Staffordshire

Bad Law (Appeal For Justice)

IODPA Admin caselaw, Regulation 33, Regulation 37, selected medical practitioner
Bad Law (Appeal For Justice)

Bad law, or a bad law, or bad laws may refer to:
– A law that is oppressive
– A law that causes injustice
– Dumb laws, those laws which are particularly bizarre

 

Appeal for Justice

Please support our appeal for crowdfunding for this very important cause.

Make NO mistake, this ruling affects EVERY force in England, Scotland, Wales and Northern Ireland, every pensioner in receipt of an injury award, and EVERY serving officer who may find themselves, being injured on duty.

This appeal is for all serving police officers, all retired officers (with or without an injury pension), the families, friends and supporters of the police service and for anyone else that recognises the dangers that officers face on a daily basis. It is also for those, in the legal profession who recognise bad law, and the implications of allowing such law to remain unchallenged.

A recent court ruling places thousands of police officers up and down the country forced to retire through injury in a position where they have no option to consent on a regular basis to their forces trawling through their personal or private medical data from birth, or risk having their pensions reduced their lowest level. Those injured officers are now leading the fight on behalf of ALL future injured officers and those who are currently retired.

Police officers, on a daily basis, selflessly put themselves in harms way to protect life and property. We have all heard the expression of police officers running into danger when everyone is running away from it. They do this regularly without thinking of the personal consequences to themselves, and thankfully in the vast majority of cases they escape without any serious harm. We know all too well from the news, that on some very sad occasions, officers lose their lives, and there can be a fine line between these officers and those, who survive but end up with life changing injuries.

Many, having dedicated their entire lives to policing, will be forced to retire early with ill-health retirement as they are no longer able to perform operational duties. If their permanent injures affect their future earning capacity, they may be granted an additional injury pension to compensate for their inability to earn what they may have been able to, were it not for those injuries.

This additional pension is paid under the The Police (Injury Benefit) Regulations 2006 (‘The Regulations’), and is only awarded after careful scrutiny by a doctor. There are four bands within The Regulations, with highest band being awarded to the most affected, and which in turn attracts a higher pension.

Once awarded, The Regulations allow police forces in England, Wales, Scotland and Northern Ireland to periodically review these pensions to ensure that the correct level of award is maintained. We’ve yet to meet an injured pensioner who disagrees with being reviewed to ensure that they are given the correct level of award as long as the review is conducted properly, fairly and impartially. Sadly this is not generally the case and injured officers are mostly treated with contempt by the doctors.

The decision when to review is discretionary and down to each Chief Constable who act in a secondary role called the Police Pension Authority (‘PPA’). They appoint a doctor with a title of Selected Medical Practitioner (‘SMP’) to carry out a medical examination who have to determine whether there has been a ‘substantial change’ in the condition of the pensioner since their last examination. This period for consideration is already set out in existing case law.

We have, in recent years, seen a number of forces conduct a worrying trend of what can only be described as an unrelenting assault on these pensioners with review programs designed for only one purpose, and that is to reduce the pensions of these courageous officers in order to save money from their budgets.

There is notably a handful of Chief Constables, HR mangers, solicitors and SMPs who are constantly dreaming up inventive new ways to interpret, (or misinterpret we should say) The Regulations for no other reason than to reduce these pensions. How they sleep at night, we just don’t know.

We believe that members of the public would be shocked and disgusted, if they knew about some the way in which some of these unscrupulous individuals operate. The public seem to have this preconceived idea that police officers are well looked after by their forces should the worst happen to them and ‘they look after their own’. It causes us much dismay to shatter this illusion.

Whilst it is true that some pensioners, when no longer exposed to the policing environment may, to a degree recover, these are in the minority, and many have to battle with the scars of their physical and mental disabilities for the rest of their lives.

At the moment, it is a small number of forces that appear to have no respect for their former officers and one such force is Staffordshire. In April 2017, they sent out letters to every pensioner in receipt of an injury award, informing them that they were all to under go reviews. Despite this decision predating the appointment of a new Chief Constable it coincided with Gareth Morgan arriving at the force from the Avon and Somerset Constabulary who had themselves been conducting reviews for the previous three years. Was it any coincidence that as Gareth Morgan left Avon & Somerset, the new Chief Constable, Andy Marsh, brought reviews to a halt?

Despite The Regulations placing no obligation on the former officers under review to provide personal and private medical notes, Staffordshire Police demanded that they hand over a complete set of their doctors notes from birth. They also demanded that other personal and private information be disclosed in the form of a questionnaire.

The officers contested that these demands were wholly excessive and breached their human rights as they weren’t measured or proportionate to the purpose of the review. The only obligation that the regulations placed upon the pensioners was that they ‘submit [themself] to such medical examination or to attend such interviews’, which they all did by attending a prearranged medical appointment with a SMP. They also volunteered a letter from their own doctor stating that there had been NO change in their medical condition.

During the appointments, the SMPs (Dr’s Vivian, Yarnley and Nightingale) made NO attempt to medically examine the pensioners. They asked NO questions about their condition and for those with physical disabilities, made NO physical examination. All they demanded was access to full and non redacted medical records since birth. The reasons for this, we believe are three fold,

  • Firstly, Staffordshire police have LOST the medical records of many of these pensioners over a period of time, therefore they desperately need to obtain a replacement set, otherwise they knew nothing of the background and history of the pensioner.
  • Secondly, it has been common practice for some unscrupulous SMPs to forensically examine the entire patient history with to view to finding ‘something’ else that may allow them to reduce the pension.
  • Lastly, we believe that these SMPs were setting these pensioners up to fail.

In April 2009, the Home Office released a paper entitled ‘Review of police injury benefits government proposals’. Para 6.6. states,

Although this requirement ensures that the applicant must provide the police authority with an opportunity to have him or her examined and interviewed as necessary, it does not provide the authority with any express power to require the disclosure of relevant documents and medical records. Although it is not suggested that a police authority should be given such a power, it is clear that refusal to comply with such a request will oblige the police authority or the SMP, as the case may be, to consider the case on the available facts, and it is also reasonable for them to conclude in such circumstances that the claimant has something to hide which would damage his or her case.

