pmab

Duress by Denying Appeal

iodpa caselaw, pmab, police injury award, Regulation 33, Regulation 37, Review
Duress by Denying Appeal

As long as we can get redress in the courts, as long as the laws shall be honestly administered, as long as honesty and intelligence sit upon the bench, as long as intelligence sits in the chairs of jurors, this country will stand, the law will be enforced, and the law will be respected. -Robert Green Ingersoll

Police Medical Appeal Boards (PMABs), for all their faults, have an important function in the administration of police injury awards.

Quite often SMPs come to an erroneous decision and make glaring errors in their final report.  You only need to look at the legion of Pension Ombudsman determinations and high court judgements. There are many possible reasons why SMPs make errors. Commonly, they fail to assess the medical evidence properly, and may be misled by irrelevant, prejudicial or fabricated evidence fed to him by a HR minion.  The SMP may be following Home Office or  NAMF guidance which has no lawful authority, and in doing so contravenes the Regulations and the case-law that exists to dictate the narrow remit of his lawful duty.

PMABs provide a forum in which retired officers may have these concerns addressed. They serve an important institutional function. They should provide legitimacy to the system as a whole by maintaining consistency in decisions and their function is to prevent miscarriages of the Regulations.

Nevertheless, Police pension authorities seem eager to neglect their duty to act fairly.  They are knowingly interfering in the access to PMABs by declaring fictional restrictions, and to achieve this they will resort to nefarious threats that are well outside the sanction of natural justice in order to scare people away from their important right to appeal.

Just look at Nicholas Wirz, Principal Solicitor to Northumbria Police:

Crudace. Paragraph 49

On 2nd July 2009 the Police Authority solicitor, Mr Nicholas Wirz, sent Mr Crudace a letter which in effect threatened the Claimant with a £6,200 adverse costs award if he persisted with his appeal …

…45 of the 70 former officers who were the subject of decisions on 20th February 2009 lodged notices of appeal. Mr Wirz sent a letter in similar terms to each of them. The letter has been the subject of criticism by Mr Lock QC and was also the subject of a complaint to Mr Wirz’s professional body

Recently IODPA has seen more examples of threats such as above.  A former officer has recently been told by a Northern force that the SMP requires, ‘full medical records to understand the baseline from which he has to assess whether there has been any significant change’.   Failure to do as demanded is threatened with the punitive reduction to a level of 0% degree of disablement.  Kafkaesque in it sinisterness, the author of this letter then proves his point by attaching a copy of the new ‘financial statement’ based on a 0% degree of disablement/Band 1 award. This is not far removed from the Medieval practice of showing the instruments of torture to the prisoner.

Forget lawful process; forget evidence of substantial change and the other requirements of the Regulations, this is simply: ‘Do as we say, or else’

In the spirit of the times, the threats are becoming more and more forceful.

Regularly appearing now is the threat that if, at a review, full medical records are not disclosed then not only will the police pension authority automatically reduce the pensioner to 0% without lawful authority, they also proclaim, astoundingly, that there is no avenue to appeal at PMAB.

This quote can be found in the new consent form sent out by Avon & Somerset.  Forget Kafkaesque; we need a new expression of surreal distortion and sense of impending danger – the Avon and Somerset threat is Wirzesque in it’s intimidating menace.

The former officer has to under-sign this statement:

I understand that at any time in the Procedure I may elect to withdraw my consent to attend a medical consultation or for medical information about me to be disclosed. […] I understand that in these circumstances the Pension Authority may decide the issue of Permanent Disability and that I will not enjoy a right of appeal to a Medical Appeal Board

The HR minion who sent this letter is referring to the refusal of consent of full medical records. There is no space in the form to specify a date range therefore they are asking for full medical records, from birth, or nothing.  Then they threaten to reconsider the issue of Permanent Disability  and continue to say the entitlement of a PMAB is forfeit.

There is no explicit mention of it, but the HR minion is of course referring to Regulation 33 (refusal to be medically examined).  What the minion fails to acknowledge is that consent to the pension authority is different and distinctly separate to the consent to a PMAB.  Also the minion neglects to inform the would-be signer that Regulation 33 is concerned with ‘wilful or negligent’ refusal to be medically examined.

