police injury award

Introducing Our Live Feed of UK Employment Appeal Tribunal Case Law

Introducing Our Live Feed of UK Employment Appeal Tribunal Case Law

Happy new year to all our readers!

Under the Equality Act 2010 (Specific Duties) Regulations 2011, police forces are listed bodies (under schedule 19) and are required to comply with the non-devolved general and specific duties under the Equality Act 2010 (EqA). The Court of Appeal has clarified that protection against victimisation contained in the Equality Act can be extended to former employees.

In preparation of our 2017 series focusing on disability discrimination law, we are proud to publish another live connection to the British and Irish Legal Information Institute website.

The new Disability Discrimination EAT Caselaw menu item can be found on the right sidebar:

You will see each Employment Appeal Tribunal case (and new ones as soon as they are published) defined as relating to the Police (either as the named party in the case or referenced by the Judge as relevant to the law as established by the outcome of a former case).

The above search of bailli.org using the terms ‘disability discrimination‘ AND ‘chief constable’/’commissioner of the Met‘ (as at 1st Jan 2017) returns 422 results for EATs.  A  cursory straw-poll of the results shows that 31 cases directly relate to a Police force as a named party in the title of the appeal – so 7.3% of these listed disability discrimination EATs directly involve a police force and the rest involve other employers where the judges have use the legal precedents found in the police related EATs or their subsequent Court of Appeal hearing.

This frequency shows a revealing characteristic of how UK police services apparently fail in their obligations to the EqA given the appeal tribunals they defend are regularly quoted in otherwise non-police disability discrimination court proceedings.   Evidence of deep institutional failure or are forces the unfair victims of vexatious complaining? If the outcomes follow the same pattern of the judicial reviews, the majority of which are found against the police pension authoities, the former is more probable.  We intend to put a meaningful measure to the EAT results.

Is horrendous treatment of those applying, or with an injury award, a proportionate means of achieving a legitimate aim?  Is the aim legitimate and are there no less discriminatory ways of achieving it?   Can police forces admit to discrimination but hide behind the defence of saying it is objectively justified?

Over the coming months we will try to answer these questions and explain in easy terms how these cases relate to those with, or applying for, injury awards.

 

“Preposterous” Awards

“Preposterous” Awards

“Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well- warmed, and well-fed.”― Herman Melville

Were Melville commenting today, he might well have had disabled former officers in mind as the ‘poor’ and the Force Medical Adviser of Avon and Somerset Constabulary as their well-warmed and well-fed critic.  In Moby Dick, Melville frequently uses biblical and mythological allusions.  Like the Biblical Ahab, in Melville’s Ahab (and our well-fed critic) there is a desire for something that he isn’t entitled to and that isn’t good for him to have, to try to get it by foul means, and then to get his comeuppance in the form of an ironic reversal of his own evil deed.

Although not all injured-on-duty pensioners are in the dire straits of penury, they are all poor in respect of the way their injury pensions are administered. The habit of the pensioners is to be in constant bemusement over how those who have a duty to administer injury pensions within the law so easily, and so enthusiastically seek to pervert the meaning and intentions of the Regulations.

As we have repeatedly said on these pages, IODPA is not against reviews of degree of disablement. Chief Constables have a wide discretion on whether or not to conduct a regulation 37 review of degree of disablement. They can consider the matter at such intervals as may be appropriate. However, it is not appropriate to initiate a review as a potential cost saving measure.

Reviews can not be used to undo the finality of the last final decision even if a certain force medical officer considers the award to be “preposterous” (see below). We can only wonder just how he managed to come to that opinion. On what evidence did he base his consideration?

No matter what a FMA might think about any individual’s injury pension payment he surely must be aware that only a substantial alteration to the degree of disablement can permit a revision of the level of pension paid. Is the verdict of “preposterous” informed by a generalised assumption of some deficiency in the process of granting an injury award? The FMA must know that the causation and the substance of the award always remains final and can not be revisited at review.

We are writing here about not just any old FMA, but one Dr David Bulpitt MRCGP FFOM, who is the Force Medical Adviser of Avon and Somerset Constabulary. It is a telling reflection of the rather nasty and lawfully inaccurate attitudes prevalent in some quarters, that Dr Bulpitt appears to have an inflated ego of such magnitude that he wants to rewrite history and convert the decisions of his predecessors, into becoming his decisions.

Dr Bulpitt is not shy about voicing his rather skewed opinions on injury awards.  He is not even a run-of-the-mill force medical adviser.  He has a national platform – as the police representative for the Association of Local Authority Medical Advisers (ALAMA).  Listed as a speaker in past ALAMA conferences for Occupational Health physicians who are “set on delivering the highest quality services and the best standards in patient care in the most effective manner”, you’d have thought his words would always exemplify the motto of ALAMA: “communication, education, consistency and quality of clinical practice of doctors providing Occupational Health Services” .  Unfortunately for Dr Bulpitt, his words may well come back to haunt him.

As Will Rogers put it, “After eating an entire bull, a mountain lion felt so good he started roaring. He kept it up until a hunter came along and shot him. The moral: When you’re full of bull, keep your mouth shut.”

In an intemperate email rant to the Police Workforce & Capability Unit at the Home Office, Dr Bulpitt displays his frustration and impuissance.

It seems he might well be vexed over his inheritance of the historical legacy of decisions that he thinks ‘he’ would not have made, conveniently ignoring that such attempts at historical revisionism is forbidden by the Regulations.  An interesting stance, given Dr Bulpitt is not privy to the Zeitgeist and full facts which swayed the decisions of his predecessors.

His ego asks for more.  The finality demanded by the Regulations is an affront to his wishful view of how things should be if he were in charge, and he can’t control his craving to fuel his desire to remove the injury awards of those retired from the force he represents, sacrificing his medical professionalism and independence in the process.

Frustrated by his impotence to alter history, he contacted the Home Office to tell them how hard-done-by he his.

 

[…] I suspect that you might be aware that we have a group of pensioners that are organising a campaign to resist having their pension reviewed.

So blinded by his own peculiar view of the Regulations, Dr Bulpitt actually thinks that a group of disabled former officers, who in their working lives were intent on seeing that the law was upheld, are now campaigning against reviews, per se.  Dr Bulpitt not only has hold of the wrong end of the stick, he has the wrong stick altogether. We guess he is referring to IODPA. In which case, how has he missed the plainly, and oft-repeated, statement of our mission, which is to challenge all aspects of unlawful reviews and maladministration?

IODPA has never sought to frustrate legitimate, lawful review process, but, in Avon and Somerset, and elsewhere, finding a legitimate review is about as difficult as finding an honest, decent and professionally competent FMA or SMP  (difficult but not impossible – they do exist but the good ones tend to avoid the debacles and imbroglios that always shadow bulk review programs).

Dr Bulpitt’s email continues in a manner that, perhaps unintentionally for him, actually answers his question of why pensioners do not want their injury award reviewed by Dr Bulpitt or anyone connected to Dr Bulpitt.

 

The issue is largely one of the Constabularies making in my view because they are on preposterous awards, frequently 100% and have hardly ever been reviewed if at all. One appears  to never had anything wrong with them and another had a certificate stating they did not have a permanent condition but got an injury award anyway.

Who are the ‘they’ that Dr Bulpitt refers to? The group ‘resisting having their pensions reviewed’ are all medically retired former police officers unfortunate enough to be retired from Avon & Somerset and other forces across the country where the review process is clearly being managed contrary to the Regulations.

Among everything else wrong in his email, Dr Bulpitt has the nerve to call the deliberate unlawful actioning of recommendatory Home Office guidance that reduction to 0% of the degree of disablement all former police officers once reaching sixty-five years of age as, ‘acting in good faith’.  

Oh!  That’s OK then – it’s fine to carry out a public duty unlawfully as long as it is done in good faith.  It’s perfectly fine to make an almighty cock-up, so long as it was done in good faith. It is acceptable to drive a coach and horses through the Regulations, bringing huge distress to disabled former officers and their families, so long as it is done in good faith.

This may be arguable in a pursuit of proving misfeasance in public office, an intentional tort rooted in bad faith, but the tone of Bulpitt’s email shows his intent is as far a polar opposite to a ‘good faith’ mistake as is possible.  Dr Bulpitt’s unsolicited use of the term ‘good faith’ clearly shows he has the spectre of misfeasance in his mind; just saying it is all in good faith doesn’t make it so.

As sure as eggs are eggs, Dr Bulpitt wants to globally revise the award downwards of all those retired by Avon & Somerset.  If this isn’t bad-faith then what is?

Do you think Dr Bulpitt paused for a minute and thought, as he typed his email, that it’s no wonder that people don’t want to be unlawfully reduced just because he, as the current force medical officer with only the scantiest knowledge of the circumstances, thinks there is nothing wrong with them and they shouldn’t have the award in the first place?

Or perhaps he feels he has sufficient knowledge. If so, he has been trawling through sensitive personal medical data which he has no right to access. The implication from his remarks amounts to a self-admission that Dr Bulpitt freely rummages around in the personal sensitive medical records of former police officers without consent. If that is the case, it is shocking to say the least.  How else can he justify his generalisation that those retired in the past, ‘have nothing wrong with them’?

The bunker mentality seeps through the words of Dr Bulpitt.

 

Apart from a coordinated campaign of FOI  requests, subject access requests and so on, they have been put in complaints to the GMC about  our SMP. Not too dissimilar from the picture in many forces that I have worked with but this one  is far more venomous and a lot of work has gone into worrying pensioners and frankly trying to smear the OH unit and the SMP by the Pipin group

Hold on there, Doctor. It sounds like you are saying that all complaints, all requests for information, and every attempt by injury on duty pensioners to shine some light into the murky recesses of the shambles that is the administration of their injury pensions, is done to annoy and smear? What utter hogwash! What a frankly outrageous attitude to display by someone who is supposedly trained and skilled in the art of diagnosis. What an example of bias overcoming logic.

Doc, your diagnosis is wrong. YOU, and the other people who have not got a clue about how to properly administer police injury pensions, are the disease. IODPA is the cure. We challenge because we have been attacked. We seek information because none is freely given out. We point out deficiencies because nobody has the wit or the will to remedy them unless backed into a corner.

 It is people such as Dr Bulpitt and Dr Johnson, the SMP used by A&S, who are smearing the Occupational health unit. They are dragging the unit into disrepute by abusing the Regulations.  Uncovering the truth of what is really going on cannot be twisted into smear campaign.  Smear tactics differ from normal discourse or debate in that they do not bear upon the issues or arguments in question.  On this website you will only find disclosure and arguments that always bear upon the focus of unlawful administration of injury awards.

The unguarded admission by Dr Bulpitt is another example in a long line of examples of how far some public officials will go in attempting  to undermine legislation.

Frustrated that Avon & Somerset legal services advise that it is unlawful to reduce an injury pension banding where an IOD pensioner disagrees with the SMP’s report and withdraws consent for it to be disclosed to the police pension authority, Dr Bulpitt states that he is at a ‘crunch point’.

Prevented by the GMC to force the release of a report that a SMP makes on an individual and unable to revise an award without it, his considered reaction is to ask the Home Office to change the law for him to provide immunity for SMPs from oversight by the GMC.

 

I know that others have written about this but surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their  interests first?

Their insistence that we have to offer to share our report with the pensioner/applicant first is very difficult and potentially will prevent the review  of pensions if, as my legal department tells me, we cannot alter the pension without that report  and the pension authority cannot insist on it being released. They (the GMC) are adamant that  we must put the pensioner first and if that means not adjusting a pension to the correct level  then so be it.  My concern is also that this is getting so unpleasant for doctors we are getting very limited in our  selection of SMPs. FMAs are now very rarely employed and tend to turnover very quickly.

