Injury On duty Award

One Year Later

iodpa caselaw, HR
One Year Later

“Everyone, at some time or another, sits down to a banquet of consequences. ”
― Robert Louis Stevenson

It is a year since this started for us.  For  Avon & Somerset HR this has been in their planning back in January 2013.

Annus horribilis is an understatement.

On the 29th May 2014 the world collapsed for 16 people – sixteen people who have had no contact from their former employer for over 13 years and some for up to 20 years – when Christine Jones, a HR manager for Avon & Somerset  sent this letter:

first

It has been a roller-coaster trying to teach to the unteachable, attempting to show the HR department  that the PIBR (2006) does not give them free reign to act totalitarian and do whatever they wish.  If you read the opening sentence you will notice that Jones states that forthcoming regulations are a justification for starting reviews.

How weird?  Given the Home Office circular for the PIBR 2006 amendments had not been published in any form at the time she wrote this.   A year later they have been published;  unsurprisingly they are not retrospective and are only concerned with integrating members of the 2015 scheme into the Injury Pension/Award regulations.  Nothing to concern those all-ready retired.

https://www.gov.uk/government/publications/circular-0142015-the-police-injury-benefit-scheme-consequential-amendments/circular-0142015-the-police-injury-benefit-scheme-consequential-amendments

She also states that reviews are about to commence – she is strangely blind to the fact she has started a review already by sending the letter in the first place.  IODPA will fix it for you, Mrs Jones, and rewrite it in the manner you intended:

Dear Parasite on the public purse

We need to save money and your undeserving  injury pension, that we gave to you and can so easily take away, is our target.  We will say some guff about new regulations that will not in any way apply to you in order to bamboozle you into compliance.  We will try to squeeze you until the pips squeak.  We will in no way take your individual circumstances into account and the interval since your last decision is entirely suitable to us and so blow the rest of you.  Our guidance has been purposely drafted by NAMF and this policy has absolutely no legality and has zero precedence over the regulations…

And in this ‘review of the year’ blog post (excuse the pun) here is the HR department kindly telling a band four injury pension recipient that it’s  all to do with ‘their’ financial constraints that you’ve been chosen.  Jeez, thanks for that Christine.

IMG_20150524_093148518

So where does this leave us 12 months on?  Of the 16 people receiving review papers on May 29th 2014 no 1 person has been given a reason, individual to their circumstances, why they have been reviewed.

Six were seen by Dr Johnson over the 12th and 13th of November.  None of these 6 have had a final decision and are still in limbo.  Two were seen by Dr Judge in early December – all those seen by this SMP have had a final decision.  Another three were seen the week before Christmas day by Dr Johnson – and a jolly festive period to you to!  None of these have had a decision from Johnson.  Two as yet have not been seen at all.  One was shocked to receive the letter on the 29th telling them they are to be reviewed by virtue of them receiving a band 4 injury award, as in fact they are not a band four but have been a band two for the past 20 years.  HR thought they were a band four because they hadn’t updated their spreadsheet when the person was previously reviewed and unlawfully reduced.

The farce has blamed the delay on medical notes but Johnson has had full disclosure of all medical notes from 90% of the people he has seen.  He has had the majority of all medical files sent to him  by late August 2014. So that pony excuse doesn’t wash. Johnson has stated on tape for the majority that he can see no change. But has not done the decent thing and signed off the interview with no alteration.

Other excitement over the past 12 months includes the farce declaring that any freedom of information request concerning IOD awards are vexatious.   The ICO may or may not have a differing view on the matter.

Move forward to the present and the stalement persists so what does the future hold?  Well it seems the force has employed the services of a barrister to either protect itself from itself or to go full bore on the  poor people who were unfortunate to receive a letter on the 29th May 2014.  Also the force intends to start further reviews but this time on a first-in/first-reviewed basis.  Those the longest with an IOD are to be called in.  So those 80 year olds last reviewed in the 1970s seem to be fair game in Carol Wood’s eyes.