It is true to say if consent to a medical examination and access to relevant medical records required by a PMAB (when the appeal process has commenced) is not granted then the appeal is withdrawn – but this is an entirely different matter to the disclosing of full medical records from birth to the pension authority.

Let us examine this further.  What if the person reviewed has good reason not to disclose full medical records to the pension authority? – this is neither wilful nor negligent failure.  In this theoretical example, just say the pension authority punishes the disabled former officer by unlawfully totally removing the injury award by declaring that there is no permanent disability.

Regulation 33 does not speak of punitive measures.  It also does not allow a gateway into anything other than Regulation 30-2(d), the degree of disablement – the sole question allowed in a Regulation 37 review.  There is no power for Regulation 33 to reconsider Regulation 30-2(b), in other words the permanency of disablement.

There is also no power for the pension authority to block access to a PMAB.  If the medical consent is subsequently granted to the PMAB then the appeal board will hear it.  Remember, the appellant may have a valid reason to deny full medical records to the pension authority but may be extremely willing to allow the PMAB panel to see the same.

The pension authority has no jurisdiction to block access to a legal appeal process.

Plain and simple it is a dirty threat that the pension authority has no power to enforce.  A rather sick bluff used against vulnerable individuals.

Just like the Home Office circular 46/2004 proclaiming that people over 65 have no earning capacity, the issue of consent to full medical records and threats to invoke punitive reductions of injury awards is hollow and unlawful and will be demolished by means of Judicial Review.

Deliberately scaring disabled former officers by exposing them to unlawful threats and frightening them into compliance is now firmly embedded into the PPAs’ toolkit to undermine the Police Injury Benefit Regulations.

It is just heartbreaking that police pension authorities are on such a self-destructive path.

 

 

2005 to 2015 – A Decade Measured

iodpa Freedom of Information, police injury award, Regulation 37, Review, Review
2005 to 2015 – A Decade Measured

“There’s no going back, and there’s no hiding the information. So let everyone have it.”
― Andrew Kantor

An often-asked question is, ‘How many former police officers have injury awards?’

The Home Office claims it doesn’t have a clue about numbers.  Whether you believe that or not is up to you.

So, unfortunately there is no central database, and with 43 police forces in England and Wales, one in Northern Ireland and one in Scotland, gathering in the information is something of a chore.  We at IODPA are pleased to say that for us it was a task worth undertaking.  And the results of our enquiry are revealing.

IODPA has been busy.  Using the Freedom of Information Act, all police forces except Police Scotland* were asked the question of how many injury award recipients they have. They were also asked how many reviews of injury pensions have been conducted by year since 2005.

* We didn’t ask Police Scotland because we get no enquiries from north of the border, and we also understand that having recently combined eight forces into one some record systems are in a mess.

First, the facts. The results are set out below in graphical form. Then the comment. We have added some observations on what the figures might indicate to conclude this post.

Not all forces have provided the information requested. South Wales Police and Lancashire Police both advise that they have handed over all their files concerning police injury pensions to commercial companies, who are now, it seems, administering these pensions. Cumbria Constabulary and Surrey Police are experiencing delays in providing the information.

From the data we have received we know there are 15,543 disabled former officers in receipt of injury pensions. By looking at some previous research, undertaken in 2011, we are able to estimate that the true figure is in excess of 16,500.

At the end of 2010, there were 13,872 IOD pensioners in England and Wales.  If we remove the PSNI figure of 2,566 IOD pensioners from our current estimated total, we see that in England and Wales, there are around currently 14,000 IOD pensioners on the books.

IOD ratio to Serving
Plot 1. Percentage of IODs to Serving Officers by Force (2015)

Plot 1 shows the ratio as a percent of IODs to serving officers by each force.  Those forces without a bar (at the bottom of the axis) have as yet not replied to the FOIA request

Unsurprisingly, Police Service of Northern Ireland, has the biggest proportion of IODs at almost 35%.  Other forces with a high proportion of IODs are: Kent, Merseyside, Nottinghamshire, Northumbria, North Wales and Avon & Somerset.

