Denied re-referral to SMP and termination imminent

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Denied re-referral to SMP and termination imminent

Post by SHUK McD on Tue Apr 14, 2015 7:29 pm

I have been supporting an officer with PSNI for 8 months.  He has been through the entire appeal process and denied legal funding for judicial review.  He has made a complaint to the NIPB about the handling of his case.  The SMP refused permanent disability despite 7 years of treatment and repeated relapses of PTSD.  The SMP said he hadn't tried all medication available.  I wrote a supporting letter to the IMR, Chief Constable and justice minister outlining regs, balance of probability based on his history, risk factors, how his symptoms impact on his day to day functioning (relating to ordinary policing duties) and that he should be assessed on how he presents now and not 'an imaginary point in the future' etc.  This fell on deaf ears and he was again denied IHR and IOD.  His copious amount of reports state injury on duty and the SMP/IMRs said it was personal. His psych subsequently increased meds to the max.  His health continued to deteriorate and the Psych wrote a letter saying he had no work capability.  This resulted in another FMA appointment.  He was told he should be retired on blood pressure condition alone. A stage 3 Attendance Management meeting is to be held at end of April by ACC and Supers.  He has been refused re-referral to SMP even though he has provided new medical evidence and he has been told by HR that his employment will first need to be terminated and then he can apply for retrospective IOD.  I have asked for copies of PSNI sickness absence and medical retirement policy/procedure.  My understanding is that he has no right to unfair dismissal but his case could be discriminatory in light of his disability if they decide to terminate.  He is in contact with the ombudsman.  I  need written evidence that this procedure is within regs or confirmation that they are breaching regs.  He desperately needs legal aid/funding.  He has been on nil pay for many months and is gratefully receiving vouchers from the PDT to help with groceries.  He and his family face losing their home and they have a son with a disability.  His marriage nearly ended  as a result of the stress.  He is a decorated Officer and an incredible man.  Please can anyone advise or help with legal?  Many thanks in advance.
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Re: Denied re-referral to SMP and termination imminent

Post by RedDog on Tue Apr 14, 2015 9:01 pm

Is there a reason the Fed are not funding his legal representation?

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Re: Denied re-referral to SMP and termination imminent

Post by SHUK McD on Tue Apr 14, 2015 9:36 pm

He was seeing the Federation's preferred solicitor who wrote a letter about nil pay and has not taken any other action throughout the entire appeal process. I imagine this was because there was a need to wait for normal avenues to be exhausted. I understand he advised that a judicial review would not go against the medical opinion and therefore would not take this case any further.
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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Wed Apr 15, 2015 5:05 pm

Threaten them with a discrimination claim, also he can claim constructive dismissal two Welsh cases Horlet v South Wales Police and Ballion v Gwent Police both constructive dismissal cases.
I am no lawyer however my particular mental illness compelled me to study and still compels me to study employment law especially around police (bailii has lots and lots of examples)

Now the fed legal fund should sort this, write to psni disability reps.

If it was me, legal advice or not and I was on nil pay I would resign, claim the stress of the way I was being treated was making my condition worse and therefore the mutual trust has broken down allowing me to claim for constructive dismissal.
I am a bit of a terrier and will go to the jugular if I feel it's justified but it seems no other way forward.

Home insurance has legal cover and my group insurance also has a seperate legal insurance policy than the Feds. It may be that your friend has this cover and doesn't realise it.

I know how hard it is to keep fighting but I believe in justice. If it means a fair employment tribunal then so be it. They allow for PTSD and other illnesses and I know there are many binding cases with PSNI having lost cases against IOD pensioners with PTSD. You'd think they will have learned by now.

I think HR and forces think that you are mentally ill then you will give up the fight and roll over.

A bit of research on Bailii will reveal a LOT of binding case law. This may give your friend some needed encouragement to fight on.
Put real pressure on the fed too!

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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Wed Apr 15, 2015 5:10 pm

I am sure regs allow for an appeal in the crown court if the police authority refuses an appeal.

Also I would seek to question the opinion of the SMP over a specialist. As long as the treatment is reasonable to refuse this should not be an issue.
It is reasonable to refuse certain medications based on reported side effects, again I feel only a tribunal would decide this.