What has IODPA learnt over the past 12 months?  Lots.  But primarily that Avon & Somerset HR department has some sort of  delusions of megalomania.  They are incapable of listening, they have a bunker mentality and refuse to admit mistakes, they will not apologise or in any way just ‘Do the Right Thing’.  Shame on them.  The force seems to be run by an Oligarchy who are not held to account by anyone.  Perhaps this is due to the void of having a suspended CC.  They eventually will sit in front of their created banquet of consequences .

IODPA has met some fantastic people over the year and are extremely thankful for the national support provided.  We IODs are not alone any more.  So for all the hardship, new friendships have been formed and we are thankful that there are genuine people always willing to give up their time for others.  Thank you to the good guys.

The Police Injury Pensioner’s Grand Day Out

iodpa pmab
The Police Injury Pensioner’s Grand Day Out

With thanks to the author – you know who you are !  The members of IODPA are forever in your debt.

The Police Injury Pensioner’s Grand Day Out

A one-act play.

Some reviews:

‘As compelling as the Mousetrap. The pensioner, played convincingly by A. Copper looks just like a lump of mouldy cheese.’

Daily Mail

‘A surreal insight into the quasi-judiciary. Reminded me of Waiting For Godot.

The Guardian

‘Crocked Cop Cracks Up’

Daily Mirror.

—————————————————-

The scene is a well-lit room in a modern concrete city centre building. It is furnished sparsely, with a set of cheap tables set in an open horseshoe shape.

Sat at the table forming the base of the horseshoe, facing the door and with the sunlight streaming in from a window behind them obscuring their features, sit the Judge Jury and Executioner – all three members of the Police Medical Appeal Board.

On one set of side tables are sat various anonymous persons. All are wearing expensive business type clothing and have a self-satisfied look. They are representatives of the pensioner’s former force and Police Authority, together with a self-styled pensions expert and a smug looking selected medical practitioner.

Judge: Bring in the prisoner – I mean pensioner!

The door opens and a police injury pensioner stumbles in, blinking against the light. A warder removes the prisoner’s straight-jacket and roughly forces him to sit in a chair placed in the open end of the horseshoe, facing the Judge.

Judge: Pensioner at the bar, you have been summoned to appear before us today to give cogent reason why I should not reduce your injury pension to the lowest band of disablement. You are charged that you did wilfully, knowingly and with scant regard to the public purse, reach the advanced age of 65. How do you plead?

Pensioner: Not Guilty.

Judge: What? Am I hearing right? Were you not advised that your only option is to throw yourself on the mercy of the court after admitting your sins against the State?

Pensioner: May it please the Bench, I reserve my right to supply the court with a number of cogent reasons why I should not be reduced to penury.

The anonymous onlookers whisper amongst themselves and one of them scribbles a note and hands it to the Judge.

Judge: Were you not warned that the Home Office (blessed be its name) issued guidance in this respect and that they make mention of ‘cogent reason’ – singular – not ‘cogent reasons’ – plural?

Pensioner: Yes, your worship, I did know that but why do I have to provide a cogent reason? Surely my previous employers know that there is nothing in the Police (Injury Benefit) Regulations 2006 about cogent reasons.

Judge: What they know or don’t know is not the issue. They are not on trial – you are. Shall we get on? Provide one reason only. Be quick about it. Time is money you know and that’s what this hearing is all about – your former employers saving it and you losing it.

Pensioner: With respect, your worship, I would like to have my solicitor present, and I have several persons outside who wish to address the court on my behalf.

Judge: Impossible! You can have a friend sit in the room if you insist, but he, she or it must not speak or take any part in the proceedings. We had a dog in here the other day – man’s best friend and all that, but the damned animal peed up my leg. (turns to anonymous suits) Why did we admit that creature?

The anonymous suits send another note.

Judge: I am reliably informed that dogs are allowed provided they are guide dogs. You are not blind are you, pensioner at the bar?

Pensioner: No sir, I suffer from chronic reactive depression and post-traumatic stress disorder.

Judge: Complete twaddle. There was no such thing in my day. We just got on with things. You are a disgrace to your uniform.

Pensioner: I was in CID.

Judge: Well, a disgrace to your cheap Marks and Spencer suit then.

Pensioner: What are your qualifications to preside at this sham of a hearing?

Judge: Listen sonny, I ask the questions, OK.

