Degree of Disablement

Avenues of Appeal

Avenues of Appeal

“As my sufferings mounted I soon realised that there were two ways in which I could respond to my situation — either to react with bitterness or seek to transform the suffering into a creative force. I decided to follow the latter course.”
Martin Luther King Jr.

If you are unhappy about any regulatory decision made by the Police Pension Authority (PPA) concerning an injury award or ill health retirement you are able to appeal against the decision. (In most forces the PPA is an office vested in the sole personage of the Chief Constable)

The intention of this post is to remind our readers of some of the ways injustice can be resolved.  As with other legal challenges, an appeal needs to be based on some good reason. Therefore, you will need to be able to point to any apparent error of fact or law which the authority has made.

A PPA carries ultimate responsibility, and will be the body named in the appeal, but the actual decision in question may have been made under delegation by a HR person, some other civilian worker or a SMP. A SMP has a regulatory duty to make certain decisions on behalf of the PPA. Decisions made by a Police Medical Appeal Board (PMAB) can also be subject to appeal.

The avenues of appeal available depend on the Regulation the decision was made under and whether you are currently serving or medically retired. Any decision which you receive from the PPA, SMP or a PMAB will be set out in writing and will normally contain the rationale or reason for the decision. A decision notification should also outline the reasons for the decision, and list avenues through which you may appeal the decision, as well as the relevant time limits within which an appeal must be made.

As well as formal avenues of appeal it is worth bearing in mind that complaints can be made about any individual employed by a police force, or against the police force itself. Complaints are justified wherever there is incompetence, injustice or a refusal to act within the rules of the pension schemes. All forces are required to have a formal Internal Disputes Resolution Procedure (IDRP) and will provide you with details of how it is operated.

Complaints about alleged criminal acts can be made to the Independent Police And Crime Commissioner.

Complaints to governing bodies (e.g. the General Medical Council or the Law Society) about the behaviour of the decision maker can also be pursued either unilaterally or combination to an Ombudsman concerning further maladministration.

Here is a brief list of the more usual avenues for appeal.

  • Regulation 32 Reconsideration (Further reference to medical authority – PIBR 2006)
  • Police Medical Appeals Board (Regulation 31 PIBR 2006 –  Appeal to board of medical referees)
  • Crown Court
  • Employment Tribunal & Employment Appeal Tribunal
  • Pension Ombudsman
  • Parliamentary and Health Service Ombudsman
  • Equality and Human Rights Commission
  • Equality Advisory and Support Service
  • Judicial Review
Regulation 32

Of particular note, as being probably the most useful, yet most under-used mechanism for having questionable decisions corrected is contained in regulation 32 of The Police (Injury Benefit) Regulations 2006. This is a very important provision of the Regulations, which every serving and retired officer who seeks or who is in receipt of an injury award should make themselves, their Federation Rep and any legal representative familiar with. Here it is in full:

Further reference to medical authority

32.—(1) A court hearing an appeal under regulation 34 or a tribunal hearing an appeal under regulation 35 may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him, or as the case may be it, for reconsideration in the light of such facts as the court or tribunal may direct, and the medical authority shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report which, subject to any further reconsideration under this paragraph, shall be final.

(2) The police [pension] authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him, or as the case may be it, for reconsideration, and he, or as the case may be it, shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report, which, subject to any further reconsideration under this paragraph or paragraph (1) or an appeal, where the claimant requests that an appeal of which he has given notice (before referral of the decision under this paragraph) be notified to the Secretary of State, under regulation 31, shall be final.

(3) If a court or tribunal decide, or a claimant and the police [pension] authority agree, to refer a decision to the medical authority for reconsideration under this regulation and that medical authority is unable or unwilling to act, the decision may be referred to a duly qualified medical practitioner or board of medical practitioners selected by the court or tribunal or, as the case may be, agreed upon by the claimant and the police authority, and his, or as the case may be its, decision shall have effect as if it were that of the medical authority who gave the decision which is to be reconsidered.’

(4) In this regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a board of medical referees being made, or if, following a notice of appeal to the police [pension] authority, the police [pension] authority have not yet notified the Secretary of State of the appeal, and the board of medical referees, if there has been such an appeal.

The decision maker, which can be either the SMP, or a PMAB, is asked to look again at (reconsider) the decision, in the light of argument and/or information presented by the individual subject to the decision. It provides a simple way of having a mistake corrected.

Mr Justice King in the Haworth judicial review stated that [Regulation 32 is a]

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

Anyone considering using regulation 32 should note well that there is no time limit on when it can be used. It can be activated at any time following a decision – even many years later. We know of instances where historic maladministration has been discovered by pensioners, who can then use regulation 32 to have matters corrected. A typical instance is where an incorrect degree of disablement has been decided.

It is, however, well worth requesting a reconsideration of a decision at the same time as giving notice of appeal to a PMAB. That way, you secure registration of the PMAB appeal within the time limit, which allows the PPA to correct matters swiftly, thus negating the need to go to a PMAB. This has mutual benefits to both the individual and the PPA as stress and cost can be minimised.

One further valuable aspect of this regulation is that if the original decision maker is ‘unable or unwilling’ to make the reconsideration (a SMP might have retired, died, or simply not wish to be proved wrong) then individual is granted an extraordinary power. The individual and the PPA need to agree over selection of the alternate ‘duly qualified medical practitioner’ who will make the reconsideration. That means the individual can object to any doctor proposed by the PPA (on reasonable grounds, such as suspicion of bias or lack of appropriate qualifications). More importantly, though still untested in the Courts, it seems that the individual has the right to propose a duly qualified medical practitioner of his or her own choosing – and that doctor need not be someone who is already acting in the role of SMP for any force.

PMAB

A Police Medical Appeal Board is the method of appeal stipulated in the Regulations as an appeal to board of medical referees when person is dissatisfied with the decision of the selected medical practitioner as set out in a report under Regulation 30(6). A PMAB usually consists of a panel of three (two occupation health doctors and a specialist in the condition being assessed). Notice of intention to appeal to a PMAB needs to be given to a PPA within 28 days of receipt of formal notification of a decision. The appellant then has a further 28 days in which to provide the PPA with the full grounds for the appeal. (There is discretion for these time limits to be extended, within reason.)

A police pension authority does not have the right to appeal to a PMAB and therefore must take a SMPs decision it contests to judicial review.

Crown Court

If a serving officer simultaneously applies for an injury award/ill-health retirement and the police pension authority fails or refuses to refer the decision to a SMP, or a decision of the police authority is that the officers refusal to accept medical treatment is unreasonable, then the refusal or the suggested treatment can be challenged in a Crown Court.

Employment Tribunals

Employment Tribunals are responsible for hearing claims from people who think someone such as an employer or potential employer has treated them unlawfully (unfair dismissal, discrimination, unfair deductions from pay) . Employment Appeal Tribunals are responsible for handling appeals against decisions made by the Employment Tribunal where a legal mistake may have been made in the case.

Post-termination victimisation or discrimination claims are justiciable under the Equality Act 2010 following the recent Court of Appeal Judgments in Jessemy v Rowstock Ltd and Anor [2014] and in Onu v Akwiwu & Anor [2014]

In both decisions Court of Appeal decided that the Equality Act 2010 should be read to cover post-employment victimisation.  This should clear up the uncertainty caused by conflicting Employment Appeal Tribunal decisions on this issue.  In other words, a ‘post-employment‘ medically retired officer has the right to bring a disability, age or gender discrimination claim to an employment tribunal.

Pension Ombudsman

The Pension Ombudsman (PO) has legal powers to settle complaints, maladministration and disputes.  In recent years the PO has played an important part in having maladministration of injury awards corrected. If the PO decides someone responsible for a decision or the wrongful exercise of a power of discretion, or has got the law wrong or has not followed the scheme’s rules or regulations, or not taken the right things into account, they can tell them to go through the process again, but properly.

If financial loss has occurred, the PO can enforce the decision maker to put the disadvantaged individual back into the position they would have been in if everything had been done correctly. The PO can also decide upon redress for non-financial injustice, whether someone has been caused significant inconvenience, disappointment or distress. Although amounts of compensation are usually rather low, they serve to underline the finding of wrongdoing.

Every pension scheme has to have an Internal Dispute Resolution Procedure (IDRP) system built in to enable members of that scheme to complain about matters concerning the administration of their pension (section 50 of the Pensions Act 1995). Injury awards are no exception.

