NAMF

The History between Wirz and Staffordshire Police

iodpa 2017-04-292017-04-29 Disability Discrimination, Legal Services, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, NWEF

It is as though instead of a dog wagging its tail the tail should wag the dog. And all Nature would stand aghast before such an improper spectacle.” – Fräulein Schmidt and Mr. Anstruther by Elizabeth von Arnim

Another knife-attack was thwarted last week in Westminster. Overnight, on the same day, there were anti-terror raids in Kent and London. These were unconnected, but police say that they have foiled an ‘active terror plot.’ All this will blend into the background soon, as much as last month’s attack in Westminster already has. Not because we don’t remember anything, but because we never learn anything.

Behind the scenes there are police officers working tirelessly to protect the public. But other, ill intentioned people within the police service itself are also working behind the scenes. They are a cabal of individuals who are determined to see those same officers in financial peril if they are ever injured on-duty; even though legislation exists to protect those who protect us, if the worse happens to them.

Today we are going to talk about two particular individuals, both of whom have history in the recent scandal started by Staffordshire Police in their mass review program. The frequency these two names appear throughout the saga of injury awards is clear proof that lessons have not been learnt.

Back in 2008 Staffordshire was developing a serious case of frost bite in it’s cold feet over the zealous application of the infamous Home Office guidance 46/2004 which called for severely disabled former police officers to have their income instantly dropped by thousands of pounds just because they had reached 65 years of age.

The small legal minds of Staffordshire Police were in a bind. “What to do?”, they mulled. “We really want to do this. Think of the money we we can save. But something about this guidance doesn’t smell right”. Like any proud member of NAMF at the time they reached out to the one person they thought could provide some legal incantation to help clear the way..

Introducing the first of our dastardly duo: Nicholas Wirz, principle solicitor of Northumbria Police.

Michael Griffiths was Staffordshire’s force legal advisor at the time and, on behalf of the force’s director of resources, Graham Liddiard, Griffiths wrote to Mr Wirz on 27th September 2006 to ask whether Wirz had an answer to their concern that, by reviewing all with the intention of reducing everyone not on a band one, that they would breach discrimination law.

Specifically Griffiths asked:

Our particular concern at this time however relates to the potential effect, if any, of the soon to be implemented Employment Equality (Age) Regulations 2006 upon the Home Office Circular.
My particular purpose in writing to you at this time is to ascertain whether or not you are in possession of any external legal advice regarding the matters referred to in your report

The report mentioned above is this NAMF guidance authored by Wirz and another grubby individual named Trevor Forbes.

Forbes is number two of our individuals of note. He is a former Inspector who joined ranks with Wirz and ran with the NAMF wolves, Forbes still to this day works as a freelancer for some forces defending their position in Police Medical Appeals Boards.

This NAMF guidance seems quite detailed on the Home Office invention of ‘cogent reasons’ doesn’t it? It is as if the Home Office authored it itself… or more likely the Home Office was using Wirz and Forbes as proxies. Perhaps another conspiracy theory is HOC 46/2004 was Wirz’s idea all along and he was the one who sold it to the Home Office.

Whatever the truth, back in 2006 Wirz and Forbes had a prominent role in the roll-out of unlawful guidance. Wirz happily used his position to slowly but surely influence decisions. He advised on every matter on reviews of injury awards that came to his court. This meant that every decision made in relation to Police Injury Benefit Regulations was influenced by Wirz as early as 2006.

We can’t find a comparable analogy of a qualified solicitor surviving the fall-out or pursuing an agenda that was later found to be unlawful, and yet managing to remain in practice. Whether or not the guidance was actually all his, or not, is irrelevant. The report referred to by Staffordshire shows that Wirz swallowed it whole and sung it out from the pulpit like a demented proponent of televangelism.

It’s quite likely a police officer found to be championing unlawful processes with such enthusiasm would find themselves on a gross misconduct charge.

Anyway, back to the Staffordshire and Wirz love letters.

Wirz obviously didn’t convince Messrs Liddiard and Griffiths. They bottled it and capitulated to an ‘agreement’ signed by themselves, local NARPO and the Federation.

On the 6th October 2006 Griffiths wrote back to Wirz saying:

Thank you for your very useful letter of the 2nd October 2006 in response to my earlier correspondence. […]

I am pleased to note that it is not just ourselves who are of the opinion that the Circular causes a degree of confusion which may require litigation to resolve. I shall forward a copy of your letter to Mr Liddiard for his consideration.

So what did Wirz say to Staffordshire police?

This is the Wirz letter to Staffordshire’s Mr Griffiths in full:

Apparently no external legal advice had been sought by Wirz or by NAMF (National Attendance Management Forum now re-branded as the National Wellbeing Engagement Forum). Wirz is the self-proclaimed authority in such matters so his arrogance probably prevented further legal examination of his mutterings.

Wirz starts his letter with this:

Thank you for your letter of 27 September 2006. I can confirm that I sought no external legal advice with respect to the matters contained in the joint note to members of the National Attendance Management Forum dated 24 July 2006

Wirz then says without a hint of irony that it is OK to review when Staffordshire wants to reduce awards, but encouraging former officers to seek a self-reviewed review shall not happen due to the drain on resources. He says:

Personally I believe an ex officer keeps the CRA, which applied at the time of an ex officers retirement, otherwise vast numbers of officers who have attained the old CRA and who are in receipt of injury awards will seek a review. No resources have been made available for this and the Home Office has not flagged this up

The highlight of Wirz’s assertions comes before his own definition of how compulsory retirement age can be used against a disabled former police officer. Apparently, he didn’t have a clue. In any case he doesn’t say whether Staffordshire should or shouldn’t concern themselves with worrying over discrimination and breaches of equality law:

As regards new age discrimination legislation, this, too, needs to be the subject of further guidance

An ambiguous lawyer’s answer if ever there was one! Guidance begat guidance seems to be his mantra. The cynic would say that no doubt Wirz would write the secondary guidance on the guidance, wrongly reassuring forces that there is in fact no breach of equality law.

