Surrey And Sussex Police Have A Candidate For File 13
“File 13” is a euphemism for the trash can or waste paper basket.
Our attention has been drawn to a document entitled “Managing Police Officer and Police Staff Ill Health Retirement Policy (Surrey and Sussex) (542/2019)“, which can be found on the Sussex Police website. It is a joint force policy between Surrey and Sussex Police on the management of ill-health retirement, injury awards and subsequent reviews. This policy document is annotated on the bottom as belonging to the “People Services Department (Occupational Health)” of Surrey and Sussex Police.
You can find a copy at the following link:
Or you can read a copy, duplicated below.
There are so many things wrong with this document that it’s difficult to know where to start.
It is probably fair to say that the overall feel of this official multi-force policy is one of dislike or even contempt of injured officers, as is evident from its frequent references to any non-defined ‘failure to co-operate’ being met with punitive measures.
We’ve selected, replicated and highlighted some of the worst sections of this policy document with our comments under each section. However, we will begin with the one section which is uncontentious.
3.1 This is a sensitive issue with personal and financial implications for the individual and the force. It must be
administered with sensitivity, understanding and confidentiality
The policy starts off well and we agree with their sentiments whole heartedly. Sensitivity, understanding and confidentiality are all words we use when describing how forces should be treating their injured officers, but it all goes downhill after here.
3.10 An individual will remain on their current pay status (full/half or nil pay) once they have made their application for IHR, unless they fail to co-operate with the process. Once authority is given for the individual to be ill health retired, they will revert to full pay.
Note: Chief constables have the lawful discretion to reduce the pay of officers who are ill or injured and thus not able to perform the full ordinary duties of a constable.
There are two things wrong with this statement, the first is that the policy states that if officers have already had their pay reduced, they will remain on their current level of pay until they have completed the ill-health retirement process and it is confirmed that they are likely to be retired; secondly, there is clear intent within this statement that if the officer fails to co-operate with the process, they will be further reduced.
The circumstances under which an officer’s pay may be reduced derives from section 28 of the Police Regulations 2003, which allows the chief constable discretionary powers to retain or reduce an officers pay during periods of sickness.
Police Negotiating Board (‘PNB’) Circular 05/01 provides specific guidance to chief constables to grant discretionary sick pay to officers who have been on sick leave for more than six months.
Section 7 of this guidance reads –
7. Whilst each case must be considered individually, the PNB considers it would generally be appropriate for chief officers to exercise the discretion favourably where:
- The chief officer is satisfied that the officer’s incapacity is directly attributable to an injury or illness that was sustained or contracted in the execution of his/her duty or
- The officer is suffering from an illness which may prove to be terminal; or
- The case is being considered in accordance with the PNB Joint Guidance on Improving the Management of Ill Health and the police authority has referred the issue of whether the officer is permanently disabled to a selected medical practitioner
- The Force Medical Adviser advises that the absence is related to a disability as defined by the DDA* (*”A physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day-to-day activities.”) and the chief officer considers that it would be a “reasonable adjustment” to extend sick pay, generally speaking to allow (further) reasonable adjustments to be made to enable the officer to return to work.
Whilst there is no explicit statutory obligation on the part of chief officers to have regard to this guidance, in the case of Weed, R (On the Application Of) v Commissioner of Police of the Metropolis [2020], it was accepted that it would have been unlawful to ignore the guidance.
It is clear, under point three (above), that once an officer has been referred for consideration of ill-health retirement, the chief constable should seriously consider reinstating the officer to full pay.
What has to be realised here is that officers can become ill through no fault of their own with physical or mental injuries, or sometimes a combination of both. It is not uncommon with mental health injuries for the officer to suffer from severe PTSD. This can seriously impair their cognitive function and ability to comply with requests or process information. Despite this, it is clear in the policy that there is no compassion or support regardless of the officer’s injury, but instead there is a clear statement that that non-compliance will trigger a further reduction.