Plot number 2 is a bar chart showing the actual number of IODs of each force.

Number of IOD Pensioners
Plot 2. Number of IOD Pensioners by Force (2015)

Avon & Somerset, Greater Manchester, Kent, Merseyside, the Met,  Northumbria, Northern Ireland and West Yorkshire all have 500 or over current IODs.

Plot 3 displays the percentage of IOD pensions of each force which have been reviewed over the past 5 years.  No blue bar means no reviews.  Only 12 forces have instigated any reviews over the past 5 years.

Percentage Reviewed
Plot 3. Percentage of IODs Reviewed by Force 2011 – 2015

Now we start to see patterns appear.  The names of forces with either a high proportion of IODs to serving officers or/and over 500 IODs reappear as forces that have also reviewed post the Home Office suspension in 2010.  Avon & Somerset, Merseyside, Northamptonshire, Nottinghamshire and West Yorkshire are visible again.

Could it be that the greater number or higher proportion of IODs, the greater the incentive to attempt to reduce their financial burden?

Plot 4 shows us the distribution for the total count of reviews of each force  by the two 5 year periods: 2005 to 2010 (blue) and 2011 to 2015 (pink).

RplotTotalReviews
Plot 4. Histogram (frequency count) of all  reviews 2005 to 2010 (blue) and 2011 to 2015 (pink)

A simplified description of plot 4 is that there is a lot of blue.  Most of the pink is in the first column – the range of counts at zero. In other words in 2011-2015 most forces did not review anyone. The blue counts are asymmetrical.  This means the blue stretches to the right (right skewed)  and there are significantly more values of blue to the right as compared to pink.  Something ‘happened’ in  2005 and this ‘something’ stopped in 2010.

That something was the 2004 guidance contained in Annex C to Home Office circular 46/2004. The guidance contained the remarkable assertion that at age 65 all former officers suddenly lost all capacity to work and thus earn. The guidance also contained some illogical mumbo-jumbo about needing to revise injury pensions at what would be normal force retirement age.

The Home Office suspended all reviews in 2010 because the guidance was finally, after much pointless resistance by the Home Office, agreed to be unlawful. Police Authorities and Chief Constables had been shown to have been abusing the police pension Regulations, with the encouragement of the Home Office.

Plot 5 dramatically displays the initial enthusiasm, from 2005, for reviewing with a pre-ordained intention to reduce everyone no matter what the medical circumstances of the individual.  This came to a crashing halt in 2010.

 

review 2005-2015
Plot 5. Scatterplot of number of reviews by Force and Year 2005 to 2015

Plot 5 shows the flat-lining of reviews post 2010 with only a few forces daring to raise their heads. Merseyside in 2015 is a massive outlier – to be able to hold so many reviews in just one year their processes will have had to been changed dramatically from the norm of the past decade.

The data shows that a sudden enthusiasm for holding reviews of injury pensions, triggered by the Home Office guidance, was not universal, and that it rapidly tailed off once pensioners brought grievances to the attention of the High Court and the Pensions Ombudsman. The Home Office retreated and withdrew its guidance, but the damage was done.

The year on year reduction of reviews over the past decade is backed up with data published by the Home Office in relation to the decisions made in Police Medical Appeal Boards.  Plot 6 shows the numbers of PMAB decisions by the type of hearing: reviews (degree of disablement) or original decisions (permanency, whether it is an IOD,  disablement).

There has been a visible decline in all PMABs with a flat lining of hearings in the 12 months between Nov 13-Oct14.

PMAB results by year
Plot 6.  PMAB hearings by Year and Decision

Strong anecdotal evidence suggests that some Police Pension Authorities are solving their own ‘review’ conundrum by not awarding any injury on duty pensions (and deviantly leaving the officer on both no pay and indefinite sick leave).  Or if an award is given the force uses, in the words of NAMF,  the ‘neither lawful or unlawful’ method of the PEAM to only award band one to the former officer.

Plot 7 shows that over the past 7 years there has been an overall 2% increase in the total number of former officers with an Injury Award.

What is striking is the massive variation between forces.

