Injury On Duty Pensioners Association
Please read this new post from the unconnected ‘Good Cop Down‘ blog.
by julian180748
Since starting this blog, I am still concerned at the lip service paid by police forces regarding the treatment of officers with mental health issues. I have been supporting police officers as a me…
“If there is anything more annoying in the world than having people talk about you, it is certainly having no one talk about you.”
― Oscar Wilde
A bogeyman (also spelled bogieman, boogeyman, or boogie man) is a monstrous imaginary figure. But it seems that some HR Departments believe he is real and even now stalks the land in human form.
The bogeyman of legend and fairy tale has no specific appearance. Children are told stories of shadowy shapes that flit into the corner of one’s eye and then disappear. The bogeyman might live under the bed, or in the wardrobe, or might be lurking in the dark overgrown bushes at the bottom of the garden. No matter where he hides, he is out to get you, so beware. Hurry home, children, dive into bed and pull up the covers so he can’t seize you by the toes and drag you off to his lair.
HR managers give the bogeyman more corporeal form and substance. They seem to think that the bogeyman appears in the borrowed shape of disabled former police officers. A guise quite at odds with the spirit of the legends and, as a modern take on a traditional myth, is really very inventive and clearly the product of a disturbed mind.
The etymology of the word “bogeyman” is uncertain, as is when it first appeared in the English language. Some sources date it to the 16th century, while others to around 1836, as a term for the Devil.
The Devil is now, according to the rumour mill being circulated by some police forces, stalking and abusing, not children, but stoical adult medical practitioners who work for police forces. By these accounts one force in particular is telling people, ‘that a doctor has been subject to stalking and that threats have been made against FMAs [Force Medical Advisors] by a campaign group’.
We at IODPA are extremely shocked and concerned at this revelation. Apparently there is a militant and anarchist campaign group out there that is actively seeking out and physically targeting force medical advisors (selected medical practitioners were not mentioned). The force spreading this malicious and unsubstantiated gossip mentions FMAs, plural – as in more than one single incidence. The source of this fairy tale we suspect to emanate from the National Attendance Management Forum, which is where HR managers and others gather together, safety in numbers, to exchange gossip and misinformation.
The unsubstantiated Chinese whispers we have heard are that the stalking typically involves a sped-up chase scene involving a crew of scantily-clad injured persons hobbling with their canes and struggling with their mental illness, with a doctor being the one chased, due to silly predicaments that he himself caused. A take-off on the stereotypical Keystone Kops chase scenes.
In all seriousness, we are in IODPA a cooperative made up solely of responsible, adult, medically retired police officers, who were all injured in the execution of their duty. It is generally known that it takes a high standard of character to be recruited into the police and that police work can be dangerous. Our members were all injured through no fault of their own and are now disabled members of the public with a strong core of moral code. We have been subjected to unlawful behaviour by police pension authorities but we will never reciprocate like with like. Injustice cannot be overcome with injustice.
The injuries of our members range from physical to psychological. Quite often the physical injuries have psychological repercussions. The psychological injuries are often extremely severe.
Perhaps IODPA is being too precious, but we hope that the Devil that these forces believe is stalking doctors is not meant to be a reference to us.
We therefore challenge any FMA, SMP or HR person to produce concrete proof of these allegations. If any person has been stalked, tell us who, when and where. If there was evidence of harassment, abuse and threats then any competent and independent person would expect there to be a criminal investigation and a prosecution. It speaks volumes that there has been no such thing. All police forces should be above the childish playground behaviour of spreading rumours.
In the meantime, we will take these bogeyman tales as no more than a foul ploy to divert attention away from the very real, and evidenced accounts of harassment and, yes, stalking, of disabled former police officers by police forces.
The fact is, members of our association have been stalked. There are instances where people with IOD awards have been put unlawfully under surveillance. We can never forget the case of the West Midlands consultant psychiatrist, Dr Nicholas Cooling, who personally hired a team of private detectives to stake out and video an injured police officer. The GMC suspended him over that little lapse of ethics.
Another tale of harassment concerns a former South Wales officer whose police career ended after he was severely traumatised following the 2002 clash between Cardiff City and Leeds United fans, and who won a victory in 2009 against South Wales Police, which had kept him under surveillance for months. The Police Medical Appeal Board (PMAB) was highly critical of South Wales Police, which had claimed he was not entitled to an injury award. The Appeal Board adjudication said video evidence of him was irrelevant. Material disclosed subsequently showed that 11 officers from South Wales Police and the neighbouring Dyfed-Powys force were used to spy on him for months in an operation estimated to have cost more than £100,000.
There have been too may instances to list here where a person with an IOD award has been abused and harassed over a course of years not just by a SMP but also by the bullying machinations of a zealous and uncaring HR department.
We will mention one incident, which concerns a very ill retired former officer who was summoned to be reviewed. Two friends drove him to the appointment at the force’s occupational health offices, and waited for him in the car-park. When the review was under way a uniformed police officer with their epaulettes removed came out of the building and blatantly took photographs of the waiting vehicle and the occupants. Here was no RIPA authority, nothing that allowed this intrusion into civil liberty. Not prepared to be taken at a disadvantage, the occupants themselves took a picture or two of the uniformed officer taking pictures. Then a doctor came out of the building, walked up to the car and spoke to those within saying, ‘Do you want a close up?’
We know of another incident where a person with complex psychological issues was forced to undergo a review just because he was a band four. Despite his condition down-turning and his clinicians warning the force and evidencing his severe deterioration during the months of delay cause by the police pension authority, the force in question kept up their sanctimonious fishing trip. This sorry episode was reported in this blog post.
Driven to the realms beyond madness he told his crisis clinician during a mental health crisis team counselling session that he wanted to kill those who he saw were harming him. This clinician took the threats seriously and was duty bound to escalate his concerns to the relevant authorities. There are always two sides to every story.
The shameful outcome of this shameful event is the force ‘deferred‘ the review (a made up thing that does not exist in the Regulations), saying the former officer is too ill and that he should be reviewed again in 3 months, ‘when he is better’.
A review isn’t a benign thing. It damages people. And if they are damaged already they become more and more unstable. IODPA does not condone unlawful behaviour. That said, we can understand why someone with complex PTSD isn’t always in control of their own responses.
When a force proclaims that a campaign group is physically threatening Doctors, and it uses this as an excuse to withhold information, it tarnishes everyone. This circus show encourages guilt by association, and seeks to demonise all disabled former officers. We say, you hypocrites, first take the plank out of your own eye, and then you will see clearly there is no speck in our brother’s eye.
IODPA only asks for fairness, respect and the fundamental and lawful following of the Regulations.
Those injured former officers who contribute to this association are all law abiding citizens.
If only those that administer the police injury award scheme were as conscientious as we are.
As long as we can get redress in the courts, as long as the laws shall be honestly administered, as long as honesty and intelligence sit upon the bench, as long as intelligence sits in the chairs of jurors, this country will stand, the law will be enforced, and the law will be respected. -Robert Green Ingersoll
Police Medical Appeal Boards (PMABs), for all their faults, have an important function in the administration of police injury awards.
Quite often SMPs come to an erroneous decision and make glaring errors in their final report. You only need to look at the legion of Pension Ombudsman determinations and high court judgements. There are many possible reasons why SMPs make errors. Commonly, they fail to assess the medical evidence properly, and may be misled by irrelevant, prejudicial or fabricated evidence fed to him by a HR minion. The SMP may be following Home Office or NAMF guidance which has no lawful authority, and in doing so contravenes the Regulations and the case-law that exists to dictate the narrow remit of his lawful duty.
PMABs provide a forum in which retired officers may have these concerns addressed. They serve an important institutional function. They should provide legitimacy to the system as a whole by maintaining consistency in decisions and their function is to prevent miscarriages of the Regulations.
Nevertheless, Police pension authorities seem eager to neglect their duty to act fairly. They are knowingly interfering in the access to PMABs by declaring fictional restrictions, and to achieve this they will resort to nefarious threats that are well outside the sanction of natural justice in order to scare people away from their important right to appeal.