Our point is that non-compliance may not be deliberate, negligent or willful, but may well be caused by the effects of the injury or illness. The policy makes no recognition of this possibility
The PNB guidance goes on to say there should be monthly reviews of the officer’s situation. This policy document ignores the guidance as there is no mention of monthly reviews.
5.2
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Where such claims are substantiated at a later date and the application has been made within a year of the date, of the last day of service, for the officer, payment of the injury award will be backdated to the day after, the last day of Service.
This section unmistakably implies that if an application for an injury pension is not made within a year of the retirement date of the pensioner, the force will not backdate payment to the applicant. We’d be interested to hear from Surrey or Sussex where in the regulations or current case law this approach is permitted?
Regulation 43 of The Police (Injury Benefit) Regulations 2006 (‘PIBR’), states that the pension of a member of a police force under these Regulations shall be payable in respect of each year as from the date of his retirement.
It is widely accepted (by most forces) that an injury pension is payable from the date of retirement, unless the date of injury cannot be established, in which case, it would be the date of claim.
If Surrey and Sussex police need further persuading, we suggest that they look at the cases of Tully and North Wales police and Kelly and Chief Constable Of South Yorkshire Police.
In Tully, The court decided, ‘First, we are satisfied that Parliament intended that, generally speaking, pension entitlements under these regulations should be payable from the date of an officer’s retirement unless or until that was limited or excluded by operation of an express provision to that effect elsewhere in the same regulations.’
In Kelly the court held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the chief constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension. The Judge held that the scheme of the regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement. Hence, he directed the chief constable to pay the backdated pay in full and with interest from the date of the award
5.3
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This is to be illustrated as the percentage by which the individual’s police salary would fall, in order to reach the level of salary likely to be commanded in another occupation despite the injury. The SMP in such cases may be the FMA.
The suggestion that the Force Medical Adviser (‘FMA’) may act in such cases is not good practice, and we don’t know why it has ever been suggested. The whole purpose of the Selected Medical Practitioner (‘SMP’) is that they are supposed to be non-partisan and independent.
Published on the 4 May 2007, a Home Office (‘HO’) paper entitled “GUIDANCE ON MEDICAL APPEALS” states the following,
5. Where the police authority decides to refer the case to the SMP it should normally be via the force medical adviser (FMA). The purpose of the FMA’s advice is to inform not determine the assessment by the SMP on whether the officer is permanently disabled.
Yet again, it seems as though the author of this paper is blissfully unaware of any of the HO or PNB guidance.
Note: Police Pension Authorities would be negligent if they failed to consider guidance, but guidance is not law and need not be followed. Surrey and Sussex’s policy makes no reference to any guidance, so we are left in the dark as to whether it was considered or not. We add that certain Home Office guidance has in the recent past been determined to be flawed, to the point of being unlawful. PPA’s need to be cautious of blindly following guidance to the same degree that they need to be sure to consider it. The various Regulations are the law which PPA’s must abide by, and this policy document is deficient in that respect.
Surrey and Sussex’s policy casually departs from statutory limitations. Bells and whistles are added with no apparent rationale, and devoid of legal underpinning.
6.1 When an officer disagrees with the decision of the PPA not to accept a claim for ill health retirement or injury award and to refer questions to an SMP, the officer may appeal the decision to the Crown Court (PPR and PIBR refers). In such cases the police officer will be asked to complete an appropriate medical records consent form and such records will be sought from the officers GP.
Whilst it is correct that if the Police Pension Authority (‘PPA’) refuse to admit a claim for an injury award, the officer may refer the matter to the Crown Court for arbitration, there is no provision under the PIBR for forces to be able to demand medical records as a consequence. We have to question why the force would only be requesting the necessary medical records at this stage? Surely they would have needed them in order to have made a balanced decision to refuse the application to start with?
6.2 Where the officer is considered permanently disabled, the SMP will complete a report, relevant to the questions raised by the PPA in accordance with the relevant PPR that affect that officer and the officer will be formally notified of the decision in writing, by the PPA.
Medical reports completed by the SMP should be released to the officer first, who should be able correct any factual errors before it is released to the PPA.