 

The Home Office, further acknowledged this fact, when in 2011 they drafted a new set of regulations which suggested replacing this section,

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;

with this,

Refusal to co-operate in medical examination

32.—(1) This regulation applies where a relevant medical question is referred to a medical authority under regulation 29, 30 or 31 and the person concerned wilfully or negligently fails to—
(a) submit himself to a medical examination;
(b) attend an interview; or
(c) consent to the disclosure of medical records
which the medical authority considers necessary in order to enable him to make his decision.

 

It’s worth pointing out here, that Staffordshire Police, have acknowledged that there is no legal obligation for these pensioners to hand over their most personal and private of medical notes. They wrote to one of the pensioners solicitors with the following,

“It has been explained to your client that he does not have to give consent for access to his medical records the consent form states “you can refuse to give consent if you wish”

 

In addition to this the ICO also had a view on this stating,

20th April 2018 and the 5th September 2018 – “Although consent is not defined by the DPA, it should be freely given. Where an individual has no option but to consent to the processing of their personal data, it is unlikely that consent has been freely given. This therefore raises fairness concerns and in our view we do not believe that consent is an appropriate condition to rely on for the processing of sensitive personal data.”

 

It is probably worth noting here, that in May 2018, the Information Commissioners Office (‘ICO’), became involved in Staffordshire Police’s poor handling of data, and made the following number of recommendations for corrective action,

Urgent Priority recommendations – 5

High Priority recommendations – 52

Medium Priority recommendations – 37

Low Priority recommendations – 7

 

Despite the forces seeming inability to securely retain sensitive personal data, one of the pensioners even took a set of their doctors notes along to the appointment for the SMP to read, but unsurprisingly, the SMP refused to read them.

With this background in mind, what pensioner in their right mind would voluntarily hand over the medical history to a force that clearly had no right to demand it, and had a dreadful history of failing to secure or protect the integrity of sensitive information? It also became clear following numerous correspondence with the force that some medical data that had been submitted to the force was being trawled through the by HR staff, who had no right to do so. This is a serious data protection breach.

Mr Morgan wrote to the pensioners involved with a view to having a meeting. He withdrew from that meeting when the pensioners requested that their legal representative be allowed to attend. Such a strange decision if Mr Morgan was acting in good faith throughout the process.

Despite all the pensioners complying with the letter of the law, the Chief Constable deemed that the pensioners had failed to comply with The Regulations and invoked punitive measures under a different regulation, this being 33, thereby dropping every pensioner that had a physical disability to the lowest band, and those with mental disabilities by one band. Some pensioners have lost over £1,400 per month.

Whilst regulation 33 allows the PPA to make a decision, it has to be made ‘on such evidence and medical advice as they in their discretion think necessary’. NO evidence has been provided by the PPA to support the punitive decision that they’ve made. The decision to reduce still falls under regulation 37(1) where a ‘substantial alteration’ has to be found, and there is no such evidence to support the reductions. Instead, the reductions seemed to follow a pattern rather than looking at each case individually, and the PPA decided that many of the pensioners could perform the same full time role within the force.

With the assistance of IODPA and the Police Federation, the pensioners challenged the decision, which was heard on 15th and 16th July 2020 by Mr Justice Linden in the Administrative Court of England and Wales. His judgment was handed down on 16th September 2020.

You can read a copy of the judgment here –
Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 (Admin) (16 September 2020)

Unfortunately, the case was lost and the consequence of the judgment provides all police forces the ability to make unrestricted demands from all officers undergoing a review or they may face an incontestable financial penalty without the right of appeal.

We feel as though the judge in this case has ignored all the evidence, that there is no obligation in law for these pensioners to hand over their medical records. Had the judge applied the letter of the law, he would have come to the same conclusion that this is the case. We accept that this may cause a dilemma for the force, but this is for the legislators to resolve.

If this judgment, which we consider as ‘bad law’ is allowed to stand, ALL those in receipt of an injury pension will be at risk in the future, even if your force is not currently reviewing, although we are aware that a number of forces are looking at commencing reviews following this case being eventually finalised.

As a result of this, we have decided that we have no option, but to appeal this decision on behalf of all injured police officers around the UK. We understand that the Police Federation will not be financially supporting this appeal, although we would ask them to please urgently reconsider their position.

To give those in receipt of an injury pension an idea as to what they may lose, if this new ruling is applied across every force in the country we need to look at the impact upon their injury pension. The monetary awards in each band is not linear i.e. a band 4 pension is not exactly four times that of a band 1, but this method of calculation is a pretty good guide.

So if you’re on a band 2, your pension would be reduced by half, if you’re on a band 3, your pension would be reduced by two thirds, and if you’re on a band 4 your pension would be reduced by three quarters.

Now compare that huge reduction each and every month, for the rest of your life, with trying to get this decision overturned?

This ruling may even affect those on band 1 and whose condition worsens, as we believe that they will find it more difficult to secure an increase in their banding. Ironically Staffordshire Police had initially decided not to review those in receipt of a band 1 award. The cynical amongst us would believe that it it not possible to reduce them any further, and therefore it was a pointless exercise. It was apparent that this would have been unlawful not treat everyone with a disability the same, and so the policy changed, and they embarked on reviewing the band 1’s. Strange though it may seem, when Staffordshire wrote to the band 1’s they and asked if there had been any change in their condition, they accepted their word for it, when they said that there was none. However, they wouldn’t accept the word of anyone in bands 2, 3 or 4. Draw your own conclusions.

As a result, we  have launched an appeal to raise £75,000 to cover the legal costs of taking this dreadful decision to appeal.

We have created a donation page, which we would encourage you to use and also, where possible, please indicate, if applicable that we can claim gift aid on your donation, which means that HMRC will give us another 25% on top of what you donate.

The page can be found here – https://iodpa.org/appeal-for-justice/

Please support our appeal, and more importantly please support all those officers that had to leave their much loved career end through no fault of their own. If serving officers were fully aware of the way in which some forces consider their former officers are merely a financial burden, they may think twice before putting themselves in harms way.

