A briefing note can be found here –
There is also an example letter –
There are 272 Essex pensioners that are in receipt of an injury pension. We would urge those pensioners that are not IODPA members to make contact with us.
A briefing note can be found here –
There is also an example letter –
There are 272 Essex pensioners that are in receipt of an injury pension. We would urge those pensioners that are not IODPA members to make contact with us.
An abuse of any given power is a display of ignorance to the moral values of the position.
Essex police pension authority has recently announced the intention, in respect of former officers in receipt of an injury on duty pension,‘ . . . to review the percentage of earnings capability in relation to the injury award regulations.’
That is how it is announced in the minutes of the meeting of the Essex Police Pension Board held on 28th November 2017.
For the benefit of anyone who has only lately come across IODPA and these blogs, we had better explain what the Chief Constable of Essex Police has determined to attempt.
The Chief Constable holds, in addition to his office of constable, the office of police pension authority (PPA). Amongst other responsibilities a PPA is required to ensure the Police (Injury Benefit) Regulations 2006 are properly applied and administered. These are the regulations, the law, which govern police injury on duty pensions. An important provision in these regulations is the PPA should ensure the correct level of pension continues to be paid, should there be a substantial alteration in any individual’s degree of disablement.
This provision is in regulation 37 of the Police (Injury Benefit) Regulations 2006. It is the so-called ‘review’ provision. Essex PPA would like to use this regulation now, having not used it much, if at all, since 2010. However, we have grave concerns that Essex PPA is approaching things not only in an unlawful manner, but also in a way which will undoubtedly bring much distress and upset to some very severely disabled former officers.
Essex has some 250 or so former officers retired due to injury on duty. They each receive a pension, the amount of which is partly determined by their degree of disablement. An individual’s disablement may alter over time – it may worsen, or it may improve.
However, data obtained by the IODPA shows that the vast majority of pensioners do not experience any substantial alteration over the years of their retirement. The task of a PPA is therefore to make a sensible, humane arrangement which will allow it to discharge its obligation to ensure the correct level of pension continues to be paid, should there be a substantial alteration in any individual’s degree of disablement.
On the basis of the minutes mentioned above, there is some confusion and lack of clarity about what degree of disablement is, or what is required of the PPA should degree of disablement alter.
The minutes display an unfortunate indifference to the precise meaning of the regulations. There is no such thing as ‘percentage of earnings capability’. No mention in the regulations, nor in case law. We have to assume the PPA means to refer to a review of the degree of disablement of former officers in receipt of an injury pension, but if the PPA can’t even name it, preferring to use some meaningless replacement phrase, then it does not bode well for the way any ‘reviews’ will be conducted.
We said above, that a PPA is required to see that the Police (Injury Benefit) Regulations 2006 are properly applied and administered. Well, sadly, the wheel has fallen off that particular bike before the reviews have even really begun. In a response to a Freedom of Information Act request, which asked Essex Police the question, ‘What is the selection criteria for identifying pensioners required for review?’ they replied, that is was,
‘Based on longevity cost to Pension Authority to determine first tranche.’
We have to pause again here to seek meaning. We think Essex is saying that pensioners will be selected to have their degree of disablement reviewed by picking out those who are younger than the median age of the total group of injury on duty pensioners, and thus liable to be paid their pensions for longer or those pensioners who receive the higher amount of injury pension, or some equation including both criteria.
That was pretty much what Avon and Somerset did, when that force set out on its costly and fruitless review programme a couple or more years ago. Essex is thus following an example which has been proved to be unlawful and doomed to failure.
Selecting individuals for a review of their degree of disablement on the basis of their age, or their level of pension payment is not lawful. It is discriminatory.
What is vitally important to note here is that Essex PPA makes it transparently obvious, beyond all possibility of reasonable doubt, that it is motivated to conduct reviews only by consideration of the ongoing cost of funding injury pensions.
That is why IODPA has to comment that the PPA is acting contrary to the intent and purposes of the regulations. The PPA seems to have lost sight of what the purpose of a review is, as intended by the regulations.
A review is intended to be a rare event, only undertaken when there is good reason to believe that an individual pensioner has experienced a substantial alteration in degree of disablement. Reviews should not be applied to a selected group of injury on duty pensioners as a means of discovering whether there has been an alteration in degree of disablement. A review is not intended to be a mechanism for a PPA to try to save money.
