The National Association of Retired Police Officers (NARPO) is pleased to have the opportunity to respond to the draft of a circular on ‘Guidance on Reviews of Police Injury Awards’ recently produced by the Home Office. Before commenting on the draft of the circular itself, we would like to put the whole question of injury awards, as we see them, into context.
A Brief History of Injury Award Reviews
An injury award is granted to a former police officer as a recompense for an injury received in the execution of his duty. In general terms, the award is for life but the level of that award is not guaranteed for life, as the award is subject to review by the Police Authority of the officer’s former force. The legislation requires Police Authorities to review those on injury awards ‘at such intervals as may be suitable’. This time period is clearly not defined in the relevant regulations and Police Authorities have, in the past, used a great deal of individual discretion as to how regularly those reviews should take place. Over the immediate recent past, the courts have taken the view, which we have been advocating for some time, that in respect of reviews each case needs to be considered in its own individual circumstances and this we believe includes in respect of the regularity of reviews.
What is clear about reviews, and the one area where there was a unanimity of attitude amongst Police Authorities, is that prior to 2000 no forces were reviewing those on this award as a matter of policy at state retirement age. This we believe was in recognition that, as well as loss of ‘earnings’ associated with an early retirement on injury grounds, those affected by an injury on duty, in many cases, also lost the opportunity to accrue a full police pension and/or a further pension entitlement from post police service work.
A few but no more than a handful of forces began to look at the possibility of automatically reviewing those on injury awards at ‘retirement’ ages, including state retirement age, in the early years of this century. By 2004, only a handful of forces had adopted any practice of reviewing those on injury awards at retirement ages, in particular, at state retirement age but despite this the Home Office chose to produce the circular 46/2004, which advocated this practice.
Despite the fact that this circular has been advocating a change in 'policy' for all forces in England and Wales, still some 7 years after its publication only a minority of forces have adopted the recommendations. One major force, the Metropolitan Police, which had been looking at this policy prior to 2004, actually decided in 2006 to adopt the policy but not to make it retrospective in respect of state retirement age, indicating that all those who had retired with an injury prior to the policy change decision would not be affected by the new policy. All this has led all those in receipt of this award, whose age was in excess of or approaching state pension age, to believe that their injury award level had been set for the rest of their lives. For those over state retirement age this view was further supported by the fact that the Home Office itself recommended that reviews at an age over 65 years should be exceptional.
Home Office Circular 46/2004
It is our view that Home Office Circular 46/2004 was issued against the overwhelming policies of all forces within England and Wales. It was one stated aim of the Home Office that the intention of the circular was to seek a more uniform application of policy in respect of injury award reviews at retirement ages. It has not only failed in that aim but the Home Office actually released the document at a time when, apart from a very small minority of forces, there was a uniform application of the regulations in respect of the issues addressed in the circular. The circular was released against the overwhelming practice of the day.
We have therefore been drawn to the conclusion that the real reason for the circular was financial savings. This has in fact shown itself in the adoption of the recommended ‘policy’ from force to force. As the Home Office will be aware many of those forces which did adopt the ‘policy’ did so some years after the issue of the circular with Chief Constables making the case on the basis of ‘financial’ savings. Northumbria is a good example in this respect, where the report to the Police Authority made the case for additional staff to operate the policy with losses being predicted in the early years to pay for the additional staff but savings being made in future years from the pockets of injured former police officers. The report to the Police Authority predicted savings on all those over 65 years of age thus, in our view, unlawfully prejudging the review process.
Other forces have followed the argument of financial savings in attempts to introduce ‘age’ related reviews.
Home Office Circular 46/2004 was not the only initiative that the Home Office took to influence Police Authorities’ policies towards injury awards in the early part of this century. A drive to see ‘medical’ retirements as a last rather than a first resort was agreed through the police national consultation machinery. In addition there was a national agreement with police staff associations to look at the provisions on the injury award legislation more generally. This, aligned to the splitting of pensions and injury award regulations consequential on the ‘A’ Day provisions on pensions included in the Government Budget program in 2006 drew further attention to injury award provisions and a clear misunderstanding amongst, in particular, police human resource personnel, that legislative change required more regular reviews. It seems to us that at that time the Home Office was also advocating that forces reviewed those on this award at more regular intervals.
We believe that this situation has caused significant problems both for those in receipt of the award and for forces. We also believe that circular 46/2004 created a situation where some forces interpretation of the circular led to a significant maladministration of the police injury benefits scheme. In addition there has been a hardening of attitudes towards those in receipt of this award as a direct result of the developments to which we have referred, which has led to significant challenges of process in the Courts and elsewhere in several forces. We believe that this whole process has been due to a desire to save money on behalf of the Home Office and forces and it has created an imbalance between the expectations and rights of the individual unfairly in favour of the public purse in a significant number of forces in England and Wales.