We cannot alter the pension without that report”.  Rather a conspicuously revealing and graphic sentence.  He uses the accusation of a conspiracy to save money in a dismissive throwaway comment concerning a pensioner who was unlawfully reduced in – cough! – ‘good faith’ three years ago.

 

[redacted] is being investigated over a decision [redacted] took 3 years ago when [redacted] had been instructed to review a pensioner who had reached the age of 65 and drop their award (we now know that is incorrect of course but [redacted] acted in good faith at the time). [redacted] contacted the GMC but has been frustrated by the apparent lack of any understanding of the role. The pensioner had his pension restored at appeal but has now gone on a crusade, accusing [redacted ] of “colluding with the pension authority to save money”.

But “we” (not the independent and supposedly impartial SMP) want to alter the “preposterous” award, he says!

You can make your own mind-up whether Dr Bulpitt is seemingly in cahoots with others.  The use of “we” in the above context goes nowhere in quashing any suspicion that the SMP is not totally his own man and the goal is to alter the pension in all circumstances.  You don’t need to be a clairvoyant to predict the direction of the desired alteration.

The Faculty of Occupation Medicine, of which Dr Bulpitt holds the FFOM post-nominal, has a ‘Competency 4‘ that governs the relationship between the occupational health doctor and the patient.

The absence of the usual therapeutic relationship between patient and doctor does not exempt the doctor from his/her professional duties imposed on all members of the profession..

Dr Bulpitt appears adamant that this should not apply to some members of the public and it seems he thinks that the required doctor-patient relationship is absurd.

 

surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their interests first

The role is described as quasi-judicial but I see  little that is “quasi” about it. Surely it is not a doctor-patient relationship as we would understand

They (the GMC) are adamant that we must put the pensioner first and if that means not adjusting a pension to the correct level then so be it.

But it is not just the demands of the GMC, is it?  To be a FMA or a SMP the National Attendance Management Forum demands a prerequisite of membership of the Faculty of Occupational Medicine.  It is Dr Bulpitt’s own specialty designated body that demands the same compliance.

Given the Regulations are paramount and the Home Office refuses to release any central guidance in relation to injury awards, Dr Bulpitt continues forlornly, with a sigh of desperation and acknowledgement that some forces refuse to review contrary to the Regulations.

 

Can anything be done about this because we are in danger of the whole thing grinding to a halt?
So far as I know the Met are still not carrying out any reviews and have stated publicly that they  will not be doing so.

The Home Office sensibly skirts over the rant and calmly explains to Dr Bulpitt that the Regulations require a medical authority and the GMC therefore have primacy over the behaviour of any medical professional.

 

Hi David,
Thank you for your email. Whilst I understand your concerns and appreciate your comments it remains that as SMPs do fall within the remit of the GMC. You said that the GMC have been contacted to explain this issue but that the GMC do not seem to be understanding the role. Have any further attempts been made with the GMC to explain the role in further detail?
The Regulations state that the SMPs are being asked for a medical opinion and the fact that they sit under the remit of the GMC is something that cannot just be overridden through amendments to our legislation. It would be interesting to know more about the discussions which have been had with the GMC regarding this issue.
Kind Regards

Dr Bulpitt, and others with similar mindset, appear to have a clear appreciation or understanding of the laws that regulate their conduct in this area, but still they do their utmost to get around them.  When challenged, as we have so often witnessed in instances of other outrageous maladministration by public officials, they consistently fail to acknowledge that they have done anything wrong.

 

We are lucky here because our GMC liaison officer is very understanding and I took the  precaution of warning him that he would start seeing complaints. Thus far the GMC has not felt  any of the complaints against our SMP warranted investigation.  This has not necessarily been the case elsewhere

It is worrisome that Dr Bulpitt has apparently arranged an ‘understanding’ with the local GMC liaison officer.  Does this mean any complaint of wrongdoing is dismissed by the GMC responsible officer, regardless of the strengths and merits of the complaint?

Dr David Bulpitt’s position as Force Medical Officer has, we believe, become untenable with these shockingly offensive comments. He has demonised the entire population of disabled former officers who have injury awards, and his comments show extremely poor judgment and a surprising lack of sensitivity.

It is important that a doctor in a position of trust who is dealing with injured police officers and medically retired former officers enjoys public confidence and this is at risk with his continuing in the important role of Force Medical Officer.

We are so appalled at this insight into the recesses of the mind of Dr Bulpitt, and are so concerned about the bias and discriminatory attitudes which are revealed that we call for Dr Bulpitt to either resign quietly, or if he will not, for him to be dismissed.

If Avon and Somerset wishes to see a return to normalcy in its relationship with injury on duty pensioners and the emergence of good governance of police injury pensions, then this stumbling block named Bulpitt must go.

This is the full email chain.  Keep in mind if this is what Bulpitt sees as a measured email to the Home Office, what is he saying and doing in the privacy of his own office?

http://iodpa.org/wp-content/uploads/2016/08/38800-Annex.pdf

38800 Annex
[hover the cursor over the page to read all 4 pages or to download pdf]

Merseyside Police do not review Band 1 Injury Awards

Merseyside Police do not review Band 1 Injury Awards

“The people heard it, and approved the doctrine, and immediately practiced the contrary.”
Benjamin Franklin, The Way to Wealth

The most glaring source of scepticism towards Merseyside Police’s affection for the Police Injury Benefit Regulations can be summed up in  five words: ‘they never review band ones’.

Merseyside Police recently set about conducting a mass review of the degree of disablement of former officers retired due to injury on duty, and who exist on an injury pension paid as compensation for those injuries. Merseyside conducted 502 such reviews last year.

We in IODPA have good reason to believe that these reviews were motivated by an intention to try to save money, and not by any concern to ensure that the pension Regulations were being properly applied. Merseyside was not looking to see if anyone was being paid their injury pension at too low band or too high a band, which would be appropriate if there had been some substantial alteration in their medical condition. No, they set out to see if they could reduce pension payments.

They accordingly started their review programme with those pensioners who are on the highest band of degree of disablement. The highest band pays the highest level of pension attainable, and, can’t be increased, but, Merseyside reasoned, might be reduced.

We revealed in an earlier blog how ‘only’ 25 individuals had their injury pension payments reduced. We don’t know by how much. We pointed out that it was beyond belief that not a single disabled former officer was found to be in a worse condition and given an increase in injury pension payment. Statistically, this lack of any increased pension payments is not possible.

The overall impression is that despite the fact that the Regulations impose on Merseyside’s Chief Constable (as the Police Pension Authority) a duty to ensure that police injury awards are administered fairly and lawfully, the Medical Retirement Officer (MRO) is happy to ignore the law when it suits him. It was the MRO who instigated and managed the reviews, and he has placed his Chief Constable in a very difficult position.

There are 880 individuals retired from Merseyside who receive an injury pension, 502 have been reviewed.  The remaining 378  are all on band one pensions – the lowest payments – and this force has a policy not to review people who have no possibility of having their awards reduced.

Merseyside has ensured our cynical view of its motives by admitting they don’t review band ones. This admission is the clearest possible illustration that it is Merseyside’s view that if there are no pips to squeeze, why get the juicer out of the cupboard?

Here is the admission, obtained via a Freedom of Information Act request.

FREEDOM OF INFORMATION REQUEST DJ 092/14 – RESPONSE merseyside
REQUEST RESPONSE
The Medical Retirement Office of Merseyside Police recently sent out a number of letters, together with a questionnaire, to former officers who are retired and in receipt of an injury award pension.

The letters requested that the recipient complete the enclosed questionnaire with a view to considering whether his/her injury pension should be reviewed.

The questionnaire is entitled, ‘Review Of Injury Award Questionnaire’

I am requesting the following information in relation to these letters and questionnaires:

1) How many have been sent out?

2) How many is it intended to send out within the next two months?

3) What criteria were used to select the recipients? When answering please pay particular attention to whether recipients were selected by reason of their age, or by reason of them being at or around what would have been normal compulsory retirement age for the force, or for reason of the degree of disablement of the recipient.

1) The process commenced in 2014 and a total of 35 questionnaires have been sent out to date.

2) Within the next two months it is anticipated that a further thirty questionnaires will be sent out.

3) The criteria for selection of injury award review were based on Band 4, then Band 3, then Band 2. Band 1 will not be reviewed unless requested by the former officer and in that case they would be seen as a priority.

As the self-proclaimed architect of  Merseyside Police’s retirement policy, it seems that the MRO enjoys the privilege of making up the rules to suit himself, and ignoring the Regulations whenever the fancy takes him. We understand that he, as a matter of common practice, acts completely outside the restrictions of the Regulations and makes decisions that he is not empowered to make.

We hear that he decides who will get an injury award and who will be refused. He does this without benefit of medical qualifications, or any meaningful input from the force’s tame SMP or FMA. We believe that the 502 reviews of degree of disablement were done similarly, with little to no consideration of medical matters, and were decided on the basis of a person’s income.

Some police forces have been quick to declare they have a duty to review degree of disablement, citing a positive power to do so, often quoting that a SMP has ‘recommended’ when an individual might be reviewed.  However, these forces do not exhibit moral consistency when they ignore where a SMP may have advised, on a decades old retirement certificate, not to ever review the individual concerned. How many of the 502 who Merseyside reviewed had ‘no reviews’ or ‘no further reviews’ on their certificates? Where was the individual consideration whether a review was indeed appropriate?

The stench of of hypocrisy hangs heavily over Merseyside, but proves nothing about the topic – in reality there is no legal authority for Merseyside to say they won’t review band ones, en masse, just like there there is no legal requirement for a SMP to recommend when a review might take place, or to exempt someone from reviews.

Merseyside completely misses the point, which is that the PPA is required – legally required – to exercise discretion in each individual case. If the PPA (in reality the MRO with one eye on a bit of brown-nosing and career enhancement) decides to review all injury pensions, except for band ones, then there clearly has been not even an imperceptible nod in acknowledgement of the need to decide whether a review would be appropriate in each individual instance.

Below is the result of a recent Freedom of Information request which provides damning evidence that Merseyside will not rest until all injury awards have been reduced to the bare minimum.

FREEDOM OF INFORMATION REQUEST Ref. SM4011/16

REQUEST RESPONSE ADDITIONAL INFORMATION
In FOI request SM322/15 you state that the review was restricted to band 2 and above. Please provide me with the reasons that band 1’s were not reviewed. We can confirm that historically Merseyside Police have not reviewed Band 1 Injury Awards unless the review has been requested by the ex officer themselves The rationale for this approach is that the Force Medical Advisor, acting in the role of Selected Medical Practitioner, records on their certificate “No further review”. The pensioner is provided with a copy of this certificate confirming that this is the case. Therefore they have been formally advised that there will not be a review of their award.

The proposition that an administrative authority must act within the powers conferred upon it by the legislature may well be considered the foundation of Administrative Law. In Latin, ‘Ultra’ means beyond and ‘Vires’ means powers. Thus, the expression ultra vires means an act beyond the powers.

A Selected Medical Practitioner who writes ‘never to be reviewed’ on a former officers H1 certificate is acting beyond their statutory duty. They might have decided the person being assessed for an injury award will never work again, or their condition may likely never improve, but the Regulations do not bestow any authority to allow the SMP to declare that someone should never have their degree of disablement reviewed. Merseyside has seized on these ‘recommendations’ as reason to abandon the over-riding duty of the PPA to ensure that the correct level of injury pension continues to be paid.