An IDRP can be a one or two part process. One part may settle the matter, but if not on it goes to part two. Be very aware though that the ‘I’ in IDRP does not stand for Independent. In part one a senior person is asked to consider your submission. If there is no resolution, then someone else is appointed to take a look. That person may be another force employee, or, more often will be someone with no close connection to the force who is deemed to have some relevant expertise. We have no data on how many IDRPs produce an acceptable solution at either stage. The process can take several months.  If a solution isn’t found or the IDRP process is ignored, then it can go to thePensions Ombudsman’s office for adjudication.

But if you don’t initiate an IDRP you will find that the Pensions Ombudsman – who is the person who can really do something about maladministration – will not be able to accept your complaint. He likes to see himself as a mediator, a settler of differences, and an arbiter of the law. He wants to see the parties to a dispute make efforts to resolve it before he is asked to get involved.

Quite often the failure of the PPA to correctly deal with the IDRP stages adds to strength of evidence that maladministration has occurred.

Parliamentary and Health Service Ombudsman

The Parliamentary and Health Service Ombudsman provides a service to the public by undertaking independent investigations into complaints that government departments, the National Health Service in England and a range of other public bodies in the UK have not acted properly or fairly, or have provided a poor service.

At this time complaints are raised through a person’s MP.  Soon the service will be open to take complaints directly.

This real case story neatly summarises what this ombudsman can do: Read Mr R’s Story .   What happened to Mr R was an example of disability discrimination and serves a good example of the Ombudsman providing redress for the individual – and also recommending systemic improvements for a wider public benefit.  It is a synonym of how some SMPs treat those disabled people forced in front of them.

An important point regarding his ombudsman is that complaints about the exercise of clinical judgement are within its jurisdiction.

Equality and Human Rights Commission & Equality Advisory and Support Service

The Commission has responsibility for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales.  It took over the responsibilities of three former commissions: the Commission for Racial Equality, the Equal Opportunities Commission (which dealt with gender equality) and the Disability Rights Commission.
The EHRC’s functions do not extend to Northern Ireland, where there is a separate Equality Commission (ECNI) and a Human Rights Commission (NIHRC), both established under the terms of the Belfast Agreement.
The Equality Advisory and Support Service (EASS) is an advice service. It is aimed at individuals who need expert information, advice and support on discrimination and human rights issues and the applicable law, particularly when this is more than other advice agencies and local organisations can provide.

Judicial review

Judicial review is an audit of the legality of decision-making by public bodies.  Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted

  • when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have
  • a decision may be challenged as unreasonable if it “is so unreasonable that no reasonable authority could ever have come to it”
  • failure to observe statutory procedures or natural justice
  • when a public body is, by its own statements or acts, required to respond in a particular way but fails to do so.

A JR is a remedy of last resort.  However, the Court has a wide discretion to hear cases even if there is an alternative appeal mechanism available in line with M and G v IAT 2004. They successfully argued that the statutory appeal was both procedurally and substantively inadequate to safeguard the rights of asylum seekers.

Applications for JR will be refused are those where there are proceedings in another forum already underway or imminent.

 

We hope this brief guide to routes of appeal will serve to inform and encourage all serving, about to be retired and retired officers who believe they have suffered at the hands of the widespread incompetence and ignorance of the Regulations, so frequently displayed by those in authority over their ill health and injury pensions, to stand up and challenge decisions which they believe are wrong.

This is not intended to be a comprehensive guide to how to appeal. In all cases, you should seek professional advice and assistance before initiating any avenue of appeal or challenge. IODPA can, and will, give initial advice and information, and in some areas the Federation will be knowledgeable and helpful. IODPA retains excellent solicitors who can be instructed by individuals, and funding for them can be obtained via the Federation.

Ex-Police Constable Archibald

Ex-Police Constable Archibald

“If you want to feel the life and the body of great men who are long gone, go to their tombs or monuments; if you want to understand the real life and the wisdom of great men who are long gone, go to their libraries!”
Ernest Agyemang Yeboah

The Police Pension Scheme has its origins in a scheme introduced by the Metropolitan Police in 1829. Benefits were provided on disablement for London officers “worn out by length of service”. Payment of a pension was discretionary, with limits to payment set in legislation. The pensions reflected the “arduous and hazardous conditions” of police work.

A police officer could gain a maximum pension after 25 years, compared to 45 years under the 1834 civil service scale.

In 1890, the Government promoted a Bill which retained the existing superannuation funds.  A uniform pension scheme for police officers was first established under the Police Pensions Act 1921 and further detailed police pensions regulations, along the current lines of what we have today, were subsequently made under the Police Pensions Act 1948.

On the 21st November 1967 Mr. Ron Lewis (Member for Carlisle) had an exchange in the Commons concerning police injury pensions with Dick Taverne, the then Under-Secretary of State for the Home Department.  The featured image of this blog is a picture of Mr Taverne sat in his personal library.

They discuss the case of an ex-policeman named P.C. Archibald, who had “… been compulsorily retired from the police as a result of injuries sustained in the course of duty in trying to restore order or to arrest criminals”.

How attitudes have changed. Back then they understood that earnings had no relevance to the degree of disablement and that it was important to ensure the “fair and adequate financial provision for police officers who are retired because of disablement as a result of injuries received in the performance of their duties”.

Mr Dick Taverne:
I come to particular examples, including Police Constable Archibald’s case. A police constable like Mr. Archibald who retired after nine years’ service with the degree of disablement of 40 per cent..—. . . [snip. Archibald got an enhanced ill-health pension and an injury award]. . ., his total benefit would be £149 plus £198, or a total of £347 a year, and he would continue to receive this while the degree of disablement persisted, whatever work he took up.

The purpose and intent of the injury Regulations has not changed one iota since PC Archibald’s duty injuries were the subject of Parliamentary discussion. To the Home Office Minister of the day, it was a clear as it could be that there was absolutely no link between what a disabled former officer earned and the level of his injury pension. This is what we in IODPA have been saying for some time, but, so far, scheme managers are refusing to listen. They will, eventually, have to listen when this issue is aired by means of judicial review – and that will not be too far in the future.

We’ll say it again. Reviews where any attention is paid to earnings are unlawful. The medical condition resultant from the duty injury, and whether it has altered so as to improve or worsen an individual’s ability (capacity) to work is the focus, not income.

Here is a link to the full exchange:

http://hansard.millbanksystems.com/commons/1967/nov/21/disabled-policemen-superannuation#S5CV0754P0_19671121_HOC_452

DISABLED POLICEMEN (SUPERANNUATION) (Hansard, 21 November 1967)

 

 

 

Not a Zero-Sum Game

Not a Zero-Sum Game

“There are two kinds of people: eaters and bakers. Eaters think the world is a zero-sum game: what you eat, someone else cannot eat, so they eat as much as they can. Bakers think that the world is not a zero-sum game—they can just bake more and bigger pies. Everyone can eat more. People trust bakers and not eaters.”
Author: Guy Kawasaki

In the world of the SMPs and HR managers the inhabitants are all eaters.  They wrongly think that an injury pension is there to top up to a certain level any earnings achieved by a disabled former officer. They think the pension plate is intended to only hold a certain amount of food. The worst of them think the food on the plate is not the pensioner’s food, but theirs.

They get this idea from some well-past-its-sell-by-date guidance issued by the Home Office. The plank who wrote the unlawful guidance contained in Annex C to HO circular 46/2004 (guidance now disgraced, destroyed, dismantled and withdrawn) is the same chunk of knotty pine who penned this astounding bit of nonsense:

‘How an injury award is calculated
4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.’ [Our emphasis]

We have mentioned this before, but it is worth repeating, and repeating, until the message gets through. The Regulations do not place a cap on what a disabled former officer might earn, or be thought to be capable of earning. The amount of pension paid has no link whatever with earnings, whether real, speculative or whatever.

SMPs and HR managers, when they bother to actually look in the Police (Injury Benefit) Regulations 2006, and at the table in Schedule 3, which sets out the various levels of pension payment, see the phrase, ‘minimum income guarantee’ then think this means that a pensioner is not supposed to earn more outside the police than was earned whilst in the job.

They think that pension payments are like a game, where one player’s gain is always another player’s loss. They see pension payments as a drain on scarce resources.

It is but a short step from these basic misconceptions over the purpose of the police injury pension regulations to want to devise ways to gobble up whatever they can of the money due to disabled former officers.

Trouble is, their actions will come back to bite them. Truly a case of the biter bit. What SMPs and HR managers in some forces are doing is illegal, and dare we say, incredibly illogical and stupid. We don’t mean to be unkind, or descend into name-calling, even though some SMPs and HR managers have been really, really nasty to disabled former police officers. So, we can let them off the ‘stupid’ allegation, but only if their actions are recognised as considered and deliberate – which would of course mean that they had set out to break the law. So, if I were you, dear SMP or HR, I would accept the ‘stupid’ label as being no more than a factual description and implore you do something positive about it. Like gaining a proper, correct, understanding the Regulations.