Pensioner: I only asked a perfectly reasonable question.

Judge: How dare you question the system. I’ll have you know that it was designed entirely with your welfare in mind. For the record, (turns and winks at the suits) I am a fully qualified medical practitioner and have been shown how to calculate in percentages.

Pensioner: But you are hardly independent and impartial are you? Doesn’t the Home Office pay your wages?

Judge: Listen up, you toothless old fart, it not only pays me but trains me and guides me and what is wrong with that!

Pensioner: Yes, but it does rather cast a doubt in my mind about your impartiality.

Judge: Mere semantics. The fact is, my dear little has-been, that you haven’t got a leg to stand on – just like the last chap who was in here. He’d lost the use of both of his. Ha! Ha!

Pensioner: May I produce my cogent reason now?

Judge: Get on with it. We are none of us getting any younger sat here. You, more than anyone should know that. How you have managed to survive to the amazingly advanced age of 65 is a miracle. By any standards you should be pushing up daisies by now and not continuing to be a drain on scarce police resources.

Pensioner: I protest! You are displaying bias.

Judge: Idiot! Of course I am. That is the whole purpose of this hearing. If you were not so old and decrepit you would have realised that before you demanded this hearing.

Pensioner: Your Medical Worship, I didn’t ask to be here. I was injured due to no fault of my own, thrown out of the job I loved, and expected to be left in peace to pick up the threads of my shattered life whilst battling with a debilitating and disabling illness without the benefit of support from my ex-employers. Anyway, they commanded that I attend, under threat of reducing my pension to zero if I was unable or unwilling to stand here and be your patsy.

Judge: Are you from Devon or Cornwall?

The prisoner looks puzzled.

Prisoner: No, I’m from Yorkshire.

Judge: Well, why are you talking about pasties then? What has a convenient snack formerly used by tin miners got to do with these proceedings?

Pensioner: Patsy – I said patsy, meaning an innocent dupe, a sacrificial goat, a con-man’s mark.

Judge: Exactly so!

Pensioner: May I enquire if the court can offer me any guidance regarding what cogent reason would find favour?

Judge: You really are at an advanced state of decay aren’t you? If you had a few functioning brain cells remaining in that wrinkled and disgustingly bald head of yours you would understand that is for me to know and for you to guess.

Pensioner: Could you perhaps give me a clue?

Judge: Well, I am a reasonable man – provided the reasons are mine – so let me just say this: I will know a cogent reason when I see one. Please remember that these proceedings have been set up so as to provide a fairer and more cohesive approach to the management of police injury pensions. With that in mind, I feel it only fair to warn you I have not heard anyone air a cogent reason yet – and I intend to make damned sure that I never do!

Pensioner: But –

Judge: Silence! You have tried the patience of this court far enough. You should realise that it is the purpose of this court to try the patient. Ha! Ha!

Prisoner: May I present my cogent reason now?

Judge: (feigning a yawn). Well – if you insist, but you are wasting your time, you wrinkled old prune.

The pensioner stands and begins to deliver an impassioned and carefully constructed plea, but it is obvious that the Judge isn’t listening. He has plugged in the earphones of his iPod and the tinny strains of Abba singing ‘Money, Money, Money’ can be heard faintly throughout the court. The pensioner sits down.

Judge: Finished? Right then. After due deliberation, taking due cognisance of all irrelevant aspects such as apportionment, revisiting the final decision of the SMP and paying particular attention to Home Office (blessed be its name) guidance whilst totally misreading the Regulations, this court finds that the pensioner before the bar is guilty as charged. Warder, please confiscate his wallet and hand the contents to the honourable persons to my left. Leave him his old age pensioner’s bus pass so he can get back to the old people’s home.

The Judge bangs his gavel and all present, except the pensioner, decamp to the fine dining establishment conveniently situated next door for a well-earned lunch on expenses.

A Suitable Interval

iodpa Regulation 37, selected medical practitioner
A Suitable Interval

“Once obsolete, an automobile is thrown to the scrap heap. Once here and gone, the human life has likewise served its purpose. If it has been a good life, it has been sufficient. There is no need for another.”
― Luther Burbank

There is life after being medically retired with an Injury on Duty award.  There are new opportunities and experiences available that were not remotely imaginable whilst serving. Losing a vocation through no default of your own is hard enough and trying to rebuild a life with a disability  is a trial of Hercules … but it is possible and the rewards are there to be taken.