What an awful way to treat someone after they have given service to the public!
Makes me so angry

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Re: Denied re-referral to SMP and termination imminent

Post by SHUK McD on Wed Apr 15, 2015 6:23 pm

Thank you Nagafireball. You are absolutely right. The difficulty now is getting legal representation funded. I'm trying to push the Federation to get back on board with this and trying to find charities who may be able to assist. I have written to the Chief Constable and HR today, highlighting their error and urging them to reverse their course of action. I'm on a really tight time frame to get this done. I'm very interested in the case law you have directed me to; this could really help. Particularly if it involves constructive dismissal. My understanding is that as servants of the crown, Officers cannot use this in employment law; so I will take a look at the cases in Wales.

I really appreciate your advice and support
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Re: Denied re-referral to SMP and termination imminent

Post by Stoke Bloke on Wed Apr 15, 2015 7:41 pm

Have you tried the Equality commission - I am now lawyer but i went through similar situation and contact them you get to speak to a solicitor free on the phone , the upshot is you should not be disadvantaged due to your medical condition. It's the symptoms that if you suffer forces have a duty to make reasonable adjustments and you,should not be punished and at a disadvantage given the circumstances.

I am pretty sure they will find it difficult to take you down the UPP route because of the disibility/ equality Act

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Re: Denied re-referral to SMP and termination imminent

Post by SHUK McD on Wed Apr 15, 2015 9:00 pm

My client went to the Equality Commission and they acknowledged breach of human rights. He has an email from them with this information and this was sent on. I highlighted the EHRC said the SMP decision may be against Human Rights legislation in my letter to the Chief Constable back in November last year (quoting the relevant articles) and my client gave this information to his solicitor.... nothing happened. I think the Equality Commission and the Ombudsman may get involved if no legal action is taken. Thanks for the reminder on this. I will follow this up. It is my understanding that they already have it in mind to terminate his employment and without my involvement they would go ahead and do this without challenge. Without legal challenge he is even more vulnerable.

I really need a great lawyer in Northern Ireland who can take this on. Any ideas?
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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Thu Apr 16, 2015 12:05 am

I had a typo - its Horler v South Wales Police and Ballion (Baillion?) v Gwent Police.
I am sure both those fed offices will help with any advice. Both were constructive dismissal, Officers can't claim unfair dismissal as far as my research has led me to believe.

First thing i would do would be send a letter to the force HR and state that dismissal under capability for a disabled officer is unlawful in accordance with the equality act 2010 and you reserve the right to take action through the courts if necessary. Include the fact that the preferred option should be a dignified and honorable pension under ill health retirement with an appropriate injury award. Furthermore to be dismissed under capability will put your client at a disadvantage as his employment record would be tarnished with 'dismissal under capability' recorded upon it - his human rights would have been unlawfully engaged as this misuse of the capability policy will cause this 'marker' to be placed on his employment record and again you reserve the right to seek redress under the ECHR (right to privacy law) and also the data protection act due to inaccurate and misleading data being recorded.

Also write to HR and the SMP putting the SMP to strict proof as to why, in his professional opinion he thinks the 'untested treatments' would miraculously cure your client? Ask him for a letter to this effect, where he should outline his qualifications, training and experience with PTSD and like mental illnesses that qualify him to make such judgements that will affect the health and wellbeing of your client.

I would give the SMP seven days to reply under the tenet that your client believes that the SMP's actions are causing your client further psychological injury and that you reserve the right to seek redress for this further injury at the relevant Court.
If you do not get a reply within 7 days and you think your case is strong enough send another letter (LETTER BEFORE ACTION) to the SMP putting him on notice that unless he can provide strong medical evidence that nullifies your medical evidence then you MAY seek to file a civil claim for injurious assault and harrasment at the relevant Court.

n.b. on the mainland it would be the Civil Court.

This should ruffle a few feathers - do not speak to anyone on the phone everything in writing preferably; although emails can be kept, saved and traced back where necessary in case of unexplained loss of emails ;-)

I will post further information when found here on the forum as it may help others in a similar situation or others may be inclined to chip in with advice.