We here in IODPA think you would benefit from some educating about the scope and purpose of the  Regulations. When we say, ‘benefit’ we genuinely mean that. It is as much in the interest of HR managers and SMPs as it is ours to see police injury pensions administered within the law. Why risk reputation and career on a wrong-headed attacks on police injury pensions? If you would like to see your name featured, not in a nice way, in the transcript of an Administrative Court case, as has happened to the likes of Nicholas Wirz and that scion of the medical profession, Dr Broome, then, go ahead – keep on breaking the Regulations.

In effect the, literally, misguided denizens of some HR departments and the tame SMPs they instruct, administer the Regulations as if a salary of any amount is a ‘deductible benefit‘.

Perhaps this way of thinking may be valid in the world of welfare state benefits. Britain’s postwar political consensus, which guaranteed citizens ‘protection from want’ from cradle to grave colours some people’s attitudes to police injury pensions. But not in an appropriate or acceptable way. An injury pension may be a ‘benefit’ but it is not a means-tested State benefit. It is, quite simply, compensation for injury received whilst on duty, paid in the form of a pension for the life of the individual.

The drafters of the various police injury Regulations recognised that it would be wrong to receive payment twice for duty injury. So, the 2006 Regulations require that an injury pension shall be reduced by the amount of “any” Incapacity Benefit paid until the first day the pensioner is capable of working again (though not as a police officer) after retirement, at which stage the entitlement to Incapacity Benefit would cease.

In late 2008 Incapacity Benefit was withdrawn and Employment Support Allowance (ESA) began. Just as some police pension authorities blatantly disregard the Regulations in most aspects, a sizeable number of forces have continued to illegally deduct this new allowance from injury awards.

This stands as more proof, if any extra was needed, of police pension authorities who are incompetent administrators of injury awards.

ESA should not have been deducted as it is not defined as a ‘relevant benefit’ in Schedule 3 of the Police [Injury Benefit] Regulations 2006. It may well have been an oversight on the part of the Home Office not to have amended the Regulations so as to substitute ESA for incapacity benefit. The Home Office’s mistake, if that is what it was, is no excuse for forces unlawfully deducting a non-specified benefit.

Now, please pay attention, SMPs and HR managers, for this is the bit you need to get your heads around. Just as with ESA , a salary earned by a disabled former officer is obviously not defined as a ‘relevant benefit’.  Unlike ESA, it never will be.  An injury award is not designed as something that replaces something else only in times of need – it guarantees a minimum income whether or not other income is earned.

It is not a temporary security blanket to help only until that person is back upon their feet.

It is an award for life and serves a purpose as compensation for work-related injuries

Please read the Explanatory memorandum to the police (injury benefit) regulations 2006

An injury award also provides vital reassurance for police officers who may often face adverse and dangerous situations in their routine working day. That is the cornerstone of what is admittedly a generous scheme of compensation.

Note to SMPs, HR managers, some Federation and NARPO types: you may think that injury pensioners get a good deal. Please don’t let your jealously cloud your professional judgement, or duty. Think instead, if you will, of facing a lifetime of disablement, of dealing with pain, frustration and rejection, of having your life curtailed in so many ways, and employment opportunities reduced dramatically, and then having to suffer the ignorant and often spiteful attitudes of people who should know better.

Within the police injury pension Regulations there are certain things which are fixed and thus not up for adjustment, or revision or review. They are the final police salary of the medically retired officer, the last, latest, final decision on degree of disablement, and the fact that that only a substantial alteration in degree of disablement allows any revision of the amount of injury pension paid.

The injury pension is always a percentage of that final police salary, artificially fixed in time for perpetuity, but index linked to whatever the cost of living is in a given year based on the Consumer Price Index so to protect against the devaluing nature of inflation.

Disabled former officers are expected to work and earn, if they chose to do so, to a greater or lesser degree. The Regulations are designed to take that into account. That is why there are four bands of disablement. The point that needs to be borne in mind though is that, whatever the band, there is disablement present, and thus some degree of reduction in an individual’s capacity to work and earn.

Admittedly, it is perhaps counter-intuitive to consider that an award of band four does not necessarily mean that person is totally unable to work. Of course, a sizeable proportion of people in band four are totally unable to work, but we can see that the Regulations hope or trust that some amount of work might be achievable. However, it should not be beyond the wit of so-called professionals, paid to administer the Regulations, to understand that being assessed as being in band four, ‘very severe disablement’ actually means that out of their capacity to earn (either potential or realised), at least 76% of the earning capacity equivalent to the last final salary they received as a police officer has been denied them.

If it can be evidenced that an individual former officer has detrimentally lost the capacity to earn more than 24% of what they would be capable of earning as a police officer if they were not injured, then that person is a bona fide band four. It matters not that the individual is currently earning, say £76,000 a year. It is utterly wrong for a SMP, or someone in HR to look at those earnings and to start at zero by comparing that salary with the former police salary. What matters is that this person, without the index injury, could have the potential to earn at at least £100,000 and therefore their earning capacity has been detrimentally lowered by £24,000.

There is a corollary to this which applies to the injury award given no matter what level of the banding.

It is not a zero sum calculation always starting from nought. A SMP working for Merseyside, Nottinghamshire or Avon & Somerset would treat this salary as a deductible benefit and illicitly remove it from the award, thus making the person a band one – ignoring the truth that there has been no change to the person’s medical condition and therefore no difference in the capacity to earn.

Whatever is earned is not to be deducted directly from the award. The salary of a police officer, at the time they were medically retired, is not an accurate gauge of what that person could actually earn. The award, however, makes sure that the former officer is guaranteed a proportion of at least that income at that snapshot in time.

The point is this: the salary of an officer when they are medically retired does not even equal the theoretical maximum earning capacity of that person as a police officer let alone as a productive uninjured member of society.

Likewise the injury award of a medically retired officer who, due to the incapacity of their disablement, is totally unable to work does not fully compensate that person for the loss of all of their earning capacity – it can only compensate for the amount earned when that person was able to serve as a police officer.

It is noted that some individuals, before they were injured, may have continued in a role such as a beat officer or a uniformed response police officer for which they are over-educated, over-qualified or amply experienced purely as they feel it is a vocation, they enjoy thief-taking or in the hopes that they will be able to specialise or to be promoted in the future.  They may have left a high-flying job to pursue their dream of becoming a police officer.

Arguably if a true forensic actuarial compensation was calculated, the exposure of a police force to compensate for someone’s true loss of earning capacity would greatly exceed the amount payable by injury awards. In other words, the injury award is intended to dissuade those injured on duty from suing the police force that medically retired them. This is the truth of the minimum income guarantee purpose of the award and this is why anyone exercising their latent capacity to earn should appeal when a SMP or HR manager does some clever jiggery-pokery calculations involving deducting earnings from former police salary, or national average earnings, or the assumed, speculative earnings potential of the individual in the same manner than ESA is unlawfully deducted.

We at IODPA would like SMPs and HR managers to think about what they have been told by the Home Office, elements with the NAMF, and by the likes of Mr Wirz, and contemplate another short quote from Guy Kawasaki:

‘Defy the crowd. The crowd isn’t always wise. It can also lead you down a path of silliness, sub-optimal choices, and downright destruction.’

 

 

Snakes, no Ladders

Snakes, no Ladders

The only way is up down, baby
For you and me now
The only way is up down, baby
For you and me
Read more: Yazz – The Only Way Is Up Lyrics | MetroLyrics

“The Curious Case of Benjamin Button” is a short story written by F. Scott Fitzgerald and first published in Colliers Magazine on May 27, 1922.  The film version stared Brad Pitt but wasn’t as good.

Fitzgerald wrote a comic farce, which the film turned into a forlorn elegy. The film’s approach makes Benjamin the size of a baby at birth. Fitzgerald sardonically but consistently goes the other way: The child is born as an old man, and grows smaller and shorter until he is finally a bottle-fed baby.  He starts as infirm and dilapidated and becomes more healthier and youthful as he ‘ages’.

And? … you say, whether Benjamin started as a baby-sized old man or old man sized newborn is moot as both versions of Benjamin Button’s story is a fantasy – and what’s your point anyway? I hear you ask.  

A tragic story in the style of the great Fitzgerald could be written in the modern day as the telling of the story of the disabled former officer, injured on duty through no fault of his or her own, who as they age, they can only get better. In other words their degree of disablement can never, ever deteriorate by means of a substantial alteration and their degree of disablement never spirals upwards.

