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June 2018

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Notes For Those Facing Review For The First Time.

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Notes For Those Facing Review For The First Time.

Post by Beachcomber on Thu Feb 08, 2018 10:51 am

Staffordshire have resumed their review programme this week and Essex have written to IOD's informing them the force will be starting to review. There are other forces involved in reviewing but  generally most forces aren't reviewing at the moment – that may change at any time!

If you have just been informed that you are to face review, and haven't been involved before, you will feel very concerned, at the very least. If this situation has  just been sprung on you, you may think that it is something new.  In actual fact IOD's have been working hard and successfully to protect their IOD pensions for many years, so long that we have developed very effective defences and the history and timescale of events can be found on the Pipin web site.

Back in 2004, the Home Office issued Circular 46 which included the notorious guidance on how forces could use the review procedure to reassess IOD pensions when the recipient reached compulsory retirement age and again at state retirement age when, they suggested, in the absence of 'cogent reasons' the IOD pension could be reduced to the lowest level. The guidance was issued after a change in the way forces were funded. It is noted that the government at that time was profligate in many ways yet chose to target injured retired police officers in this way.  Some forces jumped at this opportunity to save money but around half of  forces chose not implement the abhorrent  'guidance which targeted a vulnerable group of pensioners. The 'Guidance' was eventually declared unlawful and withdrawn, not before it had a serious detrimental impact on the lives of many ex police officers.

When the dreaded letter arrives on your doormat, it is normal and natural to feel very worried. If you have not been involved in reviews previously, you may decide, on the basis of the letter, that you have no choice but to trust that your force is doing the right thing  -  if you do, experience tells us that is highly likely that it will be to your disadvantage.  The letter is likely to inform you that the Regulations require mandatory reviews to be carried out and the letter will be accompanied usually by a questionnaire and consent forms. It is likely that this correspondence will include some sort of intimidating warning that failure to comply could result in forfeiture of your IOD pension.  What you need to know at this stage is that the force is probably overstepping the mark and may actually be misrepresenting the requirements of the Regulations. The real situation is different and you need to know your rights and responsibilities.

What the Regs actually say is that the Police Pension Authority (PPA – normally the Chief Constable) :

“shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered”

this allows for some discretion which is quite different from  the force claiming that reviews are mandatory.

It is also common now for the force to include a sanction that, should the pensioner refuse to be reviewed or complete the questionnaire and consent forms, then their IOD pension may be forfeit. This is rubbish and what the Regulations actually say is that:

“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,”

In effect, the Regulations demand only that should you be required to attend an interview or examination, then you must agree to do so. The Regs say nothing about consents and questionnaires, which contain many intrusive and irrelevant questions. Our legal team,  who are very experienced in IOD matters advise that, if you do not wish to comply with these consents then do not do so. You may of course wish to provide the information requested, or possibly cooperate by supplying relevant limited information, data and consents.  It has been known for SMP's to demand consent and obtain medical records, to then disregard them.  In strict accordance with Regulations, we are not obliged to comply with these requests but we need to avoid a situation where pertinent information is withheld, this could be held against you in later proceedings. This requires a responsible and sensible approach to supplying relevant information and such consents as may be necessary to establish any change in medical or personal circumstances.  If you are in any doubt, advice can be obtained from one of our solicitors.

Recently, the Merseyside force had to back down when challenged in court after they reduced the IOD pension of a pensioner who refused to provide the information they has asked for.  In this instance the pensioner had agreed to attend the interview / examination and cooperated reasonably by supplying limited information and consents.

Press Release on the Merseyside Case

You should be aware that the force may already hold excessive amounts of personal data to which they are not entitled and the Office of the Information Commissioner has ruled on this in favour of IOD pensioners.

ICO Decision

In addition to your force holding personal data that they are not entitled to hold, they may also be holding information which is incorrect or inaccurate. It is in your own interest to see just what data your force holds on you. You have a right to know what information is held on you and you can apply a subject access request (SAR).

Subject Access Request

So,  whatever correspondence from the force says, our legal advisers say your only obligation is to attend the interview/examination when requested.  There are circumstances when it may be appropriate to provide some information, an example would be to substantiate a worsening in the degree of disability.

In many cases, pensioners have been told that they would not be reviewed again and subsequently called in. In these cases the force will fall back on the Regulations which govern reviews and suggest that what you were told was merely a recommendation and that they are under a duty to consider reviews. Naturally pensioners have taken their forces at their word and based their financial planning on what they were told. Sadly, although it is clearly morally questionable and disreputable for PPA's to  pursue reviews in these circumstances, forces will do so and this point has not been successfully challenged.

Nevertheless, we have been very successful in challenging many IOD policies and decisions. Pipin web site lists some of the main High Court decisions  and also many  Pensions Ombudsman determinations which have clarified interpretation of aspects of the Regulations.  Study of these judgements illustrates the shoddiness that permeates attitudes and administration of IOD matters within our police forces and there are many instances resulting in findings of maladministration.