Daily Mail Reports On The Staffordshire Police Judicial Reviews

IODPA Admin newsflash
Daily Mail Reports On The Staffordshire Police Judicial Reviews

The Daily has today run an article about the Staffordshire Police judicial reviews which is due to be heard at Birmingham Administrative Court today and Thursday.

It summarises the situation regarding injury reviews very well, highlighting the unjust process and how forces are conducting reviews for no other reason than to save money.

We wish the pensioners affected by this court hearing only one thing – justice!

Here  is a link to the article –

Staffordshire Police Should Stop Digging

IODPA Admin medical records, Review
Staffordshire Police Should Stop Digging

If you find yourself in a hole, the first thing you do is stop digging

— William Penn Adair Rogers (1879–1935) was an American stage and film actor, vaudeville performer, cowboy, humorist, newspaper columnist, and social commentator.

You have to wonder, don’t you, what went through the mind of whoever recently decided to send out a letter to a disabled former officer which seeks consent to access their medical records?

Staffordshire Police Pension Authority (‘PPA’)(The Chief Constable in a different role) is currently awaiting a decision in a judicial review, a central issue of which is access to injury-on-duty pensioners’ medical records.

We can’t comment on the case, but we can comment on the letter, so let’s do just that.

 

It does have one thing to commend it – it is reasonably polite in tone, but that is about all that can be said in its favour. Any politeness is lost in the dark undertones of the message.

The letter advises the recipient that a review of his degree of disablement, which was commenced nearly two years ago, is being proceeded with. There is no reason given for the long delay, nor any apology for any inconvenience or distress caused.

Also absent is any reference to what is actually meant by a ‘review’. We have pointed out before that the word ‘review’ does not appear anywhere in the Police (Injury Benefit) Regulations 2006. This is the legislation which govern the administration of the police injury award scheme.

For new readers – the scheme is a non-contributory compensation arrangement akin to an insurance plan. Should an officer be injured on duty to the extent they can not longer perform the full ordinary duties of a constable, then their Chief Constable has the option of requiring them to retire. In which case the disabled individual can be considered for grant of an injury award, which consists of a one-off gratuity and a pension payable for life.

The Regulations allow for the scheme manager to,

. . . consider at such intervals as may be suitable whether the degree of the pensioner’s disablement has altered, and if after such consideration the police [pension] authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

Such provision is sensible, as in some instances, a pensioner may find their disablement has worsened. In which case they may be due an increase in the injury pension. The opposite is also there, in that if a pensioner experiences a substantial improvement in their degree of disablement then the amount of pension paid can be reduced, on the basis that the individual is now better able to work and thus earn.

The Regulations do not tell police pension authorities exactly when it may be permissible to make the ‘consideration’ – to do so would place a fetter on the wide power of discretion police pension authorities have. However, whenever a power of discretion is exercised, it must be done so properly and with regard only to relevant factors. In the experiences of our members, it is rarely the case that police pension authorities manage to conduct these ‘considerations’ lawfully.

Faced with intransigent police pension authorities, who appear universally to have a complete lack of willingness to accept they have done anything wrong, it is not surprising that we have seen a steady flow of successful judicial review cases brought by pensioners.

Back to the letter. It commences with an inaccuracy, which does not bode well for the quality of the rest of its content. The letter says.

I am writing to inform you that your Injury Award . . . is due for review.

In fact, only the degree of disablement itself is liable for consideration. Not the ‘Injury Award’ which, as we know, consists of a pension and a gratuity. Other forces have made this mistake and have thus caused much distress to disabled former officers, many of whom are vulnerable and in poor health, for it gives the false impression that the gratuity may be under threat as well as the pension.

Staffordshire’s letter does redeem itself slightly, as it states, in bold, that, for this pensioner, the injury pension will not be reduced as a result of the ‘review.’

Now, this is where we see a bizarre aspect of the letter. The pensioner concerned is on the lowest level possible of injury pension. So, of course it can’t be reduced. Why then, we ask, is Staffordshire wanting to hold a ‘review’? Can it be they have reason to believe that the pensioner’s degree of disablement has worsened, and are anxious to provide a higher level of pension payment?

We think not. Staffordshire clearly have no idea whether that is the case or not, for they have ‘respectfully’ asked the pensioner to provide a raft of sensitive personal information, the purpose of which is to,

. . . enable the review to be undertaken . . .

Here is a copy of the questionnaire,

 

However, having asked for the information (of which more below) Staffordshire helpfully provide some ‘Frequently Asked Questions’ with the letter. The response to one question tells us that pensioners on the lowest band of injury pension will not have their pension reviewed.

We will repeat that, as it is noteworthy. Pensioners on the lowest band of injury pension will not see a ‘review’.

Yet, Staffordshire clearly tell this pensioner that his ‘injury award’ is due for ‘review’. They know the pensioner is on the lowest pension payment, so, according to their stated policy, the pensioner should not be subject to a review.

Very confusing.

Then there is the ‘Injury Award Pension Reassessment Questionnaire’ which also accompanies the letter. This asks the pensioner,

Do you consider that there has been a substantial alteration in your disablement since you were last assessed or reviewed for an injury award?

Any pensioner who had to work out what Staffordshire intends with this letter and accompanying material would come to the conclusion that whoever had a hand in putting the package together had no more than a feeble grasp of how to administer the Police (Injury Benefit) Regulations 2006.

We don’t mean to be unkind, and won’t critique much more of what was sent to this one pensioner any further other than to say it hardly helps foster any feelings of confidence that the Regulations will be followed fairly.

However, above all its other faults, one aspect stands out. We mentioned above that the letter came with a request for the pensioner to provide detailed sensitive personal information, including medical information, financial information and details of training, qualifications gained, employment, salary, other earned income, voluntary work and state benefits.