Draft Circular – Guidance on reviews of Police Injury Awards
To say that we are disappointed with the new draft circular would be a spectacular understatement. We note that the circular claims to reflect recent case law on this subject but we believe it not only fails to reflect all recent case law but has been very selective in its interpretation of case law, both new and old, to the detriment of those in receipt of an injury award. It also fails to take into account recent Pension Ombudsman decisions and any of the points NARPO has raised with the Home Office and Police Authorities in the past.
It is our view that the circular will encourage further maladministration of the scheme. We are drawn to the conclusion that it has been written after consultation with the Attendance Management Group solely, a forum which is entirely made up of police management and administrative representatives, and that those within that group with the least sympathy and concern for those injured whilst serving their communities have had the greatest say in the document. In this respect it is particularly disappointing to note that the Home Office have failed to take into account the views of the Pension Ombudsman. We are aware that some within the Attendance Management Group give little consideration to these decided cases but it is clear not only from the AYRES case but others since, including recent decisions, that the Ombudsman believes it inappropriate to use ‘age’ as a trigger for reviews and continues to believe that automatic reduction to Band 1 at state retirement age is at the least a maladministration of the scheme. He continues to assert that the SMP/PMAB cannot assume ‘no earning capacity’ at state retirement age.
We have, during recent months, been particularly concerned that the Home Office have been acting almost at the direction of some of those forces that have the worst record of maladministration of this benefit to the serious detriment of a fair process for those affected. The suspension of the Police Medical Appeals Process at a time when the Appeals Board was finding in favour of our members is a further example of that attitude, so in some respect we should not have been surprised by the contents of this draft document.
We also believe that the circular overcomplicates many of the issues it tries to explain, errs in favour of the Police Authority/Force in its limited interpretation of the regulations and case law and suggests a much too great a role for Force Human Resource Departments in the process than was ever envisaged by the original legislation. In addition it fails to make clear that a ‘review’ of the degree of disablement is a matter for the Selected Medical Practitioner (SMP), that a review should normally be a face to face examination/interview conducted by the SMP and that a paper consideration does not amount to a ‘review’ and is unlikely to meet the requirements of the legislation.
These are all points we have raised in the past and we believe that Age Discrimination legislation and the recent case law has strengthen our position on these matters but in any event we believe that following a simple agreed procedure that firmly establishes the primacy of the role of the SMP in what is clearly a quasi judicial role, is more likely to avoid the continuing legal challenges that have become a feature of this process, which is fundamentally a ‘medical’ assessment of individual current work capability. We are sure that the imposition of Human Resource Departments early in the procedure tends to complicate the process and can lead to the SMP simply rubber stamping a decision effectively made by a member of that department. The over complication of the process not only leads to a higher chance of legal challenge but also greatly increases the bureaucracy involved leading to higher costs.
We are disappointed that the circular does not in any way seek to advise those forces, which have in our view clearly failed to comply with a proper procedure in their original interpretation of Circular 46/2004, to revisit and re-assess those whom they have treated so poorly in the past. We are drawn to the conclusion that the circular can only be seen as a green light to put cost savings ahead of the fair and reasonable treatment of, in particular, older infirm former police offices injured protecting their local communities, who have not only a reasonable expectation resultant from previous national and local policies in respect of their current assessment but have also come to rely on the income they receive from the injury benefit scheme and have no option other than to adjust their lifestyles when they loose that income.
We are further concerned that some forces in the past have looked upon Circular 46/2004 as a direction and have been implementing the ‘advice’ in a way that has ignored the basic requirements of the legislation. We are concerned that this will be the attitude of some in the future and we are disappointed that the new circular does not make it absolutely clear that the regulations take precedence over the circular. A further concern is that, at a time when new ‘Injury Benefit Regulations’ are about to be enacted, the circular does not make it absolutely clear that the new regulations will not apply to those already in receipt of an injury award prior to the commencement date of the new provisions. We note that neither the old nor the new regulations contain the term ‘cogent reasons’, yet the Home Office continue to use this term in the circular.
We would ask the Home Office to consider a comprehensive rewrite of this circular taking into account the points we have raised before considering circulation. NARPO are convinced that the circular is likely to foster further maladministration of the Police Injury Benefit Scheme leading to a greater level of dispute, including in the Courts and with the Pension Ombudsman, between those in receipt of this award and forces throughout England and Wales.
We have provided some more specific comments on the circular on a section by section basis at Appendix A.