Injury Awards: Why The Past Matters
“Study the past if you would define the future.”
There has been a massive reception to our recent post of John Giffard’s 2004 letter to the Home Office in which he wrote, without ambiguity, that ACPO wanted all injury awards stopped when IOD pensioners got to age 65.
‘ I suspect that my original intention was always to deal with people reaching 65 years of age and that remains the most important part. We continue to think that at that stage anybody inreceipt of an injury award should be automatically dropped to the lowest band or possibly even completely dropped.’
When he penned this letter Giffard was ACPO’s 1st Vice President and their spokesman on pension matters, having held this role since 2003. Had he read the Regulations, he would have known that an injury pension can not be stopped. It is payable for life.
The inference is though that Giffard knew that, but wished to disregard it. It is hard to find words to describe the utter corruption displayed should it be the case that Giffard, and ACPO, and the Home Office knew that injury pensions could not be stopped as proposed.
What do you call someone who is in authority but chooses to use their position to undermine a benefit scheme intended to be a vital component of the contract between police officers and their employers? It must be regarded as one of the most despicable acts of betrayal ever perpetrated on any body of loyal officers of the Crown.
Every problem disabled former officers have faced over the last decade or so have come about by the mismanagement and meddling of the Home Office, aided and abetted by a compliant ACPO. Every decision made in respect of degree of disablement, or grant of an injury award, since the time ACPO and the Home Office poisoned the well must be viewed as possible flawed.
Even the national media reported the shift towards pure antagonism from ACPO viewing those injured and receiving injury pensions form heroes to a burden. This Telegraph article is dated 2002 and mentions a quote from Giffard.
Already the number of former officers on pensions almost matches the 125,000 currently serving. As with the rest of the population, they are living longer. There is no separate, superannuated pension fund for the police, so the costs of retirements comes from money which could be spent on fighting crime.
There may be some who think the past is the past and should be left alone. There is a popular adage in our society that goes something like this: Forget the past, don’t worry about the future, live in the present.
This position is untenable when considering how widely injury awards have been mismanaged. The past is vitally important, for the whole validity of each and every medical decision made by SMPs in regard to injury pensions is defined by the legitimacy of the last final decision.
Any review of degree of disablement, such as the mass reviews Staffordshire wants to conduct, depends on the fact that the previous decision on degree of disablement, whether this is the original decision or at an earlier review, was lawful. Once a decision is made, it is to be regarded, in law, as a final decision. It can be revisited or challenged by way of appeal, but if there has been no challenge then it must stand inviolable.
No matter that it may have been a bad decision. It has to be taken as a given, and as the starting point from which any future decisions on degree of disablement must proceed.
When mistakes have been made, whether in law or in fact, there is no way anyone in receipt of an injury pension can move forward until the past is fixed. A review under Regulation 37 cannot fix the past; all it can do is only reaffirm the damage already done as the only test it can apply is “has there been substantial change” … a review can’t ask, “was the previous review lawful“. Only a reconsideration under Regulation 32 has that power.
A medically retired former police officer in receipt of an injury pension should not have to face a Regulation 37(1) review when the last decision was corrupted, for as to do so would be accepting the unlawful determination of the SMP as a final decision.
And this brings us the Staffordshire police’s current eagerness to conduct a mass review program.
Giffard’s letter was the starting gun for around half of Staffordshire’s IOD pensioners to be reviewed from 2005 to 2008. All these reviews were conducted mostly on paper without a medical authority making any decisions. We have yet to find out, but we believe it likely that the people selected were all on bands two, three and four. Those on band one were left alone, and we can guarantee the reason was because Staffs figured out that anyone on band one could not have their pension reduced, but there was a danger some of them might qualify for it to be increased.
Some pensioners at the time put up a valiant effort to inform and educate Giffard and his HR Director, Graham Liddiard, that the actions of Staffordshire Police was both morally corrupt and unlawful. Pushed into a corner, Staffordshire saw they were found out and semi-capitulated by promising that they wouldn’t repeat their wrongdoing and the result was the a shameful and unlawful agreement made by local NARPO, and local Federation with Staffs police.
