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Reviews - Mandatory or Discretionary?

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Reviews - Mandatory or Discretionary?

Post by Beachcomber on Tue Mar 20, 2018 5:45 pm

Reviews - Mandatory or Discretionary?

The latest forces to start review programmes are trying to give the impression that they have a duty to review and that duty is mandatory.

The first time I heard of this being trotted out was back in 2009 when the Cambridgeshire Chief Constable at the time insisted that reviews were mandatory. This contention was put forward to support the implementation of the cold blooded HOC46/2004 guidance on which the force was basing its IOD review policy. The force was quite hard line at that time although it wasn't long before, under DCC Feavyour, it adopted a more reasonable approach. As we know, Chiefs change and so do the policies which is why we have learned that we cannot trust our forces, but that is another matter. Although the force regarded reviews as 'mandatory' back in 2009, they don't seem to believe that now because they are not actually carrying out reviews unless requested by the pensioner!

The current Regulations are the Police (Injury Benefit) Regulations 2006 and this is what some Chief Constables (Police Pension Authorities) quote as their mandatory obligation to conduct reviews:

Reassessment of injury pension 37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police 22 authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

If this makes reviews mandatory, why didn't the previous Regulations (prior to 2006) regard this consideration as a mandatory duty?

You may think that the 2006 PIBR created this duty, but that would be wrong because if you look at the previous Regulations (Police Pension Regulations 1987 K 2) you would see that the wording is almost identical:

K2.—(1) Subject as hereinafter provided, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

In fact if you go back to the Police Pension Regulations 1973, again same wording is used.

So, the question is, if reviews are a mandatory duty now, why weren't they all those years ago?
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Re: Reviews - Mandatory or Discretionary?

Post by Beachcomber on Wed Mar 21, 2018 12:36 pm

As we see in the previous post, the wording of the current Regulations (PIBR 2006) has been essentially carried over from the earlier Police Pension Regulations. I suppose that it was the 'thin end of the wedge' when the provisions were transferred from the Police Pension Regs into the Police (Injury Benefit) Regs although the Injury Award was still referred to as an 'injury pension'.

Although the PIBR 2006 are still current, there was a proposed new PIBR in 2011 and these draft Regs set out to change some important elements:

This is Reg 37 of the current PIBR:

Reassessment of injury pension
37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police 22 authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

And here is the proposed replacement (Reg 36) in the draft PIBR 2011:


Reassessment of injury related income supplement
36.—(1) Subject to the provisions of this Part, where an injury related income supplement is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the pensioner’s loss of earning capacity has altered; and if after such consideration the police authority find that the pensioner’s loss of earning capacity has substantially altered, the supplement shall be revised accordingly.


We can see from this proposed change that it was intended to downgrade and dilute the very nature of the injury pension by calling it something else.


Another important proposal was to change the wording of the current Reg 33 which reads as follows:

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,


The draft replacement was Reg 32 which has just a little extra!

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.

Maybe those proposals were seen as being inappropriate or ill advised but whatever the reason, those draft Regulations were never enacted. It does illustrate however, that there are always people working away and trying to find ways to degrade our injury pensions.

Another point which has been recently discussed is that of disability being defined in terms of earning capacity.  It appears that some colleagues think that this was introduced as part  of the 2006 PIBR or HOC46/2004 but it has been part of the Regulations for many years. This is Reg A12 (3) Police Pension Regulations 1987:

(3) Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:

So the use of earning capacity is not new, what is new are the methods concocted by certain parties to arrive at a lower degree of disablement. As we know, a lower degree of disablement results in a lower level of injury pension  and hence financial savings for our forces.


Last edited by Beachcomber on Wed Apr 04, 2018 4:08 pm; edited 1 time in total
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Re: Reviews - Mandatory or Discretionary?