But how difficult is it to build a semblance of normality when you are constantly placed on a carousel of continuous reviews?  Reviews that have been instigated with an ulterior purpose  to reduce the award to the lowest permissible band as soon as possible.  Are you now a member of the public or are you still under the umbrella of a disciplined serviced with the compulsion to respond to an order of a review on the whim of the Police Pension Authority (PPA)?  How can you progress when there is an interruption of a zealous and watchful eye looking for any change even though any progress and improvement could be short lived and ephemeral.

Is a review 6 months post retirement suitable?  What about 18 months?  5 years?

A 6 month timeline may possibly be appropriate for a person with a band one or two degree of disablement to see if the condition has deteriorated perhaps, giving time to find some sort of employment and if none if forthcoming and  there is substantial worsening to the medical condition then the award can be revised upwards.

But a 6 month interval invoked by the PPA to see if the person is in any employment is not appropriate as a band two award states that the degree of disablement is between 25% and 50% so it can be expected that some capacity to earn is possible, so what is the purpose of a review after such a short period?  What happens if the review triggers a relapse of PTSD and the stress of a review combined with the difficulties of starting a new working life post being a police officer,  causes the mental illness to manifest more strongly and the employment is lost as a result – the paradox of a worsening of the index injury but with recent employment will not be viewed favourable by the PPA, with  their closed minded and misguided intent to reduce their financial commitments surely thinking the latter trumps the former.  Therefore a fair and suitable interval could be a further 6 months into the employment, once things have settled down for the former officer and the the employment is established.  An IOD award is for life and the peaks and troughs do not give an excuse for a knee jerk reaction by the PPA to change a statutory award.  Ultimately the finality and a stability of an award is undermined by the PPA’s determination to ‘prove’ the original decision wrong; that is the singular purpose of a review as seen by the PPA – always to reduce, never to increase. **

**note:  The two above paragraphs, although reality in a pragmatic sense, falls into the same trap that SMPs often stumble into  – “lets give a banding as a punt and then get the chap in a few months to see if I got it right”.  The regulations are apathetic to whether employment materialises or not.  The capacity to earn does not tally with actual employment or earnings; both are irrelevant to a person’s capacity … the terms ‘economically inactive’, ‘under-employed’ and ‘over-qualified’ alludes to this fact.  The bottom line is that the SMP makes a final decision of the degree of disablement and only substantial alteration can justify a review.  There is nothing in the regulations that allows for a ‘suck it and see’ approach. Once made a decision to the banding is final.  The SMP has no room to think he might get it wrong – he makes the award in the here and now.  An un-appealed IOD award banding once given is right by its nature of being given, and can only be ‘undone’ by a regulation 32 reconsideration.

If the person’s wellbeing is in the forefront of their mind then a review after 6 months is not the answer.  Why not ask a welfare officer of the Federation to check in with the former officer?  Ask how they are coping, suggest to the person that if their condition has deteriorated then they can self-refer themselves for a review, in their own time and  when they feel strong enough to face such a daunting  prospect.

What about a review every 2 years?  Is that a suitable interval?  Not if you are a band four with a severe degree of disablement of earning capacity.  If a review takes up to 6 months to complete then a review every 2 years will mean that in a decade you will have spent a full 2 years ‘under review’.  Intolerable to be living a  life that way.

Fundamentally  the timing of a review needs to be  dependant on the individual’s circumstances.  The timing of subsequent reviews requires a judgement by the PPA to allow the former officer to live before being reminded of a past life.  If after 5 years there is no change to the circumstances of a band four then arguably there is a strong case for no further reviews in that person’s lifetime.  If nothing has improved after 5 years, then what can change in the autumn years of that person’s life?