Is this still fiction?  No.  It’s happening in Merseyside.

No single person on a band one in Merseyside was reviewed in 2015.  Of the 502 reviewed they were all band two or higher, of these 25 were reduced and 477 unaltered.  But this force has 880 IODs, so what happened to the remainder?  The stark answer is that the 378 that were left alone and not reviewed were all band ones – just like Fitzgerald’s Benjamin Button, Merseyside has taken the view that they can only become healthier as time progresses.

Hang on though.  Is there more devious and nefarious  plotting going on here.  Could it actually be that Merseyside hasn’t reviewed band ones because this opens them up to the possibility of increasing the awards of those they review?  Enough of the grimly mocking  tone.  This is real and is exactly what has happened.

Response-Table-SM268-16

The Merseyside review process has deliberately ignored the tranche of IODs that can only have two responses if ever reviewed – increased, or kept the same.  This is not down to chance – this is overt maladministration in its dirty and unambiguous obloquy .  The blue in the below chart shows the band ones that were not reviewed against those higher bands that were.

MerseysideReviewedByBand

As mentioned before on these pages, we have data from most other forces concerning recent reviews and, overall, nearly 7% resulted in an increased injury pension payment – so, of the 502 reviewed, we should have seen approximately 35 people increased in 2015.   Not only are Merseyside deliberately failing to review those band ones whose degree of the pensioner’s disablement can alter only by virtue of his or hers earning capacity deteriorating, of those that they did review not one person was increased.  The probability of no person out of 502 being increased when 35 should be expected to be increased is 0.0000000049 (chi-square test). In context, the probability of winning the National Lottery is  0.0000000222.

In other words there is no fluke here,  no bizarre influence of chance that saw not a single increase in banding – it was deliberate.  As deliberate as ignoring all those who are band one.  Merseyside has acted totally contrary to the purpose of the Regulations and are unlawfully using reviews as a cost saving device.

If mass reviews could ever be fair then there is a prerequisite that it is more likely for someone to be increased as there is for someone to be reduced.  After all, time is by it’s nature degenerative – only Benjamin Button enjoys the opposite. It is a travesty that band ones are likely to remain trapped in the lower realms of percentages, unable to become upwardly mobile because they are deliberately ignored purely as a review of them will increase the forces injury award commitment and, in the absence of any knowledge that they can ask to be reviewed, likely to continue to struggle with an award too low in relation to their lost capacity to earn.

Too many snakes and no ladders.  For every snake, there should be a ladder; for every ladder, a snake.  But not in Merseyside – here there is one snake: the HR department.  And this creature is greased with slime.  Once down, there is no way back up.   This is not the purpose of the Regulations.  Merseyside are blatantly abusing their position as the administrator of the injury award system and should be held to account.

Degree of Disablement

Degree of Disablement

‘The award of 100% is a special case reserved for an officer who is an inpatient at hospital’ – Mr W :  Regional Welfare Advisor to the Police Federation

He said that to obtain a 100% degree of disablement in an initial assessment, he would normally expect that the pensioner themselves would be unable to even apply for the Injury Award as they would be so incapacitated.
The words of a HR Manger, reporting the opinion of Dr C, a SMP.

When an injury pension is reassessed, under provision of regulation 37 of the Police (Injury Benefit) Regulations 2006, the task of the appointed duly qualified medical practitioner (the SMP) is to decide whether there has been any alteration in degree of disablement.

Within the strict confines of the Regulations degree of disablement is based on a medical opinion of an individual’s capacity to do work which results in earnings.

The focus is the capacity, not the earnings.

For some considerable time there have been efforts to seek justice concerning the maladministration of injury pensions.  Areas of error have been identified and arguments put forward that the calculations which have been made concerning wages and earnings have been done improperly.

IODPA is content to see legal challenges focus on these details, as the idiocy of the SMPs who speculate wildly about jobs and earnings makes them vulnerable to being shot down in flames. However, we now want to to present a root and branch argument that the entire basis of any calculations concerning wages and earnings in regard to degree of disablement is unsound and unlawful.

We at IODPA believe that SMPs have regularly failed to properly conduct, within the Regulations, the task placed on them when conducting a review. They have conducted what amounts to a process which seeks to measure loss of earnings. The focus has been on what has been earned, what was being earned at the time of the review and, what might earned in future. Moreover, the necessary impartial status of the SMP’s task has been interfered with by other persons in the employ of the former force, who have supplied them with information about jobs and wages, and calculations based on jobs and wages, which have no place in a properly conducted review process. This amounts to undue influence.

The Regulations do not set out any method by which earning capacity should be assessed and quantified.

They do, however, provide some definitions:

7-(5) Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.

7-(6) Notwithstanding paragraph (5), “totally disabled” means incapable by reason of the disablement in question of earning any money in any employment and “total disablement” shall be construed accordingly.

 

The Home Office has seen fit to provide guidance to PMABs. It is entitled:

GUIDANCE ON MEDICAL APPEALS UNDER THE POLICE PENSIONS REGULATIONS 1987 AND THE POLICE (INJURY BENEFIT) REGULATIONS 2006. [click to view]

This guidance is routinely made available to police pension authorities and to SMPs. Section Five of that guidance contains a detailed description of how a SMP should address the matter of degree of disablement. The heading of that part is, ‘How does the SMP calculate the degree of disablement?

The word ‘calculate‘ indicates very clearly the extra-regulatory view of the Home Office that degree of disablement is nothing more than a matter of what results when someone does some speculative mathematics with wages and arrives at a percentage figure.

At review however, the SMP is required by the Regulations only to give an expert medical opinion, in broad terms, of whether there has been a substantial alteration in degree of disablement. No calculation of any sort is required. The SMP is there to deal with medical matters, which by their very nature are not amenable to ‘calculation’ to the sort of fine degree which the Home Office guidance suggests is required.

The Home Office’s suggested method for quantifying degree of disablement is flawed and should not feature in any way in the process of review of an injury pension. The guidance sets out to encourage a measurement of loss of earnings, which is not the correct approach as it does not comply with the Regulations.

The correct approach to degree of disablement is to quantify earning capacity at the time of the initial grant of an injury pension, and any any substantial alteration upon review, as being within one or other of the four bands set out in Schedule III of the Regulations, using only a medical assessment of the effects of the duty injury on the capacity to work so as to be paid.

It should be noted that the Guidance states, ‘This [guidance] has no binding authority . . .’

Yet the Home Office claims that it is the procedure followed by, ‘. . . most forces and by Boards in recent years.

This is something of a chicken and egg situation. The guidance until recently was the only source of advice available to SMPs. It is no wonder that it has achieved wide acceptance. However, that wide acceptance does not mean the guidance is accurate or lawful.

It has to be borne in mind the Home Office historically has provided the training for SMPs and this inevitably results in SMPs being brought to think, as the guidance is the only procedure offered to them, they are obliged or required to follow the guidance. We may be doing some SMPs a disservice, but it can be seen that it could be easier for them to follow the Home Office guidance than to work out alternative procedures for themselves.

There is also the natural inclination to follow guidance which is seen to be from a highly placed and presumably authoritative source. It is easy for SMPs to put their critical faculties to one side and fail to analyse the value and accuracy of such guidance. However, a significant part of that guidance has now been deemed to be unlawful and that surely must cast grave doubts on the entirety of the guidance.

The Home Office influence inevitably skewed the take-up figure and leaves us wondering if SMPs would have used different procedures if alternatives had been offered to them or if they had been left to work out how to approach their task for themselves. The way the Home Office presents it, the Guidance is a reflection of procedure that has been developed by SMPs – that the Guidance merely reflects common practice. That may not be the case, and the reverse may be a more accurate picture – that the common practice (such as it is or is not) arose from the Guidance.

It takes a large leap of faith to believe that SMPs are so organised, and so in agreement, as to be able to produce such a detailed method of assessment. Merely pointing to use of the Home Office’s procedure is a far step away from providing confirmation that it is a lawful procedure, the only procedure, or even the best procedure.

We also have to bear in mind that even if the procedure is used at review, it may produce a result that is similar to one achieved by another method. Hence the absence of any challenge to a decision which, although unlawfully arrived at, is an acceptable decision does not ratify the perceived quality of the guidance. Moreover, the decision owes more to how the SMP operates the procedure than to its quality or lawfulness.

Indeed,  the prime fault in the Home Office method is that it is open to manipulation by forces, SMPs and by the Home Office so as to produce assessments that are detrimental to the rights of former disabled officers. It is too easy to pluck jobs and wages out of the vast market place that is working life which can be used to arrive at any desired percentage degree of disablement. By way of illustration, let’s detail how a SMP and a HR department recently calculated a degree of disablement. This is a real case. This actually happened.