A PPA is required by regulations 37 of the Police (Injury Benefit) Regulations to do no more than, ‘. . . at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered.’
In making that consideration a PPA is not empowered, or entitled to require any individual to supply personal financial or medical information. Nor can anyone ‘process’ any of the information held by the force, or any other agency or person for the purpose of making the consideration, without the express informed consent of the individual concerned. The Data Protection Act makes it very clear that information held can only be processed for the purpose for which it was first obtained and any further processing for a different purpose is not lawful without express informed consent from the individual concerned.
Instead of making a simple enquiry of pensioners, from time to time, we have a force which has applied an intrusive and potentially deeply distressing instrument in an attempt to use regulation 37. Moreover, it seems the prime intention of the PPA is not to ensure the correct level of pension continues to be paid, but to save money.
Police injury pensions stand to be paid from the police force budget. Chief Constables have a duty to be prudent with the public purse. Chief Constables are under pressure to reduce costs, to trim their budgets, but that does not empower them to raid the injury on duty pensions paid to disabled former officers.
It would be proper for a Chief Constable seeking savings, to do what was practicable to lessen the chances of officers becoming injured and disabled, or to make provision for the best care and treatment being available to any officers injured on duty, so they could avoid being retired on an injury pension. It is most certainly not proper, nor lawful, for a Chief Constable, acting as PPA, to seek to review the most costly injury pensions with what can only be an intention to see some of them reduced.
Conformation this is a driving objective behind the proposed reviews is found in a further response from Essex Police to a Freedom of Information Act request. When asked, ‘Can you confirm if all pensioners in each band will be reviewed?
‘Since no reviews have been conducted since 2011 the suitable period for review as determined by the smp at previous review has elapsed. It is therefore envisaged reviews will be conducted for all pensioners in band 4, 3 and 2.’
Once more, we need to decode. Essex seem to be making a causal link between lapsed recommendations made by medical practitioners employed by the force some time ago as to when a review might be appropriate in individual cases, and the fact of Essex now commencing reviews. In plain language, they say, ‘We failed to make any considerations as to whether the degree of disablement of any of our injury on duty pensioners had altered, so now we have to play catch-up.’
As with the flawed and unlawful motive for holding the reviews – to save money – here Essex reveal a concerning abuse of the intent of the regulations, allied with a truly shocking exhibition of disability discrimination. Essex say they won’t be reviewing pensioners who are on band one. These are the pensioners who are paid the least amount of pension, and whose pensions can not be reduced, but could only be increased.
IODPA has had an indication that Essex PPA is willing to rethink its approach, and we will be reporting on this in a future blog. We will be following events as they unfold and will be ready to assist any injury on duty pensioners whose pension rights are under threat. We think Essex ought to call a halt to its proposed reviews and sit down with people who can explain the regulations to its HR managers and other staff. It is not in the best interests of Essex police, or of the disabled former officers who receive an injury on duty pension, to allow unlawful application of regulation 37 to proceed as currently proposed.
Following the recent announcement of Essex Police to start reviewing injury pensions, and after reviewing documentation sent out by Kevin Kirby, we were sufficiently disturbed to formally write to the Chief Constable, Mr Kavavagh. Here is a copy of the letter that we sent.
Letter to Essex CC
Here is the reply that Mr Kavanagh provided.
CC Kavanagh Reply
We are grateful to Mr Cananagh for taking the time to reply, but still feel as though there are lot of unanswered questions.
The world always makes the assumption that the exposure of an error is identical with the discovery of truth – that the error and truth are simply opposite. They are nothing of the sort. What the world turns to, when it is cured of one error, is usually simply another error, and maybe one worse than the first one.
Clever Cat, Stupid Cat
Police pension authorities, and the employees who act under their instruction, have consistently demonstrated a remarkable ability to make errors. Over the last few years we in the IODPA have seen some prime examples, and have sadly heard of the damage they’ve caused to disabled former officers and their families.
It is said that if a cat jumps up onto a hot stove, it will never do it again. Well, we can say with a good degree of certainty that some police injury pension scheme managers are nowhere near as clever as cats.