Thus, in the light of the ongoing judicial review, which will examine whether a police pension authority has any right to access a former offer’s medical records, we can only say that it is inflammatory and ill-advised for Staffordshire to seek the pensioner’s consent to approach the pensioner’s ‘Doctor/Consultant’, requesting ‘. . . a Medical Report or Medical Records . . .’.

Staffordshire should know that such information is classified under the General Data Protection Regulations as ‘special category’ data, which is robustly protected by means of detailed provisions within that legislation. If Staffordshire police pension authority thinks it has a right to such data, then there would be no need to ask for permission to access it. Asking for permission is about as clear an admission as can be that the police pension authority knows it has no regulatory or statutory right to such information.

The consent form is a cynical attempt at bamboozling a disabled former officer into signing away all rights which protect his special category information.

Whist the judicial review remains open, and pending any appeals, any decent, humane and sensible police pension authority surely would not be continuing with ‘reviews’ .

We will leave the last word on the matter to Will Rogers, who wrote, ‘There are three kinds of men. The ones that learn by reading’. The few who learn by observation. The rest of them have to pee on the electric fence for themselves.’

The Devil Finds Work For Idle (Staffordshire) Hands

IODPA Admin Chief Constable
The Devil Finds Work For Idle (Staffordshire) Hands

The devil finds work for idle hands

— Henry David Thoreou

We have it on good authority that our website is widely read not only by injured officers or those seeking further information about the ill-health or injury award process, but by SMP’s, force solicitors, HR managers and maybe even Chief Constables.

A number of months ago we introduced ‘Like’ and ‘Dislike’ (or thumbs up/down) buttons for the user submitted comments on our blogs. As an organisation that believes everyone is entitled to their own view, we are happy to have ‘Dislikes’ as well as ‘Likes’. We have in the past also published negative opinions about our blogs.

However, it wasn’t long before we noticed that a person or persons unknown went on a frenzied clicking spree, ‘Disliking’ all publicly published comments on our blogs. The ‘Dislikes’ far outweighed the ‘Likes’ for any particular comment, and disproportionately so.

On 18th March 2020, we released a factual news item concerning Gareth Morgan, the Chief Constable of Staffordshire Police where we highlighted a recent BBC documentary where is was said that he had wept – https://iodpa.org/2020/03/18/chief-constable-gareth-morgan-weeps/. The item gave no personal opinions and linked to both the program and a number of online news articles. This resulted in some public comments being posted.

The day after the news item appeared, the phantom clicker was back, putting twenty three ‘Dislikes’within tweleve minutes on just about every one of the user comments! Only this time, we captured the Internet Protocol (‘IP’) address of the user making the clicks.

For the non technically minded, whenever one computer talks to another using something called Transmission Control Protocol/Internet Protocol (‘TCP/IP’), certain additional information is always passed in the transaction. This includes a numerical identifier separated by dots, which is a unique reference to the computer or network at the time.  It is something that always happens in the background, that most people are probably not even aware of.

Here is a list of the ‘Dislikes’ that were recorded –

You will see that the IP address captured was – 213.104.210.101

A reverse Domain Name Server (‘DNS’) lookup using one of the many publicly available tools gave us details of who that particular IP address was assigned to.

You will see that a static block of IP addresses 213.104.210.96 – 213.104.210.127 has been permanently assigned to none other than…

Staffordshire Police

Yes, that’s right, someone viewing our site from within Staffordshire Police is frantically clicking the ‘Dislike’ button on every public comment published.

The following day there was another tranche of ‘Dislikes’. This time, twenty one ‘Dislikes’ in a period of two minutes. The IP address this time was 213.81.65.226. Wait for it… yes, it is another IP address in a range (213.8.65.224 – 213.81.65.231) allocated to none other than Staffordshire Police.

This obviously begs, the question, who is it? Is it a member of HR such as Andrew Coley, who has been driving the injury reviews? Is it a member of his team, or maybe it is a member of senior management? Of course it could be Gareth Morgan himself?

We have supplied sufficient information for Staffordshire Police IT department to check their own server logs and identify who this person is, and would be very happy to hear from the person directly? As we have previously said, we are more than happy to place alternative views on our website; it is always interesting to hear the argument from another viewpoint.

You may, of course (as always), leave a comment on this blog, but just bear in mind that you may, at some stage, get a ‘Dislike’ for it, but don’t take it too personally as it appears to be the work of one person, and judging by the emails we receive from serving and retired officers from Staffordshire Police, we know that their view doesn’t represent the rank and file from within the force.

Chief Constable Gareth Morgan Weeps

IODPA Admin Chief Constable, newsflash
Chief Constable Gareth Morgan Weeps

Gareth Morgan commented on the decisions he’s made:  “I’m fairly unapologetic about it”

Chief Constable Gareth Morgan, has taken part in a new BBC documentary, “Cops like us”, following police officers in Staffordshire. He was reduced to tears when talking about some of the decisions that he’s had to make, but concluded by saying “So, it may well be surprising. I’m fairly unapologetic about it.”

The program shows the scale of challenges that the officers face on a daily basis and are a constant reminder that some officers can become seriously injured through no fault of their own.

PC Keri Inskip said, “While violence has always been prevalent in the areas I’ve worked in and I’ve always been in city centre policing where there has been high levels of violence, it’s more dangerous now than I’ve ever known.”

Last year Gareth Morgan reduced the pensions of seventeen former officers injured on duty. A judicial review is expected later this year over that decision.

Cops Like Us aired at 9pm on BBC Two and is available on BBC iPlayer.

https://www.stokesentinel.co.uk/news/stoke-on-trent-news/bbc-cops-like-us-staffordshire-3960394

https://inews.co.uk/culture/cops-like-us-police-stoke-austerity-cuts-2461984

A Tale Of Two Forces

IODPA Admin caselaw, Police Pension Authority, regulation 32
A Tale Of Two Forces

‘In my judgement, Mr Lock’s submission is correct . . . ‘

— Her Honour Judge Belcher

We have two judicial review cases to report on. One resulted in a decision in favour of the pensioner  and the other did not.