But then even back in 2006, Wirz knew that forces like Staffordshire were guinea pigs and that he was walking on the wrong side of the knife’s edge. He knew the work he encouraged would light appeals. Realisation that anything Staffordshire does, as encouraged by people like Forbes and Wirz, will in all likelihood be challenged.

Wirz evens comes clean with this fact:

This matter will, in all probability, be resolved by the High Court when a case dealt with pursuant to 46/2004 is appealed.

Now that remark would be acceptable from anyone who hand no hand in the administration of police injury pensions, but is a remarkably incautious remark from a man whose influence over how injury reviews would be held was considerable. He seems to care not a jot that the Home Office guidance might be of dubious legal integrity. His attitude is to advise that administrators go ahead and possibly break the law. It is a gambler’s advice, not the carefully considered balanced view expected of a legal professional.

Indeed, Wirz’s prediciton was spot on. The issue was indeed resolved in the High Court – to the considerable inconvenience of the pensioners involved. The cases of Crudace, Slater and Simpson (along with a huge amount of Pension Ombudsman decisions) called Wirz’s guidance the unlawful perversion that it was..

So back to 2017.

Who is still the legal advisor to NAMF/NWEF? Answer: Nicholas Wirz of course. Who’s force has lost yet another judicial review about the unlawful interpretation of Regulation 37? Answer: Nicholas Wirz’s Northumbria.

And what police force is plunging head-first into another mass review catastrophe? Staffordshire. NAMF/NWEF is still at the heart of the problem.

Wirz is the tail that keeps wagging the dog. The lessons of the past have not been learnt.

The tentacles that spread out between Staffordshire & Wirz in 2006 are still clutching for hand-holds on brittle ground. This time it’s different though, as the lessons of NAMF has only been forgotten by those who listen to NAMF. The wealth of information available from dark times show that the benefit of doubt no longer exists. Staffordshire is looking down the dark wide barrel of a blunderbuss, which is primed, loaded and ready to fire. Wirz must know that Staffordshire is heading for large amounts of trouble with its mass review ambition. It will be a costly and futile mistake. But, Wirz has not a care. He gets paid no matter what.

IODPA exists to stop the vicious gamesmanship of people like Wirz, who in their efforts to always try to push their own interpretation of the Regulations, to the very great harm and distress of disabled former officers and their families.

We take no pleasure seeing Staffordshire squirm in its defence of its mass review program. It’s all so unnecessary. But sorry, Staffs, you can not defend the indefensible and hope to get away with it.

Wirz loses High Court challenge

iodpa 2017-03-102017-03-10 caselaw, earning capacity, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, newsflash, Regulation 37

BREAKING: Northumbria and PMAB’s Regulation 37 methodology DEFEATED in a judicial review.
Fisher, R (on the application of) v The Chief Constable of Northumbria & Anor [2017] EWHC 455 (Admin) (08 March 2017)

Nicholas Wirz, Northumbria Police’s principal solicitor as well as the National Wellbeing & Engagement Forum’s (NWEF/NAMF) self-declared legal advisor, has suffered a humiliating legal defeat over his unlawful interpretation of comparators used by many SMPs and PMABs to calculate earning capacity.

A feature length blog on the implications of the Fisher v Northumbria judgement will follow soon. This judicial review quashes the decision of a PMAB panel that, in 2016, reduced him from a band 3 to a band 1. It is the culmination of a 11 year battle fought against Wirz and Northumbria police.

Shockingly this isn’t the first time Mr Fisher has had his injury pension unlawfully reduced. The Journal (along with The Chronicle, it is part of the North East’s most popular newspaper group) printed in 2008 a feature concerning the odious vendetta of Wirz against this former officer.

In March 1998 The Journal reported that his injury pension had been reduced before, by £1200, only to be restored on appeal. The article described how Mr Fisher was medically retired from Northumbria police after being called to the Kirkley Hall mink farm on the outskirts of Ponteland, Northumberland, to police an animal rights demonstration, when a cross-breed Rottweiler sank his teeth into his lower right arm. The animal had been fed on the remains of dead minks and Mr Fisher spent five days in hospital undergoing numerous emergency surgeries when the wound became infected.

He needed almost 40 stitches to the gash and his injuries were so severe he lost full control of the fingers in his hand. This incident was the culmination of fighting the symptoms of PTSD after being injured in an on-duty knife attack in 1992.

The Chronicle recently published that on Wednesday 8th March, Mr Justice Garnham allowed Mr Fisher’s challenge against the Chief Constable of Northumbria and the PMAB:
Bitten policeman battles off bid to slash his pension

The grounds lost by Northumbria have implications on any SMP or PMAB decision where the earning capacity was based on comparative earnings as well as where the decision made fails to give sufficient reasoning to identify, at least, the basis for the medical authority’s conclusion on uninjured comparators.

We will keep our readers up to date on the ramifications and discuss how a reconsideration, or the Pension Ombudsman, can be used to relook at unsafe historical revisions to injury awards.

The decision of the PMAB has been quashed by Justice Garnham. Points 1 & 4 (below) were won in favour of Mr Fisher and the PMAB decision has been overturned. Points 2 & 3 failed but the judge made it clear in his judgment that a reasoned decision of uninjured earning capacity has to be made by the decision maker. The corollary is that picking random jobs has to be justified and reasoned.

The PMAB, as a delegated decision maker on behalf Of the Chief Constable, made the following errors in reaching this decision:

The PMAB erred because it failed to use the Claimant’s potential police earnings as the uninjured earnings comparator;
Further the Chief Constable erred in back-dating the effect of the decision to 27 February 2015 and thus claiming that the Chief Constable had overpaid the Claimant when, in law, the decision only took effect at the date that it was made by the PMAB and so there no back-dating.