As former police officers, IOD pensioners expected their forces, not only to be scrupulous in the administration of IOD pensions, but to have some concern for their welfare, especially those who are most vulnerable owing to their injuries. This has not proved to be the case and subjecting people to review has resulted, in some cases, of exacerbating their condition(s) and having a real negative impact upon their health.  The reason things have changed is financial and substantial cost savings can be made by reducing IOD pensions. Forces attempt to achieve this by manipulating the review procedure. Although our forces will always deny the cost saving aspect, these two 2009 reports from Derbyshire make it plain.

Derbyshire Report 03.02.09

Derbyshire Report 21.07.09

As IOD's we have no argument against properly conducted reviews, it is the unfair and unjust manipulation of the review process that we object to.  This problem is not of our making.

There have been occasions when those who administer IOD matters have claimed that our opposition is down to a few troublemakers – not so.  IOD's have rallied and organised themselves to the extent that a charitable organisation has been formed to protect the interests of IOD's and the well established legal team is headed by a prominent QC, so the IOD's actually have a grasp of the legal situation.

A proper grasp of the legal situation is less evident with those administering the system. The authorities have exhibited a poor understanding of the Regulations and relevant legislation.  It is quite astonishing that, having made mistakes and wrong decisions, they continue to repeat them.  Some of the problems might be put down to poor training and incompetence.

Please take a look at this College of Policing Report which gives a insight into the woeful situation of IOD administration)

But, even though the administrative set up may be chaotic, after so long and so many cases, the problem must lie deeper. It has to be that these misguided initiatives are deliberate.  There seems to be a 'bloody mindedness' pervading the system.

So, with that knowledge, you prepare to attend your review/interview/examination.  The key figure in this process (apart from yourself) is the Selected Medical Practitioner (SMP).  Over the past few years, SMP's have lost the respect that they once had and the role has become very unpopular with Doctors who would normally fulfil the role. The SMP should be impartial and independent but sadly they can no longer be relied on.  The loss of impartiality has resulted in unfair and unjust treatment of IOD pensioners with SMP's doing the bidding of authorities, even reportedly taking instructions on the outcomes of reviews from Human Resource Officers. With their independence compromised, the SMP no longer has credibility and will be aware in any review that the IOD being reviewed does not have any trust or faith in the decision.  Therefore you are advised to make an audio recording of the review and should be accompanied – stand your ground and don't take no for an answer to either of these points.

Late in 2017, partway through a review programme in the Staffordshire force, the SMP suddenly withdrew his services claiming that it was too contentious and stressful.

We accept that the task facing the SMP is a difficult one. A suitably qualified and experienced Doctor should be able establish a level of disability if they are assessing the effects of the condition (s) but what makes it very difficult is that they are supposed to assess disability based on 'earnings capacity'.  This make the assessment much more complex and, as we have seen, the process is open to official manipulation and abuse.  As the Staffordshire ex SMP commented, it was all too stressful and contentious.  

There are a small number of SMP's who have become well known to many IOD's who report that they are unpleasant, rude and are known to misrepresent established medical evidence.    The pool of available Doctors willing to act as SMP's has reduced significantly and one has to question the motivation of those who remain although Freedom of Information requests have revealed that some SMP's are being paid outrageously inflated fees to perform their 'services'.

Faced with review is always daunting and you probably want to seek advice. For retired officers, Narpo is the natural first point of contact and should lead the way in defence of IOD pensioners. Sadly, Narpo has not performed very well and really has to be regarded as an 'also ran'.   Some branches have responded better than others but the organisation has neither the resources or experience – especially at branch level – to deal effectively with what is a very complex subject.  It takes a high level of commitment to keep up with IOD issues and the situation is fluid.  It is perhaps too much to expect for  retired non IOD officers to take on. Fortunately, IOD pensioners themselves have responded to the challenge and filled the void.

The general pattern for the last few years is for the force to carry out the review and if adversely reassessed, the Pensioner then appeals to the Police Medical Appeals Board (PMAB) and, if and when necessary, pursue it further with either the Pensions Ombudsman or to Judicial Review.

Some forces have stooped very low when IOD's applying to appeal have been put off by the force claiming that their appeal would be 'frivolous and vexatious' and result in the IOD being liable for all the costs.  This has been just one of the ways that authorities attempt to intimidate IOD's and if this situation was to occur, please contact one of the solicitors listed on our Contact page. You would then receive good advice on the quality of your case and have the confidence to pursue your appeal unhindered by official threats.

You can conduct your own defence of your pension if you so wish. You do not have to become a member of an organisation if that is your preference. You do not even need to use the services of a solicitor but we would warn you that this is a very complex issue and the legal team are very experienced in this very specialised area, so we recommend that you liaise with them at the earliest opportunity.

It is Pipin policy to advise IOD's to contact IODPA and to use the services of the legal team.

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