Just look at Nicholas Wirz, Principal Solicitor to Northumbria Police:
Crudace. Paragraph 49
On 2nd July 2009 the Police Authority solicitor, Mr Nicholas Wirz, sent Mr Crudace a letter which in effect threatened the Claimant with a £6,200 adverse costs award if he persisted with his appeal …
…45 of the 70 former officers who were the subject of decisions on 20th February 2009 lodged notices of appeal. Mr Wirz sent a letter in similar terms to each of them. The letter has been the subject of criticism by Mr Lock QC and was also the subject of a complaint to Mr Wirz’s professional body
Recently IODPA has seen more examples of threats such as above. A former officer has recently been told by a Northern force that the SMP requires, ‘full medical records to understand the baseline from which he has to assess whether there has been any significant change’. Failure to do as demanded is threatened with the punitive reduction to a level of 0% degree of disablement. Kafkaesque in it sinisterness, the author of this letter then proves his point by attaching a copy of the new ‘financial statement’ based on a 0% degree of disablement/Band 1 award. This is not far removed from the Medieval practice of showing the instruments of torture to the prisoner.
Forget lawful process; forget evidence of substantial change and the other requirements of the Regulations, this is simply: ‘Do as we say, or else’
In the spirit of the times, the threats are becoming more and more forceful.
Regularly appearing now is the threat that if, at a review, full medical records are not disclosed then not only will the police pension authority automatically reduce the pensioner to 0% without lawful authority, they also proclaim, astoundingly, that there is no avenue to appeal at PMAB.
This quote can be found in the new consent form sent out by Avon & Somerset. Forget Kafkaesque; we need a new expression of surreal distortion and sense of impending danger – the Avon and Somerset threat is Wirzesque in it’s intimidating menace.
The former officer has to under-sign this statement:
I understand that at any time in the Procedure I may elect to withdraw my consent to attend a medical consultation or for medical information about me to be disclosed. […] I understand that in these circumstances the Pension Authority may decide the issue of Permanent Disability and that I will not enjoy a right of appeal to a Medical Appeal Board
The HR minion who sent this letter is referring to the refusal of consent of full medical records. There is no space in the form to specify a date range therefore they are asking for full medical records, from birth, or nothing. Then they threaten to reconsider the issue of Permanent Disability and continue to say the entitlement of a PMAB is forfeit.
There is no explicit mention of it, but the HR minion is of course referring to Regulation 33 (refusal to be medically examined). What the minion fails to acknowledge is that consent to the pension authority is different and distinctly separate to the consent to a PMAB. Also the minion neglects to inform the would-be signer that Regulation 33 is concerned with ‘wilful or negligent’ refusal to be medically examined.
It is true to say if consent to a medical examination and access to relevant medical records required by a PMAB (when the appeal process has commenced) is not granted then the appeal is withdrawn – but this is an entirely different matter to the disclosing of full medical records from birth to the pension authority.
Let us examine this further. What if the person reviewed has good reason not to disclose full medical records to the pension authority? – this is neither wilful nor negligent failure. In this theoretical example, just say the pension authority punishes the disabled former officer by unlawfully totally removing the injury award by declaring that there is no permanent disability.
Regulation 33 does not speak of punitive measures. It also does not allow a gateway into anything other than Regulation 30-2(d), the degree of disablement – the sole question allowed in a Regulation 37 review. There is no power for Regulation 33 to reconsider Regulation 30-2(b), in other words the permanency of disablement.
There is also no power for the pension authority to block access to a PMAB. If the medical consent is subsequently granted to the PMAB then the appeal board will hear it. Remember, the appellant may have a valid reason to deny full medical records to the pension authority but may be extremely willing to allow the PMAB panel to see the same.
The pension authority has no jurisdiction to block access to a legal appeal process.
Plain and simple it is a dirty threat that the pension authority has no power to enforce. A rather sick bluff used against vulnerable individuals.
Just like the Home Office circular 46/2004 proclaiming that people over 65 have no earning capacity, the issue of consent to full medical records and threats to invoke punitive reductions of injury awards is hollow and unlawful and will be demolished by means of Judicial Review.
Deliberately scaring disabled former officers by exposing them to unlawful threats and frightening them into compliance is now firmly embedded into the PPAs’ toolkit to undermine the Police Injury Benefit Regulations.
It is just heartbreaking that police pension authorities are on such a self-destructive path.
Hold it. You know what I’d like to see? I’d like to see the three bears eat the three little pigs, and then the bears join up with the big bad wolf and eat
Goldilocks and Little Red Riding Hoodall who attend NAMF!Tell me a story like that, OK? ― Bill Watterson, The Complete Calvin and Hobbes (misquoted)
A question … what does ‘neither too little, nor too much’ actually mean?
The term derives from the fairytale about a little girl named Goldilocks and her encounter with three bears. The nightmarish modern versions recount a Director of HR who, every 2 years, breaks and enters a home and keeps sampling the possessions of the medically retired mother bear with an injury award, the father and the child, choosing, for example, an injury award which is not too low, not too high, but just right.
The term has now been adopted into a phenomenon often referred to as the Goldilocks principle and the Goldilocks effect. Often Directors of HR put the term into their garbled ‘guidance’ when they write to the poor mother mentioned above.
Julian Kern, one such Director of Resources (and Chief Finance Officer!), keeps using it in his letters and his minions keep typing it out in their ‘guidance’.
The purpose of a review is to ensure that the pensioner is receiving the correct injury pension, neither too little nor too much
Another question … what has the Goldilocks principle got to do with reviews of injury awards?
Answer … absolutely nothing.
A review can only look to see if there has been any substantial alteration…has the degree of disablement caused by the IOD injury substantially worsened or substantially improved since the previous review or retirement, whatever was last. If there is substantial change, your pension will be altered accordingly. Up or down.
Or in words our Director of HR might understand; if mummy bear’s porridge was too hot before and it is still too hot now, you can’t add cold milk to make it ‘just right’. If daddy bear’s porridge was too cold before and it is still too cold now, you can’t heat it in the microwave to make it ‘just right’.
Laws Appeal, paragraph 19
It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion
The level of the award is a given. It is decided once, when the award is originally granted, and there is no legal way for a police pension authority to adjust an award up or down because it is seen by an ignorant functionary to be, ‘too little or too much’. Quite the opposite – the result of all reviews is to provide a high level of certainty in the assessment of police injury pensions and not to waver as the wind blows.
What can’t be done in a review is any calculation to determine the current degree of disablement to enable the SMP, or more often than not a HR minion, to compare this figure with that of the last decision.
Simpson, Paragraph 28
…the SMP and the PMAB cannot conduct a fresh review of the uninjured earning capacity and the actual earning capacity of the former officer and then, comparing the outcome of that assessment with the previously determined degree of disablement, conclude that there has been an alteration in the former officer’s degree of disablement
Simpson, Paragraph 31
The Court of Appeal in Laws expressly approved the decision in Turner. Rejecting the submission made by Mr Pitt-Payne for the police authority to the effect that the starting point for the Board or the SMP is to consider the pensioner’s current degree of disablement and compare it with the previous assessment
So a calculation of any sort is unlawful. If at a review the SMP pulls 3 jobs out of their rear end then they have contravened Simpson, Laws and the Regulations.
In both the Turner and Laws cases, it was accepted that the degree of a pensioner’s disablement could alter by virtue of his earning capacity improving either by some improvement in his medical condition or because a new job had become available, which the pensioner would be able to undertake, which was not available at the time of the last final decision.
Is it unlawful to use a review to perform any calculation to use as a comparison tool? Does Ursus Horribilis defecate in a deciduous forest biome?
So the Goldilocks principle is pure bear excrement. The only questions the SMP can answer are:
and
The price good men pay for indifference to public affairs is to be ruled by evil men.
― Plato
The current Zeitgeist is for HR civilians to refuse applications of Injury Awards by just saying they think, in their view, that the application isn’t substantiated. Of course they say this because they have an agenda … they would rather no-one has an Injury Award, and they made it a war of attrition and as difficult as possible for the injured officer to get what they are entitled to.
Quite often they use weasel excuses and imagine up some make-believe duty along the lines that the Regulations places the onus upon the Police Pensions Authority (PPA) in the first instance to decide if any injury award is payable, prior to any submission to a Medical Authority. i.e to determine if any incidents had occurred that would justify referral to a medical authority who would determine amongst other things, causation.
The trouble is that there is no such onus for the PPA to predetermine entitlement and the reality is quite the reverse. It is not up to the PPA to decide on the merits of any claim for an injury award.
Let us examine Home Office Circular 34/1996. Section D Paragraphs 6 to 9 covers the consideration of Injury Awards.
We can no longer recommend that a police authority undertake a preliminary consideration of these issues before formal referral to the medical practitioner
There you have it. Clear as day.