Natural Justice: The Rule Against Bias

iodpa 2017-02-182017-02-21 caselaw, NAMF, National Attendance Management Forum, National Wellbeing and Engagement Forum, NWEF, selected medical practitioner

Injustice anywhere is a threat to justice everywhere. ~Martin Luther King, Jr.

British justice, the sense of fair play and the British Police Service have been the envy of the world. It is somewhat ironic that injured Police officers who have lost their police careers have to fight to be treated fairly, and be treated in keeping with the scope and intentions of the Regulations, which are there to compensate them for their injury and consequent loss of earning capacity.

The fight over the 15 years has culminated in over 22 High Court Judicial reviews and 43 Pension Ombudsman decisions regarding maladministration of Police Injury Awards. British Justice still lives within our Courts and arbiters. It is of little surprise that the decisions overwhelmingly remedy the injustices former injured officers have endured.

The rules of natural justice

The rules of Natural Justice require all trials and hearings to be rooted in fairness . Following the case of Re HK (an infant) (1967) the phrase “act fairly” was established making it incumbent on all decision makers to act fairly. There are two parts to the rule:

Audi alteram partem – “hear the other side” or “let the other side be heard as well.”
Nemo judex in res sua – “no one should be a judge in his own cause” – A pecuniary interest in the outcome of the decision gives rise to automatic disqualification. Also known as the rule against bias.

Following on from our blog “The Judicial Fallacy” we need to explain that the term judex (simply translated as judge) within Nemo judex in res sua extends beyond judges to all statutory decision makers. This, just in case some SMPs and Mr Wirz start to believe their own hype that they are judges.

Notwithstanding copious direction from the Courts, some scheme managers and SMPs have shown themselves unable, or perhaps unwilling, to apply the Regulations. It is because of this entrenched mindset we at IODPA thought it would be of benefit for decision makers to be educated in respect of their responsibilities.

Whilst the Home Office guidance 46/2004 has been deemed unlawful and withdrawn following the High Court decisions in Laws and Simpson it demonstrates how the Audi alteram parterm rule can apply.

Some Police Pensions Authorities (Chief Constables), HR, and SMPs fervidly embraced the unlawful aspects of this guidance and some still do. Despite a legion of in-house lawyers and CIPD qualified HR personnel, no one thought that guidance is unnecessary if the Regulations are followed. Guidance only becomes a thing if the intention is to bend the rules. Just as Al Qaeda’s Management of Savagery is a manual for how to wage war by creating religious resentment and violence, guidance has historically been used to square a circle, to give excuses to override Holy text and provide bureaucrats a means to blindly follow orders.

The law is the form of the Police Injury Benefit Regulations and case law. This simplicity had to be spelled out in the Simpson case ruling that PPAs can’t usurp the law through guidance !!! Luckily, it wasn’t all 43 Police Pension authorities that wandered, zombie like, into the trap.

So with the advent of the Home Office guidance and a stroke of a pen many pensioners were dropped to Band 1. The decision makers’ minds were closed, the poor pensioners weren’t allowed to make representation or even have their voices heard… Audi alteram partem. This struck to the heart of fairness, our Courts and Judges world renowned for their sense of justice did not allow this dreadful state of affairs to triumph.

We at IODPA have raised previously concerns about guidance emanating from the National Attendance Management Forum. (Now re-branded as the National Well-Being and Engagement Forum – NWEF). We regard it as yet another crude attempt to usurp the Police Injury Benefit Regulations and case law. We regard the NAMF guidance as a resurrection of the unlawful Home Office guidance. The NAMF guidance does not operate in a vacuum: understanding the context in which it operates is necessary. Re-branded, but with the same people at the helm, NWEF still holds regular meetings, but the fact that not all 43 forces subscribe to this forum or attend its meetings should tell the organisers something.

During NWEF events Nicholas Wirz tells the force Solicitors, FMAs, SMPs and HR minions that a pensioners doctor’s opinion cannot be relied on.

…It is also not uncommon for that specialist to be provided with the incorrect legal test, in which case their conclusions need to be treated with caution.[…] This can often be the case with reports produced by a treating physician in support of their patient…[]

A common occurrence is for the treating physician to “fudge” the issue(SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

This is nothing more than a shameful attempt to uniformly denigrate good, honest, hardworking GPs who have witnessed the physical and mental health of their patients deteriorate, been involved in treatment plans and best placed to comment on the efficacy of them. These practitioners are always best placed to provide the definitive medical opinion.

However, Mr Wirz believes they are prone to provide false opinion. Really? So honest hard-working practitioners of medicine who are not paid by the PPA or the pensioner and who are bound by professional ethics are not to be relied on? What is it which drives Witz and his followers’ false belief that it is only the opinion of SMP’s which is sacrosanct or unbiased? That Wirz saw fit to make such a telling observation reveals that his mind is crammed full of both conscious and unconscious bias.

The SMPs are being paid for by the PPA and are being trained by Wirz. Anecdotal evidence and feedback we’ve had from members is that SMPs have quoted Home Office guidance as well as NAMF guidance. Well, if they are approaching the assessment with a closed mind then we would say that the pensioner will not be heard as the SMP has closed his/her mind to any other view than that of the NAMF guidance.

Now turning to the rule against bias nemo judex in res sua Lord Denning summarised this rule in Metropolitan Properties Ltd v Lannon [1969] CA.

“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

The term judge incorporates decision makers such as SMP’s and PMAB members, just in case you missed it earlier decision makers and not Judges in the Judicial sense. So if we surveyed right-minded people, would they think that pensioners were not only treated fairly but seen to have been treated fairly?

We think not for the following reasons :-

NAMF training and guidance – So the delegates consist of FMAs, SMPs, PMAB members, force Solicitors and HR personnel. We’ve made it plain that the NAMF guidance has no basis in law, yet the principles incorporated within this document are being mis-sold as the lawful regulatory framework to SMPs. We also believe it is inappropriate for SMPs who are meant to act as independent decision makers to attend such events and then apply these principles. What if the Police Federation held such events and invited medical experts they instruct, how would you feel about that Mr Wirz?

