National Attendance Management Forum

“The fact that man knows right from wrong proves his intellectual superiority to the other creatures; but the fact that he can do wrong proves his moral inferiority to any creatures that cannot.”
― Mark Twain, What Is Man?

We asked the question in a previous post whether a person who is disabled in relation to earning capacity and then succumbs to a persistence vegetative state should have his life further questioned by a police pension authority?

The question was asked without real context.  We deliberately didn’t explain what the Regulations allow and we purposely left some cross-over with the possible answers; we wanted people to answer with what they instinctively thought was right.

This human touch is sorely lacking in those who administer injury awards. All too often HR managers and SMPs entirely neglect to consider the effects of their actions on others. A few of them seem to be be completely devoid of any moral compass.

For example, Staffordshire thinks financial constraints are a legitimate reason to review and a questionnaire is the way to vet whether the expense of sending someone in front of a SMP is worth the £2000+ expense payable to the doctor for his arguably pre-determined work to reduce the person’s award.

The procedures laid down in the Regulations have to be applied with individual assessment in each case at each stage. This is being ignored in certain forces, and we need look no further for examples than at Knowles & Wirz of Northumbria and Andrew Colly & DCC Baker & Staffordshire.

Any action has to be justified; and it is not sufficient to ask oneself whether the underlying procedure is legal. In respect of the review of degree of disablement there is a ‘shall’ in the Regulations which ignorant or ill-intentioned managers interpret as giving them carte blanche to review whoever they wish, whenever they wish, as often as they wish. Their lack of moral compass allows them to forget that the so-called ‘duty to review’ is strictly limited and contains a wide power of discretion.

In our earlier blog we gave the example of a poor man placed in a coma. Interestingly, 89% of respondents to our survey think it best to leave the man alone.  Only 8% think that it is appropriate to review and reduce the man’s injury award.  No person voted to remove the injury award.

We think it is the sadly indoctrinated view of the majority involved with, and in receipt of, an injury award that reviews only exist to reduce people.  As a charity one of our aims is to dispel this myth. We don’t think it right that those with an injury award have to live their lives in the shadows, frightened of attracting the gaze of the PPA and always prepared for the manilla envelope to drop in their doormat announcing a review.

Such statistics as do exist – and it needs to be noted that they had to be obtained by lengthy Freedom Of Information requests from forces – show that over the last five years, when reviews have been held, then 83% result in a decision of no alteration in degree of disablement. Some 6.2% produced an increase in pension payment, whilst 10.29% saw the pensioners concerned reduced in banding.

The fear of reviews has much to do with the intrusiveness and uncertainty of the process itself, together with a well deserved and natural suspicion that in some forces the entire process is unlawfully constructed and is indeed intended to manipulate a reduction in payment.

We in IODPA think there are too many reviews, and too many of them are pointless and should never have been held. We are not against lawful reviews, but we are firmly against mass reviews and would want to see scheme managers realise they must exercise discretion in deciding whether a review is appropriate.

Turning again to our survey, why didn’t anyone vote for the award to be taken away in its entirety? Was it considered to be morally wrong or did all the participants have in mind that there are very particular and extremely rare circumstances where an injury pension can be ceased?  Regulation 43 tells us that ‘. . . a pension or allowance shall be payable for life’ yet we know that some forces have threatened pensioners with suspension or even cessation of their injury pension.

In some instances these threats have been carried through – at least only for so long as it takes our legal representatives to explain to the PPA concerned the error of their ways.

We have witnessed SMPs who concocted entirely unlawful rationale that an individual should never have been granted an injury award in the first place. We have seen HR managers issue wholesale threats to pensioners that there injury pension could be reduced or suspended if they fail to complete a questionnaire. We have gasped in disbelief when a PPA has issued similar threats to pensioners who had the temerity to refuse to allow unrestricted access to their sensitive medical records.

It is no small wonder then that IOD pensioners generally worry so much about the security of their injury pension income.

Of late, there has been a new addition to the inventive fancies of HR managers who would like to have the power to reduce or cease injury pensions in circumstances which are not allowed by the Regulations. Where in the Regulations does it say someone with a duty injury can have their pension reduced to the minimum when another injury overtakes the disablement?  The person is still unable to earn. We’ve made this point before; does the person become 200% disabled?