I am not a lawyer but i have successfully defended two civil claims against me in County Court and have had a long running employment tribunal case with my force for over two years so far and despite their dirty tricks, intrusions into my family and private life and attempts to dirty my name it is still being fought.

I hate to see justice being denied. You may need to research some cases and some with the Pensions Ombudsman to ensure you have a full understanding.
PSNI have a disability support group and i would seek their services as a matter of urgency and that of the federation, if your client is not happy with his local rep, get another rep from a different area - not ideal but better than none.



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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Thu Apr 16, 2015 12:12 am


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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Thu Apr 16, 2015 12:14 am


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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Thu Apr 16, 2015 12:31 am

some interesting cases on this site too - lots of information ref PTSD

http://www.bullyonline.org/action/caselaw.htm

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Re: Denied re-referral to SMP and termination imminent

Post by SHUK McD on Thu Apr 16, 2015 6:56 am

Thanks for the links.  This makes life easier.  I like your suggestion to write to the SMP re: letter before action.  If I come across this situation again; I think I may do this.  Too much time has passed since the last appeal so I am out of time on this.  He had advice from two solicitors at the time who were kept updated and neither of them took any action or sent any letters of this kind.  It's like the old saying 'you want something doing... doing it yourself'.  I imagine they wanted to see if the decision would be overturned at appeal; but they still did not act.  I spoke to Mark Lake yesterday and I am so grateful for his advice. He suggested a kind of 'letter before action' to the Chief Constable and I did this yesterday (email to HR too) giving them a deadline to reverse/halt their actions.  I'll let you all know how things progress.

I have found a disabled police officer association Northern Ireland.  Is this the one you refer to? or do you have contact details you can give me?  The one I found online advertises respite breaks.

I am in no doubt that this man has a strong case in court.  I just need to find a solicitor willing to take it on and put in the effort... oh, and accept legal aid.  Does anyone know of any funding available.  I am doing some research on this now.
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Re: Denied re-referral to SMP and termination imminent

Post by Stoke Bloke on Thu Apr 16, 2015 7:50 am

surely the Fed should be funding the legal advice

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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Thu Apr 16, 2015 3:40 pm

Can try pro bono services, good advertising for them if the case gets to tribunal.
The NI disabled police association was the one advertising respite breaks, they may be able to provide some help. It's worth an email.

Also Social Media campaigning has proved popular in recent times, I am sure a bit of publicity will have some effect in overturning these unlawful decisions made by the SMP!

BTW there are only a limited type of situation where constructive dismissal is applicable to Police Officers.
Two that stand out are Health and Safety issues and Whistleblower/Breach of Confidence issues




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Re: Denied re-referral to SMP and termination imminent

Post by SHUK McD on Thu Apr 16, 2015 3:49 pm

Many thanks. Publicity has been suggested by several people now and I am seeking advice on this. I have signposted my client to the Law Centre Network in his area today and they believe he is entitled to legal aid. They will be sending him the necessary paperwork and list of solicitors to choose from. They are also sending him a complaint pack in relation to his issues with his previous solicitor. All sounds positive so far. Let's hope we can get this nightmare resolved finally so he can have some well deserved peace and security.

For those who are interested this is a link to the Law Centre Network (available across the UK) http://www.lawcentres.org.uk/

Many thanks for your continued support and ideas.
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Re: Denied re-referral to SMP and termination imminent

Post by Nagafireball on Thu Apr 16, 2015 5:23 pm

Has your client checked his house insurance and also bank account for legal insurance? Some policies have this cover written in.
BTW I have joined the Safe Horizons site and will reccomend it as a link to our Force ability Support network and also the PFEW disabled police association.

I am thankful that there are people out there who care about us officers who suffer the torments of Mental Ill Health, in my case I suffer from depression, anxiety, extreme anger and intrusive violent thoughts stemming from management bullying. Luckily for me my condition compels me to study, study and more study so at least I'm getting a benefit from the sleepless nights and the 'missions I HAVE to accomplish'. Its a bit like OCD gone wrong!!!
Hopefully once my fighting with the service has come to an end I can start the road to recovery.