The fact is not lost on us that HML, the company who manage the PMAB process, no longer attends NAMF meetings, why not? Has the penny dropped that such conduct is not acceptable ?

Some PMAB members far from being fair and open minded are in fact closed-minded acolytes of Mr Wirz and NAMF. Did they think that if HML just slipped out no-one would notice? Especially not the injured pensioners who have been experienced and trained investigators.

SMPs and the HR partnership – The late Dr Sampson and Mr Steven Mitchell from Nottinghamshire HR have jointly given presentations. We would invite you to have a look. Both are eager to convey how much money can be saved.

No onlooker would conclude that this appropriate. What if Dr Sampson hadn’t saved Nottinghamshire Police money, would he have lost his lucrative contract? Well we need to go to Avon and Somerset to show what happens when SMPs can’t be tamed.

The Avon and Somerset PCC’s Agenda – Mountstevens thinks those that have lost their Police careers and their health by putting themselves in harms way are a financial burden. She does not care about the moral or legal obligations enshrined in the Police Injury Benefit Regulations.

Don’t take our word for it, she has been caught out writing to the Policing minister, take a peek. The then Policing Minister (Damian Green) has pointed out the obligations of police pension scheme managers are enshrined in law, and gives his direct opinion that it is right there should be provision for police officers injured in the line of duty. His letter can easily be read as a coded message to scheme managers: don’t approach the administration of injury awards from the viewpoint of looking to save money.

Selection and Deselection –We at IODPA do not believe it coincidental that honest SMPs, such as the fair and just Dr Jo Judge (now retired Dyfed Powys FMA used briefly by Avon and Somerset) who have retained officers on Band 4, i.e. the most disabled and thus the most costly, are no longer engaged as SMPs by forces who want to reduce their financial commitments.

Those that can be enticed to adopt the PCC’s mantra are handsomely awarded such as FMA Dr Bullpitt as well as Dr Johnson SMP. Dr Bullpitt has also lobbied the GMC and Home Office to be exempted from GMC guidance. Really??

Dr Bullpitt’s devious wish to remove the protections of GMC guidance for a hand-picked and specially chosen disabled few, just because they are members of the public in receipt of injury awards, is of serious concern. It goes against equality law, human rights legislation and codes of conduct. All professions are subject to regulation be it Police Officers through the Conduct Regulations, Solicitors via the Solicitors Regulatory authority, even Judges and MP’s are not exempt, that’s what you expect in a fair minded democracy, no one is above oversight. Yet Dr Bullpitt wants this exemption… why ?

So would the right-minded think police pensioners are treated fairly ? We think not.

The rule against bias compels decision makers to leave aside prejudices and preconceptions In the case of R v Bingham Justices ex p Jowitt (1974) QBD a magistrate said

“My principle in such cases has always been to believe the evidence of the police officer.”

We believe this is no difference to SMPs approaching their duties under the influence of NAMF guidance, for example dismissing the pensioner’s specialist’s or GP’s opinion.

The test of apparent bias has developed through case law. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers’ Association [1960], Devlin LJ recognised:

“Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so”.

Lord Denning MR, in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] recognised:

“The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . . “

In R v Sussex Justices Ex parte McCarthy (1924) KBD the Defendant appeared before the justices on a charge of dangerous driving, the clerk to the court was acting in parallel civil proceedings for the other party. This case led to the celebrated maxim:

“it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

During the inquest of “The Marchioness” disaster, the coroner was heard to have described some of the victims relatives in attendance as “unhinged” and “mentally unwell” indicating the presence of unconscious bias. A different coroner was required to resume the decision making process R v Inner West London Coroner ex parte Dallaglio (1994) “The Marchioness.”

We know through anecdotal evidence and having seen the SMP reports first hand of such bias. Comments such as ill-health retirement being a tactic purely in pursuance of a favourable exit packages, physical injuries being psychosomatic and ignoring specialist medical evidence are not uncommon. Dr Nightingale and Dr Willy Cheng are particularly adept at this malevolent projection. Dr Cheng goes the extra mile and repeats these attacks in PMAB hearings seemingly without challenge.

In R v Gough [1993], Lord Goff formulated the test for apparent bias in the following terms:

“the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias . . .”.

The accepted test for apparent bias is from Porter v Magill [2001] HL, para 103:

“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

We at IODPA have been asked to demystify some of the hocus-pocus which some police pension authorities rely on. We hope that by showing how, through the resurrection in the form of NAMF guidance, erroneous Home Office guidance 46/2004 has, brought about a fresh wave of pension maladministration. Lazy, incompetent, HR managers with only scant knowledge of the Regulations, and no familiarity with the basic concepts of justice within the law, as have been briefly set out here, are tempted to turn to the chocolate teapot uselessness of guidance issued by people who seem to be incapable of freeing themselves of the most pernicious forms of bias.

We hope that this whistle-stop tour through the law will help in the demystification. The Chief architect of the NAMF guidance, Mr Wirz, is a lawyer (albeit not a very good one) and he more than most will come to realise that it is through the protections which the law provides to the victims of malpractice, we will continue to forcibly remind him and the NAMF acolytes of their shortcomings.

Mr Wirz we would like to remind you of another legal maxim:

“The law is a shield and not a sword”.

Whilst you wrongly quote and twist law to use it as a sword against police pensioners we will use the law as a shield. Natural Justice underpins Judicial Review and at present count it’s the Police Pensioners who are winning countless Judicial Reviews. Does that not tell you something, Mr Wirz?

We will continue to educate and enlighten police pensioners to their rights and point out your wrongs, in right is might!