7.3 Where an injury award is payable, the PPA shall consider whether the degree of disablement has substantially altered in accordance with the advice of the SMP who determined the injury award and if it has, the award will be revised accordingly in accordance with PIBR.
In determining the degree of disablement in this process, the PPA shall refer the matter to an SMP (the FMA may act in this role), who will be required to deal with it in accord with PIBR and will issue a report accordingly.
Let’s compare what has been written in the policy with the actual PIBR. The policy states “the PPA shall consider whether the degree of disablement has substantially altered“, whereas regulation 37(1) actually says “the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered“.
A small, but important omission, as the PPA is not entitled to conduct a reassessment of an injury pension unless there has been a suitable interval. A suitable interval is not defined, but in “The Queen on the Application of Turner v The Police Medical Appeal Board” it was said “suitable intervals suggests that this is not a matter which should be revisited every year, nor is it.”
This means that it is not open for the force to simply review at will without due consideration as to whether a suitable interval has passed. The policy thus puts the cart before the horse. It intimates that a SMP will exercise a remarkable ability to predict the future by recommending to the PPA when a disabled officer’s degree of disablement might alter substantially. The plain fact is that nobody, not even a doctor, can tell what the future holds.
The policy places a fetter on the discretion required of PPAs as to whether or when to consider the matter of substantial alteration in degree of disablement. It commits the PPA to a future action, based on nothing more than the opinion of a SMP.
This latter section, again suggests that it is appropriate for the FMA to act in the role of the SMP, when it is not. See the answer we gave to 5.3
7.5 The final part of the review process will involve an assessment by the SMP who will initially address the apparent disablement of the individual being reviewed, if necessary during private consultation and examination.
Reading this one line caused us outrage. The use of the word ‘apparent’ is highly offensive and clearly speaks volumes of how these two forces value and think of their injured and disabled pensioners. One dictionary definition of ‘apparent’ is ‘seeming true but not necessarily so’. So their obvious suggestion here is that pensioners are ‘pulling a fast one’ and there are no real injuries or illnesses.
Let us also point out that this approach is also unlawful. Once an SMP makes a determination in relation to a pensioners level of disability, that position is a given, and any subsequent reviews are a comparison exercise between that stated position and today. No ifs, or buts, you cannot question or revisit previous decisions or conduct a fresh assessment.
7.7 An individual subject to a review and living abroad, may be directed to see an SMP within reasonable travelling distance of their homes, after consultation by the OHWD with British Authorities overseas (e.g. Embassies, Consuls, Armed Forces). Alternatively, the individual may be advised to attend a meeting with the SMP within the UK. Failure on the part of the individual to co-operate may be addressed in accordance with the PIBR.
Firstly, this section suggests that the force has the right to ‘direct’ the pensioner to do things, which is not the case. They are no longer serving officers taking orders. More importantly, it suggests that pensioners who may be living abroad can be made to return to the UK for a medical consultation. We’d be interested to see where in the PIBR it allows forces to order pensioners to return for the purposes of a medical examination? Yet again, there is the threat of consequences if they fail to co-operate, so what are those consequences?
8.1
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If the individual wilfully or negligently fails to submit to a medical examination, or to attend such interviews as the SMP may consider necessary in order to reach a decision, the PPA may make their determination on such evidence and medical advice, as in their discretion, they think necessary.
We have already mentioned in section 7.3 how the omission of a word from the regulations can change their original meaning. With that in mind, lets look at what has been written in the policy “the individual wilfully or negligently fails to submit to a medical examination“. That’s not what the PIBR say. What it actually says in regulation 33 is the the following “the person concerned wilfully or negligently fails to submit himself to such medical examination“.
Have you spotted the difference? The word “himself” is missing. So what is the significance of this? The word “himself” implies “the person” i.e. the pensioner should attend in person where they may be questioned or examined about their current level of disability. The statement “failing to submit to a medical examination” is far broader than just the person. It implies and could be argued that the medical examination also includes the authority to demand and examine medical records or other medical information about the pensioner which is not a requirement of the regulations.