What a SMP thought, some years ago, can never be more than a guess. Maybe an informed guess, but as nobody can predict the future, it is plain wrong to claim that a guess, made outside the Regulations, as a sort of extra-regulatory add-on to a certificate, should bind a PPA as to its future actions. If the PPA is claiming that these recommendations are binding, then the PPA is wrong. If the PPA fails to consider, from time to time, for each and every individual who is in receipt of an injury pension, whether their degree of disablement has altered, then the PPA is fettering the power of discretion which the Regulations require he exercise.

We also must question the reason behind any SMP recording on a certificate or in a report his opinion that an individual need not be reviewed. It is not beyond the realms of possibility, given the rampant corruption that we know is the norm in some forces, for the SMP to make that recommendation with the deliberate intent of ensuring that someone who should properly have been placed in a higher band of disablement is never seen by any future, more honest, SMP who would conduct a review and see that the original decision was flawed.

We pause here to speak directly to all the Merseyside pensioners who are on band one. We say, if you have reason to think that you should have been placed in a higher banding when granted your injury pension, or if you feel that your degree of disablement has substantially worsened since you retired, then you should seek professional advice – via IODPA – as any earlier decision on degree of disablement can be challenged by means of regulation 32-(2). That regulations allows the reconsideration of any earlier decision, without limit of time. So, even if you have been retired for many years, you can request that the PPA arrange for any earlier decision to be looked at again.

We recommend that you think carefully about the benefits of using regulation 32-(2) over simply asking the PPA to conduct a review. A review may increase your banding, but any increase in pension payment will commence from the date of the review. If you ask for and get a successful regulation 32-(2) reconsideration of an earlier decision, where the SMP decides you should have been placed on a higher band all those years ago, then you stand to be paid all monies lost by underpayment for all those years, with interest added.

When we look at what Merseyside are saying in the above FOIA response, we have to point out that  it is scurrilous to claim that pensioners were advised they were never to be reviewed. Merseyside could not make that ‘promise’ (or was it a threat?) without breaking into pieces a fundamental part of the Regulations, which is the provision for the PPA to exercise discretion over whether or when to hold a review. Merseyside could not bind any future office-holder’s power of discretion, nor could Merseyside effectively say that the individuals concerned would never experience any alteration in their degree of disablement.

The point is that the Regulations definitely do not allow a band one to be treated any differently from a band four. Merseyside has deliberately set out to deny all the people who are on band one injury pensions any chance of having their pension increased. The recent mass review unfairly discriminated against all former officers who are on band one.

Some HR managers may ask, ‘Why can’t a former officer be labelled as ‘exempt from review’?  The answer is that the Regulations do not confer the power of exemption upon the decision  maker. The decision maker under the Police Injury Benefit Regulations is the Selected Medical Practitioner (SMP) but the decision itself belongs to the PPA.

The way that decisions are to be made has been clarified by cases which went to Judicial Review, but it is still surprisingly common for HR managers to still not understand the profound subtlety of what His Honour Judge Behrens declared in paragraphs 66 and 68 of Crudace, R (on the application of) v Northumbria Police Authority [2012] .  HR managers seem to think that the decision is only for the PPA to make.  It isn’t – the decision is owned by the PPA but it is delegated to the SMP.

  1. He accepts, of course, that the actual decision is made, in the first instance, by the SMP or on appeal by the PMAB. He also accepts that both the SMP and the PMAB are independent. However he submits that the decision is still a decision of the Police Authority albeit a decision that has been delegated to the SMP/ PMAB by regulation 30(2) or 30(3). He referred me to paragraph 18 of the judgment of Laws LJ in Laws where he referred to the decision as being of the Police Authority (via the SMP/board). …

…68.It seems to me that the wording of regulation 37 makes it clear that the decision to revise the pension is the decision of the police authority. It follows, in my view that the decision of the SMP and/or the PMAB on appeal can only be as the delegate of the Police Authority. This is so even though they are independent and the Police Authority is bound to accept their decision as final (subject to reconsideration under regulation 32(2) and/or judicial review).

If the SMP records that it is his opinion that a person should not be reviewed for medical reasons then that is well within his medical judgement to say so and this shall carry weight in any future considerations but the SMP as the promise maker, nor the promise recipient, has any power to enforce it.

That being said there will have to be exceedingly strong and compelling evidence to allow a review if the previous SMP had declared that such a review would be harmful to the former officer’s health.  Just being a band one is not a medical reason and is as opposite to compelling as can possibly be.

The decision maker can declare that a review should be avoided if at all possible:  A SMP might well want to write,“In my medical opinion this former officer should never be reviewed as it will be to the detriment of his health” but such sentiment, or opinion, is worlds away from writing, “I have made a promise to this former officer that he shall never be reviewed”.  Some people reading this will have documents stating exactly that this –  that the last SMP they saw made such a promise to them – but unfortunately a substantive promise cannot be upheld if it is ultra vires.

A declaration made on a medical certificate recording “No further review” giving formal advice that there will not be a review of an individual’s degree of disbalement just because they are a band one is a travesty of not only the Regulations but also the foundations of administrative law.

The statute is clear that there are only two agents involved in the decision making process, the PPA and SMP – so how little weight shall be put on the decision of a civilian medical retirement officer who is telling the force medical officer to write on a certificate to never review someone purely because they can’t be reduced further?

Until Merseyside performs the necessary checks to make sure all the band ones retired from that force are receiving the correct award entitlement, that none of them have suffered  deterioration in their degree of disablement in relation to their earning capacity, and as a result of  these checks a relative proportion of the band ones are increased up a band, then scepticism of their true illegal intentions will forever remain.

Merseyside’s claim that band ones can self-refer themselves if they ever want to be reviewed is ridiculous, given many will not realise the option is open to them, and those that do know will not want to flagellate themselves by dealing with corrupt elements of an organisation which are determined to abuse the scope and purpose of the Regulations. Not a convincing argument by Merseyside Police to encourage a band one to volunteer to put themselves forward.

Remember, pensioners, and take note Chief Constable, that in 2015, in all the reviews of bands two, three and fours, not a single award was increased. Something is rotten in Merseyside, and the smell will only get worse unless someone takes a broom and a shovel and does some stable cleaning.

Nottinghamshire Injury on Duty Reassessment Program – Part 2

Nottinghamshire Injury on Duty Reassessment Program – Part 2

“People who know what they’re talking about don’t need PowerPoint.”
Walter Isaacson, Steve Jobs

Welcome to part two. If you missed part one, here’s the recap:  Dr Ralph Sampson and Stephen Mitchel of Nottinghamshire Police, in December 2015, gave a presentation to National Attendance Management Forum (NAMF) delegates about how they are attempting to save millions of pounds by ‘cunningly’ and nefariously reducing injury awards.  The nightmare scenario of an active SMP such as Dr Sampson making an unintentional error of revealing his subconscious feelings that a review allows him to perform a ‘reassessment’, mixed with the total absence of referencing any case-law to the audience, leads to emboldened NAMF delegates going back to their forces thinking IODs are ‘ducks to be lined up’.

Notts-IOD-Presentation.pdf

Notts-IOD-Presentation

*click image & use arrows to view all pages

Jumping straight in to where we left off in part one, slide 6 is a rather amateur  and extremely poorly presented summary of some of the statistics generated by the Notts ‘reassessment’ program so far.  There are few people on this planet that would admit to liking staring at text more than they like staring at pictures. Text takes time to read and it is boring to look at. But perhaps worst of all, when an audience is given text, they will, out of habit, attempt to read it. As they do so, you will be talking and they won’t be listening—because they’re reading. But they won’t be able to concentrate on what they’re reading because, well, you’re talking. It’s the vicious cycle of PowerPoint un-communication.

This is expounded further when the numbers don’t add up.  And the audience aren’t going to argue otherwise as they’re all too busy trying to fathom out what the heck is going on in the jumble of words in front of them.

6.Numbers so far

  • 381 former officers in receipt of lOD pension,
  • 281 aged under 70 and included in programme
  • Concluded or currently in process = 235 (16 batches) (87%)
  • Number of paper reviews undertaken so far = 140
    • 62 ‘no further action’ (44%)
    • 78 ‘ possible substantial alteration” (56%)
  • Individuals where SMP review no longer required:- 26 (deceased; age
    exempt; band 1 non-participants; terminal diagnosis)
  • 78 SMP face to face assessments
    • 2O reduced
    • 1 increased
    • 21 remained same
    • 27 appointments scheduled
    • 9 seen and Force awaiting outcome

In about five minutes we’ve cobbled together this graph.

Notts1

It isn’t perfect but we weren’t the ones giving the presentation.  What it does show is,  out of the numbers given above, 69 out of the 381 are unaccounted for.  They haven’t been reviewed, presumably they aren’t going to be reviewed and they are not in the exempted cohort.

What’s happened to them?  These numbers represent people – disabled former officers and Notts have just erased them from their presentation.  Perhaps they are selective in the data they want to portray. Notts definitely aren’t persistent in chasing a ‘non-engaging band one’ in comparison to when they attack, with shark-like ferocity, a ‘non-compliant’ band four.

The bottom line is that any way that you look at the figures, they are wrong, and they do not stand up to scrutiny.  We have provided the proof of our assumptions at the bottom of this page for the benefit of the mathematically minded. *

This presentation is purportedly given by ‘professionals‘ to ‘professionals‘. They can’t even get their maths right.  Dr Sampson supposedly makes sophisticated calculations of a former officers degree of disablement down to 2 decimal places but he is unable to subtract from 381.

7.Numbers so far

Of 42 ‘face to face’ SIVIP assessments where advised of outcome (28 days elapsed) – 21 changed bands (50%)
PMAB appeals = 3 potential
Numbers reduced to B1 due to non-compliance : O
Number of official complaints = 1

Slide 7 is aimed at promoting the perception that  their ‘reassessment’ program is all about forcing a change to bands and spinning the lie to the NAMF delegates that there are few pitfalls.  There is no neutrality and the agenda is always to change the status-quo. Why emphasis those changed when those kept the same outnumber the former and have just as much  relevance?   There has been 1 complaint and 3 appeals.  This slide skirts over the reason for the appeals and fails to state the outcome of the complaint.

Just because there is no appeal, it doesn’t mean the decision was just or legitimate.  Perhaps the ‘fight’ has left the former officer and they can’t cope with the dehumanising nexus of appeal forms and procedure.  Despite the strength of their appeal, they make a conscious choice that appealing against the  harmful side of bureaucracy is futile.  In the Judicial Review case of Crudace, the presiding  judge stated that twenty-one appellants withdrew their appeals after receiving a letter from the force Solicitor Nicholas Wirz, that in effect threatened the disabled former officers with a £6,200 adverse costs award if they persisted with their appeal.

Winston Churchill once said that the whole history of the world is summed up in the fact that when nations are strong they are not always just, and when they wish to be just they are no longer strong. And there is the clearest explanation possible of the case for justice where the former officers involved are not strong enough to do that themselves.  Banking on the weak to not appeal is a pitiful and inexcusable show of strong-arm tactics.

Stating the number of appeals is meaningless.  As far as Sampson & Mitchel are aware all twenty that were reduced could be submitting their complaints to the Pension Ombudsman.