Twas the night before Christmas

iodpa 2016-12-152017-02-21 morale, NAMF

Krampus is a horned, anthropomorphic folklore figure described as “half-goat, half-demon”, who, during the Christmas season, punishes children who have misbehaved, in contrast with Saint Nicholas, who rewards the well-behaved with gifts. Krampus is the antithesis of the true Saint Nicholas in regions including Northumbria Legal Services, Austria, Bavaria, Croatia, Czech Republic, Hungary, Slovenia and Northern Italy – https://en.wikipedia.org/wiki/Krampus

The Christmas season is here!

This time last year we published an IOD themed parody of Charles Dicken’s A Christmas Carol. Rather than starring Ebenezer, our protagonist was a certain senior HR manager of a not-so-imaginary constabulary, hell-bent on reducing the financial impact of those pesky and ‘preposterous injury awards‘™ (©Dr David Bulpitt).

Thankfully, in 2016, that particular HR manager soon ~~was pushed into~~ found a different job and was no longer tasked with anything injury award related.

A Christmas Carol (Wood)

This year, the ‘fortunate and selfish few‘™ (©Dr David Bulpitt) would like to apologise in advance to Clement Clarke Moore for taking liberties with his poem A Visit from St. Nicholas. We hope it has the same affect on NAMF and their leading acolyte Nicholas Wirz (Principal Solicitor Northumbria Police) as last year’s parody had with Mrs Wood.

Twas the night before Christmas and all though the land,
Those injured on duty were in need of a hand.
The SMPs had excuses all listed with care,
In hopes that injury awards would soon disappear.
“You are just vulnerable!” they all would complain,
We think no-one we see is ever really ill, we’re just on the money gravy-train!”.
When look who appeared! Could this be real?
The Regulations pulling up in a, um … automobile.


“But Nicholas Wirz, is our master when rejecting applications!
and it’s the people at NAMF that tell us to ignore true causation!”
The Regulations smiled at them and encouragingly said,
“It’s up to you to make sure the real law is spread.
You need to ignore Wirz and NAMF and look at the officer’s health.
They need your help, they should have nothing to fear but fear itself.”


“Come closer and listen. If you want to be best,
I’ll share this simple secret to your future success.
If you want to succeed, be real doctors and not complacent,
Remember to always do what’s best for your patients.
WOW the people you examine. Don’t let this ring hollow,
For when you put your patient first, the goodness will follow.”
“Success will be yours when you act like doctors and stop the hustle.
And I’m committed to helping you all be successful!”


“On Judicial Review! On Pension Ombudsman! The bad you do will be chased!
On Case-law! Ignore NAMF guidance! We must make haste!
You shall jettison Wirz! To do it right just abide by me!
Together we can create a lawful Regulation recovery!”


The Regulations winked and smiled; then put the car into gear,
But before driving away, one more statement did we hear.
“Those HR thieves and SMP crooks will soon be all in jail.
And the best SMPs who are true doctors will prevail.”
We heard him exclaim as he drove out of sight,
“This month of Christmas is the start – from now, administer injury awards right!”

Wherever you are in the world, whatever injustice you are fighting, and whoever you’re with, we wish you all a very Merry Christmas!

Thank you for reading our website this year.

Here’s to justice and an even more successful 2017!

NAMF and the Finality of the SMP Report

iodpa 2016-02-102017-02-21 NAMF, National Attendance Management Forum, police injury award

“The purpose of the boards is to consider appeals from police officers or former police officers who are dissatisfied with a decision made by a medical practitioner, selected by the police authority, in relation to their qualifying for ill-health and injury benefits”

― Contract Between the Secretary of State for the Home Department and Health Management Ltd FOR THE PROVISION OF REGIONAL BOARDS OF MEDICAL REFEREES FOR POLICE MEDICAL APPEALS IN GREAT BRITAIN

When the question of the degree of disablement is passed to the Selected Medical Practitioner (SMP) the Regulations are quite clear that it is only the SMP that is able to give a decision:

Reference of medical questions

H1(2) of the 1987 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations shall be binding for the purposes of these Regulations

[….]

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, subject to regulations 31 and 32, be final.

(7) A copy of any such report shall be supplied to the person who is the subject of that report.

There is no ambiguity that the question, once answered by the SMP as the medical authority, is anything other than final.

The judiciary agrees with this.

Haworth v PMAB

presumption of finality in respect of the decisions of the material medical authority

Pollard V PMAB

The decision of the SMP on the issues referred to him are final, subject to appeal or a review or reference back (see regulation 30(6))

Crudace V PMAB

The SMP is obliged to produce a report with reasons to explain the basis for his decision on both entitlement and on quantum. Under regulation 30(6) the decision is final subject to any appeal under regulation 31 or a reconsideration under regulation 32(2).

So why does the National Attendance Management Forum (NAMF) state in their non-statutory and misleading ‘guidance’ that the report made by SMP as the medical authority is not final? That they proclaim it is the Director of Human Resources as the delegated police pension authority (PPA) that is the ultimate adjudicator, and the SMP report is just an exercisable Pollice Verso – the thumbs down decree of death made by a Caesar upon a fallen gladiator.

Here is the offending paragraph from the NAMF ‘guidance’:

Section 3.6.5

The SMP’s role is to measure degree of disablement using admissible evidence. On receipt of his decision it is for the PPA to decide whether any identified change in the degree of disablement represents a substantial alteration and if so they shall revise the IOD pension accordingly’

NAMF agrees that the SMP – as the medical authority – gives a decision. But that is all it gets right. Remember this is the decision that the Regulations clearly state has to be referred by the PPA to a suitably qualified medical practitioner.

NAMF now goes off into Alice’s Wonderland territory by continuing that a non-medical HR senior manager now determines the ‘determination’ of the degree of disablement by declaring whether he thinks its substantial (or not).

Reading the finality quotes from case law and from the Regulations, there isn’t any allowance or interpretation to permit the medical authority’s decision being over-ruled or quantified by the delegated PPA … quite the opposite. The high court has determined that the SMP not only considers any alteration on a review but he alone determines whether it is substantial or not – not the Director of HR.

