ESA & Kier’s Cataclysmic Communication

“It is easier to get forgiveness than permission.”
 Stuart’s Law of Retroaction

Let’s talk about Kier and ESA — no, they are not a comedy act on some obscure daytime TV channel, but they might as well be given the custard pie that Kier has recently thrown at disabled former officers.

Kier is a huge public company, noted primarily for major civil engineering construction projects, house building, commercial property development and for providing a range of services to businesses such as asset management, energy saving solutions, logistics, fleet management, highway and waterway management, and now, the administration of police injury pensions.

ESA is a State benefit — employment support allowance — which is intended to provide financial help to people who have an illness, health condition or disability that makes it difficult or impossible to work.

Several forces have signed contracts with Kier to take over the role of the traditional County Hall payroll department and to do the admin work involved with police injury pensions. We assume they also handle the admin on other police and civilian employee pensions, but here we are only concerned with injury pensions.

Some bright spark, perhaps within Kier, or more probably someone sat at a desk in Northumbria, has come up with what they think is a corking good plan. They have noticed that the Police (Injury Benefit) Regulations 2006 were recently amended. This is what the relevant regulation used to say, (and I will paraphrase for the sake of simplicity):

If you are entitled to incapacity benefit, then your police pension authority will deduct from your injury pension an amount equal to that of the incapacity benefit.

The amendment merely substitutes employment support allowance for incapacity benefit.

The bright spark, or as time will tell, the not so bright spark, has not thought things through, for Kier have been asked (or decided themselves) to send out letters to all injury pensioners who they administer.

Here is the letter:

ESA Kier letter

And here is the form which accompanied it:
 ESA Kier consent

The gist of all this is that the police pension authority would like the Government to pay out ESA to all who qualify so they can trim a wodge of cash off the injury pension budget, and spend the savings on things like refurbishing the CC’s private loo, or buying a shiny new car with hidden blue lights and siren for the force’s solicitor.

You can see their point. As always the smell of money drives completely out the window all common sense and all semblance of decency, and all considerations of the needs and feelings of vulnerable disabled folk. And the Regulations do say that the PPA ‘shall’ make these deductions. Looks like a slam dunk case — if you have not taken the trouble to think things through, and have relied on the expectation that IOD pensioners will do as they are told, without question.

But, there are flaws in the plan. Kier write that, ‘Whether you are in receipt of payment of contribution-based ESA or not is irrelevant: it is whether you are entitled to a contribution-based ESA which determines whether a deduction needs to be made.’

Legally, this is a correct statement. It is its implications which need examining. We know this letter has caused a lot of head-scratching amongst IOD pensioners, and we also know that unfortunately it has caused a lot of raised anxiety levels and other unwelcome and harmful reactions — and that’s putting it mildly.

Pensioners who are in receipt of ESA — and we think there will be very few — have no immediate problem. They know where they stand. All they have to worry about is whether Kier will take the actual equivalent amount from their injury pension, or will take a gross amount, thus leaving them out of pocket.

It is pensioners who don’t receive ESA, and who who thus don’t know whether they are entitled to it who are being upset.

They can’t know whether they are entitled to ESA without actually making application to the DWP for it. They rightly and understandably are querying why they should be put to this trouble. Some have made tentative enquiries with the DWP and are told that they probably would not qualify. We won’t go into the detail here, but it seems more likely that more IOD pensioners will not be entitled than those who would be.

The issue here is that there is no duty, no requirement, no legal imperative for any person to claim any State benefit. If their choice is not to make a claim, then that is up to them. Nobody can tell them to make application for ESA. Why would anyone see any reason to place themselves in the hands of the DWP, nice people that they are, purely for the benefit of the police pension authority?

The letter from Kier turns a bit nasty. It sets a deadline for a response from pensioners. It is an unreasonable deadline as nobody could complete an application for ESA and get a result in the time allowed. Worse, it is an unenforceable deadline. There is no legal authority behind it.

Kier than get even more nasty. There is a veiled and rather vague threat:

‘Failure to respond (by the deadline) will mean that we are unable to correctly assess your level of injury pension.’

To which the response which immediately forms in our heads is, ‘So what?’ What are Kier going to do?

Well, the answer is, to quote our American cousins, diddly-squat.

Logically, Kier were happily paying your injury pension at the correct level before they sent out the letter, and the absence of knowing whether you are entitled to claim ESA or not does not alter that situation. If you were to chuck the letter in the bin Kier would have no option but to continue paying your pension as normal. Kier could not deduct an ESA equivalent because it is legally bound to only do that when it knows, for certain, with evidence of proof, that an individual is ‘entitled’ to ESA.

In their own words, ‘Whether you are in receipt of payment of contribution-based ESA or not is irrelevant: it is whether you are entitled to a contribution-based ESA which determines whether a deduction needs to be made’

If Kier doesn’t know, and the pensioner doesn’t know, and the DWP doesn’t know, then Kier can not be in a position to deduct anything.

Now we come to the attached form, which Kier call the ‘authorisation’.

We fully appreciate that pensioners ought to let Kier know if there are changes in respect of relevant benefits received. Nobody is suggesting that IOD pensioners should get more than is their right, and equally none should be paid less than is their right. However, there is a broad river of difference between an actual change, and an entitlement. If you don’t know whether you are entitled to ESA and don’t care to be bothered to find out, then that is not a foul.

Kier wants pensioners to give permission, via Kier, to the DWP for the DWP to tell Kier details, ‘of any benefits which I am entitled to receive wholly or partly (whether in payment or not) in respect of the relevant injury.’

Well, we are sorry to say to Kier that the DWP won’t have that information. The DWP can’t possibly know whether anyone is entitled to to any benefit until and unless they actually apply for it. On that basis, the request for permission is a fishing expedition, and amounts to asking for unlimited, unrestricted access to every detail of all benefits, whether specified in the Regulations or not, for the full lifetime of the individual. Anyone who gives such permission would be unwise in the extreme to do so.

The letter, and the ‘authorisation’ form are poorly worded, capable of causing confusion, logically inconsistent and are coloured with poorly-disguised threats. It does not reflect well on the standards of this multi-million pound industrial company and smacks of being a letter they have cobbled together with little thought.

Kier are hoping for quiet acquiescence, and are trusting that pensioners will do what they are told. As evidence of this, we report the experience of more than one pensioner who have rung Kier to query the letter and the ‘authorisation’ only to be told, and we quote verbatim, ‘Don’t worry about it. Just tick the top box and send the form back to us.’

Amazing! Kier are saying that they don’t care a jot whether you lie on your form. Just fill in that you don’t get ESA and they will leave you alone. Never mind that would be lie, which would be fraud. It might even be conspiracy to defraud by you and by Kier.

We don’t think Kier’s heart is in this custard pie fight. They have thrown the first pie, and must realise that quite a storm of pies will be flying back at them.

IODPA says to any IOD pensioner who has concerns about these letters and forms: seek professional advice from an independent expert, such as a solicitor. Don’t rely on local NARPO or Federation to give you sound advice, for with the best will in the world they won’t know how to deal with this unusual situation. If you are unsure what to do about the form, then the best course of action is to do nothing. Wait until the custard pies have hit the fan and see what Kier do next.

We anticipate that nothing bad will happen, and, to extend what Stuart says, “It is easier to get forgiveness for not filling in a stupid form than to sign that permission and regret doing so.”

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