The red highlighted bullet point shows the new invented weapon in the armoury of those SMPs trained by NAMF.   The weapon of mutual destruction (WMD) is in the form of ‘if the former officer is non-compliant then we will reduce to band one.’  Of course, such a bullying course of action is not permitted anywhere in the Regulations.  The presentation makes no reference to the actual Regulation 33 that only permits the police pension authority to make a determination on the available evidence if there is a failure to attend a medical examination.  Pressing the ‘big red button’ on this WMD will be financial catastrophe for the victim but the response would be so massive that Notts would suffer “assured destruction” at Judicial Review.

8. £ to date

Funding for programme agreed
GP notes – approx £50 each
Impact to date -18 out of 21 that have changed band = £10ok net saving per year
With average life expectancy estimated at age 83…possible £20 million saving on the cases so far.

And the spin continues with slide 8.  With a slide callously titled ‘£ to date‘ there is no doubting this is all about the money and this not about a genuine medical assessment, but rather, an opportunity for Notts to take away the injury award the former officer is entitled to.

The slide assumes the ‘savings’ are fixed.  That Notts have got what  they wanted, they can spend the £20 million they will save over the lifetime of those reduced and that’s the end of the matter. This could not be further from the truth.

This mindset is further evidence that Sampson cares not for the Regulations but only to please his bosses.  Those reduced on his evidence of an improvement to their degree of disablement are surely, under the logic of Sampson’s suitable interval and positive power to review, absolute certainties to be reviewed again and their degree of disablement invariably likely to deteriorate accordingly.

Sampson & Mitchel surely can’t  be insinuating  that Regulation 37 vanishes once Notts  have got their way, and once the goal of reduction is achieved then the former officer is gone clean out of their mind and consigned to oblivion?

The stench of hypocrisy oozes from slide 8.  Later in the presentation (slide 15 to be exact) Sampson makes his brazenly duplicitous point that former officers were ‘reluctant to engage’ and there is a ‘misunderstanding from officers who claim previous SMP advised for life’.  But in slide 8 Sampson is saying the reduction in banding is for life – with no balance check review ever again to see whether the reduction is perdurable.

9.

We have heard recently of an Australian qualified physiotherapist who is being used as an SMP. He has never practiced general medicine and although registered with the GMC is not on the GP register. How could someone like that be qualified to form an opinion on PTSD or complex trauma injuries? I wouldn’t let him lance a boil on my bum let alone make a decision about my degree of disablement.
I am sorry to say, but he is by no means untypical.
Forces are deliberately hiring the lowest level ofthe medical profession – those for whom payment was” ___is more important than professionalism

Slide 9 would be hilarious is the issue wasn’t so serious.  A bias SMP, dancing to the tune of his paymasters and forgetting his Hippocratic oath, criticising other forces from using not only an physiotherapist – but an Australian physiotherapist!  The nerve.  These antipodeans coming over here and taking money from members of the faculty of occupational health – it’s obscene!

10. IOD REVIEW – Medical Assessment – REG 37.1

No pre-conditions for Reg 37.1 review suitable intervals
Degree of disability vs degree of disablement Need to clarify
Complete GP records/OHU records
Can’t revisit causation
Reviewing LOE calculation

Slide 10 incorrectly says there is no pre-conditions for a suitable interval.  If this was the case the ‘suitable interval’  qualifier would not have been written into the Regulations.  In fact the interval between reviews has a defined pre-condition – it has to be suitable, right or appropriate for a particular person, purpose, or situation.  The pre-condition is implicit.

The presentation is also confused about their remit as they need to clarify whether a review concerns the Degree of disability vs degree of disablement.  Surely it is rather too late to be asking such a question?  The revisiting causation is a contradiction as that is exactly what they do in slide 14 but we will come to that later.

LOE is their acronym for level of earnings.  Again this is contrary to the Laws judgement.  We think that the 3 appeals now have the evidence they need to overturn Dr Sampson’s decisions.

11. IOD REVIEW – Medical Assessment – REG 37.1
Degree of Disablement – The degree to which their earning capacity is reduced by the injury condition, and expressed as a % of the appropriate comparator salary

(UEC-AECVCOMP SALARY
UEC – Uninjured earning capacity – same as Comp salary if no non-injury conditions affecting earnings
AEC – Actual Earning Capacity – takes into account injury and any non-injury conditions if present

Slide 11 defines degree of disablement.  Sampson & Mitchel are totally incorrect to say it is expressed as a percentage of comparator salary.  In fact it is minimum income guarantee expressed as % of the final average pensionable pay.

12.

Change in assessed LOE
Change in assessed LOE
Medical condition – improve/worsen
Non injury medical conditions affecting work capability/earnings
New Training/Qual Skills
New job/career opportunities – may be evidenced by salary

Slide 12 shows this ‘reassessment’ program is really an unlawful work capability test.

13. Outcomes so far
Paper Screen – 157
Assessments – 55
No change – 22
Change in perm disabling condition – 2
Non injury conditions – 14
Salary – 6
Change to comparator salary – 3

Slide 13 is another example of Sampson & Mitchel’s figures not standing up to scrutiny.

Remember slide 6 and the bullet point informing everyone that 140 had been papered reviewed?  By slide 13 of the same presentation this number has increased to 157.  In other words, whilst Sampson & Mitchel were talking to the NAMF delegates, at the same time and without a pause of breath, they magically managed to paper review another seventeen people.

Of the  former officers who had a change of banding, only two had a change in their disabling condition – the prerequisite for substanstial change as dictated by the Laws judgement.  But again the numbers do not add up.  Earlier in the presentation it was stated there was twenty-one former officers who evidenced substantial alteration and had their bands changed.  On this slide the count is twenty-five.

2 + 14 + 6 + 3 =  25 

Fourteen former officers had their award reapportioned.  Six reported a salary of whatever amount and had their awards changed.  It is evident that Sampson has not been following the Laws determination at all.

14. Diagnoses l Causation
LBP – playing table tennis at lunchtime
No of sports injuries
Neck Pain – 80% – then commercial pilot for 12 years
Collapsing chairs
Psychological defects of Low Self esteem and Low Confidence” Band 1

Slide 14 revisits causation.  An avenue barred to any SMP upon a review and explicitly referred to as verboten in slide 10.   This slide is one of those faux ‘humorous’  ones – put in so that everyone in the audience can have a good giggle.  The commercial pilot anecdote is intended to spark outrage from the delegates.  What it takes out of context is the pilot could have been earning £160K a year if his neck injury didn’t restrict his flying hours.  Instead he is only earning, say £80K.  This analogy is pure supposition, but technically this fictional example has lost 100% of his potential capacity to earn.  Rather than point out a similar possibility, Sampson & Mitchel use a sensational tabloid headline, absent of any context, to get the delegates ‘clucking’.

Mentioning sports injuries is another example of sensationalism.  The last final decision is a given and it is not up the the SMP to revisit the medical judgement of the previous doctor.

The ‘loss of confidence’ is a repulsive bullet point.  If the index injury is, or leads to, an impact to self-esteem of the former officer by psychological detriment to the capacity to earn then the award is designed to reflect this.  Such a detriment often means that there is no prospect of maintaining any employment.

A previously high-functioning individual who attained all the tests to become a police officer and is now unable to leave their home due to psychological affect of low self-esteem and poor confidence is, by definition, suffering from a personality disorder.  People with avoidant personality disorder often consider themselves to be socially inept or personally unappealing and avoid social interaction for fear of being ridiculed, humiliated, rejected, or disliked. As the name suggests, the main coping mechanism of those with avoidant personality disorder is avoidance of feared stimuli.

Let’s emphasis again that these people used to be police officers – an occupation where avoiding stimuli is the antithesis of the necessary qualities required – and their index injury has forced them along the road to suffer from such a disability.  To proclaim in such circumstances that it is an automatic band one fails on all measures to take the position of the individual into account.

15. Lessons Learnt / issues

lnitial letter despatched Christmas time – Fed / NARPO availability
Locate relevant IOD information
OHU and IOD files mixed
Addresses ~-~- stage 3 / those that live abroad
Former officers reluctant to engage in process
Misunderstanding from officers who claim previous SMP advised ‘for life’
Some former officers want reassurance medical records and questionnaire are not seen by non-clinical staff
Draft report – 28 days
Overpayment recovery
Traveling – Skype?

The ‘lessons learnt’ mention that a batch of review letters were sent just before Christmas time.  Notts police is such a heartless and uncaring organisation that it never struck them at the time that this was a bad idea.  They aren’t seemingly concerned of the impact to the individual by dumping such grief over the festive period – they just think its a lesson learnt because local Fed & NARPO couldn’t answer the worries of those affected as they were off enjoying their own Christmas break.

NAMF allowed Sampson & Mitchel to present their talk as so-called ‘experts’, to help delegates to fill in their gaps, to add to their shallow knowledge concerning reviews. Supposedly they had the hands on experience.  Instead they’ve perpetuated all that is wrong with mass review programs.

These ‘experts’ are stuck in their own prejudicial thinking and are inflicting significant harm onto disabled former police officers. When SMPs such as Dr Sampson perform reviews just as a cost-saving mechanism they are renouncing  the ethics, morals, culture, empathy, philosophy and understanding of their role as the medical authority required by the Regulations into much simpler factors based on numbers and calculations. They are manifestations of the phenomenon of  doctors who know the price of everything and the value of nothing.

They are anachronisms who deny the changes, the evolution that’s happening since the case-law has defined how reviews should be carried out post HOC 46/2004.  Their so-called experience is jaded (and diminished) by the ‘way they’ve always done it wrong’.  They should not be allowed sustain the errors by briefing others.

So that’s it.  There are bound to be glaring misdemeanours that you have found and we’ve missed.  Feel free to post such findings in the comments.

 


*The proof:

Out of 381, 100 are age exempted – excluded because they are over 70 (why can’t those over 70 go up a band?). Of the remaining 281, 46 are yet to be contacted at all. This leaves 235. 62 are No-Further-Action. We are down to 173. 78 include those where they think there is evidence of substantial alteration.
Of the 78, 20 have been reduced. 21 Not altered. 1 Increased. 27 Future Appointment.9 Awaiting an outcome

20 + 21 + 1 + 27 + 9 = 78

Let us take the 78 from the 173:

173 - 78 = 95

Ninety-five remain. the 26 who are deceased, terminally ill or are band ones who have not ‘engaged’. 

95- 26 = 69

Sixty-nine are left over. The 69 forgotten few.  All the colours match so you can check this for yourself. A missing sample of nearly 25% of the eligible 281 makes a mockery of the denominator used in their percentages throughout the presentation.

Nottinghamshire Injury On Duty Reassessment Program – Part 1

Nottinghamshire Injury On Duty Reassessment Program – Part 1
              A hypocrite is the kind of politician who would cut down a redwood tree, then mount the stump and make a speech for conservation.”

Adlai E. Stevenson II

Another definition of a hypocrite is someone who uses PowerPoint slides to say one thing to others although they value and believe something else entirely.

Recently Dr Ralph Sampson and Stephen Mitchel of Nottinghamshire Police (Notts) gave a presentation (perhaps using PowerPoint – other presentation software is available) at a National Attendance Management Forum conference (NAMF) to fellow NAMF delegates.

They were talking about how they do things in Notts.  The bad news for them is the former officers reviewed by them inform us that, not only are they confused about their statutory duty, they are selective in their own rules and advice.  Notwithstanding the rules used in Notts by Sampson and Mitchel, those that they wax lyrically to the NAMF audience, are predominantly worthless.