Some Forces have doubled their number of IOD awards (Kent) whilst others have seen their number halved (Norfolk). Has Kent become twice as dangerous? These figures in isolation may seen trivial to the casual observer but by quantifying the figures now we have a baseline that will be the enabler to show future trends.  This will mean that no force can hide their actions from IODPA and other interested parties.

Percent Change IODs 2008 to 2015
Plot 7. Percentage change of IODs by Force from 2008 to 2015

 

What can not be displayed graphically is the fact that those who have caused so damage to so many medically retired officers by unlawfully conducting reviews are still in their jobs. They have destroyed what little trust existed but still they hold meetings and discuss alternative methods to undermine the Regulations. It is as though they were shown a glimpse of a golden future, where they were promised that what has been described by more than one mercenary member of HR as ‘the burden’ of police injury pension payments could be dramatically reduced. Having seen the illusion of pots of money flowing from the pockets of disabled former officers, to be spent on flashy new cars and computer systems and hiring more and more ‘Heads of People’ or other equally ridiculously-titled poppinjays, it is hard for some people to abandon the dream.

We at IODPA are confident any such dream will turn into a nightmare if there are any further attempts to subvert the Regulations and rob IOD pensioners of their rights.

Looking at the numbers – around 14,000 disabled former officers – we have to wonder why neither NARPO nor the Police Federation apparently have no database of former officers who are in receipt of an injury pension. It is a mystery.  Protecting the pension rights of disabled former officers would be made easier if these two representative organisations made the effort to compile a database.  Interestingly, we understand that NARPO does not even ask the question, ‘Do you have an injury pension?’ when former officers apply to join.

We mentioned the Police Service of Northern Ireland in relation to chart one. The biggest force, with the largest number of IOD pensioners. We are glad to say that this force has taken major steps to put right the iniquities of maladministration which resulted from abuse of the Regulations. This force commissioned an eminent QC, David Scoffield, to enquire into everything, and to produce recommendations. Which he did. And which the PSNI are currently busy implementing.

But, are forces on the mainland watching and listening to events in Northern Ireland? As always, the picture is divided. We can see from the data above that the vast majority of forces in England and Wales either have not held any reviews since 2010, or have held only a handful. However, Avon and Somerset, Merseyside and Nottinghamshire are still in cloud-cuckoo land and have been busy trying to mass review.

Either these forces have lost all touch with reality, or they are an axis of evil. Why would any decent, ethical, humanitarian organisation want to continue holding reviews when all the evidence is that no force has the structure in place, the experience, the training, or the knowledge to do so without continuing to make glaring errors and causing much distress and inconvenience to disabled former officers and their families? That’s not just IODPA’s opinion, it is the facts, as set out in a recent report of an enquiry by the College of Policing. (Which we reported on in an earlier blog).

So, should we be pleased that so few reviews have been held over the last five years? When we see that of the 806 reviews held there were 55 pensioners who had their pensions increased, but 83 who suffered a decrease we have to reserve judgement. We think it entirely possible that the forces who have held reviews may be ‘cherry-picking’ – selecting the pensioners on the higher bandings for review, whilst leaving everyone who is on band one alone. That is certainly the case in Avon and Somerset.

We suspect that never holding reviews can be as bad, for some people as holding mass reviews. Those people who have experienced a worsening of their degree of disablement since 2010 and who should have been upped a band or more, have been denied their proper rate of pension.

We conclude that reviews are a necessary part of the provisions within the Regulations. We have often stated that we are not against reviews, per se, but we want to see all forces abandon their attitude where they think reviews are a means of saving money, and that all pensioners are scroungers or lead-swingers. We want to see forces set up proper systems to allow reviews to be conducted only when absolutely necessary and appropriate, and done so within the spirit and letter of the Regulations, and we want to see pensioners treated with dignity and respect. We want to see certain ‘hired-gun’ SMPs sacked, or better still, sacked and charged with corruption or fraud. We want to see certain incompetent HR managers employed at their true level of ability stacking shelves or collecting trolleys at Tescos. Only then will we rest content. Until that time we will continue to grow in strength, and in numbers, and our determination to see justice prevail will never waver.

 

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.