Simpson V PMAB

The only duty on a medical authority when conducting a Regulation 37(1) review is to decide whether, since the award or last review – whichever is the latest – there has been a change in the degree of disablement; whether, in the language of the regulation, there has been a substantial alteration.

One of the many troubling consequences of NAMF ‘guidance’ is that it fails to grasp that Regulation 37 is only a gateway into reviewing the degree of disablement via Regulation 30-2(d). Their recalcitrant proclamation that a delegated PPA can basically override the medical authority not only has implications at review – it reflects by corrupting the root power that enables a revision of the degree of disablement; in other words Regulation 30 itself.

NAMF has ignorantly misconstrued, and taken out of context, the wording of Regulation 37 by manipulating the sentence ‘[…]and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly’, and omitting that the consideration IS the referral to the medical authority under Regulation 30’s ‘Reference of Medical Questions’. It does not permit a dictatorial decree, in the style of Alan Sugar, by the PPA himself.

Imagine this scenario that is perversely permitted under the NAMF ‘guidance’:

The SMP answers the relevant questions from Regulation 30 that the appellant has an injury and is disabled from performing the ordinary duties of a member of the police force.
The disablement is likely to permanent.
That the condition is the result of of an injury the execution of duty
and that the earning capacity has been affected at 40%.
* Non-regulatory & unlawful. The PPA now decides that the degree of disablement shouldn’t be 40% – it should be 20%

Or on review:

The medical authority determines there has been substantial change to the degree of disablement and revises the award from a band 2 to a band 3
*Non-regulatory & unlawful. The PPA now decides that the degree of disablement does not construe substantial change and orders the award to remain at a band 2.

Can you just imagine how a Director of HR would defend such an horrendous intervention at a PMAB panel or Judicial Review?

Let us emphasise our message to the nth degree that, despite NAMF’s ‘guidance’, the PPA does not have the final decision regarding determination of the degree of disablement. This blog post started off with a quote from the contract between the Home Office and the company selected to administer police medical appeal boards. The framework mentioned in paragraph 1.3 is that the PMAB considers appeals on the decisions made by the medical practitioner, selected by the pension authority. Note the distinction between ‘decision made’ and ‘selected by’.

There has obviously been no mention ever, in any judicial review, of the delegated police pension authority having the ultimate decision. An example being the following Judicial Review .

SOUTH WALES POLICE AUTHORITY (CLAIMANT) -v- THE MEDICAL REFEREE (DR DAVID ANTON) Dr Davies, as the Selected Medical Practitioner, answered the relevant questions from H1(2), in his certificate of 10th January 2002, that Mr Crocker was suffering from “psychotic illness”, and was disabled from performing the ordinary duties of a member of the police force. The disablement was likely to be permanent. He said that the matter should be considered in two years’ time. He said that the condition was the result of an injury received in the execution of duty and that the earning capacity had been affected at 40 per cent.

Of course not, because it is not permitted. The decision of the medical authority, whether incorrect or not, is final and binding to the PPA. It can only be appealed by the former officer or taken to Judicial Review by the PPA.

Blindly following NAMF ‘guidance’ is no better than saying we’re ‘just following orders’ and is not a justification for morally questionable actions that a Force invoke when questioned about the rightness or necessity of such actions. Just saying ‘we are following NAMF guidance’ does not absolve the HR managers from using their own brains and reading the Regulations and understanding the case law.

Just following orders didn’t work for the Nazis in Nuremberg.

Rules? What Rules?

iodpa 2015-10-212017-02-21 NAMF, National Attendance Management Forum

“There is no greater agony than bearing an untold story inside you.”
― Maya Angelou, I Know Why the Caged Bird Sings

The authors of this blog have been weighing up what to write for our next post. Not because we lack material – quite the opposite; in fact we have an embarrassment of material. The embarrassment would be all Avon and Somerset’s if they had any ability to feel shame for what they have done

The reason for our publishing predicament is that at the moment some of the material we’ve gathered from various sources is ground-shatteringly explosive. It’s an agreeable predicament, in that by writing about it in a public blog we expose the existence of the ticking nuclear device which IOD pensioners have obtained and are preparing to use. So we won’t ruin the surprise. Let’s just move on for the moment and we can talk about this another time, when the fall-out dust has settled and the heads have rolled.

So, after a bit of consideration, we are back onto our least favourite topic. A topic which makes it hard for us to hold on to our view that human beings generally chose to do the right thing when given a choice between doing harm or doing good. Our hearts sink when we contemplate the walking contradiction which is the supposedly ethical medical doctor who consistently prefers to cause harm rather than do good. Yes, we are talking about Dr Philip Johnson.

He is the medic who ambled blindly into the role of being the patsy for A&S. We think he was conned. He was told he would be paid handsomely for performing a routine assessment of disabled former officers. A task which would take an hour of his time per pensioner, plus another hour to write up a short report. ‘Nice little earner,’ he was told. ‘We have 480 of them all lined up like ducks in a row.’

Kerching! Johnson did the maths. Visions of barrows loaded with money.

A&S didn’t tell him that two other doctors had been approached earlier and had seen right through the cunning plan devised by A&S to save money by unlawfully reviewing and reducing pension payments made to disabled former officers; 2 doctors that A&S attempted to groom in-house for the exclusive role of reducing the banding of injury awards by any means necessary. Those doctors left suddenly under a cloud – they had declined to prostitute their talents by dancing to A&S’s tune (that’s a story deserving of its own blog post).

His dreams of cash-flow were soon shattered when he realised it wasn’t about to be so easy. There was a small problem called the Police (Injury Benefit) Regulations 2006. It came as a shock to him to realise that he actually had to follow them. You see, Johnson was told otherwise.