The presentation concerned how Notts are reviewing those former officers they have medically retired and awarded Injury Awards.  We have obtained the slides for the presentation and have put it out into the public domain. The talk given by Sampson & Mitchel sets out their intention to conduct reviews because of concerns over their obligated cost of paying the awards until the former officer expires at an average of 83 years of age. It also says that reviews are intended to assess degree of disablement. Both premises are wrong.

Constant readers of these pages will not be surprised to hear the conflict of interest of having Dr Sampson as not only the reviewing SMP, but also as concerned with cost savings as his Notts paymasters. Notts-IOD-Presentation.pdf

Notts-IOD-Presentation

*click image & use arrows to view all pages

There are 17 pages to the presentation so we intend to spread the talk about the slides over a couple of blog posts.  But before will delve into the first few slides, let’s have a quick look at the words used by Sampson & Mitchel.

As expected with a NAMF presentation where the audience are eager to hear ways to reduce their financial commitments, ‘salary‘ is one of the most frequent words in the presentation.  This table shows the 6 words most prevalent:

programme salary medical band review smp
Word frequency count 6 6 7 8 10 10

The frequent use of ‘salary’ just shows what their real agenda is.

We can’t find fault with slide one.  It just contains the title of the presentation. [edit: A reader has found fault. The use of ‘reassessment’ (unlawful) in lieu of the correct term ‘review’ is indicative of a Freudian slip – thank you Whendie]

Slide two starts with the ‘background’ and mentions ‘earnings’.

2.Background

  • Reg 37(1) of Police (lnjury Benefit) Regulations 2006 Forces can undertake a review “at such intervals as may be suitable, to consider whether degree of …disablement has altered”
  •  SMP to make a determination if/ how much earnings capacity has been affected
    Band 1 (<25%)
    Band 2 (25% – 50%)
    Band 3 (50% to 75%)
    Band 4 (>75%)
  • Minimum = Band 1

The red highlighted text shows that either Sampson is ignorant of the Laws case (unlikely) or he is intentionally willing to review former officers contrary to it’s judgements.  They fail to explain how it is beyond all improbability that the interval is suitable to all the people they intend to review  by pure chance alone.

‘Earnings’ is a word synonymous with salary and has no place in a review. Use of salary as the only measure is a failure to  follow the judgement of Court of Appeal in Metropolitan Police Authority v Laws and can only amount to an unlawful reassessment where a former police officer could find his injury pension being reduced because of a difference of medical opinion on his capability for work rather than there being any real alteration in the officer’s degree of disablement.  Sampson can not just ‘assess’ the degree of disablement.

The finding of Laws is that the SMP (or board) is not allowed to consider the pensioner’s current degree of disablement and then compare it with the previous assessment. The duty – the only duty – is to decide whether, since then, there has been a substantially altered change.

The right question for the SMP is not “what jobs can this person do today” but the comparative exercise of “has the impact of the index injury on the jobs she/he can do today substantially changed from the position at the last review date”.

The Laws judgement was reaffirmed in the case of Simpson. The conclusion in Simpson is clear. There can be no new consideration of notional earning capacity (i.e. what the officer would have been capable of earning but for his injury) unless and until there has been a substantial alteration in his physical condition or his present job opportunities, that is to say that something has actually changed since the last review, other than the mere passage of time.

But this isn’t what the NAMF delegates want to hear so Sampson & Mitchel play to the desires of their captivated audience.

3.Numbers / cost

  • 380 + pensioners in receipt of an IOD award
  • £3.36 million per year
  • No programme of review for significant period of timetherefore no up to date medical information to ensure pension payments more accurately reflected up to date individual circumstances and ensure public money being spent wisely.
  • Notts Force Executive Board decision to commence programme of review – all Bands included; age under 70 for this programme of review

Slide three mentions the annual spend on injury awards (just to emphasis their mission to reduce this figure).  The point of ‘not having a reviewing program for a significant amount of time‘ is a non-sequitur. A decision not to review is as much an exercise of a discretional power as a decision to review.  Notts admit that they had consciously chosen not to review, and now they have changed their mind.  Not knowing the individual circumstances of any given former officer is down to them and them alone.  Never do these people think that once someone leaves the police service, they want to live their private life without the constant forensic examination and prying into their personal matters by their former force.  Not having a review program is no reason to justify a new programme – quite the opposite.

Not performing any reviews gives a legitimate expectation that is based on the principles of natural justice and fairness, a maxim that seeks to prevent authorities from abusing power.  A substantive legitimate expectation arises where an authority makes a lawful representation that an individual will receive or continue to receive some kind of expectation that they will be not have to undergo the trauma of a force reviewing them.  Not reviewing is as much a lawful representation as reviewing itself.

The last bullet point on slide 3 is revealing.  It was the force executive board that decided to start a review program, not the police pension authority.  In other words finance officers, estate directors and HR directors all decided it was a good idea.  The police pension authority is not a committee – it is the Chief Constable wearing a different hat.

4.Preliminaries

  • Letter sent to eligible pensioners Dec 2013 advising that a programme would commence
  • Tendering process for SMP (OJEU – with Derbyshire and Leicestershire) – SMP appointment Spring 2014
  • Process – Liaised with Federation; NARPO;
    Regional Legal Services
  • Retained HR Admin support identified
  • No Regional OHU involvement

Slide four talks about who Notts have liaised with. It also mentions that there has been no regional occupation health unit involvement.  Could this be because they have destroyed all the occupational information data they have and are reviewing people ‘blind’?  They have apparently briefed local NARPO as well as the local Federation.  This is mentioned in the slide as if such an action provides their review program with legitimacy.  There is no mention of how the liaison progressed or whether any objections were raised.

5.Process

  • Sequence of review – eligible former officers who saw SMP furthest ago
  • Batches of 15 – approx six weekly intervals
    Former officer sent (1) GP consent ; (2) OHU file consent; (3)questionnaire to complete
  • Letters – 3 stages – 28 days /14 days / 7 days
    Following receipt of consent form, GP records requested
  • With completed paper/work, SMP undertakes ‘paper review” to make a determination if there has been potential ‘substantial alteration’ since assessment / last review
  • If no substantial alteration – end of process
    lf substantial alteration indicated – former officer requested to attend meeting with SMP
  • Following assessment, SMP produces report and officer has 28 days to indicate whether they contest findings

Slide five exposes the process.  The bullet points allude to substantial change but here is where the hypocrisy lies.  There is no mention of change to the medical condition.  It is about salary and nothing else.

Note that Notts expect the whole procedure for the 3 stages to be completed in 49 days!  Notts also wants full medical records as well the notorious questionnaire to inaccurately condense decades of life into unrepresentative bite-sized chunks.  The true agenda here is to examine the smallest details: a minute examination to enable apportionment and to revisit the original decision.

How can a questionnaire determine the existence of substantial change when there is no previous questionnaire, completed back-in-the-day, that can be used as a base line? The closed questioning leads to answers being interpreted in such a way that you can accomplish much more on the good days than on the bad days, the HR functionary will ignore any detail concerning your bad days and focus ONLY on what you can achieve on a good day.

Be in no doubt that the SMP will not be the one to perform this paper shift. An health professional is too expensive to contemplate and  slide four stated that regional occupational health units will not be involved.  Using a SMP at this stage will cost at least £500 per person if a competent preliminary valuation of the former officer’s condition is conducted.  It is ludicrous to insinuate that for 380 former officers they will spend £190,000 just to consider whether there has been substantial change before they call the person to attend a face to face assessment with the SMP.

Mass reviews, blanket reviews, wholesale review programmes; they are all names for the same thing – always an attempt to reduce, never to increase an award.  They are a conveyor belt with a predetermined agenda.  For the former officer it is equivalent to entering a Mafia controlled casino where the dice man, pit boss and croupier all have complete control over the outcome.  The review casino is selling an illusion that they are paying due regard to the medical condition correctly and that they are abiding by the Regulations.

That’s it for part one.  Part two will follow in the next couple of weeks.

Merseyside’s Hatchet Man

Merseyside’s Hatchet Man

Unlimited power is apt to corrupt the minds of those who possess it; and this I know, my lords, that where laws end, tyranny begins.

William Pitt – Case of Wilkes. Speech (January 9, 1770)

A hatchet man is a person employed to carry out controversial or disagreeable tasks, such as the dismissal of a number of people from employment. Merseyside Police employ a hatchet man with the grand title of Medical Retirement Officer (MRO) whose role is more sinister and which adversely affects vulnerable disabled officers and former officers.

His task is to prioritise maximum savings to the force budget, ‘through the robust investigation of injury award applications, appeals and reviews‘.

We quote above from his job description. This is what the man is hired to do.  Not placed there to help injured and distressed people obtain their lawful rights, but to ‘investigate’ them with the objective of reducing the amount of money which would otherwise be paid them by way of recompense for injuries incurred in the line of duty.

There is only one way to read the intention behind the role of MRO. It is a perversion of what the Regulations governing injury on duty pensions were intended to achieve. We fully accept that no public money should be awarded without due diligence. All well and good if ‘robust’ was taken to mean that great care should be taken to comply with the Regulations, but we see that in Merseyside they believe that ‘robust’ means doing whatever they think they can get away with to deny injured officers and former officers their rights.

What Merseyside’s MRO is doing is unlawful. And it is shameful.

We in IODPA are not naïve.  We understand all too well that there has to be some form of administrative procedure regarding Injury Awards which requires management by a functionary of some sort.  That being said, the functionary needs to be neutral with no set agenda other than the lawful application of the statutory duties imposed upon the organisation by the Regulations.

We are, frankly, appalled to see that the job description of the Medical Retirement Officer ignores this principle and imposes an agenda upon the position which prioritises the needs of the organisation over the rights of the recipient. The job description includes sentences such as:

[. . . ] ensure that any changes to pension payments are implemented and financial savings made where appropriate.

There should be no thought given by the Medical Retirement Officer as to the financial consequences on the force of helping to ensure the Regulations are applied lawfully. His role is an abuse of the scope and purpose of the Regulations.

When we see that the Medical Retirement Officer’s main objective is to save money for the Chief Constable it becomes clear that he can not possibly be acting lawfully.

We know, for example, that he takes it upon himself to decide whether any applicant for an injury award application is seen by the selected medical practitioner (SMP) or not.

On behalf of the Police Pension Authority, who is in farcical fact, not an impartial body, but is none other than the Chief Constable wearing a different hat, the MRO blithely breaches the Data Protection Act by forensic examination of the confidential medical records and reports of individuals.

No wonder the Chief Constable of Merseyside finds it hard to arrange for the Regulations to be administered lawfully. He is under pressure to reduce spending, and police injury pensions consume a significant part of his budget. But, that is a pill he just has to swallow. He is under a legal obligation to administer the Regulations properly. He is not entitled to look upon them as an expense which can be trimmed.

I refer the Chief Constable to the case of The Police Federation of England and Wales v. The Secretary for the Home Department (Neutral Citation Number: [2009] EWHC 488 (Admin) Case No: CO/7612/2008). This case concerned the date when new commutation factors for police pensions were brought into law.

Justice Cox stated:

The Home Secretary’s undoubted interest in the expenditure of police authorities does not in my view enable her to alter those rights and liabilities which arise under the Regulations.’

And:

Affordability and public expenditure implications are therefore, in my judgment, irrelevant.’

It is not within the remit of any Chief Constable to direct an employee to save money by means of unlawful manipulation the Regulations. It is an abuse of his authority to specify in a job description that the MRO must approach his task with the objective of making financial savings. The over-riding intention of the Regulations is that people should be paid at the level which is appropriate to the individual circumstances. There is ample mechanism within the Regulations to ensure that this is achieved. Nobody should receive more that their due, and nobody should receive less than their due.