The answer to these conundrums is to ask questions of the PPA. Whenever notified that a review is to be arranged, the first response of any pensioner should always be to ask, Why? Why me, Why now? Get the PPA to qualify its interpretation of a suitable interval. Chances are that the PPA (in reality some bod in HR) will not have given it a moment’s thought. Explain to the HR bod that ‘suitable’ infers that the interval must be right and appropriate for each individual. Ask them to explain their understanding of what constitutes a suitable interval, in general terms, and in the particular circumstances of your case. Ask if they have a policy, or a procedure for considering if a suitable interval has passed. If the PPA can’t answer the questions, then arguably the legitimacy of the review fails on the first hurdle.

It has been the habit of forces to think they have unlimited power to hold a review whenever they liked. Some even set up schedules or programmes when reviews would be conducted. As mentioned, others have a policy – reviews every two years, or five years. Tellingly, and ultimately fatal to all who claim that regular reviews are a ‘duty’ there is nowhere to hide from a history of having either held no reviews or having told people they would never be reviewed. It is as legal, and as legitimate, for someone to decide there will be no more reviews as it is, when done properly, for a PPA to decide to hold a review. They can’t claim a duty to review when it is evidential that they have not held reviews. They can’t have it both ways.

Let David Scoffield, QC have the last word. He is the eminent Queens Council who was commissioned by the Policing Board of Northern Ireland to look into the administration (shouldn’t that be maladministration?) of police injury pensions that side of the water, where the Regulations are pretty much identical to ours.

He recommended:

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

The Scoffield Report

iodpa caselaw, PSNI, Scoffield
The Scoffield Report

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

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

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

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

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

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

redacted_version_of_scoffield_report

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

Neither Lawful or Unlawful

iodpa NAMF, National Attendance Management Forum, PEAM
Neither Lawful or Unlawful

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

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

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

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

They are at it again…

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

neither lawful or unlawful

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

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

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

More bad maths

iodpa Degree of Disablement, PEAM, selected medical practitioner
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 . . . .

Just don’t go there …oh! Too late, you did.

iodpa Regulation 33, Regulation 37, Review, selected medical practitioner, smp
Just don’t go there …oh! Too late, you did.

Just Don’t Go There

“A fishing rod is a stick with a hook on one end and a fool at the other.”

Samuel Johnson (1709-17840

When a police pension authority decides to hold a review of an injury pension it is not entitled to pack some sandwiches and a flask of tea and go on a fishing expedition. It can’t itself, or via the SMP, try to second-guess or overturn earlier decisions, whether made when an injury award was first granted or at an earlier review.

Regulation 37 is perfectly clear on this, yet foolish forces mysteriously seem unable to grasp the fact. The quote below is from the Court of Appeal judgement in the case of The Metropolitan Police Authority vs. Belinda Laws, where the court was considering the fishy argument of the Met that the SMP could revisit, and thus come to a different view of the factors which led to earlier decisions. The court rejected this argument, stating, in effect, that earlier decisions were very much final, as were the facts on which the decisions were made:

“18. So much is surely confirmed by the terms of Regulation 37(1), under which the police authority (via the SMP/Board) are to “consider whether the degree of the pensioner’s disablement has altered”. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

19 In my judgment, then, the learned judge below was right to construe the Regulations as she did. Burton J’s reasoning in paragraph 21 of Turner, which encapsulates the same approach, is also correct. The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners. Strictly that is so. But the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.

Why then do doctors Johnson and Bulpitt think they are permitted to look for information in someone’s medical history which might reveal something about apportionment or causation?  The former is the SMP put in post by Avon & Somerset Police Pension Authority and the latter the substantive Force Medical Officer from Avon & Somerset Police.

Take a look at the email below, in which Dr Bulpitt actually mentions in the same sentence, ‘apportionment’ and ‘attribution of cause’! He is arguing that the SMP should have full access to any individual’s medical records back to the year dot. He wants to see if something is ‘concealed’ which might let the SMP come to a different view which would allow him to call into question earlier final decisions.

The foolishness of these two medical worthies inquisitiveness is disturbing. They may know the difference between a wart and a boil (not that I would trust either one of them to remove or lance any such disfigurements on my body) but they seem to known diddly-squat about the seminal appeal court decision in the case of Laws.