The Home Office stated 20 years ago that a police pension authority must refer the question of an ill-health award or an injury on duty award to a medical practitioner for decision and their view is that such a referral must be made as soon as the authority is aware of either permanent disablement or injury on duty as an issue for consideration.
Interestingly the Home Office circular says “Although we are not aware of any court decisions, which have a binding authority, there has been a trend of decisions, which has now made it appropriate for us to revise our guidance.”
Ever helpful, IODPA can happily say we can edify all those reading this to become aware of the court decisions that have binding authority on this matter. These decisions occurred after the prescient recommendations in HOC 34/1996.
Firstly there is:
R -V- Merseyside Police Authority Ex Parte YATES CO/4181/97, [1999] EWHC Admin 157.
This case concerned the defendant Police Authority establishing that an application for judicial review of a police authority decision under the Regulations was not appropriate because the statutory provision in the Regulations provided an effective remedy for the applicant to appeal to the Crown Court. The important point determined here is the fact that the remedy within the Regulations means that the decision has to be always made by the medical practitioner.
Latham J stated:
I do not, however, consider that the Regulations permit anything other than a literal reading. The questions which are to be referred to the medical practitioner under Regulation H1(2) are unambiguous, and the answers given by the medical practitioner are, pursuant to Regulation H1(4) to be final. The answers will determine the claim subject to the rights of appeal. This produces an unsatisfactory result. If the claimant is dissatisfied with the answers of the medical practitioner as to the facts upon which his opinion is based, he has an appeal to the Crown Court; if he is aggrieved by reason of the medical practitioner’s opinion, then he has an appeal to the medical referee; if he is aggrieved by the medical practitioner’s conclusions as to law as to whether or not an injury was received in the execution of duty, it would appear that he can only challenge the matter by way of judicial review.
Latham J continues
It follows that a Police Authority is not entitled to pre-empt the answers of the medical practitioner by coming to adverse conclusions as to fact, or law, in relation to the claim in order to avoid reference to the medical practitioner
And then there is Clinch -v- Dorset Police Authority Admn (Bailii, [2003] EWHC 161 (Admin)) where the judge reaffirmed the decision in Yates.
MR JUSTICE McCOMBE said:
In the end, on this first issue, in the light of the arguments and the decisions and dicta of persuasive authority before me, I propose to follow the dicta of Latham J in Yates’s case
…
…, in many cases in practice the questions that go to the doctors will be truly medical ones and the Claimant and the Authority will be able, if so advised, to make representations to the doctors on matters that are not truly medical in nature. It is, moreover, interesting to note that the true legal question arising out of the facts in Stunt’s case eventually reached the Court through the avenue of judicial review (as Latham J envisaged they would). There is no reason to think that if it had been the Authority that had been dissatisfied with the legal conclusions drawn by the medical authorities in that case , it would not have been possible for it also to seek a judicial review of those conclusions, so as to reach an appropriate forum for the resolution of questions of law.
The judge here is saying on matters of an application of an Injury Award that the decision is that of the medical authority only and if the police pension doesn’t like it then they can try to take it to judicial review.
To summarise, if the appellant considers the medical practitioner’s facts he bases his opinions upon are wrong then it can be taken to crown court; if dissatisfied with the medical practitioner’s reasoning then it can go to PMAB; matters of the medical practitioner’s error of law can be taken to Judicial review.
Note it is always the decision of the medical authority – never that of the police pension authority.
Twenty years is a long time and perhaps the Federation officers that had knowledge of the home office circular, Yates and Clinch have long since retired. The gap in the knowledge of Fed reps advising serving officer is a travesty in itself. IODPA is aware of serving officers, not happy with the poor help they receive, seeking to arm themselves with awareness of caselaw and the Regulations.
The heinous abuses performed by public servants in the administration of injury awards are unforgivable. Those that administer the delegated responsibilities of the Regulations are paid a salary to be aware of the statute that governs them. Their bien-pensant manipulation of the Regulations ignores previous home office circulars and stated cases. Deliberate ignorance means, intentionally ignoring a fact when one has every reason to believe about its existence, and this is happening now – to injured and disabled police officers. It is capricious and should be viewed as nothing less than misfeasance in a public office.
IODPA will continue to work tirelessly and fully prise the lid off all the injustice and cover-ups of what will prove to be a very large can of worms for police pension authorities.
“I never said, ‘I want to be alone.’ I only said ‘I want to be let alone!’ There is all the difference.”
― Greta Garbo, Garbo
Kent Police has a fair policy when it comes to the administration of Injury Awards. Their policy is that they will perform a review only when a pensioner reports to them a ‘material change’ in their medical condition.
In terms of periodic injury award reviews the Pension Authority have discretion as to whether they wish to review any injury awards. We do not undertake periodic reviews. Where pensioners seek a review due to change of medical circumstances we will review. It is important to appreciate there must be a material change in medical circumstances for a review to be conducted.
Kent doesn’t seek to reduce their financial commitments, they don’t use a clerk to perform the job of the medical authority; Kent does not perform mass, blanket and unlawful reviews with preordained and manic zeal only to reduce as many IOD awards as it can, and to increase not one.
There are no HR drones driving policy in Kent Police thinking that by asking daft questions about earnings, driving, etc. that they can arrive at a conclusion about alteration.
Kent realises that the Regulatory requirement is based on medical evidence, that salary alone is immaterial, and they understand the implicitness in the Regulations that the Police Pension Authority must have a duly qualified medical practitioner inform that consideration.
Even though this constabulary has a relatively high number of former officers with injury awards, it treats them with respect.
All in all, Kent seem to be a shining example of the right way to do things right.
Avon & Somerset, Merseyside, Northumbria and their ilk are actually the outliers. It is Kent and others like them are the silent majority who understand the need to respect former officers as well as possessing knowledge of the Regulations and particularly that
Any deviation from these stages is unlawful. Such illegality has been exposed on this blog including Merseyside HR clerks, such as Peter Owens, who foolishly believes they have hegemony over the actual PPA and often shirks the lawful requirement demanded by the Regulations to refer the relevant questions to a duly qualified medical practitioner; or Nicholas Wirz standing over the shoulder of Dr Broome as he directed the pliable doctor to reduce over 70 people to band 1 in a single afternoon, or CFO Julian Kern blatantly overriding the outcome in the SMP report.
Despite all the bad news, forces like Kent need to be acknowledged for doing it right.
INJURED ON DUTY:
As a Police Officer, honest and true With a commitment to take care of ‘you’! I did my job with honour and pride Working all hours, with all else put aside
Even off duty I stayed so alert And kept an eye open for dishonest ‘perps’ The clock and the payment had nothing to do With the time that I spent to look after ‘you’
Imagine my shock, my shame and dismay To find that I wasn’t cared for that way When beaten on duty and damaged enough To be forced to retire, and no longer tough
My life was in pieces, my lifestyle destroyed Not fit to ever again be employed My pension too small to upkeep my home My feelings so hurt that my heart turned to stone
Every relationship broken in two So difficult now to meet anyone new When I asked for help I found none for me The worst of the damage not found yet, you see!
Now my small income has become even less And worse yet to come as I can’t pass the test Which would prove that my ailments are ALL a result Of that fateful day I was beaten to pulp
After 26 years suffering daily ill health My former force is protecting their wealth My feelings, integrity, honesty, and respect don’t count at all as I fall through their net
I now have to fight for my right to exist The assessors make up information to fit The criteria required to keep my pension low After 4 more years of hell to a tribunal I go!
By Anon
Here is a puzzle for your dog to solve. We say try it on your dog, for no human would be so stupid as not to get the solution in an instant.
If a blind person gets a pay rise of 10% does he see any better?
Using the same sort of logic, we conclude that the Medical Retirement Officer for Merseyside Police, Mr Peter Owens must be a particularly dumb pooch. He wants pensioners to tell him if their earnings increase by more than10%. In fact he requires them to tell him. Bad boy! Get in your basket. You don’t give the orders around here.
This is what Mr Peter Owens writes to disabled police officers who have just had their degree of disablement ‘reviewed’.
‘. . . 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.’
My Aunt Agatha’s ancient poodle got it in an instant, thus proving that some dogs are more intelligent than some humans. Or that all dogs are brighter than Mr Owens. There is no connection between what a person earns and their degree of disablement.
If there were, your GP would slip you a crisp tenner instead of a prescription for happy pills.
‘Off work with the old depression again, Mr Braithwaite? Here’s twenty pounds, that’ll cure it.’