No sooner has one PPA or another had its errors corrected by a judicial review or by the Pensions Ombudsman, than another pops up and repeats the very same errors, or invents completely new ones.
A Most Unpleasant Letter
Essex have decided to conduct a programme of reviews of the degree of disablement of some of its disabled former officers who are in receipt of an injury pension. So, Mr Kirby, the Head of Governance & Compliance for Essex police pension authority, took on the task of writing to them. Which presents us with the opportunity to dissect his extremely unpleasant and inaccurate letter and point out the errors it contains. The letter can be read in all its full glory here.
Letter from Essex call to review
Scalpel Please, Nurse.
Let’s make the first incision by reminding ourselves, and Mr Kirby, that the letter is addressed exclusively to disabled people. Some of whom will have physical impairment, some will have mental impairment and some both. We see no signs this appallingly constructed glob of officialese was written by someone who gave any thought to its possible impact on the recipients.
It is not hard to imagine the sense of doom, the panic, the lonely desperation welling up in the minds of those who are made vulnerable by the symptoms of a mental or physical injury when this letter landed on their doormats. We know, because we get told these things, often, and know the mere sight of a letter on police headed notepaper can be enough to destabilise some pensioners. Yet Mr Kirby addresses them all as though they are not only fit and well, but also fully conversant with the intricacies of the Police (Injury Benefit) Regulations 2006.
We understand the main target of the proposed reviews are pensioners in band four. That is the highest degree of disablement, identified in the Regulations as ‘Very serious disablement’. Surely someone gave some thought to the impact of the letter on this group of people?
Before we go further we should assure Mr Kirby that we mean no personal insult to him. He may be a pawn in a larger game, and only doing what he has been commanded to do. He may be understaffed, untrained and unsure. He could be under pressure to produce results. However, he put his name to the letter and must take responsibility for its contents.
Apologise and Withdraw
If Mr Kirby has any moral core he will immediately apologise for sending out his letter, and the questionnaire and Appendix which came with it. He will withdraw it all, and sit down with local NARPO, Federation and injury pensioners, to consider very carefully the implications to the force and to the injury pensioners should the PPA continue on the disastrous course his letter has set.
IODPA has no issues with lawfully held reviews but we have to speak out when a PPA announces its intention to act outside the confines of the Regulations. This blog is intended to be as much an encouragement to Essex to realise its wrongheadedness and to think again, as it is a crib sheet for injury on duty pensioners, giving them points to use to challenge and question their police pension authority.
Mr Kirby’s letter contains so many errors and muddled inaccurate information that it is going to take more than one blog to deal with it and the accompanying Appendix and Questionnaire.
Mr Kirby’s letter begins with the phrase,
“As you are aware . . .” and mentions the Regulations and something he calls an intention to “. . . review your degree of disablement earnings related capacity.”
We very much doubt pensioners are aware. In our wide experience it would be a rare individual who would know the detail of the Regulations or what a review might involve. If they were to think the letter would explain, in simple easily understandable language, what the PPA is aiming to achieve, they would be disappointed.
Fools Rush In
The letter seems to have little or no grasp of the Regulations. Yet it is written with a confident style which is misplaced and in terms which display inadequacies.
There is no mention of a ‘review’ in the Regulations. That word does not appear. ‘Review’ has become generally accepted shorthand, for those who deal with injury pension issues on a daily basis, for the process which is mostly set out in regulation 37 of the Police (Injury Benefit) Regulations 2006. Police injury on duty pensioners can not be assumed to know what a ‘review’ is. Thus, the first error of the letter is a failure to properly explain what Essex PPA intends.
Nor is there any mention in the Regulations of reviewing something called a ‘degree of disablement earnings related capacity’. Now, this is something which IODPA would very much like to see Mr Kirby attempt to explain. We have no idea what he is referring to and neither will any pensioner, because it is an invented term which has no bearing on the Regulations.
Let’s get things straight. Regulation 37 confers a conditional power of discretion, not a duty, on police pension authorities to do this, in this order:
Now, of course, there is much, much more to the process that this brief aide-memoire provides. There are many ways a police pension authority can come unstuck. However, to assist Essex and guide them away from the current disastrous approach we should just mention that it is vital that any ‘review’ is an individual process for an individual person. A PPA simply can not decide en bloc to ‘review’ a group of pensioners.