A force’s HR department provided a SMP with a list of four jobs which someone in HR thought the pensioner was qualified to do.

There were six wages relating to the four jobs. Each job had two wages – a lower one which was said to be the starting salary and a higher one which was said to be the salary achievable after some time. The lowest wage of the six was £24,717 and the highest was £38,484. The SMP, for reasons he failed to reveal, selected only one wage, of £27,270, and worked out that this represented 75.08% of the individual’s previous police salary of £36,321.

The resultant calculation produced a figure of 24.9%, which he named as the individual’s ‘injury-on-Duty‘ thus placing his injury pension in the lowest of the four bands set out in Schedule III of the Regulations – BY JUST 0.2%.

For the sake of completeness, here are the six possible calculations. I doubt it can be explained why any one of them has any quality or factor which makes it more appropriate for selection than any other wage? Alongside the wages are the percentage ‘degree of disablement’ which the SMP would have calculated.
£24,717 = 31.05%

£25,423 = 30.01%

£26,321 = 27.54%

£27,270 = 24.92%

£32,108 = 11.6%

£38,484 = -5.48%

Note the bottom (highest) wage, which produces a NEGATIVE degree of disablement. Nobody can have a negative degree of disablement and remain disabled. However, this illustration is an example of what can result, and has resulted, from reliance on the Home Office guidance.

Logically, any system which is capable of producing a negative degree of disablement must be flawed.

We won’t propose now to conduct a line by line critique of the Home Office guidance but we have strong reservations about its honesty, impartiality and lawfulness.

It needs to be remembered the author of the above guidance claimed, in other guidance issued as Annex C to Home Office circular 46/2004, in relation to reviews at normal force retirement age, 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 claim was exposed as completely untrue. It was a deliberate lie. In fact no force had ever automatically reduced degree of disablement to band one, at any age. The Part 5 Guidance is written in a way that mixes unsupported assertions with erroneous paraphrasing of legislation and unfounded opinion. The guidance is at best unreliable, erroneous and unlawful and at worst a deliberate underhand attempt, using smoke and mirrors, to subvert the Regulations in a way intended to reduce the amount of injury pension paid.

Right at the beginning, it attempts to set the reader off on a wild goose chase:

‘How an injury award is calculated
4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.’

Why is there reference to unidentified pension award systems that are outside the Regulations? The Guidance says, ‘. . . as is normally the case . . ‘ Why is what might happen elsewhere of any relevance to how an injury award should be calculated under the Regulations? There is no need for that phrase other than to give the (false) impression that the procedure which follows is well founded, common practice found elsewhere in the administration of other pensions and therefore applicable to police injury pensions.

There is no reason for injury pensions to be governed by rules that might apply in other pension systems. Police injury pensions are governed by the Regulations and they most certainly say nothing about any earnings calculation mechanism intended to top up total income.

The Guidance errs by stating that a pensioner’s

‘. . . other relevant income needs to be topped up to the level of his or her minimum income guarantee.’

This concept is repeated a few paragraphs later:

The link with earnings is necessary because injury pensions are based on a system of “minimum income guarantee” designed to bring total income in retirement up to a certain level.

This is nonsense on steroids. The author of the guidance asserts that the link with earnings is necessary, because he thinks that the Regulations intend that total income in retirement is brought up to a certain level.

He seems to be saying that the pension is added to any income to produce a total. That would be not a minimum income guarantee it would be a control mechanism that produced a cap on income. If the pensioner earned a few pounds more one year, then according to the guidance, he would see his injury pension reduced by a similar amount.

The guidance has missed the point – or deliberately obscured it – for the minimum income guarantee is the amount of injury pension paid, not an expression of total income and is there to provide an income even if no other earnings are present.

How can it bring earnings up to a certain level, and what is that level? Earnings do not feature in the Regulations. Earning capacity does. As the premise in the guidance is wrong – that the pension is there to top up total income (to effectively put a cap on total income) then its assumption that the link with earnings is necessary is also incorrect.

The logic is in the form of ‘as A then B’ – that there is causality between A and B. Therefore, the quality, or truth, of B is dependent on the quality or truth of A. The guidance wrongly describes the nature of an injury pension ‘A’ and from that incorrectly infers earnings ‘B’.

The purpose of the perverse logic is to bring focus to bear on earnings, which the Regulations do not mention, so as to set it in the mind of the reader that it is permissible to equate ‘earnings’ with ‘earning capacity’. The Guidance seems to be saying that it is possible to use earnings, or their notional loss, to determine earning capacity. And that is where the rot sets in and why everything which follows of the suggested method to assess degree of disablement or any alteration in degree of disablement is completely invalid and utterly unlawful.

Reference to earnings is not necessary to determine degree of disablement and earnings cannot determine earning capacity for they are an unreliable indicator which owes more to variable and irrelevant factors that are impossible to quantify than to the effects of the duty injury.

At the heart of the confusion over how to assess degree of disablement is the false and misleading concept that there is a reliable, measurable causal link between earnings and earning capacity. There is more to say on this below, but it can be agreed that how much or how little a person earns is influenced more by a raft of irrelevant factors than by earning capacity.

Only the duty injury is recognised by the Regulations as being a relevant factor in determining earning capacity and thus degree of disablement. Put simply, you can’t look at earnings, whether they be past, present or potential, and use them as a reliable indicator of earning capacity. Earning capacity is an exercisable power, not amenable to measurement in terms of earnings.

Look at it this way – an engine’s cubic capacity does not tell us the brake horse power of the car the engine is in, nor the maximum speed the car can go. If we knew the maximum speed or brake horsepower of a car could we use that to determine the cubic capacity of the engine? Of course we could not. If we determined the maximum speed or brake horsepower had declined could we conclude that the cubic capacity had also altered? Not likely. Similarly, no amount of juggling of earnings, wages, jobs whether past, present or potential can ever lead one back to quantifying earning capacity.

Degree of disablement is determined by the extent of erosion of earning capacity, not any calculation concerning earnings. A capacity is the ability or power to do something – in the environment of the Regulations that ‘something’ is work – specifically work resulting in payment. The payment is nothing more than a by-product of the work. The capacity to work is what has to be measured, not the amount of payment resulting.

Any examination of earnings alone can never lead us to being able to quantify the available capacity to work. The capacity to work can exist without any earnings resulting.

The entire approach, as recommended by the Home Office guidance, to assessing degree of disablement when an injury pension is granted and also at review is fundamentally flawed because of the confusion between ‘earnings’ and ‘earning capacity’ and introduction of the false concept that the injury pension is there to compensate for lost earnings.

This flaw has remained largely hidden because so far it has been only peripherally examined in the High Court or by the Pensions Ombudsman. It is rather like the iceberg which sank the Titanic – mostly underwater and out of sight, but capable of causing enormous damage. The absence of clear direction – a more timely shout from the crow’s nest – combined with an unwarranted certainty that matters were being dealt with lawfully has created much confusion, not all of it innocent.

Mr Justice Stephen in Re Castioni [1891] had this to say:

‘I have had on many occasions, to draft Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which  person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.’

It is all too obvious that there has been a sulphurous mixture of ignorant misunderstanding, overlaid with a heavy dose of deliberate misunderstanding, of the Regulations and how they intend degree of disablement shall be determined.

How and why there has been so much confusion, leading inevitably to maladministration? Given that ‘earning capacity’ was adequately defined as far back as 2002, in Crocker, and was well examined by the Pensions Ombudsman in the case of Ayre in 2009, there really is no excuse for seeing its meaning altered, or confused, in any official document from any source.

Unfortunately, it seems abuse of the phrase ‘earning capacity’ which is used in the Regulations is commonplace – so much so that it has been almost supplanted by the cuckoo phrases used by those who should know better. Good and lawful administration is not helped when people who have to apply the law depart from the words and phrases contained in the legislation and indulge in casual paraphrasing or thoughtless substitution. Such lapses should not appear in anything which originates from someone of whom we have an expectation that they get things right.

Casual paraphrasing and thoughtless substitution is indicative of lazy thought processes and poor skill levels, or even of a desire to manipulate the Regulations to the disadvantage of pensioners.

Those false phrases are seemingly innocent but they have exerted a malign effect on the administration of injury pensions. It is not acceptable for those who administer injury pensions to take the phrase ‘earning capacity’ and change it into ‘earnings capacity’, ‘loss of earnings’ or ‘loss of earnings capacity’ or ‘loss of potential earning capacity’ as the fancy takes them.