The simple fact is that SMPs conducting a review of an injury pension are not allowed in any way to revisit apportionment or causation. (Apportionment is the tricksy ploy of saying a disablement is partly or wholly due to a non-duty injury or pre-existing condition, and causation is the SMP looking for something other than injury on duty having caused the disablement.)

bulpitt

Ha!

Has there been substantial alteration in degree of disablement since the latest of either the last review or original award? That is the only question the SMP is allowed to consider. Medical history prior to the injury award being given (or prior to the last review) could not speak to that, only to the question of the correctness of the original award or the award on review. That is the very thing which the case of Belinda Laws rules unacceptable. Further, Laws was followed and confirmed in the case of Simpson vs. Police Medical Appeal Board in the High Court in 2012. The principle is beyond doubt. The SMP can not access whatever medical records he wishes. That is the very thing that Avon and Somerset is getting wrong at the moment. (Unfortunately, it is not the only thing.)

In a later email, Dr Johnson says he will be ‘robust’ on those former officers who refuse to disclose full medical records.

johnson

Regulation 33, of the Police (Injury Benefit) Regulations 2006 states that if any person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then the police pension authority has the discretion to make their determination on such evidence and medical advice as they in their discretion think necessary.

A pensioner is being neither wilful nor negligent should he or she point out the law to an erring SMP, nor does the regulation mention access to medical records. In fact, drawing the attention of the SMP to the fact that not only has his hook got no bait on it, but his dog is eating his sandwiches is doing him a great service, as it should prevent him from acting unlawfully.

There is nothing in the law which would suggest to former military gynaecologist Johnson that he could say the Regulations allow him to have a full picture. His statement is either a bare-faced lie, or a display of pure ignorance.

Surely even a pilchard like Johnson has the ability to read the Regulations and see that?

Pension Ombudsman

iodpa Pension Ombudsman
Pension Ombudsman

When your injury pension has been abused by maladministration you need to know two things.

How to recognise maladministration and who can put things right.

Let’s look at what maladministration is and how we can recognise it. This Google search clarifies how many times the Pensions Ombudsman has had to make determinations against police pension authorities specifically concerning injury awards:

https://www.google.co.uk/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=site:www.pensions-ombudsman.org.uk+Police%2BInjury%2BBenefit%2BScheme&start=30

Given the relatively small number in receipt of an injury award, the number of results is mind boggling and it demonstrates the simple fact that police pension authorities are not competent custodians of our injury awards. Remember these are only those that have complained – many, many more are too ill, elderly or restricted by the injuries to pursue a complaint. There are also a number of decisions not returned by the search link, in other words, this result is just the tip of the iceberg.

Maladministration covers the following:

  • Delay
  • Incorrect action or failure to take any action
  • Failure to follow procedures or the law
  • Failure to provide information
  • Inadequate record-keeping
  • Failure to investigate
  • Failure to reply
  • Misleading or inaccurate statements
  • Inadequate liaison
  • Inadequate consultation
  • Broken promises

One thing to be mindful of is that so far as police injury pensions are concerned, it seems to be the case that little will result from any form of challenge or complaint unless the maladministration has resulted in what is termed an unremedied injustice. In other words, unless you have lost out financially, then forget about the Pensions Ombudsman.

Instead make a formal complaint against the individual or individuals concerned. Again, probably not much will result, as Chief Constables have a highly-tuned sense of self preservation and will never willingly admit that they, or anyone else has ever done anything wrong. The point is, to make the complaint and get it on record.

If you have good reason to believe your injury pension is being paid at less a rate than the circumstances would seem to dictate, or that the SMP or HR have done you over by mangling the Regulations, then please do something about it. You don’t necessarily need a solicitor, or extensive knowledge of the case law concerning injury pensions, but you do need to make yourself familiar with something which your police pension authority may well not be open about.

Hands up all those who have heard of an Internal Dispute Resolution Procedure?

Anyone?

Before accepting assurances from HR that if you are dissatisfied with any decision made about your injury pension you can appeal to a Police Medical Appeal Board – a daunting prospect – ask them to tell you all about the force’s IDRP.

Every pension scheme has to have an 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.

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.