‘I’m sorry to have to tell you Mrs Gringeworth, but you have malignant cancer. Take this bundle of used tenners. You’ll soon be growing daisies not pushing them up.’
Enough of the satire – we don’t want to be thought of as being cruel to dumb animals – let’s hand over to the legal experts, such as David Lock, QC.
‘Mr Lock submits that the test under Regulation 7(5) is based on the loss of a former officer’s earning capacity, not his actual loss of earnings.’
This quote is from one of the most important cases concerning police injury pensions –
To save our constant readers the bother, IODPA has searched both the Regulations and the relevant case law and we can say with some authority and complete confidence that any salary is not, in itself, evidence of substantial alteration in degree of disablement.
The case of Simpson includes this:
…the reference to a former officer “no longer being expected to be earning a salary in the employment market” is, in reality, a suggestion either that a person who is not working has no earning capacity which is flawed as a matter of logic
We have pondered why, out of the 502 disabled former officers who were reviewed by Merseyside Police in 2015, a total of only 25 had their injury pensions reduced and not one was increased. The results from Merseyside’s reviews proclaim that, with none of the 502 people they reviewed, there wasn’t a single scenario in which the degree of the pensioner’s disablement had altered by virtue of his earning capacity deteriorating.
This does not sit right with us. It’s one thing staying neutral on the reasons why 25 could be reduced but it’s going beyond all realms of possibility that no single person has gotten worse.
We have data from most other forces concerning recent reviews and, overall, nearly 7% resulted in an increased injury pension payment. On the basis of that statistic, Merseyside’s reviews should have produced about 35 increased injury pensions.
But the truth is starting to come to the surface. Merseyside disregarded the memo from the Home Office which advised that all police pensions authorities should satisfy themselves that they are acting in accordance with the Regulations
Here is the full version of Mr Owens’ letter, which he sent to a former officer with an injury pension.
Mr Owens has invented a ‘Section 37’ – perhaps he means Regulation 37 of the Police (Injury Benefit) Regulations 2006. But reading his letter further, an invention of a new section of a new Act of Parliament seems quite apt as he does not refer to any known power in the body of police pension law.
Mr Owens says he has reviewed the award himself and has found no alteration. Mr Owens does not seem to be a qualified medical authority, his title of Medical Retirement Officer and the missing Dr title, actually suggests he is a member of the HR department. Finally Mr Owens postulates that the former officer is required to inform him of any greater than 10% increase in any gross salary.
Note the important absence of Mr Owen saying that he should be notified ‘as soon as practicable’ about any decrease in salary.
Let’s look at another important recent case, the Laws Appeal 2010.
‘. . . if there is now some job available which the defendant would be able to take by virtue either of some improvement in his condition or in the sudden onset of availability of such a job then that would be a relevant factor . . ‘
An improvement to a medical condition which leads the former officer to be able to perform work that was previously barred to him could amount to alteration. Not a 10% rise in salary. Earnings are irrelevant to the Regulations.
What happens if the former officer was medically retired and had been underpaid for his capacity to work for a decade but then received a salary increase as his company was taken over by a competitor, would he have to report to Mr Owens? Mr Owen’s letter is a travesty of the Regulations.
Mr Owens has got it so wrong it is barely worth wasting time with demolishing his nonsensical letter.
But it shows clearly why Merseyside reduced 25 and not increased anyone. They only reduced those who declared a salary – irrelevant whether this salary was in relation to their capacity to earn as stated in the previous final decision. And the rest were left alone but told officiously and with no power or jurisdiction to do so, to report any greater than 10% increase in gross salary.
This perversion of the Regulations wasn’t missed by the Chief Finance Officer of Avon & Somerset, Mr Julian Kern, when he visited Merseyside (descended ghoul like, a shadow drawn to the smell of blood) on the 17th November 2015 to see how that force ploughed through 502 reviews when he has only managed 9, at a cost to the ratepayer of at least £63,000. Does he smell a way to dispense with the blundering, indecisive, expensive Doc Johnson? Is he hoping to rescue his plans for mass reviews by having a clerk shuffle the papers and make the decisions?
It seems clear enough that Mr Owens has told Mr Kern in person that:
Given this revelation, all of the 25 reduced by Merseyside now have grounds to appeal. Merseyside has made a massive error in law and should now be held accountable.
Merseyside NARPO and Federation offices need to discover the 25 people reduced and fight their cause.
We say this. If any IOD pensioner is asked what they earn, the answer is, ‘Bad boy! It’s none of your business.’
If you were affected then please contact IODPA admin@iodpa.org
“The purpose of the boards is to consider appeals from police officers or former police officers who are dissatisfied with a decision made by a medical practitioner, selected by the police authority, in relation to their qualifying for ill-health and injury benefits”
― Contract Between the Secretary of State for the Home Department and Health Management Ltd FOR THE PROVISION OF REGIONAL BOARDS OF MEDICAL REFEREES FOR POLICE MEDICAL APPEALS IN GREAT BRITAIN
When the question of the degree of disablement is passed to the Selected Medical Practitioner (SMP) the Regulations are quite clear that it is only the SMP that is able to give a decision:
Reference of medical questions
H1(2) of the 1987 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations shall be binding for the purposes of these Regulations
[….]
The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to regulations 31 and 32, be final.
(7) A copy of any such report shall be supplied to the person who is the subject of that report.
There is no ambiguity that the question, once answered by the SMP as the medical authority, is anything other than final.
The judiciary agrees with this.
Haworth v PMAB
presumption of finality in respect of the decisions of the material medical authority
Pollard V PMAB
The decision of the SMP on the issues referred to him are final, subject to appeal or a review or reference back (see regulation 30(6))
Crudace V PMAB
The SMP is obliged to produce a report with reasons to explain the basis for his decision on both entitlement and on quantum. Under regulation 30(6) the decision is final subject to any appeal under regulation 31 or a reconsideration under regulation 32(2).
So why does the National Attendance Management Forum (NAMF) state in their non-statutory and misleading ‘guidance’ that the report made by SMP as the medical authority is not final? That they proclaim it is the Director of Human Resources as the delegated police pension authority (PPA) that is the ultimate adjudicator, and the SMP report is just an exercisable Pollice Verso – the thumbs down decree of death made by a Caesar upon a fallen gladiator.
Here is the offending paragraph from the NAMF ‘guidance’:
Section 3.6.5
The SMP’s role is to measure degree of disablement using admissible evidence. On receipt of his decision it is for the PPA to decide whether any identified change in the degree of disablement represents a substantial alteration and if so they shall revise the IOD pension accordingly’
NAMF agrees that the SMP – as the medical authority – gives a decision. But that is all it gets right. Remember this is the decision that the Regulations clearly state has to be referred by the PPA to a suitably qualified medical practitioner.
NAMF now goes off into Alice’s Wonderland territory by continuing that a non-medical HR senior manager now determines the ‘determination’ of the degree of disablement by declaring whether he thinks its substantial (or not).
Reading the finality quotes from case law and from the Regulations, there isn’t any allowance or interpretation to permit the medical authority’s decision being over-ruled or quantified by the delegated PPA … quite the opposite. The high court has determined that the SMP not only considers any alteration on a review but he alone determines whether it is substantial or not – not the Director of HR.
Simpson V PMAB
The only duty on a medical authority when conducting a Regulation 37(1) review is to decide whether, since the award or last review – whichever is the latest – there has been a change in the degree of disablement; whether, in the language of the regulation, there has been a substantial alteration.
One of the many troubling consequences of NAMF ‘guidance’ is that it fails to grasp that Regulation 37 is only a gateway into reviewing the degree of disablement via Regulation 30-2(d). Their recalcitrant proclamation that a delegated PPA can basically override the medical authority not only has implications at review – it reflects by corrupting the root power that enables a revision of the degree of disablement; in other words Regulation 30 itself.
NAMF has ignorantly misconstrued, and taken out of context, the wording of Regulation 37 by manipulating the sentence ‘[…]and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly’, and omitting that the consideration IS the referral to the medical authority under Regulation 30’s ‘Reference of Medical Questions’. It does not permit a dictatorial decree, in the style of Alan Sugar, by the PPA himself.
Imagine this scenario that is perversely permitted under the NAMF ‘guidance’:
Or on review:
Can you just imagine how a Director of HR would defend such an horrendous intervention at a PMAB panel or Judicial Review?