To find why we are even asking this question you need to look to NWEF’s and Northumbria’s legal advisor, Nicholas Wirz.  In his training guidance to SMPs he tells them this:

e.g. if an individual were to have developed advanced Parkinson’s disease since the last review, such that he was unable to work by reason of the symptoms of that disease alone, then the uninjured earning capacity should be nil

The “disease alone” could be replaced by anything according to Wirz: a persistent vegetative state, cancer, even aggravated natural degeneration.  Where does this stop?  For Wirz, he’d rather force an ill 70 year into spending his twilight years appealing the reprehensible Wirz-influenced medical decision to make him or her a band one.

We will talk about case law in a minute.  But ask yourself why the administration of police injury awards is so riddled with high court judgements.  It is because the PPAs, Wirz and NWEF keep trying to disadvantage retired police officers and serving officers who are in need, hardship or distress who are disabled as a consequence of being injured on duty.

By discussing whether an award should be reduced or removed because someone has become severely unwell on another matter is asking the wrong question.  A question that need not be asked and is only asked because Wirz is influencing the SMPs to enact it.  The truth of it is the person being targeted has been injured and had their career taken away – the righteous man or woman acting as a PPA would let them live their life without further hardship.

But there is case law on this matter.  There are three judicial reviews which we need to look at to see how the Regulations have been interpreted by the courts on this matter.  The trouble is they aren’t clear.

The 2003 case of South Wales v Anton (Crocker) is the first.  This case concerned an original decision for an award that SWP didn’t like.

Paragraphs 53, 54 and 55 are the pertinent ones.Mr Justice Ouseley says:

So the question to be answered under the Regulations is what degree of the loss of earning capacity is the result of the duty injury? This seemingly simple question can give rise to acute problems of causation, even though the question of whether or not there has been a disability which the duty injury has caused, or substantially contributed to, has already been answered. A separate issue of causation arises at the apportionment stage, because the entitlement stage can be passed on the basis of an injury which substantially contributes to, but is not the whole cause of, disablement

The judge is saying that another injury may have some effect on the person’s capacity to earn.  We all agree on this.  An injury award should not compensate for injuries not received on-duty. If there is a mix of on duty injury and other injury, then the amount of disablement caused by the on duty needs to be determined.

However, it becomes more complex where an on duty injury exacerbates or aggravates a pre-existing condition. This is commonly referred to as the straw which broke the camel’s back. An officer may be fit for duty despite the pre-existing condition, and it is only when injured on duty that they become disabled.

Mr Justice Ouseley touches on the duty injury aggravating an non-duty injury:

The position is more complex where the total loss is attributable to the effect of a duty injury on an underlying condition, which may or may not be an injury within the definition in the Regulations, and which by itself may or may not have contributed to a separate loss of earning capacity. An officer might suffer from a condition which would not affect him or his earning capacity until aggravated by a duty injury.

So for example a person with a dodgy cervical spine injury, that is mainly asymptomatic and intermittent and does not affect his capacity to earn and is still a fully operational police officer, receives a duty injury that aggravates it.

In this example Mr Justice Ouseley says apportionment for the aggravation and acceleration is not appropriate

55. I do not consider that the question of apportionment should be answered by trying to attribute a share of the loss of earning capacity to any underlying condition which, on its own, had not, or did not, cause a loss of earning capacity. The loss should be attributed wholly to the duty injury which, albeit because of that underlying condition, has directly caused the loss of earning capacity.

Let us return to the poor individual in the persistent vegetative state.  We are only  talking about this because Wirz has taken the above judgement and twisted it to mean that if a person becomes further disabled through the trials and tribulations which life throws at a person then then the unfortunate soul should not be compensated for the injuries received on duty – even though the injury on duty still exists

The Ouseley judgement does not speak of this.  Wirz has picked up the baton and lobbed it into a field of nettles.  It is an invented concept of Wirz that he feels he wants to test upon disabled and vulnerable former officers.

The Walther judicial reviews (there were two of them) also touch on the matter of apportionment and acceleration.

In Walther v The Police Medical Appeal Board & Anor [2010]  Mr Justice Irwin declared that:

42. A short acceleration of the onset of a permanent disability is unlikely to be held to be a “substantial” contribution to that disability. Acceleration to any degree is some contribution, but not likely to be regarded as substantial. The opposite applies, it seems to me. A significant acceleration – taking the extreme case, an acceleration of a decade or more – clearly would be a significant contribution to a permanent disability. Where the dividing line comes must be a matter of fact in each case. In my judgment such an approach is consistent with the language of the Regulation and with common sense.