From anecdotal evidence we believe that more often than not a police pension authority does nothing positive to resolve a dispute or deal with a complaint on the stage one and stage two parts of the dispute. We know that quite often they have no idea what an IDRP is and thus the complainant may be faced with glib meaningless waffle or, after an interminable wait, will have to conclude the file is lost in the bowels of bureaucracy.

Bear with it. There is a time limit. OK, it is only a guideline, but if you have faced unreasonable delay with no conclusion, the PO will look kindly on you and accept your complaint.

It is worth mentioning here that an IDRP, as a route to the PO, is often the only avenue of redress open. There are stricter time limits on when an appeal to a PMAB should be made, and also with taking matters to the Administrative Court for judicial review. One avenue does remain open, without limit of time, and that is a ‘reconsideration’ of a decision, under regulation 32-(2) of the Police (Injury Benefits) Regulations 2006. Of which route, more in another article.

If you are not satisfied with the result of an IDRP, then it can be useful to speak to The Pension Advisory Service. Once you have hit a brick wall with attempts to get matters resolved TPAS should be able give you advice on how to raise the matter to the Pension Ombudsman for a decision.

The Pension Ombudsman has made some very useful, helpful, decisions on injury pension issues in recent years. If you can get your complaint on his desk for investigation, and you have a good case, set out well, then in all probability you will have the pleasure of seeing him tell your PPA to put things right.

Regulation 12

iodpa regulation 12
Regulation 12

The word ‘secret’ on the blog featured picture is conveniently obscured by the text.. This works as a good analogy with explaining regulation 12:

If, within 12 months of an injury on duty, you are totally and permanently disabled so that you are unable to earn any money in any employment, you will be entitled to a disablement gratuity under the provisions of the Police (Injury Benefit) Regulations. • The gratuity is the lesser of (a) five times the annual rate of your pensionable pay on the last day of service or (b) four times your total remuneration during the 12 months ending with the last day of service together with your total pension contributions. • The gratuity is reduced by the amount of any other gratuity payable under the Police Pensions Regulations and takes account of damages or compensation recovered in respect of the disability.

Up to 5 times the last pensionable pay.  Quite a substantial monetary figure.

This gratuity is provided under regulation 12 and is rarely known about.  The permanently disability isn’t physical disability, it is the disability of earning capacity and therefore includes the mind as well as the body.  It is the total inability to earn.

The scandal is that it is never given.  People given a 100% band 4 are never told about it by the federation.  Those that do find out about are often told they have passed the 12 months and therefore not eligible.  Those that apply within the 12 months are told that their 100% disablement of earning capacity is not permanent and so aren’t eligible.

Do you see the paradox?  An award of a lump sum gratuity is never given due the hurdles put in place – the police pension authority use a circular argument to deny its application and the federation neglects to inform its members of it and to fight for it on their behalf.  There are hundreds of IOD award recipients retired on 100% band 4 awards that should have had the regulation 12 gratuity but were deliberately misled about their entitlement to it.

The permanence can not argued as that it is a defining criteria of an injury on duty award (under regulation 30) BEFORE the degree of disablement is calculated.  If the degree of disablement is 100% then the IOD recipient has total disability of earning capacity.  Therefore the gratuity should be given automatically  – why should the onus be on a claimant to claim given they are suffering a debilitation that amounts to them being totally disabled from earning due to the injury they received in the execution of their duty.

Given that conjecture is prevented as there is a power to review under regulation 37 the decision of entitlement to the gratuity should be given in the here and now.  There is no remit to speculate about an improvement – if the 100% remains for 12 months post retirement regulation 12 is applicable.  If someone has been a band 4 for years, missed the 12 month window due to maladministration and has never been able to have any earning capacity then regulation 32 may be used to reconsider the entitlement to a regulation 12 gratuity.