Merseyside has deliberately set out to ensure that the latter situation is the norm.

The MRO decides regulation 37 reviews without the benefit of any input from the SMP. He decides who has experienced a substantial alteration in degree of disablement, and who has not – and does this, not on the basis of medical evidence, but on whether the individual has increased earnings or not. He operates a rule of thumb, whereby if someone has seen an increase of over 10% in their earnings then, ipso facto, they must have had a substantial alteration in degree of disablement.

This is what he instructs former officers who are on an injury pension:

‘. . .  if you commence work or if you are currently working and your gross salary increases by over 10% you are required to inform this department as soon as practicable.’

We have to comment that the MRO has no authority whatever to ‘require’ any private citizen to inform him of a salary increase. Moreover, we feel like shouting at the MRO that a pay increase does not in any way signify that there will have been a substantial alteration in degree of disablement.

What the MRO is doing is creating an iron link between wages and disablement, when, under the Regulations, no such link exists. Disabled former officers are free to earn whatever they can, and their employers are entitled to give them a pay rise if they wish. A pay rise can have no possible link with the level of an individual’s degree of disablement. The MRO is using this as a means of reviewing degree of disablement, as an excuse for holding a review with no good reason, and as justification for reducing the level of pension paid.

Merseyside have corrupted the purpose of the Regulations and turned its provisions on their head for the sole purpose of ensuring that disabled former officers are robbed of their correct level of injury pension payment. The medical basis of assessment of degree of disablement has been abandoned in favour of an actuarial exercise where the cost exposure to the force is the bottom line.

While any question under the Police Injury Benefit Regulations is medical by nature and always requires the opinion of a SMP, in Merseyside the SMP seemingly does not make the decisions. The SMP acts only as a rubber stamp for the pre-made determination of the Medical Retirement Officer.  The Medical Retirement Officer is like an injury award hitman-by-proxy, getting paid to maximise cost savings for the Chief Constable, with no fear of any comeback.

Disabled former officers and serving officers seeking an injury award are kept in the dark. It seems very successfully, for few of them have the knowledge required to realise that they are being ripped off. Many of them are in no fit state to raise a query, and thus accept the decisions conveyed to them with no realisation that the decisions have been unlawfully arrived at. Put simply, they trust their force to do the right thing by them when injured on duty to the extent that they can no longer perform the ordinary duties of a police officer.

Clearly, that trust is sadly misplaced. There are some 880 former officers from Merseyside Police who are paid an injury pension. They need to wake up to the fact that they have, in all probability, been denied their proper pension rights.

Of course, a few individuals do raise queries with the MRO. They question his decisions. Some even manage to take matters to appeal via a Police Medical Appeal Board. Merseyside plays the numbers game. A deliberate calculation has been made, which concludes that those few individuals who do request an appeal to a Police Medical Appeal Board are far outnumbered by the majority who have no idea that they are being denied their rights.

The Medical Retirement Officer makes the decisions but never has to face the consequences. He never has to account for or justify his actions, as he is not the one who would have to be listed as the respondent at a PMAB, or at a judicial review.

The French have a term for such a position: éminence grise (French: “grey eminence”), a powerful advisor or decision-maker who operates secretly or otherwise unofficially.  An apt English phrase is ‘the power behind the throne’, someone who does not have the ultimate official position in a government or organization but who secretly controls it.

The Medical Retirement Officer is not a qualified medical authority – but is deciding what are essentially medical matters. He is making decisions for the Police Pension Authority, and we question whether he has the delegated power to do so. The Chief Constable has already delegated the day-to-day operation of his role as PPA to the head or director of Human Resources. Delegata potestas non potest delegari is Latin for a constitutional and administrative law, translated as, ‘no delegated powers can be further delegated’ and may well apply here.

According to Merseyside, a Medical Retirement Officer as well as having the skills to save the force money should also have:

‘A good knowledge of investigative procedures [. . . ].  Knowledge and understanding of the Regulation of Investigatory Powers Act with regards to surveillance and investigation of officers and pensioners believed to be falsely claiming compensation.’

Not only shall the Medical Retirement Officer have the principle duty to reduce financial costs to the expense of those injured on duty, but he is also let loose with RIPA.

Judicial approval should be the norm, not the exception, for placing members of the public under surveillance and public authorities should be compelled to report how and why they are spying on disabled persons by abusing powers that were introduced to protect us from terrorism and serious crime.

There is no room for RIPA in the administration and lawful application of the Police Injury Benefit Regulations.  Medical evidence is paramount. If the PPA has any cause to think that any individual is working the system, the regulation 37 allows for a formal review of the degree of disablement. The individual can be medically assessed by a duly qualified medical practitioner, selected by the PPA.

The SMP alone should make an assessment, and a decision, and once made that decision is final. Should there be any attempt to exaggerate one’s medical disability a qualified clinician should have little difficulty in spotting it.  If  fraud is suspected then this would be a matter for a serious criminal investigation and prosecution.  It is not open to a Medical Retirement Officer to use RIPA as a means to maximise the financial savings to benefit the force budget.

An injury award is not a benefit that has to be reapplied for – it is an entitlement for life and is final once the high bar of the initial grant has been attained.

Is all the above too hard to believe? Can you bring yourself to realise that a police force, whose job it is to prevent crime, could allow disabled former officers to be put at the mercy of a MRO whose objective is to unlawfully reduce their pensions, and to do whatever it takes to prevent injured serving officers being granted an injury award?

Here is the job description of Merseyside Police’s Medical Retirement Officer  as obtained in a recent Freedom of Information act request.

000.JDQ-Medical-Retirement-Officer

This job description shows all that is wrong with the way Merseyside, and some other forces, are administering injury awards.  The glib references to following Home Office guidance is a poor attempt of virtue signalling – making a statement that blithely mentions the requirement to ‘follow guidance’ because it thinks it sounds right and it will garner approval, rather than because anyone will actually believe it.  This job description was created in February 2015.  The Home Office partially withdrew their central guidance for injury reviews in March 2012 and then completely in February 2014.  There is no Home Office guidance to follow.

Instead, the Home Office now prefers to keep away from the misdeeds of Chief Constables and their hatchet men. The Home Office now says,

‘We would advise, in the event that such reviews are being conducted or considered, that police authorities should satisfy themselves that they are acting in accordance with the regulations and the relevant case law in the light of the decision in Simpson.’

IODPA suggest that the Chief Constable of Merseyside take a long hard look at what has been done, and continues to be done in his name by the Medical Retirement Officer. If the Chief Constable fails to act then our suspicion, that every breach of the Regulations committed by the MRO is done with his approval and encouragement, will be justified.

There are 880 individuals retired from Merseyside who receive an injury pension. There needs to be conducted and independent and scrupulously fair and impartial appraisal of how each and every one of their injury pensions have been administered.

 

Award Bands and Length of Service

Award Bands and Length of Service

“Elections belong to the people. It’s their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”
Abraham Lincoln

Elections of police and crime commissioners in England and Wales are scheduled to take place on 5 May 2016. This will be the second time police and crime commissioner elections have been held.

There was little interest or enthusiasm from the electorate the first time round, but now we have had the opportunity to see how these commissioners performed, perhaps we might feel more inclined to use our votes – if only to get rid of the one’s who have proved themselves to be a liability.

One such is Sue Mountstevens, whose area is Avon and Somerset.

Soon after the 2012 elections, Sue Mountstevens and finance officer John Smith, without any understanding of the Regulations which govern police injury pensions, dreamt up a scheme to reduce the financial commitments of Avon and Somerset by seeking to reduce injury awards.

To emphasise their agenda they started with a selection of some of the disabled former officers who were on the highest band of disability and who were retired young in service. Clearly, Mountstevens figured this was where the most savings could be made. As John Wayne might say, ‘She sure figured wrong.’

217450070-avon-and-somerset-pcc-wants-to-cut-police-injury-pensions

[click and use the bottom left arrows to navigate to all the 4 pages, including Damian Green's decorous reply]

Other entries in this blog recount the outcome of the sorry saga that this abortive attempt to rob pensioners turned into. Rather than save money Mountstevens has cost the ratepayers a small fortune in payments to Dr Johnson, who decided that for the sake of his own reputation it was safer not to make any decisions rather than be blamed for the debacle.

So that a mistake of this magnitude won’t be repeated, we would welcome all PCC candidates to read the information posted on this site.

And to help all PCC financial officers we can hereby say with absolute certainty that mass reviews, or any process that has lurking behind it any intent to reduce the injury pensions of disabled former officers which is based more upon budgetary considerations than anything else, is unlawful and will be successfully challenged.

Choosing which pensioners to review solely by the band of pension payment they receive is improper, immoral and unlawful. It is no different to the unlawful and now withdrawn Home Office guidance of reviewing and reducing those who had reached compulsory retirement age.   That was aimed purely at saving money and subsequently cost those forces which had zealously implemented it hundreds of thousands of pounds in legal fees and compensation.  The unlawful guidance had the secondary affect of introducing a raft of case law from strong judicial decisions which defined how the Regulations should be properly administered.

The injury pension of any individual is unique to that person’s individual circumstances of disablement and any review of a pension has to occur only at a suitable interval relevant to that individual’s circumstances.  It may well be suitable never to review.  Lumping bands together in order to mass review is as much an abuse of the Regulations as saying those over 65 have no earning capacity.

Let’s take a moment to see how injury awards are calculated. Potential PCC’s please note.

An injury award is calculated by reference to the person’s degree of disablement, his or her average pensionable pay and the period in years of their pensionable service. Schedule 3 Police Injury Benefit Regulations provides for the following minimum income guarantee based on the band awarded and the length of service.

Degree of disablement Gratuity expressed as % of average pensionable pay Minimum income guarantee expressed as % of average pensionable pay
Less than 5 years’ service 5 or more but less than 15 years’ service 15 or more but less than 25 years’ service. 25 or more years’ service.
(1)       (2) (3) (4) (5) (6)
25% or less (slight disablement)         12.5% 15% 30% 45% 60%
More than 25% but not more than 50% (minor disablement)         25% 40% 50% 60% 70%
More than 50% but not more than 75% (major disablement)        37.5% 65% 70% 75% 80%
More than 75% (very severe disablement)          50% 85% 85% 85% 85%

As can clearly be seen, the percentages within each band increase as the length of service rises.  This means that those retired with more ‘reckonable years’ in service will always have a higher ‘minimum income guarantee’ (the injury pension)  than those retired young in service.

But how does this work with real examples?

Let us examine 4 hypothetical individuals (wages simplified and not lifted directly from police pay-scales):

#1 Retired with 4 years service with a final salary of £25000 ( less than 5 years)

#2 Retired with 7 years service with a final salary of £30000 ( between 5 and less than 15 years)

#3 Retired with 18 years service with a final salary of £35000 ( between 15 and less than 25 )

#4 Retired with 26 years service with a final salary of £40000 (over 25 years)

This diagram shows the proportion of minimum income guaranteed by each band and grouped by years service.  For example, Individual #1, with < 5 years service, has a potential band one figure of £3750 and a band four of £21250.  This is inclusive of both the medical pension and the injury award.

MosaicBand

As can be seen, a band one with 26 years service receives a higher minimum income guarantee than a band four with less than 5 years service.  Moreover, the injury award makes up a higher proportion of the minimum income guarantee than the medical pension for those with less service as obviously they have less accrued pension contributions. This seems logical as the older IOD (those retired with more service) has less years of life expectancy to be compensated for the work injuries received.  But this isn’t always the case.  A police constable could be in the their mid-forties and still be a probationer.