Just because a non duty injury or condition has been accelerated, without it being substantial, it matters not and in any case common sense reigns.  The trouble we have is that Wirz has no common sense and the moralistic determinations of some SMPs are zero.  With a predetermined desire to reduce, they will go to whatever lengths to justify apportionment.  Understanding the whole picture by demanding (with threats of suspension of an award) full medical records from birth  is their favoured way of introducing apportionment.  In effect this is a alwyer’s trick to carry out the unlawful act of revisiting causation.

The second Walther judicial review Met v The Police Medical Appeal Board [2013] was instigated by the Met in 2013 who attempted to remove the award granted to David Walther by the PMAB tasked to revisit the question after the 2010 judgement won by Mr Walther.

The judge this time, Mr Justice Collins, said this:

Only if there will be no loss of earning capacity resulting from the injury when the officer is medically retired will it be likely to be the case that there was no substantial contribution.

In the end Justice Collin’s agreed with the PMAB and David Walther kept his injury award.

But, rather contradictory, instead of the decade stated in the first case by Mr Justice Irwin, even if a duty injury had caused only an acceleration of symptoms of 18 months to 2 years, if at the time the question was being considered by the SMP, the disablement was the result of the injury, then the officer would be entitled to an award.

But the interesting point is what Justice Collins said about Regulation 37. The basis for Collins J’s view was that he considered regulation 37, which provides for reassessment of injury pensions where there has been substantial alteration in the degree of disablement, enabled there to be a later assessment as to whether an underlying condition had overtaken any disablement resulting from the injury.

Specifically he is referring to David Walther’s problem of degenerative disc changes of the L4/5 and L5/S1 discs and prominent disc bulges at T12/4, L4/5 and L5/S1.  All these were explicitly listed when Mr Walther was retired.  It does not follow then that injuries not listed, or not known about, when the medical retirement was given can be reintroduced by a later review.  This would be contrary to the Laws and Pollard cases.

Of course, the existence of Regulation 37 helps everyone when the duty to review is used correctly. It is a provision which can be sparingly used, with plentiful discretion, to help ensure the correct level of injury pension is paid. It forbids all need for speculation about what might occur in the future. An injury pension is granted at a rate commensurate with what has occurred in the past and what disablement the individual exhibits in the here and now.

It says nothing whatever about the extra-regulatory wage comparison exercises practices by some PPAs which remain the aspect of reviews which create the most persistent and most aggressive forms of abuse of the Regulations.

Another area of particular difficulty arising from the second Walther decision may be the Judge’s interpretation of regulation 37, central to his reasoning overall, that it permits a reduction for David Walther’s injury award once a period of simple acceleration has passed. Collins J did not refer in his judgement to the decision of the Court of Appeal in Metropolitan Police Authority v Laws and the PMAB.  We will never know how a review would affect Mr Walther as the Met do not review unless a person asks to be reviewed.

And here lies the problem.  The two Walther cases do conflict somewhat even though David Walther won both. Nicholas Wirz, without regard to what is right or just or reasonable, is trying to populate the void that now exists by using the contradiction to reduce injury awards.

Even though both Walther cases involved the original decision and applied to someone with co-existing duty and non-duty injuries at the time of the award, Wirz seemingly wants SMPs to apportion everyone and to use Regulation 37 to do it.

IODPA is certain that a further judicial review will clarify the issue for once and for all but we again return to the example of the man in our question of PTSD and a coma after a car accident.

The question on the legality walks in parallel with what is morally right – the spirit of the law is phrase often quoted.  IODPA is a much-needed counter to people like Wirz and part of its role is to shout out quite clearly that legal questions with a moral content are usually easy to answer if the person invoking the questions does so with a just mind.

The law itself is no more than a codified expression of moral standards. It arises and lives as a demonstration of the combined moral core of the people. The law should not be a plaything for the likes of Wirz, Colley and Baker. IODPA has the will and the means to see that they, and others who try to bend the scope and intention of the Regulations into unrecognisable shapes will always be challenged, and will always be made to mend their ways.