 2006 Regulations.

On 20th July 2017, HHJ Moore held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the Chief Constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension.  The Judge held that the scheme of the Regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement.  Hence, he directed the Chief Constable to pay the backdated pay in full and with interest from the date of the award.

However the case has wider significance because the Judge also decided a Chief Constable has a positive duty to refer disabled police officers into the IOD system if they may have a right to a pension, and cannot simply wait until the officer makes a request.  He reached this decision based on:

  1. the duty on the Chief Constable to make a decision as to what pensions were owing to the former officer under Regulation 30(1) of the 2006 Regulations,
  2. the common law duty the Chief Constable owes to police officers,
  3. the requirement to make reasonable adjustments in favour of disabled officers (now under the Equality Act 2010), and
  4. to give effect to the officer’s rights under Article 1 of Protocol 1 of the ECHR.

The Judge also followed the cases of Tully and Schilling in deciding that the police pension system provided for back-dated pensions payable from the date of retirement for officers who were permanently disabled on retirement, even if the pension award decision was taken at a later date.

The Court ordered the Chief Constable to pay all of the former officer’s legal costs.

David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

David Lock QC has released a paper following his highly successful win at the high court in a Judicial Review against Cheshire Constabulary in the Manchester Administrative Court on the 14th March 2018.

The original article can be viewed here – https://www.linkedin.com/pulse/implications-police-injury-pension-scheme-decision-r-evans-lock-qc/

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

The implications for the police injury pension scheme of the decision in R v Evans

When David Lock QC Speaks the World Listens

When David Lock QC Speaks the World Listens

“Better to illuminate than merely to shine to deliver to others contemplated truths than merely to contemplate.”
― Thomas Aquinas

The speaking style of judges in judicial review transcripts can be incredibly hard to decipher, and we know it.  In judgements, the sentences start here, twist there and double back so many times that non-legally trained minds might give up trying to pin down what is being said.

That is why we give a shudder of relief when David Lock shines light on otherwise complicated matters.  For the second time this month we have seen another excellent piece on police injury pension decisions:

The duty on Medical Authorities to resolve factual issues when making police injury pension decisions.

The last opinion piece I posted about police medical pensions has been read nearly 5,000 times. This suggests that there is considerable disquiet

David touches on an much-missed judgement that holds selected medical practitioners to a civil standard of proof – a judgement that we have read before but honestly failed to detect the power of what his Honour Judge Davies said in the 2011 decision of Williams v Merseyside Police Authority.

Mr Williams was the first “anor” in the 2010 Doubtfire & Anor  v West Mercia Police Authority & Anor.  The second “anor” was Merseyside Police.  David Lock was the QC who won both the Doubtfire (and anor) judicial review and the sole Williams judicial review for the former officer.

Police officers with broken minds and bodies suffer huge personally trauma by being injured.  This life changing injury puts an end to not only a career, but a vocation and, sadly, often their family and personal life.  Then the malice that lives in the hearts of police forces places further purgatory by forcing former officers to chase their entitlement by going to court.

Please take a minute to consider that Mr Williams was medically retired on 4th September 2006.   He attended his first judicial review on 30th April 2010.   The second was held 13th April 2011.  Take stock of all the HR letters he has received, the work he has done with his legal team, the assessments he has attended: the intense and full force of the bureaucracy he faced! Just to receive what he has always been due.

Lest we forget the trauma placed upon those injured on duty by police pension authorities.

With due reverence, time to be moving on. Justice Davies started his judgement of the 2011 decision by making reference to the saga that Mr Williams has been forced to endure when he said:

“Mr Williams’ application for an injury pension already has a protracted and unfortunate history.

We’ve talked before about Mr Williams and how the SMPs, Dr Vincenti and Dr Staley, disagreed with each other about the exact name of Mr William’s diagnosis.  You can refresh your knowledge here.

In David Lock’s LinkedIn opinion piece he talks clearly about the grey area between medical and legal decision making.  The piece speaks for itself and we can not do it justice by commentating on it.  We wholeheartedly recommend it as essential reading.  Doctors who work as SMPs should take stock that hiding under the title of doctor does not absolve them from following the law.  Clearly, what has been ruled in previous case law applies to them just as much as it does to the police pension authority.

We will however touch on the Williams case.  It is worth remembering that this concerned an original decision. Specifically, the issue of causation.    Upon review under Regulation 37 the room for manoeuvre of the medical authority is significantly narrower because of the decision of the 2010 Court of Appeal in Metropolitan Police Authority v Laws.

After the 2010 case of Doubtfire the decisions were quashed and Mr Williams had to see the same PMAB (the “Board”) panel for a re-determination.  Bizarrely instead of producing a fresh report, it simply produced an addendum to their original report, entitled “reconsideration following judicial review”.

The case discussion by the Board involved a lot of umming-and-ahhing over what was, and what was not, supported by the evidence.  The Board was attempting to unravel some of the accusations of bullying  and they observed that there was a difference between Mr Williams’ account of events and that of  a Sergeant Hilton and an Inspector Fitzpatrick.

Merseyside lost the judicial review on several points but the most relevant point for us today was that the Board based decisions on one party’s perception of version of events at the expense of the other party.  This is one thing that David touches on in his opinion piece when he says

The SMP and the PMAB is not entitled to rely on the finding of the Force uncritically but needs to form its own view of the truth.

Justice Davies made it clear that the medical authority can not selectively weigh evidence depending on who is the evidence giver. Justice Davies said in the judgement:

 It does however appear, when read with the rest of the letter, that the Board’s approach was that it was only prepared to accept evidence from Mr Williams which was either proved by independent evidence or not disputed by the Authority. It appears that the reference to seeking additional information is a reference back to the difficulty they had in interpreting what Inspector Fitzpatrick had said. However the end result appears to have been that in the absence of additional information they simply took what Inspector Fitzpatrick said at face value and decided the issue against Mr Williams on that basis.

It’s worth contemplating that for a second.  The medical authority would not consider anything not disputed by the police pension authority or not independent.  Such blatant partisan and excessive zeal in refusing to hear the other side of the story, or to refuse the giving of context to dry medical records,  belongs more to the spectacular miscarriages of justice seen in 18th century than the United Kingdom in the 21st Century.

We often hear anecdotal situations where the medical authority (the SMP) blithely casts aside a letter from a patient’s General Practitioner, or where the SMP takes great care to give weight to the force’s submission but states that the patient’s own clinicians would be bias and too over-favourable.

Or an often repeated situation where the SMP refuses to listen to the oral submissions of the former officer sat in front of him and solely only thinks “what is written is truth” and discounts the medical opinion he doesn’t agree with without reasoning why the evidence is rejected. Like the Board in the Williams case, this will always produce a result which was unfair to the former officer, and which is not a decision on the civil balance of probabilities.

An even greater travesty is where the medical authority pre-determines any decision in the to and fro  communication with a HR manager prior to the actual date of the former officer’s assessment.  Such happenings have occurred between Dr Vivian and Staffordshire’s Andrew Colley.

Holding the title of a doctor does not excuse one, when acting as a SMP, in failing to apply the civil standard of proof.

Re-reading the Williams judgement with fresh eyes has been revealing.  We again thank David Lock for shining a light on how the law shall be applied.

 

 

 

 

David Lock QC: Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

David Lock QC: Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

All copyright owned by David Lock QC

David Lock QC

David Lock QC

Barrister and QC at Landmark Chambers

Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

There is a considerable debate at the moment about how far Chief Constables, acting as the Police Pensions Authority, (“the PPA”) and the Selected

Medical reviews of former police officers on injury pensions_ Is there any duty to provide medical records_ LinkedIn