SMPs can request, but not demand, access to medical records. They can ask a pensioner any relevant questions they think necessary to their task. However, we see nothing in the Regulations that allows anyone, SMP or other, to require or demand access. Nor do we see any legal authority in any other legislation which allows access without express informed permission from the data subject.
8.2 To assist with this determination, individuals who fail to co-operate, or only co-operate conditionally, will be provided with an appointment to see the SMP at their clinic, or other location specified by the PPA.
This section is absolutely nonsensical. It’s suggesting that pensioners whose injury pensions are being reviewed that are not co-operating will be referred to an an SMP in order to assist the PPA make a determination under regulation 33.
However regulation 30(2)(d) is clear, that if the PPA is considering revising an injury pension, the PPA has an obligation to refer the matter to the SMP,
30(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—
…
…
…
(d) the degree of the person’s disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.
This means that the PPA should have already referred the pensioner to the SMP for the purposes of regulation 37(1), that being the case, why would they then refer the pensioner in order to determine regulation 33? If our understanding of this section is right, and they wish to refer the pensioner to the SMP purely for the purposes of regulation 33, then we’re happy to inform them that there is no such authority.
8.3 If they attend but have not completed a medical review questionnaire as supplied by OHWD, they will be provided with one by the SMP and asked to complete it forthwith. Once completed the SMP will conduct the consultation and examination but will delay any decision until the information on the questionnaire is examined by the OHWD and the appropriate report completed.
What!??? They will be “asked to complete it forthwith“. Once and only once they complete it will the SMP conduct the examination. Let’s make it unequivocally clear to the chief constables of Surrey and Sussex, there in no requirement under the PIBR to complete any medical questionnaire. Furthermore, the disclosure any of such medial questionnaire to the Occupational Health and Welfare Dept (‘OHWD’) as suggested is a series breach of ‘special category’ personal data under the General Data Protection Regulations (‘GDPR’) and will make the force liable as the data controller for this serious breach.
Let’s make it perfectly clear to Surrey and Sussex Police, a 37(1) reassessment of an injury pension is a medical decision, and as such can only be made by a medical practitioner. It is our view, that medical data should ONLY be requested and viewed by the SMP. There is no authority or provision in the regulations for OHWD staff to paw over the personal, sensitive and private medical notes provided by a pensioner. Is this clear enough?
8.4 Should the individual fail to attend any meeting with the SMP, or fail to co-operate at all, the injury award percentage will be reduced to 0%, unless there are clear and unequivocal reasons for not doing so. Any subsequent appeal will be defended, or the case may be reassessed if the individual is then able to co-operate
Wow! Let’s say that again, WOW! What regulation allows the PPA to reduce the injury award to 0% if the pensioner fails to attend an SMP meeting or if they fail to co-operate at all? This is fantasy land stuff and is UNLAWFUL. Again, we believe that this is clear indication as to the contempt in which they hold those in receipt of any injury award. They should bow their heads in shame!
9.1 An individual will remain on their current pay status (full/half or nil pay), once the PPA have granted permission for the IHR application to proceed, unless the individual fails to co-operate with the process. Once authority is given for the individual to be medically retired, they will revert to full pay from the date the PPA authorised the ill health retirement.
In closing, we would draw your attention to the comments we made in relation to 3.10 (ante).
Clearly someone has taken a lot of time and effort in producing this dreadful document, and we can only assume that the Chief Constables of Surrey and Sussex have viewed and authorised this policy.
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| Chief Constable of Surrey – Gavin Stephens | Chief Constable of Sussex – Giles York |
We started this blog by saying that “File 13” is a euphemism for the trash can, and we’ve found a prime candidate for the use of such a receptacle.
We’d love to hear the hear the conversation between one of the chief constables and the author of this policy document when they’re summonsed to his office.
Chief Constable: “So how long did it take you prepare this policy?”
Author: “About a week.”
Chief Constable: “Well, that’s how long you’re not going to be paid for!”
Author: “Oh, okay. What do you want me to do with the policy?”
Chief Constable: “Put it in file 13, on the way out!”
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