Let us emphasise our message to the nth degree that, despite NAMF’s ‘guidance’, the PPA does not have the final decision regarding determination of the degree of disablement. This blog post started off with a quote from the contract between the Home Office and the company selected to administer police medical appeal boards. The framework mentioned in paragraph 1.3 is that the PMAB considers appeals on the decisions made by the medical practitioner, selected by the pension authority. Note the distinction between ‘decision made’ and ‘selected by’.
There has obviously been no mention ever, in any judicial review, of the delegated police pension authority having the ultimate decision. An example being the following Judicial Review .
SOUTH WALES POLICE AUTHORITY (CLAIMANT) -v- THE MEDICAL REFEREE (DR DAVID ANTON) Dr Davies, as the Selected Medical Practitioner, answered the relevant questions from H1(2), in his certificate of 10th January 2002, that Mr Crocker was suffering from “psychotic illness”, and was disabled from performing the ordinary duties of a member of the police force. The disablement was likely to be permanent. He said that the matter should be considered in two years’ time. He said that the condition was the result of an injury received in the execution of duty and that the earning capacity had been affected at 40 per cent.
Of course not, because it is not permitted. The decision of the medical authority, whether incorrect or not, is final and binding to the PPA. It can only be appealed by the former officer or taken to Judicial Review by the PPA.
Blindly following NAMF ‘guidance’ is no better than saying we’re ‘just following orders’ and is not a justification for morally questionable actions that a Force invoke when questioned about the rightness or necessity of such actions. Just saying ‘we are following NAMF guidance’ does not absolve the HR managers from using their own brains and reading the Regulations and understanding the case law.
Just following orders didn’t work for the Nazis in Nuremberg.
‘The award of 100% is a special case reserved for an officer who is an inpatient at hospital’ – Mr W : Regional Welfare Advisor to the Police Federation
‘He said that to obtain a 100% degree of disablement in an initial assessment, he would normally expect that the pensioner themselves would be unable to even apply for the Injury Award as they would be so incapacitated.‘
The words of a HR Manger, reporting the opinion of Dr C, a SMP.
When an injury pension is reassessed, under provision of regulation 37 of the Police (Injury Benefit) Regulations 2006, the task of the appointed duly qualified medical practitioner (the SMP) is to decide whether there has been any alteration in degree of disablement.
Within the strict confines of the Regulations degree of disablement is based on a medical opinion of an individual’s capacity to do work which results in earnings.
The focus is the capacity, not the earnings.
For some considerable time there have been efforts to seek justice concerning the maladministration of injury pensions. Areas of error have been identified and arguments put forward that the calculations which have been made concerning wages and earnings have been done improperly.
IODPA is content to see legal challenges focus on these details, as the idiocy of the SMPs who speculate wildly about jobs and earnings makes them vulnerable to being shot down in flames. However, we now want to to present a root and branch argument that the entire basis of any calculations concerning wages and earnings in regard to degree of disablement is unsound and unlawful.
We at IODPA believe that SMPs have regularly failed to properly conduct, within the Regulations, the task placed on them when conducting a review. They have conducted what amounts to a process which seeks to measure loss of earnings. The focus has been on what has been earned, what was being earned at the time of the review and, what might earned in future. Moreover, the necessary impartial status of the SMP’s task has been interfered with by other persons in the employ of the former force, who have supplied them with information about jobs and wages, and calculations based on jobs and wages, which have no place in a properly conducted review process. This amounts to undue influence.
The Regulations do not set out any method by which earning capacity should be assessed and quantified.
They do, however, provide some definitions:
7-(5) Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.
7-(6) Notwithstanding paragraph (5), “totally disabled” means incapable by reason of the disablement in question of earning any money in any employment and “total disablement” shall be construed accordingly.
The Home Office has seen fit to provide guidance to PMABs. It is entitled:
GUIDANCE ON MEDICAL APPEALS UNDER THE POLICE PENSIONS REGULATIONS 1987 AND THE POLICE (INJURY BENEFIT) REGULATIONS 2006. [click to view]
This guidance is routinely made available to police pension authorities and to SMPs. Section Five of that guidance contains a detailed description of how a SMP should address the matter of degree of disablement. The heading of that part is, ‘How does the SMP calculate the degree of disablement?‘
The word ‘calculate‘ indicates very clearly the extra-regulatory view of the Home Office that degree of disablement is nothing more than a matter of what results when someone does some speculative mathematics with wages and arrives at a percentage figure.
At review however, the SMP is required by the Regulations only to give an expert medical opinion, in broad terms, of whether there has been a substantial alteration in degree of disablement. No calculation of any sort is required. The SMP is there to deal with medical matters, which by their very nature are not amenable to ‘calculation’ to the sort of fine degree which the Home Office guidance suggests is required.
The Home Office’s suggested method for quantifying degree of disablement is flawed and should not feature in any way in the process of review of an injury pension. The guidance sets out to encourage a measurement of loss of earnings, which is not the correct approach as it does not comply with the Regulations.
The correct approach to degree of disablement is to quantify earning capacity at the time of the initial grant of an injury pension, and any any substantial alteration upon review, as being within one or other of the four bands set out in Schedule III of the Regulations, using only a medical assessment of the effects of the duty injury on the capacity to work so as to be paid.
It should be noted that the Guidance states, ‘This [guidance] has no binding authority . . .’
Yet the Home Office claims that it is the procedure followed by, ‘. . . most forces and by Boards in recent years.‘
This is something of a chicken and egg situation. The guidance until recently was the only source of advice available to SMPs. It is no wonder that it has achieved wide acceptance. However, that wide acceptance does not mean the guidance is accurate or lawful.
It has to be borne in mind the Home Office historically has provided the training for SMPs and this inevitably results in SMPs being brought to think, as the guidance is the only procedure offered to them, they are obliged or required to follow the guidance. We may be doing some SMPs a disservice, but it can be seen that it could be easier for them to follow the Home Office guidance than to work out alternative procedures for themselves.
There is also the natural inclination to follow guidance which is seen to be from a highly placed and presumably authoritative source. It is easy for SMPs to put their critical faculties to one side and fail to analyse the value and accuracy of such guidance. However, a significant part of that guidance has now been deemed to be unlawful and that surely must cast grave doubts on the entirety of the guidance.
The Home Office influence inevitably skewed the take-up figure and leaves us wondering if SMPs would have used different procedures if alternatives had been offered to them or if they had been left to work out how to approach their task for themselves. The way the Home Office presents it, the Guidance is a reflection of procedure that has been developed by SMPs – that the Guidance merely reflects common practice. That may not be the case, and the reverse may be a more accurate picture – that the common practice (such as it is or is not) arose from the Guidance.
It takes a large leap of faith to believe that SMPs are so organised, and so in agreement, as to be able to produce such a detailed method of assessment. Merely pointing to use of the Home Office’s procedure is a far step away from providing confirmation that it is a lawful procedure, the only procedure, or even the best procedure.
We also have to bear in mind that even if the procedure is used at review, it may produce a result that is similar to one achieved by another method. Hence the absence of any challenge to a decision which, although unlawfully arrived at, is an acceptable decision does not ratify the perceived quality of the guidance. Moreover, the decision owes more to how the SMP operates the procedure than to its quality or lawfulness.
Indeed, the prime fault in the Home Office method is that it is open to manipulation by forces, SMPs and by the Home Office so as to produce assessments that are detrimental to the rights of former disabled officers. It is too easy to pluck jobs and wages out of the vast market place that is working life which can be used to arrive at any desired percentage degree of disablement. By way of illustration, let’s detail how a SMP and a HR department recently calculated a degree of disablement. This is a real case. This actually happened.
A force’s HR department provided a SMP with a list of four jobs which someone in HR thought the pensioner was qualified to do.
There were six wages relating to the four jobs. Each job had two wages – a lower one which was said to be the starting salary and a higher one which was said to be the salary achievable after some time. The lowest wage of the six was £24,717 and the highest was £38,484. The SMP, for reasons he failed to reveal, selected only one wage, of £27,270, and worked out that this represented 75.08% of the individual’s previous police salary of £36,321.
The resultant calculation produced a figure of 24.9%, which he named as the individual’s ‘injury-on-Duty‘ thus placing his injury pension in the lowest of the four bands set out in Schedule III of the Regulations – BY JUST 0.2%.
For the sake of completeness, here are the six possible calculations. I doubt it can be explained why any one of them has any quality or factor which makes it more appropriate for selection than any other wage? Alongside the wages are the percentage ‘degree of disablement’ which the SMP would have calculated.