Both cases will have considerable effect on the future behaviour of Police Pension Authorities (‘PPA’) across the country. However, it is becoming increasingly obvious that two or three PPAs are likely to continue attempts to thwart the intentions and purposes of The Police Injury Benefit Regulations 2006, whilst the vast majority remain rightly very cautious about breaking the law. IODPA hopes the lessons learned from these two recent judicial reviews will result in positive improvements in the administration of police injury awards.

For legal reasons, IODPA cannot comment on the merits of the case which was lost, but we can talk about the principles involved, as they apply universally.

In a hearing in the Administrative Court, the Chief Constable of Staffordshire Police was the respondent to an action taken by a former police officer, Colene Boskovic. The claimant argued that a decision by the PPA to refuse agreement to arrange a regulation 32(3) or 32(3) reconsideration was,

 

. . . unlawful on its face for inadequate reasons and/or a failure to address the primary purpose of a Regulation  32(2) reconsideration.

 

The case report of Boskovic is available for scrutiny here.

 

We should explain that the Regulations make provision for any decision taken by a police pension authority to be reconsidered, provided that both parties, the individual concerned and the police pension authority, agree to a reconsideration process being held.

The concept of reconsideration is a sound one, in that it allows errors of law or fact to be readily and inexpensively revisited and for corrective action to be taken. The concept is a necessary one, for awareness there may have been errors might not surface for some time after a flawed decision was made. The concept is a positive one for disabled pensioners may be unable, for various compelling reasons, to act within the strict time limits which control when a formal appeal to a police medical appeal board must be made.

For many years it seems the reconsideration provision was little used. This may have been because pensioners, and those who represent them, were unaware decisions could be reconsidered, or were unsure how to approach this provision. Another factor undoubtedly has been the all too common practice of forces failing to properly inform officers and former officers of their rights.

We have the 2012 cases of Haworth v. Northumbria Police  Authority and Crudace v. Northumbria Police Authority to thank for illuminating the detail of regulations 32(2) and 32(3) – especially in informing all concerned there is no regulatory time limit on holding a reconsideration. Since 2012 pensioners have turned to the reconsideration provision to correct old errors, much to the dismay of some police pension authorities.

From all the evidence, both statistical and anecdotal, it is easy to conclude many errors remain undiscovered and uncorrected. Putting matters right would be an expensive business impacting on the hard-pressed finances of some forces. It comes as no surprise then that Staffordshire would seek to close off this opportunity.

As with Haworth and Crudace, Colene Boskovic sought agreement from her police pension authority to arrange a reconsideration of a decision. In her case, the decision was that she did not qualify for grant of an injury award. The court heard argument from the respondent which essentially presented the view that a reconsideration could not be held ‘fairly’, due in part to the passage of time – being some 14 years – since the disputed decision was made, and also the unavailability of the original decision-making SMP.

The Chief Constable explained her refusal thus:

I do not agree to a further reference to a medical authority for reconsideration of the original refusal of an injury award. This is because I believe the request is frivolous and vexatious: the delay of 14 years from the original assessment is such that I conclude no reconsideration is possible. Dr. Gandham, the selected medical practitioner who made the original decision to not make an injury award is no longer licensed to practice in the United Kingdom, and neither is Dr. Srinivasan upon whose report Dr. Gandham relied. I do not believe the underlying merits of having the case reconsidered have sufficient strength to justify it

 

The court’s decision in this case appears to bring new elements for a PPA to consider when deciding whether or not to agree to holding a reconsideration. All we can say for now, is that each case is different, and is determined on the individual circumstances and the merit of the arguments presented. Pensioners, and serving officers seeking grant of an injury award need not be disheartened by the outcome in this case. There will be other cases and IODPA is confident that understanding of regulation 32(2) and 32(3) will continue to expand and clarify in favour of disabled individuals.

We can turn now to the more uplifting result of the case brought by our member Angie McLoughlin.

The case report has earlier been published on this web site – https://iodpa.org/2019/04/10/injured-pensioner-wins-court-case-over-back-payment-of-pension/

Angie appealed by way of judicial review the decision by the Chief Constable of West Yorkshire Police to refuse to fully backdate payment of an increased injury pension award.

Angie was severely injured by a burglary suspect and was retired on an injury pension in 1983, which was set at 25% disability. This is categorised in the Regulations as ‘slight disablement’ and attracts the lowest possible level of pension payment. It also meant that Angie was due much less in the way of the one-off gratuity. With only six years service, she qualified for a gratuity of 30% of average yearly pensionable pay, whereas if she had been assessed as very severely disabled she would have been due for an 85% gratuity and a much bigger pension.

Angie became embroiled in lengthy dispute with West Yorkshire Police. There was good reason to suspect that some records had been altered, so as to change what was 75% to 25%.  The issue of fraud has still not been brought to a conclusion. We don’t want to in any way give the appearance of glossing over the huge problems Angie faced in attempting to secure justice, but for reasons of space and focus, we need to leap ahead to 2004 and then to 2019, being the dates of pivotal events.

In 2004, some 21 years after Angie retired, a review was finally held regarding her degree of disablement, though the decision on that review was not produced until 2007. Meanwhile, Angie continued to be paid the lowest possible injury pension, despite the fact she was totally incapable of engaging in paid employment. The 2004 review led on, after much delay and complications, to Angie appealing to a police medical appeal board in 2009. The board assessed her degree of disablement as 88%, thus placing her in the highest of the four bands set out in the Regulations and confirming she suffered ‘very serious disablement.’

In August 2017, the police pension authority – none other than the Chief Constable – agreed to arranging a regulation 32 reconsideration of the original decision that had set her degree of disablement at 25%. Dr Iqbal was tasked with making the reconsideration as the original decision maker was no longer available.

Dr Iqbal concluded in April 2018,

In my opinion, based on the assessment carried out today as well as the evidence to hand, it is my opinion that at the time of the original decision in January 1984, a band 4 degree of disablement was appropriate.

