The attached draft submission has been prepared to assist members in preparation of an appeal to the Police Medical Appeal Board upon reduction of their injury award to Band 1 as a result of being 65yrs of age or older.

The document outlines the basis of an argument that should be made to the PMAB in relation to the recent Pension Ombudsman case of AYRE and the Administrative Court case of TURNER.

It is important that members do not rely on the argument alone and they must include their own individual circumstances when preparing their appeal and ensure that all their ‘cogent reasons’, including their continuing earning capacity beyond retirement age, are identified and put forward for the PMAB to consider at the hearing.

Members going through this process should seek the support of their local NARPO branch and their local Police Federation who may be able to assist in representation and support through the process and at the appeal hearing.

All of the documents referred to can be found on our website at www.narpo.org on the Pensions page under ‘Links to Useful Police Pension Information.’

In the event that the appeal is unsuccessful at the PMAB then members should be encouraged to exercise their right to make a complaint to the Pensions Ombudsman.

 

SUBMISSION WITH FORM C
IN THE MATTER OF (INSERT NAME) AND AN APPEAL UNDER REGULATION 31 OF THE POLICE (INJURY BENEFIT) REGULATIONS 2006.
SUPPORTING DOCUMENTS

Regulation 7(5) of the Police (Injury Benefit) Regulations 2006 determines how the degree of disablement is to be assessed:

(5) 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:

There are no special provisions contained within the Regulations relating to the assessment of an individual either at age 65 or otherwise.

This point was highlighted by Mr King the Pension Ombudsman in his determination in the recent AYRE case [copy attached].

It follows therefore that in determining the degree of disablement in this particular case a proper assessment should have been undertaken to determine the level of earning capacity capable of being generated by the Appellant and that an automatic reduction to the lowest band based purely on age and without assessing what employment the Appellant was actually capable of doing with his qualifying injury, is both unlawful and contrary to the Regulations themselves.

In the High Court case of South Wales Police v ANTON (ex parte Crocker), Justice Ouseley clearly sets out the way in which ones earning capacity should be assessed:

This approach is further reinforced in paragraph 54 of the Pension Ombudsman’s determination in the case of AYRE, where he opines that the correct assessment to be undertaken when assessing a persons earning capacity is:

Regulation 37 of the Police (Injury Benefit) Regulations 2006 deals with the reassessment of an injury Pension:

In the recent High Court case of TURNER v PMAB [copy attached] Justice Burton came to the conclusion that a Selected Medical Practitioner is not entitled under Regulation 37 to revise an award of an injury pension unless there is a proven substantial change in the pensioner’s degree of disablement. This could either be because the pensioner’s medical condition has changed or that there are jobs the pensioner could now do.  Minor changes do not entitle a review.

In the Appellant’s case the only change has been the fact that he has reached 65yrs of age, there has been no change to his medical condition nor has there been any change in the Appellants potential earning capacity as defined by both the Regulations themselves and by the Pensions Ombudsman, because the correct test has not been applied, in this case an automatic assumption of zero earning capacity has been made instead.

It therefore follows that there has been no substantial change in the Appellants degree of disablement and the pension should not have been revised.

The relevant Home Office Guidance in relation to Degree of Disablement is contained within Section 5 [copy attached]. Paragraph 21 of that guidance refers to degree of disablement after age 65 yrs and states:

 21. It should be noted that while the default retirement age of 65 set in the Employment Equality (Age) Regulations does not apply to police officers as office holders, it does apply to employees and that age remains one at which a former officer can be taken to be no longer economically active. However, each case needs to be considered in compliance with the Police Pensions Regulations and in the light of the individual circumstances. We consider that the Age Regulations add extra weight to the requirement in the Police Injury Benefit Regulations that each case which is reviewed should be considered on its merits and in the light of any points made on behalf of the former officer.

Note - It is important that the correct procedures are followed in such cases in accordance with regulations 37 and 30 and that the issue is referred to the SMP for decision.

The Appellant would argue that it is important to note that the guidance is very clear in stating that each case needs to be considered in compliance with the Police Pension Regulations and in the light of individual circumstances.

The Appellant submits therefore that this together with the decisions made by the Pensions Ombudsman in AYRE must lead you to the conclusion that his degree of disablement has been wrongly assessed by the Selected Medical Practitioner. There has been no medical assessment of his earning capacity, his individual circumstances have not been duly considered and rather than his case being considered on its individual merits he has automatically been reduced to Band 1 purely on the grounds of his age, the very point the guidance warns against when it states in Paragraph 21:

‘We consider that the Age Regulations add extra weight to the requirement in the Police Injury Benefit Regulations that each case which is reviewed should be considered on its merits and in the light of any points made on behalf of the former officer.’