Post by Beachcomber on Fri Mar 23, 2018 4:02 pm

The Regulations make provision for consideration whether the degree of disablement has altered:

Reassessment of injury pension 37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

The PPA shall consider, not must consider or must review.  The Regulation clearly refers to 'where an injury pension is payable' and makes no distinction between the level of disability degree. If reviews are mandatory why do PPA's not include those on Band One (the lowest level)?  Those on the lowest level should clearly receive the same consideration and be treated exactly the same as those on higher levels.

We have to wonder why this is. Some PPA's might assume 'no change' in the level of disability of the Band One recipient but that doesn't square with a supposed mandatory duty to consider reviews.  Of course, Band One IOD pensions can't be reduced, they can only stay the same or be increased. So there can be no financial advantage to the PPA if Band Ones are to be reviewed.

We hear phrases such as 'protection of the public purse' etc. being used to buttress IOD review programmes. These days PPA's will explain that they have to be prudent with their budgets and they review in order to ensure that the IOD pensioner gets the correct level of pension whilst making sure that taxpayer's money is spent wisely. These statements are usually accompanied by a strong whiff of bovine excrement.

You won't hear a PPA refer to cost savings in relation to IOD reviews. But a few years ago, when the brutal HOC46/2004 held sway, forces weren't quite so coy and some of their policies boasted of savings and projected savings by decimating the pensions of IOD's over the ages of 60 and 65.

Home Office Circular 46/2004 Annex C.

It would be foolish to think that the defeat of that notorious guidance brought an end to the threat to IOD pensions. Just like those alchemists who sought to turn base metals into gold , there are people within our forces working to find the magic formula which will unlock to door to them plundering IOD pensions. As we have learned the door they are trying to unlock lies within the Regs. When the Regulations were formulated, the provision for review allowed for flexibility and discretion. That provision, intended to ensure the correct level of pension has been both our protection and the means by which some official bodies attempt to exploit the situation to their own advantage.

We have seen attempts to stretch and distort the Regs, introducing 'guidance' which tries to undermine them with interpretations suiting the PPA's. The spirit of Robert Maxwell is strong in some force areas.  Here is an example of guidance from a few years ago.

NAMF Guidance.

Another influence is the control now exerted by Police and Crime Commissioners on the Chief Constable, who is also the PPA. The PCC can dismiss a Chief Constable so it is likely that most Chiefs and therefore PPA's will fall into line with the wishes of the PCC. Most forces will deny that that the PCC wields any influence over IOD pensions but we have a very good example of an arrogant PCC becoming involved in the IOD issue.

A&S PCC Letter.

We have often said that we do not object to reviews, nobody likes to be reviewed, but the process we call review is part of the Regulations. What we do object to is the hijacking of a provision intended to protect our incomes by authorities seeking cost savings at our expense.
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Re: Reviews - Mandatory or Discretionary?

Post by Beachcomber on Tue Apr 03, 2018 8:38 am

Mandatory or Discretionary? Does it really matter?

In my opinion, the Regulations require the PPA to 'consider at suitable intervals' if the pensioner's disability has altered and it is this initial 'consideration' is where the duty lies. I don't think that it matters too much if this requirement is regarded as mandatory or not. It is this 'consideration' that is the first step in the process and any progress to a 'full review' is dependent upon this act of 'consideration'. Therefore, it appears to me, by carrying out 'consideration' the PPA will have discharged this duty and progress to a 'full review' is not a 'mandatory duty' but a discretionary decision based on the outcome of that consideration.

The term 'consider' is loose in this context , so without any legal interpretation or clarification that I am aware of, I apply the basic dictionary definition of the word: i.e. 'to think carefully about something before making a decision'.

My opinion is that 'consideration' itself therefore requires an element of discretion, taking into account the circumstances of the case on an individual basis and this has to be exercised before proceeding to the next stage.

I think that this aspect of the Regs is weak, although it may have been intended to provide flexibility into a process which wouldn't have been foreseen to be subjected to official abuse with PPA's initiating a review (or reviews) as they see fit.

At some future date, it is highly likely that events will give rise to a legal interpretation being sought but, at present, 'consider' must cover a multitude of methods by which the PPA or their delegated minions can claim to have 'considered' whether the disablement has altered.
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