 

The PPA continued to reject its liability to make complete restitution, with arguments over the period to be covered, so the matter was taken to judicial review in 2019, with the issues summarised by the court as,

The Appellant’s case is that Dr Iqbal’s fresh report, being by way of a re- consideration under Regulation 32(2), replaces Dr Anderson’s report of January 1984, and, as a consequence, the payment obligations owed by the Chief Constable are substituted for the payment obligations owing by the Chief Constable arising as a consequence of the previous report.  In other words, the Appellant asserts that the Regulations mandate back payments to cover the period from December 1983 to 2007.  The Respondent’s case is that the payment obligation is affected only from the date of Dr Iqbal’s report, that is from April 2018, and that the Appellant is not entitled to any backdated payments.

 

Angie won her case, and West Yorkshire Police became obliged to pay her all monies claimed, plus interest.

There are themes common to both cases, not least the effects of the passage of time on rights, liabilities and the practicality of securing a fair reconsideration through the application of regulation 32. These are weighty issues and it is likely they will figure again in other cases. IODPA would prefer to focus for now on highlighting and praising the immense courage and determination displayed by Angie and Colene. Pensioners and serving officers across the country owe them both a debt of gratitude. The history of the long-running ‘injury pension war’ as it has been dubbed, shows that it is only when individuals bring matters to court will errant police pension authorities mend their ways.

In the Boskovic case, we see the deputy head of the force’s legal services writing,

As a keeper of the public purse, it is right that the Chief Constable (as the Police Pensions Authority) considers her position carefully.

 

This implies the PPA was concerned about the costs which might result should they lose the case, and thus be liable, through reconsiderations, to make good injury pensions underpaid through years of maladministration and flawed decisions.

However, the judge took the view that it was appropriate for a PPA to take into account the cost of the process of reconsideration when deciding whether to agree to one or not. We can only but wonder at the logic of a PPA balking at spending the few hundreds of pounds a reconsideration would cost, yet happily spend many thousands of pounds of public money on contesting matters brought to judicial review. In the Boskovic case, the PPA may well be feeling the expense was justified, but is sure to find that any financial advantage apparently gained will be short lived.

The lesson from these two cases is that neither of them would need to have been brought if only the authorities involved had acted with decency and respect to its injured officers.

Mental Health Awareness Week 2019

IODPA Admin Chief Constable, Police Pension Authority, Review
Mental Health Awareness Week 2019

 

Hosted by the Mental Health Foundation, Mental Health Awareness Week 2019 takes place from Monday 13 to Sunday 19 May 2019.

We often associate the word ‘bedlam’ with raving madness and chaos, whilst forgetting that it derives from the name of a hospital, Bethlem, which was established in 1247 in London.

Now called the Bethlem Royal Hospital, it is a well-regarded psychiatric hospital providing a wide range of clinical services for people with mental health and / or substance misuse problems. Its history is, however, very colourful and is perhaps a microcosm of how mental illness has been viewed, and treated, over the centuries.

As far back as the middle of the sixteenth century, friends and relatives were allowed to visit the ‘inmates’, not least to bring food and other essentials for their survival. Public and casual visitors with no connection to the inmates were also routinely allowed in. It would be easy to think that there was entertainment to be had in viewing the extraordinary behaviours of the mentally ill, but the original rationale behind allowing the public access was rooted in financial considerations.

The governors of the hospital aimed to encourage ‘people of note and quallitie’ to visit and be moved by moral benevolence to make generous donations to aid the running of the hospital. They succeeded in this aim, but it soon became obvious that visitors came mostly for the entertainment value. What drew the visitors was, “the frisson of the freakshow” where Bethlem was “a rare Diversion” to cheer and amuse. It became one of a series of destinations on the London tourist trail which included such sights as the Tower, the Zoo, Bartholemew Fair, London Bridge and Whitehall.

Attitudes to mental illness have shifted somewhat since those dark days, and in generally the right direction. But within the police service it seems there may still be a mountain to climb.

A recent study of almost 17,000 police across the UK found that 95% of officers had been exposed to traumatic events, almost all of which were work-related. Civilian staff too were affected, with  67% of operational police staff reporting they had experienced trauma.

The study showed that 20% of the respondents reported symptoms which were typically experienced by sufferers of PTSD or complex PTSD.

Disturbingly, some 66% of respondents were unaware they might be suffering from PTSD or other anxiety related illness.

The study appears to indicate a widespread lack of awareness by senior managers of the presence of mental health problems among officers and staff.

Gill Scott-Moore, chief executive of Police Care UK, the charity which funded the research, has said,

The service has real challenges around recognising and responding to the signs and symptoms of trauma exposure and is heavily reliant upon generic NHS provision that isn’t equipped for the specialist treatment needed.

 

 

View the study here

 

 

Meanwhile, in April a national police wellbeing service was launched. Branded as ‘Oscar Kilo’ (OK) it is funded by a £7.5 million investment from the Government through the Department of Health. Chief Constable Andy Rhodes of Lancashire Constabulary heads up the new initiative. He announces on the Oscar Kilo web site that it

. . . was created and designed to host the Blue Light Wellbeing Framework and bring together those who are responsible for wellbeing. It is a place to share learning and best practice from across emergency and blue light services so organisations can invest the very best into the wellbeing of their staff.

 

 

Find the Blue Light Wellbeing Framework here

 

 

Elsewhere, between 2015 and 2019 MIND, the mental health charity, had thousands of volunteers across the emergency services actively challenging stigma, and learning more about mental health. The charity says they made positive changes for themselves and colleagues and the charity learned how organisations can improve mental health support, tackle stigma and increase workplace wellbeing.

 

 

Back in January 2017, Police Oracle, the online publication which covers policing matters, launched its ‘Blueprint  Campaign’. Under that banner Police Oracle says it,

. . . accuses the government of failing to meet its obligation of protecting our officers both in the job and particularly, when they have been forced out of the service because of physical injuries or mental trauma.

 

Read the announcement here

 

 

It’s of some significance to note that only the Police Oracle initiative makes any mention of the thousands of former officers who were ‘forced out of the job’ as a result of disabling injury whilst on duty. Once out, their forces have generally done nothing to assist them in overcoming their disabilities. In some forces, quite the opposite. Some forces have instead chosen to hound and harass disabled former officers by a misplaced enthusiasm for conducting ‘reviews’ of their degree of disablement – an enthusiasm driven entirely by a callous desire and foolhardy expectation of easing the pressure on force budgets.