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Re: Denied re-referral to SMP and termination imminent

Post by SHUK McD on Thu Apr 16, 2015 6:58 pm

Thank you Nagafireball. I really appreciate your support and signposting others to Safe Horizon UK. I am hoping to build this community, where everyone can contribute their knowledge and experiences and alleviate isolation. Have you signed up for free membership and accessing the forum?

I suggested the home insurance option and this was successful to begin with. After feeding the barrister reams of documents and keeping him abreast of developments; the solicitor took no action and when my client was told his only option left was judicial review; the solicitors firm said the funding would not cover this. So it begs the question, why were they not up front about this at the start? He has had such a bad experience with solicitors. I hope it will be third time lucky.

I would like to build a directory of solicitors across the UK who can be relied upon - Not firms, but individual solicitors with proven good/excellent practice - as recommended by members. I cannot tolerate my members being subjected to this treatment again. - I've just set myself a new project for SHUK.
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Re: Denied re-referral to SMP and termination imminent

Post by Beachcomber on Sat May 02, 2015 9:42 am

Claire at Safe Horizons is trying to collect donations in support of the PSNI officer who is in this dreadful situation. There is a facility on the Homepage of the Safe Horizon web site where voluntary donations can be made.

Safe Horizon Home page

More details on this...


Please Note: This appeal is being conducted by Claire McDowell at Safe Horizon UK in support of a PSNI Officer. Claire has asked for our support - Pipin web site and forum is not involved in the collection of any donations and anyone wishing to contribute can do so via the Safe Horizons UK web site. Pipin web site and forum is an entirely independent and cost free network which has no financial involvement in this appeal other than to have made a donation.
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Re: Denied re-referral to SMP and termination imminent

Post by alexvern on Sat May 02, 2015 11:35 pm

This officer should go to Kevin Winters he is helping a lot of police sort out pensions and other entitlements

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Appeal

Post by Beachcomber on Sun May 10, 2015 2:12 pm

SHUK advises that the appeal to aid the PSNI officer has been closed and donations returned following developments in this case. The SHUK web site News section provides the following item:

Update on the Disabled Officer left Destitute.

PSNI have written to SHUK to reassure they take the welfare of their officers seriously and to advise that they have no responsibility for the management of the medical appeal process.   They also go on to say they are following correct working practices in relation to Unsatisfactory Attendance Management (UAP) and pay conditions, they were right to put their Officer on nil pay and continue the UAP. However; Home Office guidance 'Police Officer misconduct, unsatisfactory performance and attendance management procedures (V2, November 2012) states,

8.13 Where a police officer appeals to a Medical Appeal Board against a decision of the SMP that he or she is not permanently disabled or to a Crown Court against a decision of the local policing body not to refer the permanent disablement questions to a SMP, no action shall be commenced or continued under the Police (Performance) Regulations with regard to the unsatisfactory attendance of the police officer until the appeal has been resolved.



The Pensions Ombudsman case Henderson - vs – North Yorkshire Police Authority (Ref: 81368/2) addresses a key point concerning ill Health / IOD appeal procedure.  At paragraph 26, Mr Tony King, Pensions Ombudsman states, “For the avoidance of doubt, I find that, since Regulation 37 is silent on the matter, that no revision to Mr Henderson’s injury benefit should take effect until the appeal procedure has been properly undertaken and exhausted”.

PFNI have contacted SHUK to advise they are refusing to fund legal action as they only use two law firms, neither of which are handling the Officer's case.  However SHUK has highlighted that the Officer was not made aware there was a choice of another law firm which he may want to consider and according to European case law (Eschig) the individual has the right to choose their own legal representative.  SHUK is waiting to here if PFNI will allow funding a solicitor of his choice or one of their preferred law firms.



PSNI is supposed to have excellent systems available to provide support for its officers - assuming that the facts we have been given are substantially correct - how has this situation been allowed to happen?  It is extremely worrying that, not only has this shameful situation been allowed to occur, but that it appears to have been only after SHUK have made an (I think unprecedented) appeal that the case has been given attention.

Perhaps there occasionally arise cases that require more flexibility in processes and oversight to ensure that this kind of situation is avoided.
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