This is why just grouping by banding takes the whole award out of context.  The length of service and the final salary have strong correlations to the given band of the award, just as much as the injury itself.

Looking at the above plot you can see the blunder of targeting just the higher bands in any unlawful program of mass reviews.  Any such targeted action is age discrimination against those unfortunate enough to be injured young in service (note – not necessarily age, but service). Likewise, reviewing a band four at 60 years of age for the first time in decades, when they only have the  misfortune (apologies for the bluntness) for their health to deteriorate further and little prospects in any labour market when they have been unable to work in any capacity since leaving the police, is just as perverse.

Refusing to review band one pensions (such as has been the recent practice in Merseyside) is more to the detriment of those retired young service than those who were retired a couple of years shy of their full 30 years service.

Every decision to review has to be based on the individual.  A police pension authority has to apply their mind to consider whether it is appropriate to review that individual, by both first examining whether a suitable interval has elapsed and then considering whether the degree of the pensioners disablement has altered.

We in IODPA think that Mountstevens, her finance officer, and senior people in Avon and Somerset Constabulary reflected the attitudes which are prevalent in some other forces across the country. They think that because injury pensions are paid out of the force budget, then they are ‘fair game’. Such attitudes are wrong. Police injury pensions are protected by law – by the Regulations. They must be administered according to the Regulations and any impact on the force budget, for good or bad, should not enter into any decisions made concerning that administration.  The judicial review of R v. East Sussex County Council ex parte Tandy (page 9 paragraph 3) states

‘To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend money in other ways is to downgrade a statutory duty to a discretionary power.’

 In other words, in this judicial review the House of Lords found that, for a public body, the availability of financial resources is an irrelevant consideration when statute indicates a standard to be determined.  For injury awards the standard is defined in statute by the Police Injury Benefit Regulations 2006.

Mountstevens failed to realise that her duties did not extend into allowing her to interfere with the proper administration of injury pensions. We hope that her failure will serve as a warning and as a lesson to any new PCC who takes over her role.

Why Things Hurt

Why Things Hurt

“Of pain you could wish only one thing: that it should stop. Nothing in the world was so bad as physical pain. In the face of pain there are no heroes.”
George Orwell, 1984

This post is about the complexity of pain and the observation that the doctors used by police pension authorities are not able to comprehend how the world of a previously fit and high-achieving police officer collapses once they are injured on duty.  It shows that the consultants, GPs and clinicians of the former officer -who know of and have treated the individual – heavily out-guns the opinion of any given selected medical practitioner.

You haven’t had any contact with the police for years and now they want to reduce their financial commitment by reviewing your injury award .  There has been no change, in fact you’re worse now than ever.  You just want to be left alone to live your life.  Or you are a serving officer struggling on long term sick leave and currently the victim of an UPP.

How can an occupation health doctor make a valid judgement on your health in a 60 minute ‘interrogation’ – don’t fool yourself into thinking it is anything but an inquisition: imagine Tomás de Torquemada assisted by the full incompetence of a HR department.

An injury on duty can involve both body and mind and quite likely both.  A physical injury has psychological consequences. PTSD (Post Traumatic Stress Disorder), is caused when a person experiences an ordeal that causes physical harm or mental harm. The individual was either harmed, someone close to them was harmed, or they experienced events that was imprinted in their brains.  In PTSD, there are two main parts of the brain that are affected and also where all the chemical imbalance in the disorder is located at. The two main parts are the Hippocampus and the amygdala.

http://www.chemistryislife.com/the-chemistry-of-post-traumatic-stress-disorder

The hippocampus is a part of the brain that is located inside one of the folds of the brain so it is not identifiable by the human eye but the way we can find it is that it is located at the temporal lobe which lies right under the temple of the human body. An important function that the hippocampus does is that it makes information into memory and stores it in the brain. So, for example, someone experiences a traumatic event in their life and they can’t forget about it even though they try really hard to. The hippocampus has taken this traumatic event that this person has and stored it in their brain as a memory which explains how PTSD works. This part of the brain can also send connections to the amygdala which then could explain the beginning of strong emotions triggered by specific memories or events. But it is not just for making memories. It also plays a huge roll in the making of creating new brain cells for the brain. The hippocampus may look intimidating but it can be affected very easily. Alzheimer’s Disease, Epilepsy, and little blood flow are just some of the injuries the hippocampus could have.

The other big part of PTSD is the amygdala. Like the hippocampus, it is also part of the limbic system and is also inside the brain just above the hippocampus and the lateral ventricle. This is the epicenter of emotional behavior, emotions, and also motivation. A lot of signals from the other brain parts go to the amygdala because it then makes those signals into emotion. The amygdala can produce components of emotion such as heart rate changes, blood pressure changes, and also respiration changes in the body. While the hippocampus makes memory, the amygdala takes those memories and combine them with emotion which could explain why certain memories produce certain emotions for us such as happiness and fear. This is where the “fight-or-flight” mechanism comes into play. Since so many alarm circuits of the human body are located in the amygdala, there is a lot of triggers that can activate the “fight-or-flight” response.

Sufferers of PTSD are prone to chronic pain and sufferers of the chronic pain of debilitating physical injuries are liable to suffer from PTSD-like chemical imbalances.

The author of this post has a physical injury that has also manifested itself psychologically.  Chronic pain does that.  A life not lived; a career cut short. Over time, to treat the condition, nociceptive prescription pain medication is supplemented with neuropathic medication.  But we are still dragged in front of a SMP and demanded to explain ourselves.  Questioned in a hour window on why we are no longer the high achievers we once were.

This video gives an interesting insight into pain but reveals a terrible dilemma.  We are all individuals,and as IODs, all our circumstances are different.  Herein lies one of the complexities that makes understanding and treating chronic pain so difficult.

Professor Lorimer has the advantage of being on the top of his game.  He has a successful career in clinical Neurosciences. His lecture is factually correct.  Experience doesn’t always match the explanation.

For the individual chronic pain is a reinforcing web of pain signals, personal history, seeking security in what you know (pain) and limited ability to envisage a future.  It is life consuming and this is why the Regulations are there to compensate for work-related injuries.

SMPs are not equipped to understand how the brain creates and perpetuates pain.  They will always fail to make a valid judgement on your health in an allotted 60 minutes.  For this reason if you are ever unfortunate to go in front of a SMP, for whatever reason, go prepared.  Make them understand the complexity of your illness.

Snakes, no Ladders

Snakes, no Ladders

The only way is up down, baby
For you and me now
The only way is up down, baby
For you and me
Read more: Yazz – The Only Way Is Up Lyrics | MetroLyrics

“The Curious Case of Benjamin Button” is a short story written by F. Scott Fitzgerald and first published in Colliers Magazine on May 27, 1922.  The film version stared Brad Pitt but wasn’t as good.

Fitzgerald wrote a comic farce, which the film turned into a forlorn elegy. The film’s approach makes Benjamin the size of a baby at birth. Fitzgerald sardonically but consistently goes the other way: The child is born as an old man, and grows smaller and shorter until he is finally a bottle-fed baby.  He starts as infirm and dilapidated and becomes more healthier and youthful as he ‘ages’.

And? … you say, whether Benjamin started as a baby-sized old man or old man sized newborn is moot as both versions of Benjamin Button’s story is a fantasy – and what’s your point anyway? I hear you ask.  

A tragic story in the style of the great Fitzgerald could be written in the modern day as the telling of the story of the disabled former officer, injured on duty through no fault of his or her own, who as they age, they can only get better. In other words their degree of disablement can never, ever deteriorate by means of a substantial alteration and their degree of disablement never spirals upwards.

Is this still fiction?  No.  It’s happening in Merseyside.

No single person on a band one in Merseyside was reviewed in 2015.  Of the 502 reviewed they were all band two or higher, of these 25 were reduced and 477 unaltered.  But this force has 880 IODs, so what happened to the remainder?  The stark answer is that the 378 that were left alone and not reviewed were all band ones – just like Fitzgerald’s Benjamin Button, Merseyside has taken the view that they can only become healthier as time progresses.

Hang on though.  Is there more devious and nefarious  plotting going on here.  Could it actually be that Merseyside hasn’t reviewed band ones because this opens them up to the possibility of increasing the awards of those they review?  Enough of the grimly mocking  tone.  This is real and is exactly what has happened.

Response-Table-SM268-16

The Merseyside review process has deliberately ignored the tranche of IODs that can only have two responses if ever reviewed – increased, or kept the same.  This is not down to chance – this is overt maladministration in its dirty and unambiguous obloquy .  The blue in the below chart shows the band ones that were not reviewed against those higher bands that were.

MerseysideReviewedByBand

As mentioned before on these pages, we have data from most other forces concerning recent reviews and, overall, nearly 7% resulted in an increased injury pension payment – so, of the 502 reviewed, we should have seen approximately 35 people increased in 2015.   Not only are Merseyside deliberately failing to review those band ones whose degree of the pensioner’s disablement can alter only by virtue of his or hers earning capacity deteriorating, of those that they did review not one person was increased.  The probability of no person out of 502 being increased when 35 should be expected to be increased is 0.0000000049 (chi-square test). In context, the probability of winning the National Lottery is  0.0000000222.

In other words there is no fluke here,  no bizarre influence of chance that saw not a single increase in banding – it was deliberate.  As deliberate as ignoring all those who are band one.  Merseyside has acted totally contrary to the purpose of the Regulations and are unlawfully using reviews as a cost saving device.

If mass reviews could ever be fair then there is a prerequisite that it is more likely for someone to be increased as there is for someone to be reduced.  After all, time is by it’s nature degenerative – only Benjamin Button enjoys the opposite. It is a travesty that band ones are likely to remain trapped in the lower realms of percentages, unable to become upwardly mobile because they are deliberately ignored purely as a review of them will increase the forces injury award commitment and, in the absence of any knowledge that they can ask to be reviewed, likely to continue to struggle with an award too low in relation to their lost capacity to earn.

Too many snakes and no ladders.  For every snake, there should be a ladder; for every ladder, a snake.  But not in Merseyside – here there is one snake: the HR department.  And this creature is greased with slime.  Once down, there is no way back up.   This is not the purpose of the Regulations.  Merseyside are blatantly abusing their position as the administrator of the injury award system and should be held to account.

Access to Medical Records

Access to Medical Records

One of the most sacred principles of law is, that a written instrument must be construed upon the face of it, and that no parol evidence can be used for the purpose of inserting any words not therein contained.

– Sir R. Malins, V.-C, Inre Sayer’s Trusts (1868), L. R. 6 Eq. Ca. 321.

Let’s get one thing straight here, before we begin. For the benefit of any HR managers who do us the honour of reading our well-meant attempts to help steer them along lawful paths, and for the benefit of one Nicholas Wirz who appears to be attempting the opposite:

The Regulations are law, and it is not up to anyone to try to place upon them a meaning which is not there.  OK, that said, let’s get back onto the main topic.

There is a lot of sensitive personal detail in everyone’s medical records. For example there will be references to third parties such as family members, or notes about relationship problems or the termination of a pregnancy. The sort of information which is meant to be seen only by one’s own doctor. It is confidential.

Disabled former officers may not appreciate the implications if they agree to the release of their full medical records to an Occupational Health Department or to a SMP.  People do not tell things to a GP in confidence only for every little bit of information they give to end up being read by employees of a police force. Some doctors argue that if patients feel their entire records are routinely viewed by outsiders patients may decide not to reveal certain conditions to their GP.