IODPA’s constantly growing membership includes serving officers who are on the cusp of retirement due to injury on duty. Their accounts reveal just how inadequate are the levels of training and awareness of mental health among line managers and more senior officers, as well as civilian staff. The accounts of pensioners are also extremely harrowing, and lay bare the true state of affairs, which is that in some forces no regard or concern is shown for the impact on them of reviews and of the financial uncertainty and anxiety engendered by the prospect of repeated reviews continuing over their lifetimes.

All of IODPA’s members have suffered, and continue to suffer, with a diversity of injuries incurred in the course of performing their ordinary duties. Many of those injuries are of the mind. Notably, depression and PTSD feature highly on the list, but the entire spectrum of anxiety disorders are represented.

In some cases, mental injury is the sole recorded ‘duty injury’ but members who have only physical injuries recorded as ‘duty injury’ also experience resulting mental damage. Hence, it is unusual to find anyone who has been retired with an injury pension who has not suffered some form of mental illness, at some level.

IODPA is pleased to see a greater emphasis on safeguarding the mental health of officers and staff, but is disappointed to see no official government-led initiatives to improve the situation of former officers with psychiatric damage who are retired on an injury pension.

We suggest this shortcoming urgently needs to be addressed. There is a need to start at the top, with the senior managers of forces. Chief Constables have the office of Police Pension Authority (‘PPA’) and are responsible for making all the decisions concerning the injury award scheme. Some of them, thankfully currently only a handful, are actively harming disabled former officers through abuses of the injury pension regulations.

We could fill many pages here with examples of truly appalling behaviour by individuals who clearly have absolutely no comprehension of the need to apply  care and compassion to any dealings with disabled former officers with psychiatric damage. We know, from a study of force management of ill health retirements, injury on duty awards and police medical appeal boards overseen by Chief Constable Morgan and sponsored by  the College of Policing, that,

Many forces are struggling due to the lack of expertise within their organisations.’ and, ‘The structure of some force HR facilities do not support the management of the process… and …issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.

 

What concerns our members is that whilst the inadequacies highlighted by Mr Morgan can be addressed, unless positive and impactful action is taken to significantly change attitudes towards mental illness and injury, then disabled former officers, and officers about to retire due to mental illness or injury, will continue to suffer at the hands of the likes of Mr Morgan. For it is Mr Morgan, in our opinion, who is spectacularly failing in his duty of care for his disabled former officers.

Mr Morgan is not alone in his unawareness, but it is Mr Morgan who has given us the most glaring example of how bad things can be when senior managers fail to understand how to engage with people who are suffering mental health damage. We have reported elsewhere, in earlier blogs, on the situation in Staffordshire, where Mr Morgan is Chief Constable and Police Pension Authority. He wished to conduct mass reviews of the degree of disablement of injury on duty pensioners. When deficiencies and alleged unlawful procedures in the process, as applied by Mr Morgan’s staff, were brought to his attention he reacted in a way which could only possibly be the result of deep ignorance of mental health issues.

He ‘invited’ a number of those pensioners under review to a meeting in summer of 2018. He could have arranged a neutral disabled-friendly environment to meet, listen and discuss issues with those who had raised concerns about the way review process was being conducted. Instead he announced he would be holding the said meeting, at police headquarters,
to which pensioners – all disabled in some way or another, – were invited. His invitation reads
more like a summons.

Here are the original blogs –

https://iodpa.org/2018/07/13/chief-constable-morgan-sends-letters-to-vulnerable-pensioners/

and

https://iodpa.org/2018/07/23/cc-morgan-refuses-pensioners-legal-representatives-to-attend-a-meeting/

Mr Morgan described the proposed meeting thus: ‘The meeting is to explain the next stage of the process.’ There could not have been a clearer indication that the meeting would never be about clearing the air through informed discussion.

When pensioners asked if their legal representatives could attend, and were met with a refusal, the pensioners all decided there would be no point in attending if Mr Morgan wished to use the meeting only to ‘explain’ what he intended to do. Pensioners felt they would be exposed to pressure in the anxiety-inducing environment of police headquarters.

In our opinion, Mr Morgan’s actions seem to be those of a man who is by instinct adversarial and dogmatic. They appear to be the actions of a man who cares more about defending a flawed process into which he has inserted allegedly unlawful demands, rather than caring for the health and wellbeing of disabled former officers. They seem to be the actions of a man who wishes to hear no other views than his own.

His force is now facing a legal challenge to his decision to reduce the pensions of the seventeen pensioners who questioned his review process. It may cost the force many tens of  thousands of pounds and will do nothing to foster good relationships with injury on duty pensioners.

Just as Bethlem became bedlam and a meme for historically inappropriate mental health care, so too has the ‘review’ provision within the police injury benefit scheme regulations become, in the hands of the likes of Mr Morgan and a few others, a meme for the entrenched institutional insensitivity and disregard for disabled former officer’s mental health.

Bethlem reformed itself over the years and became a shining example of modern healthcare. We have to hope that the police service and the government will do more than announce initiatives and studies and will take positive and far-reaching action to eradicate the negative attitudes exemplified by Mr Morgan and others who we have identified and named in these blogs.

Staffordshire Police Put The Brakes On

IODPA Admin newsflash, Regulation 33, Review
Staffordshire Police Put The Brakes On

Whoa!!!

— [Anonymous] command to stop or slow down, usually horse or vehicle

We have breaking news…

Staffordshire’s Chief Constable, Mr Morgan, has thrown the gears of his review truck into reverse.

A few weeks ago Mr Morgan took the extraordinary step of deciding that failure by IOD pensioners to allow access to their medical records amounted to a failure to attend a medical interview or examination. His stance was that full access to medical records was a necessary step in any medical examination or interview.