£24,717 = 31.05%
£25,423 = 30.01%
£26,321 = 27.54%
£27,270 = 24.92%
£32,108 = 11.6%
£38,484 = -5.48%
Note the bottom (highest) wage, which produces a NEGATIVE degree of disablement. Nobody can have a negative degree of disablement and remain disabled. However, this illustration is an example of what can result, and has resulted, from reliance on the Home Office guidance.
Logically, any system which is capable of producing a negative degree of disablement must be flawed.
We won’t propose now to conduct a line by line critique of the Home Office guidance but we have strong reservations about its honesty, impartiality and lawfulness.
It needs to be remembered the author of the above guidance claimed, in other guidance issued as Annex C to Home Office circular 46/2004, in relation to reviews at normal force retirement age, that,
‘Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached – others continued to pay benefits at the same rate until the death of the Officer concerned.’
This claim was exposed as completely untrue. It was a deliberate lie. In fact no force had ever automatically reduced degree of disablement to band one, at any age. The Part 5 Guidance is written in a way that mixes unsupported assertions with erroneous paraphrasing of legislation and unfounded opinion. The guidance is at best unreliable, erroneous and unlawful and at worst a deliberate underhand attempt, using smoke and mirrors, to subvert the Regulations in a way intended to reduce the amount of injury pension paid.
Right at the beginning, it attempts to set the reader off on a wild goose chase:
‘How an injury award is calculated
4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the person’s other relevant income needs to be topped up to the level of his or her minimum income guarantee.’
Why is there reference to unidentified pension award systems that are outside the Regulations? The Guidance says, ‘. . . as is normally the case . . ‘ Why is what might happen elsewhere of any relevance to how an injury award should be calculated under the Regulations? There is no need for that phrase other than to give the (false) impression that the procedure which follows is well founded, common practice found elsewhere in the administration of other pensions and therefore applicable to police injury pensions.
There is no reason for injury pensions to be governed by rules that might apply in other pension systems. Police injury pensions are governed by the Regulations and they most certainly say nothing about any earnings calculation mechanism intended to top up total income.
The Guidance errs by stating that a pensioner’s
‘. . . other relevant income needs to be topped up to the level of his or her minimum income guarantee.’
This concept is repeated a few paragraphs later:
‘The link with earnings is necessary because injury pensions are based on a system of “minimum income guarantee” designed to bring total income in retirement up to a certain level.‘
This is nonsense on steroids. The author of the guidance asserts that the link with earnings is necessary, because he thinks that the Regulations intend that total income in retirement is brought up to a certain level.
He seems to be saying that the pension is added to any income to produce a total. That would be not a minimum income guarantee it would be a control mechanism that produced a cap on income. If the pensioner earned a few pounds more one year, then according to the guidance, he would see his injury pension reduced by a similar amount.
The guidance has missed the point – or deliberately obscured it – for the minimum income guarantee is the amount of injury pension paid, not an expression of total income and is there to provide an income even if no other earnings are present.
How can it bring earnings up to a certain level, and what is that level? Earnings do not feature in the Regulations. Earning capacity does. As the premise in the guidance is wrong – that the pension is there to top up total income (to effectively put a cap on total income) then its assumption that the link with earnings is necessary is also incorrect.
The logic is in the form of ‘as A then B’ – that there is causality between A and B. Therefore, the quality, or truth, of B is dependent on the quality or truth of A. The guidance wrongly describes the nature of an injury pension ‘A’ and from that incorrectly infers earnings ‘B’.
The purpose of the perverse logic is to bring focus to bear on earnings, which the Regulations do not mention, so as to set it in the mind of the reader that it is permissible to equate ‘earnings’ with ‘earning capacity’. The Guidance seems to be saying that it is possible to use earnings, or their notional loss, to determine earning capacity. And that is where the rot sets in and why everything which follows of the suggested method to assess degree of disablement or any alteration in degree of disablement is completely invalid and utterly unlawful.
Reference to earnings is not necessary to determine degree of disablement and earnings cannot determine earning capacity for they are an unreliable indicator which owes more to variable and irrelevant factors that are impossible to quantify than to the effects of the duty injury.
At the heart of the confusion over how to assess degree of disablement is the false and misleading concept that there is a reliable, measurable causal link between earnings and earning capacity. There is more to say on this below, but it can be agreed that how much or how little a person earns is influenced more by a raft of irrelevant factors than by earning capacity.
Only the duty injury is recognised by the Regulations as being a relevant factor in determining earning capacity and thus degree of disablement. Put simply, you can’t look at earnings, whether they be past, present or potential, and use them as a reliable indicator of earning capacity. Earning capacity is an exercisable power, not amenable to measurement in terms of earnings.
Look at it this way – an engine’s cubic capacity does not tell us the brake horse power of the car the engine is in, nor the maximum speed the car can go. If we knew the maximum speed or brake horsepower of a car could we use that to determine the cubic capacity of the engine? Of course we could not. If we determined the maximum speed or brake horsepower had declined could we conclude that the cubic capacity had also altered? Not likely. Similarly, no amount of juggling of earnings, wages, jobs whether past, present or potential can ever lead one back to quantifying earning capacity.
Degree of disablement is determined by the extent of erosion of earning capacity, not any calculation concerning earnings. A capacity is the ability or power to do something – in the environment of the Regulations that ‘something’ is work – specifically work resulting in payment. The payment is nothing more than a by-product of the work. The capacity to work is what has to be measured, not the amount of payment resulting.
Any examination of earnings alone can never lead us to being able to quantify the available capacity to work. The capacity to work can exist without any earnings resulting.
The entire approach, as recommended by the Home Office guidance, to assessing degree of disablement when an injury pension is granted and also at review is fundamentally flawed because of the confusion between ‘earnings’ and ‘earning capacity’ and introduction of the false concept that the injury pension is there to compensate for lost earnings.
This flaw has remained largely hidden because so far it has been only peripherally examined in the High Court or by the Pensions Ombudsman. It is rather like the iceberg which sank the Titanic – mostly underwater and out of sight, but capable of causing enormous damage. The absence of clear direction – a more timely shout from the crow’s nest – combined with an unwarranted certainty that matters were being dealt with lawfully has created much confusion, not all of it innocent.
Mr Justice Stephen in Re Castioni [1891] had this to say:
‘I have had on many occasions, to draft Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.’
It is all too obvious that there has been a sulphurous mixture of ignorant misunderstanding, overlaid with a heavy dose of deliberate misunderstanding, of the Regulations and how they intend degree of disablement shall be determined.
How and why there has been so much confusion, leading inevitably to maladministration? Given that ‘earning capacity’ was adequately defined as far back as 2002, in Crocker, and was well examined by the Pensions Ombudsman in the case of Ayre in 2009, there really is no excuse for seeing its meaning altered, or confused, in any official document from any source.
Unfortunately, it seems abuse of the phrase ‘earning capacity’ which is used in the Regulations is commonplace – so much so that it has been almost supplanted by the cuckoo phrases used by those who should know better. Good and lawful administration is not helped when people who have to apply the law depart from the words and phrases contained in the legislation and indulge in casual paraphrasing or thoughtless substitution. Such lapses should not appear in anything which originates from someone of whom we have an expectation that they get things right.
Casual paraphrasing and thoughtless substitution is indicative of lazy thought processes and poor skill levels, or even of a desire to manipulate the Regulations to the disadvantage of pensioners.
Those false phrases are seemingly innocent but they have exerted a malign effect on the administration of injury pensions. It is not acceptable for those who administer injury pensions to take the phrase ‘earning capacity’ and change it into ‘earnings capacity’, ‘loss of earnings’ or ‘loss of earnings capacity’ or ‘loss of potential earning capacity’ as the fancy takes them.
Examples such as these are found scattered throughout the Home Office guidance, in force policy and procedure, in reports, letters and minutes. Each time ‘earning capacity’ is transformed into something that is an inequivalent paraphrase or substitution, the meaning and intent of the Regulations is twisted. This leads inevitably to misunderstanding and incorrect application of the Regulations.
As this error has become embedded in the administration of injury pensions we have to try to make it a clear as it can be that ‘earning capacity’ is the measure of available physical and mental facility, placed within the work environment. It is a measure of what a person in capable of doing, and thus capable of earning. It is not a measure of what a person is capable of earning and thus capable of doing.