He was subjected to a ‘training event’ held at the College of Policing. The core of this ‘training’ was a rambling load of crap delivered by none other than that fine upstanding example of legal rectitude, Nicholas Wirz, who is the head solicitor for Northumbria Police. He is the pheasant plucker who advised Northumbria’s SMP Dr Broome to unlawfully reduce the pensions of some 70 disabled elderly former officers to band one.

Yes, you read that right. A solicitor whose advice was to do something against the law, on the basis that the intended victims were too weak to do anything about it.

When the inevitable applications for appeal were made, our old Nick threatened the applicants (he would say he warned them) that their appeals would be deemed vexatious (where have we heard that word more recently?) and they would have to pay £6,200 adverse costs when their appeals failed.

Johnson had soaked up the wonderful professional atmosphere of the College, enjoyed the socialising with his intellectual equals, and hung on the words of the eminent legal expert Wirz. Being naïve, Johnson took as gospel everything Wirz and his little sidekick Trevor Forbes had to say.

But when pensioners began to tell him that he was breaking the law, that he was not following the Regulations and that they would not bow to his ridiculous demands to allow him unrestricted access to their medical records from birth, and that if he insisted then they would be seeking legal representation – from a proper solicitor – he slowly began to realise that his nice little earner was in fact a purse of counterfeit currency.

He turned to the other ‘organisation of excellence’ the National Attendance Management Forum (NAMF).

Before detailing how the NAMF influenced Johnson we have to divert for a moment and wonder what a bunch of HR functionaries and others are doing when they diversify from discussing issues around why employees go sick and what can be done about it, to issuing detailed so-called guidance on complex legal matters concerning police injury pensions.

For that is what the NAMF did. It produced some guidance for SMPs like Johnson. Presumably on the basis that some SMPs were so thick they couldn’t be trusted to understand the Regulations and apply caselaw properly.

Johnson was fully trained and guidanced-up. He was good to go.

Then it all went pear shaped, with queries and challenges. And that was when he showed his true colours. That was the moment when he had a choice to make. Brave soul that he is, he did not hesitate – and chose to cover his substantial ass. He chose self preservation over doing the decent thing.

Drawing on his considerable Army experience, (and on the Book of Wirz) he decided the best form of defence was attack. He insisted he was right, that he could demand access to medical records from birth. In this way, he was able to not conclude the reviews he had conducted, and blame the lack of a decision on the pensioners who had failed to cooperate with his demands.

By not making any decisions, he reckoned he could not be criticised as there would be nothing to appeal against.

However, Johnson, he who can’t spot a legal charlatan when he sees one, who is blinded by thoughts of earning easy money, who seems to lack the wit to read and understand the Regulations, who has difficulty in researching the readily-available transcripts of relevant High Court cases and who when given a choice between doing good or doing harm, chose the latter in a feeble attempt to save his own skin, is a man who can’t even follow the guidance issued by the NAMF.

Here is the NAMF politburo directive in black and white:

… the only evidence he may consider upon review is that which post-dates the earlier review.

Seems straightforward enough doesn’t it? This comes from the NAMF’s verbosely titled ‘Procedural guidance on Assessing and reassessing the degree of disablement as a result of an injury received in the execution of duty’ [sic] dated 01/03/2013. It seems that even in a pile of manure there may be found a single pip of legal accuracy.

We all know that NAMF has zero legal jurisdiction on matters covered by a statutory instrument passed by Parliament, a.k.a. The Police (Injury Benefit) Regulations 2006; but NAMF guidance is what some forces cling to for legitimacy.

It’s a crying shame then that this willing recipient of NAMF codswallop can’t even follow its directives.

Our premise is that Johnson was conned. Not just by A&S when they hired him and failed to mention the intention was to have him conduct unlawful reviews so that injury pensions could be reduced – to act as the front man, the fall guy, should anything go wrong. The first fifteen reviews were, it is now admitted by A&S, to be a ‘trial’ of the process (we haven’t miscounted, we know the saga of all the 16). You don’t need to trial the law – you need to apply it correctly. What was being trialled was a way to abuse and subvert the law.

Johnson was further conned by the training event held at the College of Policing. There he listened attentively to what will in due course go down in injury pension history as the biggest load of bovine excrement ever produced.

To a neutral observer it’s clear that he lacked the moral fibre to do the right thing and tell those who hired him that he would follow only the Regulations, not so-called guidance from any source. When he saw the harm the review process was causing to vulnerable, damaged, disabled people he suppressed his Hippocratic principles and chose not to do what he could to repair the harm. Instead of accepting responsibility for his failing to make decisions for over a year, he chose to seek to blame the pensioners. Instead of acting honourably and resigning his position, he chose to cling on by his fingertips, hoping that by so doing he would not be exposed to the inevitable litigation that would result from such widespread and determined maladministration. Rather than blow the whistle on the damning evidence of unlawful intent in the conversations he has been privy too at A&S he chose to keep silent.

Dr Johnson has made his choices. He must eventually face the consequences. He may not have long to wait. That said, it might be wise to find a tin hat to wear if you are also part of the ‘J-K-W-B’ posse of four employee ‘enablers’ who merrily have overseen the maladministration.

Neither Lawful or Unlawful

iodpa 2015-05-022017-02-21 NAMF, National Attendance Management Forum, PEAM

“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):

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.

NAMF – A coven of vipers.

iodpa 2015-03-082017-02-21 caselaw, HR, NAMF, National Attendance Management Forum

NAMF: The National Attendance Management Forum.

A committee of HR managers, finance managers, force medical officers made up from a large number of police authorities throughout England and Wales, that meet up to discuss how they can ‘deal’ with those entitled to and in receipt of Injury on Duty awards. After the Home Office’s guidance was declared unlawful, the meetings provide a convenient avenue for the Home Office to drip feed advice to the forces, instigate a culture and then set the fuse for the encouraged HR managers to go off and work themselves up into a feeding frenzy.