Seventeen of our members had received letters just four weeks prior to Christmas from Mr Morgan advising that because they had refused access to their medical records he would be reducing their injury pensions and the reductions would be backdated, indicating that they would also claw back the money from the affected pensioners.

Mr Morgan’s decision was robustly challenged by Ron Thompson and Mark Botham of Haven Solicitors, and Mark Lake of Cartwright King Solicitors, acting on behalf of the IOD pensioners concerned.

Pensioners have now heard from Mr Morgan’s solicitors that he, in his role as Police Pension Authority (‘PPA’), accepts that the letters notifying pensioners of his decision to reduce their pensions,

. . . did not sufficiently explain the reasons for the decisions. Further, the decisions should not in the circumstances have had retrospective effect.

 

Our solicitors have been told that Mr Morgan,

. . . proposes to provide each of the proposed Claimants with further decision letters, containing a fuller explanation of the reasons for the decision taken in each case…

 

Meanwhile no reductions in injury pensions will be made at this time.

IODPA can not comment in detail on the issue as the legal arguments will be continuing, and may be heading for the Administrative Court should the PPA wish to see his interpretation of regulation 33 tested.

However, we can say that all of the IOD pensioners affected by Mr Morgan’s threats to reduce their injury pensions can now have a peaceful Christmas without the extreme fear that any future decision by CC Morgan will not allow him to backdate any pension payments.

Staffordshire – The Story To Date

IODPA Admin Regulation 33, Regulation 37, Review, smp
Staffordshire – The Story To Date

All the things I really like to do are either illegal, immoral, or fattening.

— Alexander Woollcott (1887-1943)

 

Elsewhere on our web site are numerous comments concerning the action taken by Staffordshire Police in reducing the pension payments due to a group of disabled former officers. The comments make clear the feelings engendered in reaction to this dramatic turn of events.

IODPA has refrained from making comment as the issue is undoubtedly going to be subject to prompt legal challenge.

However, we can give an account of what has happened so far.

Officers who are injured on duty to such an extent they can no longer perform the ordinary duties of a constable can be required to retire. They can be awarded a one-off gratuity payment plus a pension, payable for life, as compensation for no-fault injury.

The compensation scheme is governed by The Police (Injury Benefit) Regulations 2006, which is secondary legislation made by a Minister of State under provision of The Police Pensions Act 1976.

The Regulations, specifically regulation 37, allow the question of degree of disablement to be considered from time to time, as appropriate, for it is recognised that the disabling effects of duty injuries may worsen or lessen. If there has been a substantial alteration, then the amount of pension paid can be revised accordingly.

On 26th April 2017 Staffordshire Police commenced a programme intended to review the degrees of disablement of the over 300 former officers who are in receipt of an injury pension.

The programme quickly ran into difficulties as pensioners raised issues questioning the legality of the programme, both in concept and in detail.

A major issue was the insistence of Staffordshire Police that it be allowed full unrestricted access to individual’s medical records, from birth, and to personal financial information.

A number of pensioners refused to give permission, on the grounds that their personal data enjoyed detailed protection under data protection law and that there is nothing in the 2006 Regulations to require a former officer to submit any medical records made by any other doctor to the force or to any doctor employed by the force.

A further concern expressed by some pensioners was that they had no confidence Staffordshire Police was capable of conducting the review process lawfully. The content of various policy and process documents created by Staffordshire Police concerning the review programme arguably contained misinformation and misrepresentation of law.

A number of reviews were held, and the doctor tasked by Staffordshire Police to decide whether there had been any alteration in degree of disablement reported that, in some instances, due to the absence of permission to access medical records, he could not make a decision. The doctor later withdrew himself from any further involvement in the review process.

In December 2017 Staffordshire Police published a letter which sought to apportion all blame on the difficulties being experienced to, ‘a small number of individuals’.

It emerged that in the majority of instances where pensioners had refused unrestricted access to their medical records no decision was made on alteration of degree of disablement, despite it being a requirement of the relevant regulation (regulation 30) that the appointed doctor is referred the question ‘for decision’.

Each of the individuals concerned had attended an appointment arranged by the force with the force’s doctor. They answered all questions which were put to them, and allowed themselves to be medically examined where this was requested. Some provided medical evidence showing there had been no alteration in their degree of disablement. in some cases, the pensioners were recalled within months to attend a second medical examination. Again, they fully complied.

On 26th November 2018, we reported that seventeen pensioners had had their pensions reduced.

This is the letter that was sent out to those who had refused permission for unrestricted access to their medical records. We reproduce a redacted copy of one of those letters here.

 

The letters announce that Staffordshire Police has turned to regulation 33, which it relies on as giving authority to reduce the injury pensions of those who had refused permission for unrestricted access to their medical and access to financial records.

It is worth reproducing regulation 33 here:

Refusal to be medically examined

  1. 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.

 

The letter indicates that Staffordshire Police has taken the view that it was not enough for the individuals concerned to have submitted themselves to such medical examination as had been arranged for them with the force’s doctor, and to have allowed themselves to be interviewed by the doctor.  Staffordshire Police appears to believe regulation 30 covers access to personal medical and financial information. Staffordshire Police thus claims there has been either a wilful or negligent refusal.

Consequently, a decision has been made by the force to reduce the pensions of the individuals concerned.

Moreover, the reductions are to be back-dated to the time when they saw the force’s doctor.

The letter is essentially identical to each individual. Each letter fails to give any reason or insight into how the decision to reduce the pensions was taken, or on what evidence.

IODPA understands that solicitors have been instructed in challenging this extraordinary action by Staffordshire Police.

We will provide updates as the situation evolves.

Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

IODPA Admin Chief Constable, newsflash, Regulation 37, Review
Gareth Morgan Invokes Regulation 33 On Seventeen Disabled Pensioners

 

Gareth Morgan (pictured) has sent out letters to seventeen Staffordshire police pensioners informing them he is dropping their injury pensions based on his interpretation of Regulation 33 of The Police (Injury Benefit) Regulations 2006. He is also intending to back date his decision.

We cannot comment on this any further for legal reasons, but here is what Staffordshire Police have posted on their website –