Earnings may result from work, and be the intended outcome of work, but the amount of those earnings does not depend solely on earning capacity.
We will draw your attention to the case of Simpson, heard at Leeds High Court in February 2012. This case could not have made it clearer – neither the pension, nor the amount of pension paid, has anything whatever to do with earnings.
Simpson 12.
‘The two grounds in respect of which the Court of Appeal granted permission to the claimant to challenge the Guidance are: first, that the Guidance is inconsistent with the Regulations (ground 1A); and, second, that the Guidance is wrong in that it mistakes earnings for earning capacity
(ground 1B).’
Simpson 13.
‘As for ground 1B, Mr Lock submits that the test under Regulation 7(5) is based on the loss of a former officer’s earning capacity, not his actual loss of earnings. In this regard he relies on the judgment of Ouseley J in R (South Wales Police Authority) v. The Medical Referee (Dr David Anton) and Crocker [2003] EWHC 3115 Admin where the judge said at paragraph “The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers.”'[My emphasis]
Simpson 32.
‘I also reject Mr Sanders’ submission that the purpose of an injury pension is to make up for the financial consequences of an enforced inability to continue operating as a member of a police force. Regulation 7(4) is the gateway into the benefit, defining disablement. Regulation 7(5) is concerned with the assessment of loss of earning capacity. The degree of a person’s disablement should be determined by reference to the degree to which his (emphasis added) earning capacity has been affected as a result of the injury. The focus is on the individual’s earning capacity which, in the case of a former officer, may or may not involve the police officer’s salary. As Ouseley J noted in Crocker, the task in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not an assessment of whether somebody would actually pay him to do what he is capable of doing.‘ [My emphasis]
So there is no need for the SMP (or anyone else involved) to have access at review to any information about a person’s earnings, past, present, or potential. Nor is there any need for the SMP or the Human Resources Department to try to conduct a job-matching exercise by identifying a job which the individual could do. The SMP should not need to look at any data showing earnings, for any section or category of society, be they average, median or mean earnings. His task is entirely a medical one.
Erroneously, the Guidance advises that the SMP begins to assess degree of disablement by an exploration of irrelevant factors:
’10. In order to assess the degree of disablement the SMP will need to consider by reference to the person’s background, skills and qualifications what kind of employment he or she could undertake, allowing for the particular effects of the qualifying injury.’
Starting with an exploration of jobs and earnings is going at the task from entirely the wrong direction. The starting point at any review is the injury and evidence of any alteration of the effects of the injury on the ability to work.
The SMP should determine at review if there has been any alteration in degree of disablement, and if necessary, whether or not any alteration is substantial, by an examination and assessment of any alteration in the individual’s current, post-injury, physical and mental capabilities, as set within the environment of paid work, compared to the last final decision on degree of disablement.
It needs to be borne in mind the pensioner’s degree of disablement has been fixed, and is final (subject only to Reg. 31 appeal or Reg 32 reconsideration) unless the SMP assesses there has been a substantial alteration in degree of disablement, caused by some change in the effects on working capability of the duty injury, and only the duty injury. He is prohibited from conducting a fresh assessment of degree of disablement, even as a means of using that to compare with the previous assessment. He also cannot revisit causation or diagnosis or apportionment.
A scientific approach demands that the SMP can only properly arrive at an assessment from the known facts before him. His task is not to hypothesise about future earnings and jobs, but to ascertain if there is any alteration in degree of disablement, which itself rests on available earning capacity, which, in turn, is determined by the effects of the duty injury, and only the duty injury.
That necessarily means the known facts can only be medical facts. Any facts about potential earnings or comparisons between earnings, or ratios between earnings, or calculation of theoretical ‘lost’ earnings is in the realm of speculation and bears no relevance to the task in hand.
Nor is the SMP, or anyone else, required to give an opinion on what sort of jobs a pensioner might be able to undertake, or to what extent the pensioner could perform in those jobs, or what someone might pay him. That would be a labour market assessment, which is expressly forbidden by the case of Crocker.
Where a pensioner is working, or has been working, and thus earning, it is impossible, for all practical purposes and for the purpose of the Regulations, to filter out the disabling effects of the duty injury from the multitude of other factors that could affect the earnings of a pensioner. If such a calculation were attempted, the variables would be infinitely abstruse due to their interaction and their resultant propensity to mask the singular effects of the duty injury.
The case of Turner, however, raised the suggestion that degree of disablement might alter if either a) the condition of a pensioner improved so that he could take employment in a job that otherwise he would have been unable to manage, or b) that some new job suddenly became available that the pensioner could manage without having experienced any alteration in his condition.
This invited a diversion into more improbable theorising and speculating. It is not an opinion which detracts from the grounded proposition that at review the SMP need not concern himself with speculation about possible jobs.
In the instance of a), above, occurring, the improvement in the pensioner’s condition would be detected by a medical examination, and only if it were a substantial alteration could the job be taken as a confirmatory factor. It is important not to confuse cause and effect. There would need to be an improvement in the medical condition before the job could be taken. Taking the job does not, of itself, indicate a change in the medical condition. The job would, therefore, not be relevant, for if the SMP determined there was a substantial alteration – an improvement – in the pensioner’s medical condition then surely the pension stands to be revised purely on that basis. The job has merely alerted the pensioner and presumably the Authority to the probability that a review might be appropriate.
In the case of b) Mr Lock QC was speaking with mischievous intent, indulging in drollery at the expense of the opposing QC, not expecting the court to take his words at face value, for he must have known, as a moment’s thought will confirm, that the likelihood of some completely new sort of job suddenly becoming available is so rare as to be extremely improbable.
It would be extremely difficult for anyone to point to a job and prove that it was completely new in nature. All jobs, whether old or new, demand a mixture of physical and/or mental capacity. A bin man’s job might be re-branded as a career-path step for a refuse recycling specialist, but the person doing the job still would need the same old mix of physical and mental capabilities. If an injury pensioner is not able to sit or stand for long, has difficulty in concentrating, has mood swings, constant unremitting pain, or is befuddled by the prescription medication he must take daily, then what new job could possible be any more do-able than any old job?
What was reported in Turner is applicable only to the two specific circumstances outlined by the court and is not amenable to general application. It does not open the door to allowing other factors to be considered relevant to determining degree of disablement or any alteration in degree of disablement.
It is likely to be the norm for the SMP to see pensioners who are working and earning. The Regulations anticipate this, and make no provision for the amount of pension to be adjusted according to how much or how little the pensioner earns. Instead, they speak of a minimum income guarantee – an amount that will be paid regardless of how much or how little a pensioner earns.
Thus it is unwise, when considering degree of disablement, to look at the fact a pensioner is working, doubly unwise to look at the amount he is earning and just plain stupid to use either the fact of working or the amount of earnings to attempt to infer and then quantify earning capacity and thus degree of disablement.
There is a word that very aptly helps describe the situation facing the SMP, should he embark on an exploration of jobs and earnings, past present or future. The word is stochastic.
The Oxford English Dictionary defines it as, ‘ Having a random probability distribution or pattern that may be analysed statistically but may not be predicted precisely‘. The online Free Dictionary defines it as, ‘Of, relating to, or characterized by conjecture; conjectural.’
Stochastic thus refers to systems whose behaviour is intrinsically non-deterministic and sporadic. In plain language, blooming hard to see the wood for the trees. Such a system is the interrelation of random and unpredictable variables which combine to create any particular income stream.
To give a flavour of the stochastic situation of attempting to determine degree of disablement, we can view the relationship between earnings and the labour market in terms of supply and demand. The supply is the work a person might be able to do. What the person can do by way of work is determined by his capacity to work. What he is willing to do for any given wage is a matter of personal preferences, which are difficult to measure with any certainty for they are subject to fluctuation, sometimes rapid and substantial. Demand is the availability of jobs that the individual is able and willing to do for the wage offered.
A stream of actual earnings is a series of varying outcomes of a complex stochastic process involving the interaction of a person’s capabilities and preferences with the needs and demands of employers. Thus data on previous, present or potential earnings presents an uncertain basis of fact from which to draw any clear inference.
Moreover, without a crystal ball, the SMP cannot accurately come to a view on future potential earnings, which depend on chance and choice as well as on skills, qualifications and abilities, and on location, local market rates, exchange rates, government control, supply and demand, who you know, and even the weather, all of which are variables capable of infinite and indeterminate fluctuation. The SMP is, in any event, required to conduct his assessment in the reality of the here and now. He should therefore confine his deliberations to the observable facts before him.