Examples such as these are found scattered throughout the Home Office guidance, in force policy and procedure, in reports, letters and minutes. Each time ‘earning capacity’ is transformed into something that is an inequivalent paraphrase or substitution, the meaning and intent of the Regulations is twisted. This leads inevitably to misunderstanding and incorrect application of the Regulations.

As this error has become embedded in the administration of injury pensions we have to try to make it a clear as it can be that ‘earning capacity’ is the measure of available physical and mental facility, placed within the work environment. It is a measure of what a person in capable of doing, and thus capable of earning. It is not a measure of what a person is capable of earning and thus capable of doing.

Earnings may result from work, and be the intended outcome of work, but the amount of those earnings does not depend solely on earning capacity.

We will draw your attention to the case of Simpson, heard at Leeds High Court in February 2012. This case could not have made it clearer – neither the pension, nor the amount of pension paid, has anything whatever to do with earnings.

Simpson 12.

The two grounds in respect of which the Court of Appeal granted permission to the claimant to challenge the Guidance are: first, that the Guidance is inconsistent with the Regulations (ground 1A); and, second, that the Guidance is wrong in that it mistakes earnings for earning capacity
(ground 1B).’

Simpson 13.

As for ground 1B, Mr Lock submits that the test under Regulation 7(5) is based on the loss of a former officer’s earning capacity, not his actual loss of earnings. In this regard he relies on the judgment of Ouseley J in R (South Wales Police Authority) v. The Medical Referee (Dr David Anton) and Crocker [2003] EWHC 3115 Admin where the judge said at paragraph 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.”'[My emphasis]

Simpson 32.

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. The degree of a person’s disablement should be determined by reference to the degree to which his (emphasis added) earning capacity has been affected as a result of the injury. The focus is on the individual’s earning capacity which, in the case of a former officer, may or may not involve the police officer’s salary. As Ouseley J noted in Crocker, the task in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not an assessment of whether somebody would actually pay him to do what he is capable of doing.[My emphasis]

So there is no need for the SMP (or anyone else involved) to have access at review to any information about a person’s earnings, past, present, or potential. Nor is there any need for the SMP or the Human Resources Department to try to conduct a job-matching exercise by identifying a job which the individual could do. The SMP should not need to look at any data showing earnings, for any section or category of society, be they average, median or mean earnings. His task is entirely a medical one.

Erroneously, the Guidance advises that the SMP begins to assess degree of disablement by an exploration of irrelevant factors:

’10. In order to assess the degree of disablement the SMP will need to consider by reference to the person’s background, skills and qualifications what kind of employment he or she could undertake, allowing for the particular effects of the qualifying injury.’

Starting with an exploration of jobs and earnings is going at the task from entirely the wrong direction. The starting point at any review is the injury and evidence of any alteration of the effects of the injury on the ability to work.

The SMP should determine at review if there has been any alteration in degree of disablement, and if necessary, whether or not any alteration is substantial, by an examination and assessment of any alteration in the individual’s current, post-injury, physical and mental capabilities, as set within the environment of paid work, compared to the last final decision on degree of disablement.

It needs to be borne in mind the pensioner’s degree of disablement has been fixed, and is final (subject only to Reg. 31 appeal or Reg 32 reconsideration) unless the SMP assesses there has been a substantial alteration in degree of disablement, caused by some change in the effects on working capability of the duty injury, and only the duty injury. He is prohibited from conducting a fresh assessment of degree of disablement, even as a means of using that to compare with the previous assessment. He also cannot revisit causation or diagnosis or apportionment.

A scientific approach demands that the SMP can only properly arrive at an assessment from the known facts before him. His task is not to hypothesise about future earnings and jobs, but to ascertain if there is any alteration in degree of disablement, which itself rests on available earning capacity, which, in turn, is determined by the effects of the duty injury, and only the duty injury.

That necessarily means the known facts can only be medical facts. Any facts about potential earnings or comparisons between earnings, or ratios between earnings, or calculation of theoretical ‘lost’ earnings is in the realm of speculation and bears no relevance to the task in hand.

Nor is the SMP, or anyone else, required to give an opinion on what sort of jobs a pensioner might be able to undertake, or to what extent the pensioner could perform in those jobs, or what someone might pay him. That would be a labour market assessment, which is expressly forbidden by the case of Crocker.

Where a pensioner is working, or has been working, and thus earning, it is impossible, for all practical purposes and for the purpose of the Regulations, to filter out the disabling effects of the duty injury from the multitude of other factors that could affect the earnings of a pensioner. If such a calculation were attempted, the variables would be infinitely abstruse due to their interaction and their resultant propensity to mask the singular effects of the duty injury.

The case of Turner, however, raised the suggestion that degree of disablement might alter if either a) the condition of a pensioner improved so that he could take employment in a job that otherwise he would have been unable to manage, or b) that some new job suddenly became available that the pensioner could manage without having experienced any alteration in his condition.

This invited a diversion into more improbable theorising and speculating. It is not an opinion which detracts from the grounded proposition that at review the SMP need not concern himself with speculation about possible jobs.

In the instance of a), above, occurring, the improvement in the pensioner’s condition would be detected by a medical examination, and only if it were a substantial alteration could the job be taken as a confirmatory factor. It is important not to confuse cause and effect. There would need to be an improvement in the medical condition before the job could be taken. Taking the job does not, of itself, indicate a change in the medical condition. The job would, therefore, not be relevant, for if the SMP determined there was a substantial alteration – an improvement – in the pensioner’s medical condition then surely the pension stands to be revised purely on that basis. The job has merely alerted the pensioner and presumably the Authority to the probability that a review might be appropriate.

In the case of b)  Mr Lock QC was speaking with mischievous intent, indulging in drollery at the expense of the opposing QC, not expecting the court to take his words at face value, for he must have known, as a moment’s thought will confirm, that the likelihood of some completely new sort of job suddenly becoming available is so rare as to be extremely improbable.

It would be extremely difficult for anyone to point to a job and prove that it was completely new in nature. All jobs, whether old or new, demand a mixture of physical and/or mental capacity. A bin man’s job might be re-branded as a career-path step for a refuse recycling specialist, but the person doing the job still would need the same old mix of physical and mental capabilities. If an injury pensioner is not able to sit or stand for long, has difficulty in concentrating, has mood swings, constant unremitting pain, or is befuddled by the prescription medication he must take daily, then what new job could possible be any more do-able than any old job?

What was reported in Turner is applicable only to the two specific circumstances outlined by the court and is not amenable to general application. It does not open the door to allowing other factors to be considered relevant to determining degree of disablement or any alteration in degree of disablement.

It is likely to be the norm for the SMP to see pensioners who are working and earning. The Regulations anticipate this, and make no provision for the amount of pension to be adjusted according to how much or how little the pensioner earns. Instead, they speak of a minimum income guarantee – an amount that will be paid regardless of how much or how little a pensioner earns.

Thus it is unwise, when considering degree of disablement, to look at the fact a pensioner is working, doubly unwise to look at the amount he is earning and just plain stupid to use either the fact of working or the amount of earnings to attempt to infer and then quantify earning capacity and thus degree of disablement.

There is a word that very aptly helps describe the situation facing the SMP, should he embark on an exploration of jobs and earnings, past present or future. The word is stochastic.

The Oxford English Dictionary defines it as, ‘ Having a random probability distribution or pattern that may be analysed statistically but may not be predicted precisely‘. The online Free Dictionary defines it as, ‘Of, relating to, or characterized by conjecture; conjectural.’

Stochastic thus refers to systems whose behaviour is intrinsically non-deterministic and sporadic. In plain language, blooming hard to see the wood for the trees. Such a system is the interrelation of random and unpredictable variables which combine to create any particular income stream.

To give a flavour of the stochastic situation of attempting to determine degree of disablement, we can view the relationship between earnings and the labour market in terms of supply and demand. The supply is the work a person might be able to do. What the person can do by way of work is determined by his capacity to work. What he is willing to do for any given wage is a matter of personal preferences, which are difficult to measure with any certainty for they are subject to fluctuation, sometimes rapid and substantial. Demand is the availability of jobs that the individual is able and willing to do for the wage offered.

A stream of actual earnings is a series of varying outcomes of a complex stochastic process involving the interaction of a person’s capabilities and preferences with the needs and demands of employers. Thus data on previous, present or potential earnings presents an uncertain basis of fact from which to draw any clear inference.

Moreover, without a crystal ball, the SMP cannot accurately come to a view on future potential earnings, which depend on chance and choice as well as on skills, qualifications and abilities, and on location, local market rates, exchange rates, government control, supply and demand, who you know, and even the weather, all of which are variables capable of infinite and indeterminate fluctuation. The SMP is, in any event, required to conduct his assessment in the reality of the here and now. He should therefore confine his deliberations to the observable facts before him.