IF THE SMP IN YOUR CASE HAS NOT CONSIDERED YOUR INDIVIDUAL CIRCUMSTANCES AND HAS MERELY BEEN ADVISED TO REDUCE YOU TO BAND 1 INCLUDE THE FOLLOWING.
Section 2 of the PMAB Guidance at paragraphs 24 and 25 states:
Reassessment of injury pension under the Police (Injury Benefit) Regulations 2006
24. Under regulation 37 a police authority is obliged, at such intervals as may be suitable, to consider whether the degree of disablement (i.e. loss of earning capacity) of a person in receipt of an injury pension has altered.
25. To do this the police authority will refer the question at 30(2)(d) to the SMP. He or she will decide the issue of degree of disablement, taking account of the person’s current earnings and other relevant factors.
The Appellant asserts that this reinforces the Regulations themselves and makes it abundantly clear that the decision in relation to assessing the degree of disablement is one for the Selected Medical Practitioner and him/her alone. The decision in relation to the relevance or otherwise of any ‘cogent reasons’ or any other individual factors put forward by the Appellant cannot be decided by  an internal panel or otherwise, it is clearly a decision that the SMP must make when assessing the degree of disablement.
It follows therefore that in order to properly assess the degree of disablement the SMP must be in possession of all the facts of the case and that his/her decision is not based merely on a previous internal decision regarding the relevance of the Appellant’s ‘cogent reasons’.
The Appellant submits that the Guidance issued by the Home Office in relation to cogent reasons was not intended to remove the decision making function of the Selected Medical Practitioner and the Appellant therefore asserts that the Selected Medical Practitioner has in effect abdicated his judicial responsibility in this matter by merely accepting and ‘rubber stamping’ the Respondents view on the Appellants cogent reasons. The SMP must make his own decision on the relevance or otherwise of the Appellant’s cogent reasons and cannot simply accept an internal decision made by the Respondent.

HOME OFFICE CIRCULAR 46/2004
The Appellant would argue that the guidance contained in Home Office Circular 46/2004 in relation to the Review of Injury Pensions on reaching age 65 years is merely guidance and nothing else. It has no weight in law and does not and indeed cannot override the Police Pension Regulations themselves a point made expressly clear in the Pension Ombudsman’s determination in the AYRE case in which he opines at paragraph 51:
‘But the Scheme is governed by Regulations and Mr Ayre is right when he says that the Guidance cannot override the relevant Regulations, as HPA accepts’
This point is further emphasized in the Introduction to the Home Office Guidance to Police Medical Appeal Boards [copy attached] which includes the paragraph:
‘Before using this guidance a word needs to be said about its status. The Home Office has no authority to place a binding interpretation on a point of law. It follows therefore that this guidance has no specific legal authority in itself, although it will often set out procedures which have been widely followed in the police service for a number of years. Where applicable it also refers to issues considered by the courts including the Court of Appeal. It is important that board members are properly aware of this case law.’
The Appellant would submit therefore that his injury award review has not been carried out in accordance with the Regulations and the supporting case law.


FACTUAL BACKGROUND

 

The Appellant submits that the Selected Medical Practitioner has failed to take due cognisance of his ‘cogent reasons’ when considering his case and has effectively automatically reduced him to Band 1 as a result of him reaching 65 years of age.

The Appellant further submits that the Selected Medical Practitioner has failed to conduct a proper assessment of his current work capabilities in order  to ascertain his earning capacity and has again automatically assumed that his earning capacity is nil because of his age.

The Appellant asserts that the correct assessment should have been done in relation to his potential earnings as reinforced both by the Regulations and the cases of ANTON and AYRE.

The Appellant further submits that any reliance placed upon the Home Office Circular 46/2004 by the Respondents should be disregarded, it is quite clear that this is merely guidance and cannot override the over arching duties and responsibilities placed upon them when conducting such a review which is contained within the Regulations themselves and reinforced in the relevant case law.

INSERT IF SMP NOT CONSIDERED COGENT REASONS AS ABOVE
The Appellant further asserts that the decision in relation to his degree of disablement must be made by the Selected Medical Practitioner and that when making the decision the SMP must be in possession of all the relevant facts, including the Appellants ‘cogent reasons’.
The Appellant therefore submits that the SMP has not properly considered his case as the decision in relation to whether his cogent reasons were applicable or not was not made by the SMP, but by an internal decision by the Respondents. The SMP in this case has merely ‘rubber stamped’ an internal decision without being in possession of the full facts and has therefore not fully considered the Appellants case and has therefore exercised his duty under the Regulations incorrectly.

The Appellant therefore invites you to conclude that the Respondents have not complied with the relevant Police Pension Regulations and case law when conducting his review and therefore the conclusions reached by the Selected Medical Practitioner when determining his degree of disablement are both unfounded and based on an incorrect interpretation of the relevant Regulations and case law.

The Appellant therefore invites you to uphold his appeal in this matter and conclude that he should remain on his previous banding.