A Misplaced Sense Of Duty
We should also mention what Mr Kirby’s letter describes as,
‘. . . a duty as part of good governance to periodically review the degree of earnings capacity of pensioners in receipt of an injury award.’
We will return to ‘good governance’ in the next blog, but we need to deal with ‘duty’ first. The duty placed on a police pension authority under regulation 37 is it, ‘. . . shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered . . .’
Essex is not the first police pension authority to use a misreading of the Regulations to support a false claim that it has a ‘duty to review’. It is true there is a duty to ‘consider’ at ‘suitable intervals’ whether there is any alteration in degree of disablement, but forces divert from the intention and purpose of regulation 37 when they leap ahead of this simple, restricted, conditional duty.
Mr Kirby’s letter tells us,
‘. . . the process requires the involvement of the pension authority’s selected medical practitioner’ and ‘In order to assess the degree of disablement the selected medical practitioner will need to take account of your skills and qualifications and what kind of employment you could undertake . . .’
Now to be fair to Mr Kirby, it could be that he genuinely, but mistakenly, thinks that the PPA can only properly ‘consider’ matters as per regulation 37 if it gathers in all the information it asks for in the questionnaire and gets their SMP involved in analysing it.
Trouble is, Mr Kirby is asking, sorry, requiring, pensioners to hand over information the PPA has no right to demand. Nor can he involve the SMP until the PPA is in a position to be considering revising an injury pension. As things stood at the time Mr Kirby wrote his letter, the PPA could have no reason at all to think that any pensioner had experienced an alteration in their degree of disablement.
A PPA has no legal authority, or ‘power’ as Mr Kirby would describe it, to require any information from former officers.
IODPA advises any Essex pensioner who has received the above letter, questionnaire and Annex from Mr Kirby not to respond to hand over any information, or give the permissions asked for.
Here is the questionnaire as recently sent out by Essex Police following their decision to commence injury pension reviews. It is intrusive almost to the point of being offensive.
Whilst they have every right to send out such a document, the pensioner has every right to place it straight into the bin. There is no legal requirement to provide ANY information regarding these reviews.
Have a read and familiarise yourself with the document. We will be putting up a series of blogs regarding this and other paperwork that has been sent out by the force.Essex Police questionnaire
What we’ve got here is failure to communicate.
― Cool Hand Luke (1967)
It seems there has been a rush of blood to the heads of certain people in the higher echelons of Essex Police. For reasons as yet unknown to the Police Pension Authority, which is an office vested in none other than the sole personage of the Chief Constable, Steven Kavanagh (pictured), has decided to commence a programme of reviews.
For anyone who has not kept up with ongoing events in the long drawn out and sorry saga of police injury pension maladministration which has blighted the lives of far too many disabled former officers, here is a brief recap.
A ‘review’ is shorthand for what happens when a Police Pension Authority (PPA) exercises a power of discretion conferred on it by Regulation 37 of The Police (Injury Benefit) Regulations 2006. A PPA decides to check whether the degree of disablement of an officer, retired with an injury pension, has altered.
It sounds simple, and it is simple. All a PPA has to do is follow the Regulations and be familiar with the ample case law which provides clarity should explanation be needed. Or, if they fancy a lighter but no less helpful read, HR managers could do no better than study the blogs which IODPA has thoughtfully provided to help educate them.
Yet despite this ready access to information PPAs have consistently managed to muck things up. You would think they were doing it deliberately.
In Essex, it is almost as though everyone who has had a hand in setting up this programme of reviews has been secured in a bubble, kept separate from the rest of the world, so they have no idea whatsoever about recent events.
Events such as the disaster in Avon and Somerset, where much public money was wasted in attempting to hold a review programme, which in our opinion was unlawful.
Events such as the Information Commissioner’s advising that Avon and Somerset and Northumbria had no right to continue to hold excessive historical personal information about retired officers.
Events such as the binding opinion of the Honourable Mr Justice Supperstone in the 2012 case of Simpson v. Northumbria Police Authority and others, where he made it very clear that,
‘The statutory scheme requires an assessment as to whether there has been an alteration in the degree of disablement first. A further quantum decision on the present degree of disablement is only permissible if the police authority, acting by the SMP, have first decided that there is a substantial alteration in the former officer’s degree of disablement.’