NAMF is semi-clandestine because IOD pensioners generally remain unaware of it. The Forum does not advertise its existence, whilst not exactly attempting to keep itself secret. References to it do occasionally appear on force documents but it does not routinely publish its agenda or minutes. If you Google the Forum you will see that most references to the NAMF result from Freedom of Information Act requests.

The National Attendance Management Forum meets at premises provided by West Midlands Police at their Tally Ho! training centre. Meetings are held every three months.

The Forum comprises representatives from c. 35 forces from across the service, including Scotland and Northern Ireland. A unique feature is the mix of professional skills and background of representatives, which include Lawyers, Personnel Professionals, Doctors and Occupational Health Practitioners. Colleagues from the Home Office and NPIA also attend.

The mix of disciplines allows the Forum to debate and progress a wide variety of work from across the occupational health, legal and HR fields. The views of IOD pensioners are never sought by the Forum.

The NAMF is infamous for being used by the Home Office in its attempts to circumvent the Regulations. A steadfast regular attendee was none other than John Gilbert – the civil servant author of Annex C to Home Office circular 46/2004.

As to the ‘lawyers’ the list of delegates shows Nicholas Wirz (Northumbria), whose legal advice to his force seems to have been somewhat lacking as he was the instructing solicitor to Johnathan Holl-Allen, QC in the case of Crudace V PMAB, decided that significant parts of the Home Office guidance were unlawful. Written evidence supplied by Wirz to the Haworth case was equally unconvincing. Wirz was the gentleman who wrote threatening letters to 45 of the 70 disabled former officers whose injury pensions had been reduced in one afternoon on 20th February 2009 by SMP Dr. Broome. The 45 pensioners had given notice of appeal, and Wirz’s letters effectively threatened them with having to pay the £6,200 costs of any appeal and also contained his opinion that any appeal would be hopeless. Northumbria is the force listed in several judicial reviews and pension ombudsman decisions.

Rather worryingly given his track record Wirz now provides guidance to selected medical practitioners who attend NAMF functions: MR+NICHOLAS+WIRZ+PRESENTATION+(1)

The paradox is that despite the guidance that NAMF churns out having no legal basis and no substance that it is in harmony with the regulations, shamefully forces now use it as a badge of honour when conducting a review – basically saying ‘Its OK we’re following NAMF guidance’. In fact what they should be saying is ‘It’s OK – we’re following the regulations to the letter’. NAMF guidance is now being used as the Injury on duty equivalent to the Nuremberg defence.

There seems to be little doubt that the NAMF is the source of poor and ill-thought out information which can be readily seized upon by lazy and ignorant HR and OH ‘professionals’ who can’t be bothered to read and understand the Regulations and stated cases for themselves. It is also a platform for a small number of people whose motives are suspect and who seek to manipulate opinion. As a showcase for the talents of the people who are entrusted with the administration of police injury pensions the NAMF is more of an example of a group of people with which to frighten your grandchildren than to inspire them with role models.

Why all the hullabaloo about IOD reviews?

iodpa 2015-02-272017-02-21 caselaw, Finance, HR, NAMF

Injury on Duty Awards used to come out of central government funds but that changed in the early ‘noughties and the awards became payable out of the individual force’s budget. But the Home Office threw a sop to the forces – now obligated to pay for their decisions they made to retire former officers. Their redress was new Home Office Guidance – Home Office Circular (HOC) 46/2004

The problem is that although the Regulations are unchanged, many Police Authorities ( probably slightly less than half of the authorities in England and Wales) changed their policy following the issue of the guidance in HOC 46/2004 and introduced reviews triggered when the retired officer reaches the ages of 60 and 65. Although this guidance and policies based on it have been declared unlawful and withdrawn, forces are still attempting to find ways to reduce IOD bands in order to make budget savings. Existing injury pensions which may or may not have been subject to review previously were now reviewed under the new guidance which, in some forces was pursued aggressively.

HOC 46/2004 was unlawful and challenged – not directly at first – there was a blow-back and the new aggressive stance by Police Pension Authorities was used on other former officers, of all ages, in receipt of IOD awards. Turner V PMAB and Laws V PMAB were case-law decided as a direct result of 46/2004 even though neither of the appellants were 65 years old. This circular corrupted the administration of ALL IOD awards and the whole thing came down to ways the police pension authority can save money. Lets not forget who had to challenge the unlawful guidance – incapacitated and disabled former police officers.

Turner and Laws were successful on points of law. After that the guidance itself contained within HOC 46/2004 was challenged both by judicial review (Crudace, Simpson etc) and by the pension ombudsman (Ayers, Sharp etc) and the guidance was declared unlawful in 2013 in the consent order Slater V PMAB and officially withdrawn.

But the Rubicon had been crossed and the police pension authorities had tasted blood. In the days of austerity how better for a high-flying Chief Finance Officer (CFO) to mark their career by making instant savings into their budget. If they can save ££££ then their CV and LinkedIn would be flowered up and then a new role with an inflated 6 figure salary plus bonus will be within their grasp. Like a plague of locusts, using the budget reduction as evidence, the CFOs think they can move onto a new force to decimate and corrupt the administration of IOD awards there as well.

Did the Home Office and police pension authorities accept they were wrong? No. The guidance was withdrawn and the Home Office and those forces that pursued 46/2004 maliciously had their fingers burnt. Out of the ashes the National Attendance Management Forum (NAMF) was born. A coven of HR and finance managers who meetup at Tally Ho! Conference Centre Birmingham. The cynically minded might view this organisation as an attempt to further undermine the regulations with an attempt to keep keeping the sphere of influence separate so the Home Office doesn’t get the blame.

There will be further posts all about NAMF.

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IODPA

The History between Wirz and Staffordshire Police

Wirz loses High Court challenge

Natural Justice: The Rule Against Bias

The rules of natural justice

Twas the night before Christmas

NAMF and the Finality of the SMP Report

Rules? What Rules?

Neither Lawful or Unlawful

NAMF – A coven of vipers.

Why all the hullabaloo about IOD reviews?

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