Crocker 33:
‘The concept of earning capacity might be thought itself to contain an element of future potential, but the more normal earning capacity connotations of capacity are of what is now achievable, to be contrasted with actual achievement, rather than with what in the future might become achievable.’
Thus the SMP is actually not permitted to look to the future. This would seem to prohibit not just speculation about future earning capacity but also any speculation about future employment or earnings.
The only way through the miasma of conflicting, contradictory and irrelevant information and speculation is to look only at the medical condition and assess if it has altered, and if so to determine if it is a substantial alteration affecting a person’s capability, his potential, his exercisable power to engage in work which results in earnings.
Remember, the SMP is not permitted to make a fresh assessment of degree of disablement. His only duty at review is to decide whether, since the last final decision, there has been a change, a ‘substantial alteration’. As only the effects of a duty injury are relevant in determining earning capacity and thus degree of disablement, it follows that, when looking for any change, the SMP must look only at the duty injury.
This view differs significantly from what has been promoted (we should say ‘touted’) by the Home Office guidance, but we in IODPA believe our view is supported by the Regulations, by case law and by logic, whereas the Home Office view is not.
The Home Office has never produced any evidence to support its guidance, and its logic has been proved to be faulty to the extent that it has been declared unlawful in certain respects.
2006 Regulation 7-(5):
‘Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.‘
The causal link is between the injury and earning capacity. It is not between earnings, (past, present or potential) and earning capacity.
Laws 49:
‘In my judgment, they erred in taking this change in the claimant’s skill set into account in order to determine that there were now jobs available to her which were not available to her previously. A change in the claimant’s skill set because of her law degree is not, in my judgment, a change in the claimant’s earning capacity “as a result of” the duty injury, as required by the regulations. The combination of regulation 7(5) and regulation 30(1)(d) requires that the assessment of any alteration in the degree of disablement is limited to those factors which are the result of the duty injury. The assessment process looks for the loss caused by the duty injury and nothing else. It should therefore discount the effect of any other factors (see the decision of Ouseley J in R (South
Wales Police Authority) ex parte Anton and Crocker [2003] EWHC Admin 3115, in particular at paragraph 52.’ [My emphasis]
The phrase ‘earning capacity’ has been well analysed and pronounced upon in several High Court cases, notably in
Crocker, 42:
‘The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers.’ [My emphasis]
This view has been accepted and confirmed in more recent cases. An assessment of what a person is ‘capable of doing’ does not need to extend to matching available effort to a particular job or a particular stream of earnings. It is an assessment of available physical and mental effort – of available capacity to work.
Once that is matched to a job or to a wage, it becomes an assessment of the output resulting from the input and is thus a labour market assessment. The phrase, ‘capable of doing and thus capable of earning‘ should not be taken as an invitation to allocate a job or a wage to an individual or to quantify that wage, but rather to allocate a general and broad assessment that the individual could earn something in the range of 0% to 100% of whatever amount he might otherwise achieve but for the disabling effects of the duty injury. It is not necessary to select a monetary expression of what he could earn but for the disabling effects of the injury. Potential maximum uninjured earning capacity is always 100% whether the earnings are £5,000 a year or £50,000 a year.
Let’s return to Crocker. The judge opined, ‘The task, in my judgement, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning.’ It can be agreed the first step in the assessment at review, with Crocker in mind, is to form a view on what the person is now capable of doing.
This is not a job interview where skills, experience and qualifications need to be examined. Nor is is an opportunity to speculate about jobs a person is qualified to do, or to point at jobs he has done. At review the SMP should conduct a medical examination, intended to assess any change in the person’s physical and mental capabilities. It is a measurement of available input effort. It is not a measurement of what jobs and earnings might result.
Logically, it cannot be otherwise, for the Regulations insist the task is handed to a suitably qualified medical practitioner. If the task was one of listing qualities other than medical ones or of looking at jobs and wages then the Regulations would have handed the task to a human resources expert, or a personnel manager, or an economist, or even a theoretical mathematician.
The task at review is to see whether there has been any alteration in what the injured person retains of the ability to work. The result of the work is earnings, so it is clear the assessment of work capability (the ‘doing’ in Crocker) must be set within the specific environment of paid employment. We don’t need medical qualifications to suggest that the sort of tests the SMP might apply would revolve around the person’s physical abilities, such as lifting, standing, walking, fine motor skills, bending and climbing, hearing and sight; and cognitive abilities, such as reasoning, memory, perception, visual and spatial processing; also psychological factors such as motivation, mood, temperament and interest. We could go on, but the general gist of what has been said is plainly understandable.
A suitably qualified medical practitioner will know what tests to apply to the individual and how to grade the results so as to provide a figure within a broad percentage range indicative of the level of work ability retained. There need be no move to apply the retained ability to potential outcome in the form of a job or a wage.
The Regulations are unconcerned about how much a pensioner might be able to earn within his diminished capabilities. They are concerned to provide a minimum income guarantee, so that in the worst-case scenario, where the pensioner has no income from work, he has the pension to help pay the bills.
Other injury compensation schemes, such an insurances, pay either a lump sum, or a series of payments over what is determined to be the working life of the individual. The compensation is based on an assessment of loss of earnings. There is no provision to keep the amount of the payment under review, so if an individual’s capacity to work and earn improves or deteriorates, for whatever reason, the payment remains unaltered.
The police injury pension scheme is not like that. It is linked to the capacity to work, for the lifetime of the individual, and not to any calculated loss of earnings.
Having examined the first part of the phrase in Crocker, ‘. . . what the interested party is capable of doing . . .‘ this leaves us with the qualifying second part of, ‘. . . thus capable of earning.’
This has been sadly, even wilfully, misinterpreted. It has been taken to indicate the SMP must go off on a job matching exercise coupled with speculation about potential wages. This is all totally unnecessary. At review, the SMP will have determined any alteration in the amount of work capability remaining after the disabling effects of the duty injury have been taken into account, by adding or subtracting any alteration he detects.
He thus has a view of available work capability which, when compared to the last final decision, indicates whether the alteration is an improvement or a deterioration and whether it is a substantial alteration. The pre-review degree of disablement is the base line. It is, moreover a final decision, which can not be questioned or revisited.
From the above, emerges a picture of how the SMP can lawfully conduct his task, at review, of assessing whether there has been any alteration on degree of disablement, and if so whether it is a substantial alteration. There really is no need for the SMP to do other than decide which of the four bands set out in Schedule 3 is the appropriate one in which to place the degree of disablement.
The SMP need not seek to provide a precise value of any alteration, for it should be readily apparent if any alteration is a substantial one, and only a substantial alteration allows a pension to be revised. Degree of disablement is thus simply obtained from nothing more than a medical examination to determine any alteration in the effects of the duty injury, and nothing else, on earning capacity.
The Regulations never intended for a SMP to calculate a precise percentage figure. The Regulations only intend the SMP to give an opinion on which of the four bands of degree of disablement the individual’s condition would place him or her.
This view is based on a plain reading of the Regulations and on the opinion of Mr Justice Ouseley, in the case of CROCKER (2003) where, at paragraph 31 of the judgement he opines,
‘The very formulation of the disability bands showed that no refined precision was required.’
This eminently sensible opinion has recent confirmation from the compelling comments of Mr David Scoffield QC, who was commissioned by the Crown Solicitor’s Office, on behalf of the Northern Ireland Policing Board to conduct a review of the present arrangements for the payment of ill-health pensions and injury on duty awards to former police officers.
Mr Scoffield’s report makes this recommendation:
‘In the course of development of this further guidance, serious consideration should be given to abandoning the currently recommended method of calculating percentage disablement, including detailed reliance on the ASHE survey and comparison with the officer’s notional uninjured police salary, in favour of a much more basic approach, whereby the relevant medical authority would simply make a judgment in the round as to the severity of the impact of the duty injury on the officer’s earning capacity, so as to select the officer’s appropriate band without the need to calculate a specific percentage disablement figure.‘
Mr Scoffield, it seems, has taken note of the way that SMPs have been swayed by guidance from the Home Office and, more recently by the College of Policing, into forming erroneous interpretations of the intentions of the drafters of the Regulations. There is no need to calculate a specific percentage disablement figure.
We in IODPA say it it time for HR managers and SMPS to read the Regulations and case law themselves and to chuck the Home Office guidance in the bin, along with all the other false advice and training they have been subjected to from other quarters.
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