Crocker 33:

‘The concept of earning capacity might be thought itself to contain an element of future potential, but the more normal earning capacity connotations of capacity are of what is now achievable, to be contrasted with actual achievement, rather than with what in the future might become achievable.’

Thus the SMP is actually not permitted to look to the future. This would seem to prohibit not just speculation about future earning capacity but also any speculation about future employment or earnings.

The only way through the miasma of conflicting, contradictory and irrelevant information and speculation is to look only at the medical condition and assess if it has altered, and if so to determine if it is a substantial alteration affecting a person’s capability, his potential, his exercisable power to engage in work which results in earnings.

Remember, the SMP is not permitted to make a fresh assessment of degree of disablement. His only duty at review is to decide whether, since the last final decision, there has been a change, a ‘substantial alteration’. As only the effects of a duty injury are relevant in determining earning capacity and thus degree of disablement, it follows that, when looking for any change, the SMP must look only at the duty injury.

This view differs significantly from what has been promoted (we should say ‘touted’) by the Home Office guidance, but we in IODPA believe our view is supported by the Regulations, by case law and by logic, whereas the Home Office view is not.

The Home Office has never produced any evidence to support its guidance, and its logic has been proved to be faulty to the extent that it has been declared unlawful in certain respects.

2006 Regulation 7-(5):

Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.

The causal link is between the injury and earning capacity. It is not between earnings, (past, present or potential) and earning capacity.

Laws 49:
‘In my judgment, they erred in taking this change in the claimant’s skill set into account in order to determine that there were now jobs available to her which were not available to her previously. A change in the claimant’s skill set because of her law degree is not, in my judgment, a change in the claimant’s earning capacity “as a result of” the duty injury, as required by the regulations. The combination of regulation 7(5) and regulation 30(1)(d) requires that the assessment of any alteration in the degree of disablement is limited to those factors which are the result of the duty injury. The assessment process looks for the loss caused by the duty injury and nothing else. It should therefore discount the effect of any other factors (see the decision of Ouseley J in R (South
Wales Police Authority) ex parte Anton and Crocker [2003] EWHC Admin 3115, in particular at paragraph 52.’ [My emphasis]

The phrase ‘earning capacity’ has been well analysed and pronounced upon in several High Court cases, notably in

Crocker, 42:

‘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.’ [My emphasis]

This view has been accepted and confirmed in more recent cases. An assessment of what a person is ‘capable of doing’ does not need to extend to matching available effort to a particular job or a particular stream of earnings. It is an assessment of available physical and mental effort – of available capacity to work.

Once that is matched to a job or to a wage, it becomes an assessment of the output resulting from the input and is thus a labour market assessment. The phrase, ‘capable of doing and thus capable of earning‘ should not be taken as an invitation to allocate a job or a wage to an individual or to quantify that wage, but rather to allocate a general and broad assessment that the individual could earn something in the range of 0% to 100% of whatever amount he might otherwise achieve but for the disabling effects of the duty injury. It is not necessary to select a monetary expression of what he could earn but for the disabling effects of the injury. Potential maximum uninjured earning capacity is always 100% whether the earnings are £5,000 a year or £50,000 a year.

Let’s return to Crocker. The judge opined, ‘The task, in my judgement, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning.’  It can be agreed the first step in the assessment at review, with Crocker in mind, is to form a view on what the person is now capable of doing.

This is not a job interview where skills, experience and qualifications need to be examined. Nor is is an opportunity to speculate about jobs a person is qualified to do, or to point at jobs he has done. At review the SMP should conduct a medical examination, intended to assess any change in the person’s physical and mental capabilities. It is a measurement of available input effort. It is not a measurement of what jobs and earnings might result.

Logically, it cannot be otherwise, for the Regulations insist the task is handed to a suitably qualified medical practitioner. If the task was one of listing qualities other than medical ones or of looking at jobs and wages then the Regulations would have handed the task to a human resources expert, or a personnel manager, or an economist, or even a theoretical mathematician.

The task at review is to see whether there has been any alteration in what the injured person retains of the ability to work. The result of the work is earnings, so it is clear the assessment of work capability (the ‘doing’ in Crocker) must be set within the specific environment of paid employment. We don’t need medical qualifications to suggest that the sort of tests the SMP might apply would revolve around the person’s physical abilities, such as lifting, standing, walking, fine motor skills, bending and climbing, hearing and sight; and cognitive abilities, such as reasoning, memory, perception, visual and spatial processing; also psychological factors such as motivation, mood, temperament and interest. We could go on, but the general gist of what has been said is plainly understandable.

A suitably qualified medical practitioner will know what tests to apply to the individual and how to grade the results so as to provide a figure within a broad percentage range indicative of the level of work ability retained. There need be no move to apply the retained ability to potential outcome in the form of a job or a wage.

The Regulations are unconcerned about how much a pensioner might be able to earn within his diminished capabilities. They are concerned to provide a minimum income guarantee, so that in the worst-case scenario, where the pensioner has no income from work, he has the pension to help pay the bills.

Other injury compensation schemes, such an insurances, pay either a lump sum, or a series of payments over what is determined to be the working life of the individual. The compensation is based on an assessment of loss of earnings. There is no provision to keep the amount of the payment under review, so if an individual’s capacity to work and earn improves or deteriorates, for whatever reason, the payment remains unaltered.

The police injury pension scheme is not like that. It is linked to the capacity to work, for the lifetime of the individual, and not to any calculated loss of earnings.

Having examined the first part of the phrase in Crocker, ‘. . . what the interested party is capable of doing . . .‘ this leaves us with the qualifying second part of, ‘. . . thus capable of earning.’

This has been sadly, even wilfully, misinterpreted. It has been taken to indicate the SMP must go off on a job matching exercise coupled with speculation about potential wages. This is all totally unnecessary. At review, the SMP will have determined any alteration in the amount of work capability remaining after the disabling effects of the duty injury have been taken into account, by adding or subtracting any alteration he detects.

He thus has a view of available work capability which, when compared to the last final decision, indicates whether the alteration is an improvement or a deterioration and whether it is a substantial alteration. The pre-review degree of disablement is the base line. It is, moreover a final decision, which can not be questioned or revisited.

From the above, emerges a picture of how the SMP can lawfully conduct his task, at review, of assessing whether there has been any alteration on degree of disablement, and if so whether it is a substantial alteration. There really is no need for the SMP to do other than decide which of the four bands set out in Schedule 3 is the appropriate one in which to place the degree of disablement.

The SMP need not seek to provide a precise value of any alteration, for it should be readily apparent if any alteration is a substantial one, and only a substantial alteration allows a pension to be revised. Degree of disablement is thus simply obtained from nothing more than a medical examination to determine any alteration in the effects of the duty injury, and nothing else, on earning capacity.

The Regulations never intended for a SMP to calculate a precise percentage figure. The Regulations only intend the SMP to give an opinion on which of the four bands of degree of disablement the individual’s condition would place him or her.

This view is based on a plain reading of the Regulations and on the opinion of Mr Justice Ouseley, in the case of CROCKER (2003) where, at paragraph 31 of the judgement he opines,

The very formulation of the disability bands showed that no refined precision was required.’

This eminently sensible opinion has recent confirmation from the compelling comments of Mr David Scoffield QC, who was commissioned by the Crown Solicitor’s Office, on behalf of the Northern Ireland Policing Board to conduct a review of the present arrangements for the payment of ill-health pensions and injury on duty awards to former police officers.

Mr Scoffield’s report makes this recommendation:

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.

Mr Scoffield, it seems, has taken note of the way that SMPs have been swayed by guidance from the Home Office and, more recently by the College of Policing, into forming erroneous interpretations of the intentions of the drafters of the Regulations. There is no need to calculate a specific percentage disablement figure.

We in IODPA say it it time for HR managers and SMPS to read the Regulations and case law themselves and to chuck the Home Office guidance in the bin, along with all the other false advice and training they have been subjected to from other quarters.

More bad maths

More bad maths

Dateline: 24th April 2015.

A response by Staffordshire Police to a freedom of information request.

https://www.whatdotheyknow.com/request/police_regulations

Staffordshire are proud to reveal exactly how they calculate the degree of disablement for the purpose of grant of a police injury pension. The same method is used when they review an injury pension.

One small problem. Staffordshire are acting unlawfully. Their method is intended to provide a way of subverting the purpose and scope of the Police (Injury Benefit) Regulations 2006 so that they can get away with paying disabled former officers less than their due by way of injury pension. Staffordshire takes what is a medical decision on how much remains of a disabled former officer’s capacity to work, and thus earn, puts it through a calculation which has no basis in the Regulations, compares a police wage with a nominal wage and doubly reduces the degree of disablement.