Regulation 32

iodpa caselaw, pmab, reconsideration, regulation 32, Regulation 37, selected medical practitioner
Regulation 32

Everyone in receipt of an Injury on Duty award mostly understands the implications of the discretionary power to review, namely regulation 37.   As described previously on other posts it is frequently an abused power with reviews instigated by the police pension authority, on their whim, so that they can fulfil financial constraint reduction targets.   Rarely does a pensioner with a substantial deterioration in their medical condition request a review themselves – Avon & Somerset has only received 2 self-referred requests for a regulation 37 review in the past 10 years. https://www.whatdotheyknow.com/request/pensions_6

The same story is repeated nationally. Too many IODs are living their lives with degenerative conditions brought on by their qualifying injury received in the execution of their duty without wanting to resurrect the pain of dealing with their former force’s bureaucracy.  So they continue on, living on an award banding lower than what they should be entitled to.  The point I’m clumsily trying to make is that if no IOD recipient thinks of requesting a review, it is not surprising to hear that no one knows that there is a power to ask for a reconsideration.

Regulation 32 became more widely known as a direct result of the the unlawfulness of home office circular 46/2004.  Between 2003 and 2009 hundreds of reviews were used to reduce former police officers to the lowest band due to the fact that they had reached the age of 65.  Despite the hardship this caused only a few had the mental strength to appeal and it wasn’t until the first Judicial review in 2009 that the light was shined on the illegality of what had happened.  By then those affected had missed the strict deadlines to lodge appeals.

The case of Haworth explains this clearly.  This was Northumbria again on their mission to ruin lives, guided in their quest by their legal advisor Mr Wirz.  Susan Haworth was retired on an injury on duty award and medical pension in 1995.  In 2005 she was reviewed and had her injury award reduced.  The decision was taken to the police medical appeals board (hearing in 2006) whereupon the board further reduced the award to the lowest band, a band 1.  Both the SMP in 2005 and the board in 2006 revisited causation and unlawfully attempted to claim that Susan had pre-existing conditions and then applied apportionment.  This was not permissible and was outside the task which they had to undertake under regulation 37.  Susan did not take the fight further (she was unaware she could challenge it at the time) until she realised several years later, after Laws V PMAB in 2009, that the decision made against her was unjust.  So in 2010 she sought advice and submitted a request for the 2006 decision to be reconsidered under regulation 32.

Here is an excerpt of the letter from her solicitor requesting the reconsideration:

‘It is against the background of the decisions of the SMP and the PMAB that Mrs Haworth is seeking a reconsideration under Regulation 32(2) of the Police (Injury Benefit) Regulations 2006. The detailed reasons for seeking this review (sic) are set out below, however in essence the decisions of both the SMP and the PMAB were not made in accordance with the relevant regulations , as it is clear that the SMP…..revisited causation as to the original final decision made at the time of Mrs Haworth’s ill heath retirement in May 1995, and the,PMAB ….then proceeded to apply an apportionment, again to a final decision made in May 1995. Both of these decisions are therefore unlawful, and not made accordance with the Injury Benefit Regulations.”

Typically and acting to type, Northumbria refused the reconsideration.  The refusal was taken to judicial review and Haworth won the right to have a her case heard under regulation 32.

The importance of Haworth is not only that it brought to light that a police pension authority needs a robust reason to refuse a request for a reconsideration – more than Northumbria’s claim of “It is important that final decisions, once taken, remain just that” and that Mr Wirz’s submission to the court that ‘re-opening of old-cases will affect the authorities budget’ is irrelevant to the matter at hand .  But also that there is no time limit to restrict the use of regulation 32:

“I cannot accept that it is lawfully open to a police authority to refuse a retired officer its consent to refer a final decision back to a medical authority for reconsideration under regulation 32(2) simply on the grounds of delay, even inordinate delay, in other words passage of time since the decision was made, without any consideration of the underlying merits of the matters which the former officer seeks to pursue on such a consideration”.

The power to demand a reconsideration is therefore unfettered by time and is always available as a viable option.

So what advantage does a reconsideration (reg32) have over a review (reg37)?   If a review (or the original decision that the review is based upon) is using the wrong diagnosis, if there is undue apportionment, if causation is incorrect, if a previous final decision was contrary to regulations; a further review can not fix the fault.  That fault will remain now and in future reviews for eternity – the comparator always is the last final decision whether or not that final decision was wrong. A review is blind to the legitimacy of the last decision.   So the only way to wipe the slate clean and have future reviews looking at the correct factors is to have the previous decision(s) quashed and regulation 32 provides a mechanism for this to happen.