We have a right to expect medical confidentiality so why should anyone be conned, coerced, bullied, or baffled into signing away that right?  But this is what happens to disabled former officers who mistakenly give in to vapid threats and sign away their rights, consenting to full disclosure of all medical records since birth.

Not even the Department of Work and Pensions has the power to routinely demand full medical records.  The DWP can only request reports as stated in this link DWP Medical (factual) Reports.

DWP and their assessment providers only request a report where it is needed and not in every case. The medical report you provide will then be considered when producing an assessment report.

NHS GPs are under a statutory obligation to provide certain information to a healthcare professional working on behalf of the DWP, in respect of patients that they have issued or refused to issue a statement, including a requirement to complete IB113/ESA113 reports.  This is implicitly defined in a parliamentary instrument, also known as secondary legislation, namely The Employment and Support Allowance Regulations 2013.  This Regulation refers to evidence provided in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement).

There is no legislation that permits the same disclosure to a police pension authority.  An injury award is not a benefit that has to be reapplied for – it is an entitlement for life and is in effect compensation for work-related injuries.

But despite this, every time a force attempts to review an injury on duty award, without fail they will send out a consent form demanding access to all your medical history.

We believe that, in some forces, this is no more than a ploy to replace records which have been lost or destroyed.

We also believe that any demand for access to medical records so as to process a review of degree of disablement is unenforceable.

We know of instances where former officers have made a request under the terms of the Data Protection Act for copies of all information relating to them held by their former force. They have been told, shockingly, that their occupational health file and other medical records have been destroyed, in line with the force’s retention policy.

‘Destroyed’ is, we suspect with good reason, to be a euphemism for ‘lost’.  All psychiatric/ surgical/ general-medicine consultant reports and other documents of some individuals have been lost by the force since their retirement.  When they joined, full medical records were made available to the force medical officer and if they have since lost them, why would anyone trust them to be responsible with them a second time?  Once bitten, twice shy.

More than this, why do they insist they have a right to any medical records?

You may be surprised to hear that there is nothing that permits them to have any; not partial, not full. None. Zero. Zip. Zilch. Nada.

Long ago and before the all-out corruption of the Regulations practiced by certain forces there was a time when, if a force medical officer had questions about a significant change in an IOD pensioner’s medical condition, they would order a bespoke report from individual’s own GP or specialist.

But Nicholas Wirz, Principal Solicitor of Northumbria Police wishes to change all this.  Amazingly, he thinks GPs are biased and advises SMPs to ignore the opinion of the pensioner’s own doctor.

This is an excerpt from Wirz’s January 2014 SMP training indoctrination course:

This can often be the case with reports produced by a treating physician in support of their patient. The patient may have a very strong desire to achieve a particular outcome (eg medical retirement; an injury award – or larger award; being found not permanently disabled if young in service etc). Applying the facts to the correct legal test may not support a conclusion supportive of the officer/pensioner. This places the treating physician in an invidious position.

Explicitly reaching a conclusion their patient does not desire risks destroying that particular doctor/patient relationship. A common occurrence is for the treating physician to “fudge” the issue. SMPs need to be alert to this and be able to argue why a particular report has not been accepted. Usually this will require an analysis of the correct test and where the report fails to appreciate this.

Wirz proclaims in his guidance to SMPs that all doctors will only tell their patients things that they want to hear, and that physicians commonly fudge the issue.  In other words, his view is that only the SMPs he ‘trains’ are the sole beacon of righteousness in a world full of misguided and fudge-prone doctors.

Hang on a moment. Back up a little and think about this goose and gander situation. What is sauce for one is sauce for the other. If it is OK for Wirz to say that all GPs and specialists can’t be trusted to be unbiased and impartial when writing a formal report on their patient’s condition, then surely it is OK for us to similarly point at all SMPs and say they can’t be trusted to be free of bias and partiality.

Who would you trust most to be truthful and impartial? Your hard working GP, trusted by parliament to issue medical reports to the DWP, embedded in the local community, with years of accumulated trust and confidence stored in their account, or a hired hand, a doctor who comes via his own private limited company with a contract through another private limited company to supply ‘medical services’ to a police force?

This post from February 2015 displays clearly how SMPs inplementing Wirz’s doctrine collude together to persuade themselves that GPs are not to be trusted and that any failure to disclose full medical records is an attempt to conceal from them facts that they can unlawfully use to reapportion or revisit causation – page 2 of the pdf is truly shocking: When SMPs Attack

Wirz continues with his claim that the SMP must demand full access to medical records, despite the fact (conceded in his own words) that the Regulations do not speak of medical records – only medical examination. It seems that in his delusional world a medical examination does not count if the SMP is not able to have prior sight of whatever medical records he demands.

So, if you are unfortunate enough to be knocked down by a number nine bus, does the doctor who arrives by helicopter to treat you at the scene first demand that your full medical records are made available? Why should a SMP need to see that you had measles when you were eight years old, or indeed any medical record which pre-dates the time of the last final decision on degree of disablement? In either scenario, a traffic accident or a review, what the doctor sees before them is what the doctor gets. Sure, they can ask for information, and the individual can chose whether to give it, but there is no way that any doctor can demand information.

Come off it Wirz. A SMP has no need of a full medical history to determine whether there has been any alteration in degree of disablement. If he needs an expert opinion, then he has only to ask the individual’s own GP or specialist for a report.

Wirz offers these words of wisdom to SMPs:

An officer/pensioner who elects not to take a step the SMP considers necessary risks the process being concluded by management: on the grounds that the election amounts to a failure:

“..to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision.”

Where the PPA reaches this conclusion it,:

“.may make its determination on such evidence and medical advice as they in their discretion think necessary.”

Even though the Regulations refer to medical examination and interviews, the provisions have no meaning unless included in those terms are the necessary preparatory steps before those events can take place. A medical examination would be largely meaningless without, eg, prior sight of the relevant medical records. If the SMP considers a step “necessary” then the SMP should direct the officer/pensioner to take it.

This orthodoxy from the book of Wirz is fed SMPs, who foolishly emboldened with the utter tripe that is Wirz’s speciality dish of every day, are now routinely demanding full medical notes from birth.

The trouble for Wirz is that there is in fact no onus on the pensioner to prove that their medical condition has or has not changed.  The last final decision is a given and is the starting point from which the SMP must make the assessment. When a police pension authority tasks a SMP to determine whether there has been any alteration in degree of disablement, the burden of proof rests solely on the police pension authority, via the SMP.

The SMP can’t begin the task by assuming there is substantial change and then asking the pensioner to prove, by submitting medical records, why there hasn’t been. That would be coming at the task from the wrong direction. It would be illogical.

Wirz has taken the words contained in the Police Injury benefit Regulations and has performed with them nothing less than reverse alchemy, turning gold into manure.

The literal rule of statutory interpretation should be the first rule applied by anyone referring to the Regulations. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without seeking to put a gloss on the words or seek to make sense of the statute.

The Regulations state that the pensioner can face only a medical examination. They contain nothing about SMPs trawling through medical records. It is wrong for Wirz to try to insinuate that the provision has no meaning unless full medical records are released.

Medical records are no small thing.  They are intrinsically confidential and a SMP has the same obligations under their regulator (the GMC) and by statute to act impartially and ethically as do the treating clinicians that so often are (according to Wirz) so eager to ‘fudge’ their reports.

The Regulations do not prescribe exactly how a police pension authority or a duly qualified medical practitioner acting on behalf of a police pension authority should set about any consideration but, using the literal rule, if the Regulations required the submission of ANY medical records it would explicitly state as such.   Of course, there is no such mention.

Moreover, any actions taken by a police pension authority or anyone acting on its behalf must comply with the Data Protection Act, the Human Rights Act and all relevant parts of administrative law.  This includes Data Protection Act 1998 – Schedule 1, Part 1, Principle 5. Wherein it is stated that,

Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes’. 

We may well ask then, why do forces think they can hold on to sensitive personal information, including medical records, which has been processed at some point for some purpose, and has then remained unused for years?

And what is the situation should an individual refuse to accede to a demand that access is given to medical records held by their GP?

The Regulations say this:

Refusal to be medically examined

33.If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then—

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

 (b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.

From this Regulation it is clear that a police pension authority, after a suitable interval and after consideration of the possibility of alteration to the medical condition, has the right to request an individual to subject himself to a medical examination or interview, but has no power to command it.

Note well  – there is no penalty for wilful or negligent non-cooperation. If the police pension authority decides to continue in the face of willfull or negligent non-cooperation then it is permitted to make a decision on such evidence as is available.

Any such decision would need to be rational – that is based on facts, and not punitive. There is no power for a police pension authority to reduce or suspend any injury pension in such circumstances. Such action would be unlawful.

There is nothing that expressively permits a police pension authority or SMP the right to demand that an individual agrees to allowing access to any medical records.

Since the appeal case of Belinda Laws in 2010, those subjected to a review have generally allowed the release of partial notes since the last decision.  Despite pressure from their HR department  those in the know have refused consent for the SMP to access full medical records and only agree to release of those from the time of the last review.

But if you consider that the Regulations do not refer to any medical records at all, then arguably no medical records need be disclosed at all.

This is not wilful, nor is it negligent. Rather, this is a considered and advised decision based on compelling legal knowledge that the Regulations do not permit the SMP to have sight of such records.

It may not be ideal, but that’s the law. We don’t advocate non-cooperation as a tactic, but we do suggest that disabled former officers should be very selective about what medical information, or any other personal information, they chose to divulge to the police pension authority or the SMP. Just because someone asks you for information does not mean they are entitled to it, or that you are obliged to give it.

As former Police Officers there were many times we would have liked to have had access to additional personal information on individuals but the law prohibited it.  This was to protect miscarriages of justice and to protect an individual’s rights to privacy.

When in doubt about why any information is requested, or what use will be made of it, the question to ask the SMP is for them to quote the Act and Section of any legislation which they think grants them permission to obtain sensitive personal information.

It is clear that Wirz, just like Grima ‘Wormtongue’ in the Lord of the Rings, uses words formed as his twisted corruption of the Regulations to manipulate people to nefarious ends. Fooling people by using devious and unscrupulous tactics to obtain irrelevant information is unethical and immoral, and it is certainly harmful to health.

The current Regulations do not serve the purposes suggested by Wirz and can only be interpreted literally and thus it would appear that individuals such as the SMPs who follow the book of Wirz are willing to operate outside the law to achieve their goals.

Unless you want to be reviewed or are currently applying for an award in the first instance you have the option to say no – tell them consent to any medical records is refused and revoked.  Even if you are applying for an award or need to evidence substantial worsening of your medical condition at a review and wish to clearly evidence your index injury, think very, very carefully about disclosing information prior to your injury occurring. Any disclosure has to be relevant to the matter in hand.  A recent, pertinent expert specialist clinical report carries more weight than you suffering from measles at 3 years of age.

No doubt there could be a backlash from the more idiotic of the pension authorities.  You may receive threatening letters from SMPs, Directors of HR and staff officers or even the Chief Constable demanding that you do what they say.  ‘Who are you go argue with us?’,you’ll hear them shout.  But remember these people have never taken the time to read and understand the Regulations and the case-law built around them.

If you are in any doubt then ask the police pension authority the question:

As nothing can be more mischievous than the attempt to wrest words from their proper and legal meaning, will you please explain to me how can a medical examination be interpreted as giving you, yet again, authority to demand access to full or partial medical notes?