So, what is going on in Essex? What has prompted the idea to review batches of injured pensioners? And why has nobody – absolutely nobody – in management had the common sense and nous to look at the regulations and case law to see why their plan is likely to spectacularly fail.
It is indeed a failure to communicate on an epic scale.
More than a failure of communication, it is a failure of awareness, a failure of reason, a failure of professional competence, a failure of decency, a failure of knowledge and a total failure to treat disabled former officers with respect and consideration. There is so much wrong with what Essex is doing that in the space of this blog it won’t be possible to cover all aspects. We can, however, focus on a few elements which demand special attention due to their sheer crassness.
Let’s look at the letter and questionnaire which Kevin Kirby, Head of Pension Governance & Compliance has sent to the first of the injury pensioners who have been selected to undergo a ‘review’. Just who does he think he is, and just who does he think he is talking to?
‘We will require a full update on your medical status since your retirement which requires you giving consent for release of your GP records.’
No, you can’t do that Mr Kirby. A review must only determine if there has been any alteration in the specific disabling effect of the recorded duty injury or injuries. One’s ‘medical status’ does not come into it. And neither does the record of a pensioner’s health since retirement.
‘Please observe that the pension authority has full powers under the above regulations to undertake this review. It requires openness and transparency concerning your requirement to provide the pension authority with your consent and accurate information.’
Wrong again Mr Kirby. What are you talking about? The PPA has ‘full powers’? What do you think the PPA is – the dictator of some backward country bogged down in the Middle Ages? The only, very limited, power a PPA has, under regulation 37, is to ‘consider whether the degree of the pensioner’s disablement has altered.’ Where is the individual consideration in your sending out of letters and questionnaires to multiple recipients, all of whom are in the highest bands and thus represent the best prospect for the PPA to make reductions?
You can’t have your SMP make any assessment until you have carefully considered, in each individual case, whether a suitable interval has passed which will give good reason for the PPA to think a review is appropriate. You have not done that. Instead, you have gone straight to a process which is obviously intended to allow an unspecified someone to decide whether there has been an alteration in degree of disablement, largely on evidence of employment and earnings.
We do not think you have an inkling what degree of disablement is, or how any alteration is to be determined. Here is a clue for you. It is a medical matter, not a financial matter.
IODPA suspects that pensioners will be all too familiar with the authoritarian tone of a man who thinks he is in a position to order people to do his bidding. Pensioners, however, will know that he has no such authority. He has no power whatsoever to require anything of any private citizen, which is what all former officers are. He can ‘draw attention’ to the police pension regulations as much as he likes but even the most detailed reading of the regulations will not reveal anything which confers on a PPA the power to ‘require’ a single thing from any injury pensioner.
The questionnaire runs to six pages. IODPA will return to this most ill-intentioned document in full later. But for now, be amazed at how misguided the man is who thinks it is his business, his right, to ask you for details of your earnings, and then, astoundingly, requires you to sign consent to let him have HM Revenue hand over all details of your tax position, earnings and employment – since the date you retired.
To bolster up his empty demands for information, Mr Kirby then sees fit to issue what is an all too familiar nasty, and equally empty threat. He provides an Appendix A with his letter in which he seeks to tie his demands for information with a blatant but totally erroneous indication that failure to comply with all of his requirements will result in your pension being dropped to band one.
So, let’s round this up. We know that we are wasting our breath in trying to shock Mr Kirby into realising that he is just so very wrong in so many respects. He will, like all his colleagues across the country who have trodden this rocky road, go automatically into full defensive intransigent position at the first signs of any questioning of his plans. The only thing which will move Mr Kirby is when the PPA and SMP are ‘required’ to attend as respondents in a judicial review. And as sure as eggs are eggs that’s where Mr Kirby is taking his PPA and SMP.
Instead of trying to educate those who are deaf to reason and blind to accurate information, let’s close this by advising all injury on duty pensioners in Essex to file away Mr Kirby’s letter, questionnaire, and Appendix A for future reference. On no account complete the questionnaire. On no account give signed permission for the PPA to obtain medical or financial information.