People who should be paid a band four injury pension are finding that under the magic of this slight of hand they are hardly disabled at all and thus get paid only a band one pension. The savings to the force are considerable.

Let’s look at this in detail. The percentage of degree of disablement is a medical question. It says so in the Regulations. The police pension authority is required, by law, to hand the decision on degree of disablement to a duly qualified medical practitioner. Reason being that disablement is a medical matter. It is all about twisted or missing limbs, constant pain and medication, or mental injury. Damage to body and/or mind so bad you would not wish it on your worst enemy. An independent medical person makes a decision which is binding on all concerned. Apart from Staffordshire police pension authority, that is.

The Regulations tell us how an injury pension is to be calculated. For example, a pensioner is given a degree of disablement figure of 66% by the ‘duly qualified medical practitioner’ selected by the police pension authority (the SMP). That is the final figure, and there is no need, and no legal authority for further calculation or decision. As the percentage is between 50% and 75% it falls within band 3 of the Schedule 3, as set out in the Regulations. In our example, that means a former officer with more than 15 years service but less than 25 would be paid an injury pension calculated as 75% of his former police salary.

Staffs can punch in a few figures plucked out of thin air into a calculator and turn that 75% into a lowly 45%.

Staffordshire and some other forces use what is known as the PEAM system (Police Earnings Assessment Matrix), which is a system not specified or sanctioned anywhere in the Regulations, to set aside the SMP’s decision and come to another perverse conclusion which artificially reduces an IOD award to the minimum.

The Regulations do not permit this, yet Staffordshire seem oblivious to that fact. Or, is it the case that they know full well they are breaking the law but just don’t care? Has someone in high authority calculated that disabled former officers are very unlikely to a) realise that they have been screwed and b) if they do cotton on, are too crocked up to do much about it?

Staffordshire was asked a simple question in the freedom of information request. If a SMP gives a degree of disablement of 75%, can a Band 1 be awarded? Think on this – the SMP has awarded a 75% degree of disablement. To award 75% the SMP has judged the disablement caused by the duty injury has caused a reduced amount of earning capacity and has given what the Regulations very clearly state is a final decision on the matter. That’s it. Over and done with. But not in Staffordshire.

Let’s take a look at that:

Regulation 30-(6) ‘The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall . . . be final.’

But not final in the twisted world of PEAM.

Here’s what Staffordshire said:

paem

To break this down, Staffordshire has admitted that a 75% degree of disablement, which the Regulations name as ‘major disablement’ and which is but one degree short of ‘very severe disablement’, can be turned into an 18% degree of disablement – ‘slight disablement’.

Here is the warped logic:

  1. A SMP gives a percentage of 75%
  1. Despite the finality of the 75%, Staffordshire thinks that any retired police officer can earn £28389, no matter what the degree of disablement decided by the qualified medical practitioner. Moreover, they describe this as ‘potential earnings’. It is nothing more than a wage picked out from a job advert – a job some functionary in HR, with no medical qualifications, no understanding of disability, and no right to do so, ‘thinks’ the individual ought to be able to earn. And ex-pigs might fly.
  1. Staffordshire work out that a maximum salary for a PC is £37500. So the ‘loss of earnings’ is the difference between what they would be earning as a PC and what they say the person could be earning outside the job: £37500 minus £28389 equals £9102.

Note: Remember that the 75% is a final decision and this extra calculation is post-decision and thus extraneous and unlawful. Note also: An injury pension is compensation for duty injury and is not compensation for loss of earnings.

In fact, the Regulations do not mention loss of earnings at all. They do speak of earning capacity however, of which regulation 7-(5) tell us this: ‘Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.’

Earning capacity has been determined in the Administrative Court to be a measure of a person’s capacity to work and thus earn. No mention of wages or loss of earnings. It’s the CAPACITY stupid! Not what that capacity might produce in terms of earnings.

  1. So where were we? Oh yes, Staffordshire had worked out that £9102 is 24% of £37500. (Which you and I can readily see makes a ‘loss of earnings’ of 24%, which, if that was a legal way of calculating degree of disablement, which it isn’t, would already place the pensioner on band one.)
  1. That’s not good enough for Staffordshire. They want a lower percentage, more firmly down in band one and thus less likely to see a future SMP move it up into a band two. So, now they calculate a percentage of a percentage. They bring the 75% back into it and calculate 75% of 24%. This gives 18% and a band 1 award.
  1. Taking the poor mathematical logic further, just say the SMP decides the person is totally incapable of any work and so awards a degree of disablement of 100%. Staffordshire will then still award a band 1. The calculation for ‘loss of earnings’ remains the same, but 100% of 24% is 24% and a band 1.
  1. The fallacy is the double jeopardy of calculating a percentage of a percentage to factor down the SMP’s ‘final’ given degree of disablement.
  1. The unlawfulness is that Staffordshire have overruled the final decision of the SMP.

Is it a coincidence that the majority of those injured out in Staffordshire with an on duty injury are band 1s?

Here is how it should happen:

  1. SMP awards 75%
  2. Look for where 75% sits in the following table for a PC retired with service between 15 and 25 years
  3. Degree of disablement Gratuity expressed as % of average pensionable pay Minimum income guarantee expressed as % of average pensionable pay
    Less than 5 years’ service 5 or more but less than 15 years’ service 15 or more but less than 25 years’ service. 25 or more years’ service.
    (1)       (2) (3) (4) (5) (6)
    25% or less (slight disablement)         12.5% 15% 30% 45% 60%
    More than 25% but not more than 50% (minor disablement)         25% 40% 50% 60% 70%
    More than 50% but not more than 75% (major disablement)        37.5% 65% 70% 75% 80%
    More than 75% (very severe disablement)          50% 85% 85% 85% 85%
  4. It is band 3.
  5. The % is still 75%75% of the final salary is due as the IOD award

The insight into Staffordshire’s calculations given by their response to the freedom of information request is scarily enlightening. Staffordshire has given us a clear understanding of the perverse ploys that they, and some other forces, use to go against the Regulations.

Needless to say, use of PEAM to make calculations after the SMP has announced a final decision is blatantly unlawful and needs to be taken to Judicial Review.

Now, if only there was an organisation, say a federated organisation created by statute, which could support retired officers and fight their cause . . . .

Mr R has learning disabilities and a mental health condition. He went overseas on holiday to stay with some family friends. His parents had intended to travel with him but were unable to do so because of his father’s ill health. This was the first time that Mr R had travelled abroad alone.
On his return he was stopped at his local airport by two trainee customs officers because he was carrying a large amount of tobacco. He was then interviewed about his trip abroad, how it had been funded, and the tobacco. Contrary to the UK Border Agency’s own guidance, the customs officers did not check at the start of the interview whether Mr R was fit and well, or whether he had any medical condition they needed to be aware of. Nor did they ask him to read and sign the notes of the interview. If they had done, they would have discovered that Mr R could not read or write. The officers strip searched Mr R - at one point leaving him naked.
One of the reasons given for the strip-search was that Mr R appeared ‘nervous’ and ‘evasive’ when questioned. Although Mr R had referred to his disabilities and one of the officers had written ‘Mental health problems, disability’ in his notebook, the officers simply continued with the interview and the search. No drugs were found. Mr R was eventually allowed to leave, but the tobacco he had been carrying was seized. My investigation found that the UK Border Agency had not had regard to Mr R’s disability rights in the way that it had carried out its functions. As soon as Mr R referred to his disabilities, the customs officers should have stopped the interview and re-arranged it so that an appropriate adult could be present. Instead they had pressed on regardless, they had failed to follow the Agency’s own interviewing protocols, which might have helped them to identify Mr R’s disabilities and deal with him appropriately as a vulnerable adult. An appropriate adult should have been able to explain that Mr R’s difficulties in answering questions were due to his learning disabilities and not evidence of evasive behaviour. Not only was it unlikely that the encounter would have progressed so far as a strip search, but Mr R would have had the support and protection he was entitled to in what for him was a terrifying situation. Not surprisingly, he never wanted to go near an airport again. We upheld the complaint. The UK Border Agency apologised to Mr R and paid him £5,000 compensation for the distress, humiliation and anxiety they had caused him. In an attempt at restorative justice we asked the Agency to explore with Mr R and his mother what they might do to enable Mr R to feel comfortable using his local airport in future. The Agency also agreed to review the disability awareness training provided to their customs officers, with a particular emphasis on identifying non-visible disabilities such as learning disabilities and mental health conditions.