This a 2007 email from Graham Liddiard to Staffs NARPO. Liddiard actually proclaims that the Regulations allow him to take injury awards away from those vulnerable and medically disabled. Liddiard says:
The Home Office issued circular 46/2004 because it was clear that in many forces, including Staffordshire, the administration and payment of injury awards had slipped away from the regulatory position. The position adopted by Staffordshire is similar to and, in many cases, more generous than that adopted by a number of forces outside the Met. It is clear that Staffordshire, along with very many other forces, has not administered injury awards as the regulations require.
‘Slipped away from the regulatory position’ … in other words to justify the illegality he is claiming he has no choice — the Regulations are making him do it. And he thinks two wrongs make a right; that by previously ‘not administering injury awards as the regulations require’ it excuses him from now unlawfully administering the Regulations definitely not as required.
This one-sided statement makes it clear that Staffordshire Police, even in 2007, was still hellbent in implementing the Home Office guidance in it’s rawest form. Cogent reason, National Earnings Averages … all made up. No such things exists in the Regulations.
There are countless life-giving lessons those who administer police injury pensions in Staffordshire could have learnt from it’s past but the current police pension authority — none other than an office vested in the sole personage of the Chief Constable — has refused to learn and is rolling on in the present as if the unlawful actions it carried out never happened.
All those people reviewed over a decade ago and who were reduced or wrongly kept on the same banding when their medical condition may have deteriorated to the extent they should have been increased, but with no selected medical practitioner used by Staffordshire back then, the reviews were all patently unlawful.
The Telegraph article makes it clear that Giffard was a major force in helping the Home Office contravene the Regulations. We accept there was some pressure on budgets then, as now, but we firmly reject that as any sort of reason for the actions of ACPO and the Home Office. The duty place by the Regulations on various authorities is to actively promote the scope and purpose of the benefits scheme. There is no duty to try to find devious ways of subverting the Regulations, but this is exactly what ACPO and the Home Office did. They didn’t much like the law, so they conspired to find ways to get around it.
This is the letter from the Home Office to Giffard that explains the thought processes of ACPO and the civil servants.
Neither Giffard, speaking for ACPO, nor the Home Office could change the legislation so they conspired to change how the medical decisions would be made. Colin Phillips, the Home Office’s Police Pensions and Ill Health Retirement Officer wrote :
I write to inform you of some proposed changes that we are considering making to the guidance to police medical appeal boards … As you know, it is important to balance safeguarding the public purse and safeguarding the interests of pensioners and that the correct band is identified
We worry for the sanity of Colin Phillips if he thought a global reduction to the lowest degree of disablement is safeguarding the interests of the pensioner! The reason for all this schadenfreude is a simple one.
They knew they could not make revisions to the existing scheme, as a) there is a general legal rule prohibiting retrospective application and, b) there is a clause in the parent Act which says that no alteration in terms and conditions which result in a worsening of benefits can be applied to existing members of the scheme unless they are first asked if they wish to accept the changes. The parent act is the Police Pensions Act 1973. Section 2 of that Act of Parliament says:
(2) No provision shall be made by regulations under section 1 above by virtue of subsection (1) above unless any person who is placed in a worse position than he would have been in if the provision had not applied in relation to any pension which is being paid or may become payable to him is by the regulations given an opportunity to elect that the provision shall not so apply.
In other words no person in receipt of an injury on duty could ever be disadvantaged by a change of legislation.
The only ammunition the Home Office had was to shape and influence how the current Regulations would be applied by those under its control. The Home Office issued guidance to PMABs and to all forces which advised actions which were unlawful.
To the eternal shame of all Chief Constables at the time, not a single one of them spoke up and pointed out that the guidance was evil rubbish. Not a one. Nobody. Some of them just kept quiet and did not implement the guidance. Their silence did not indicate any concerns over the legality of the guidance — it served only to make it easier for those forces which had grasped onto the guidance as a way of reducing the ‘burden’ of paying injury pensions to set about robbing their disabled former officers.
Fourteen years of poison, influencing those who make decisions in the administration of injury awards, has produced the likes of Wirz, Cheng and deviant HR directors.
The past is the key to this and with hindsight it is easy to see how the monsters have stepped out from the dark and and now perform their roles in full view of those, like PFEW, Police and Crime Commissioners, honest HR managers, and senior officers who should be shouting from the rafters.
This takes us back yet again to Staffordshire. Giffard and his cronies invoked the Home Office guidance with zeal, but how many of those individuals whose pensions were unlawfully reduced have had their banding restored to the correct level? How many who were reviewed by a HR minion in order to get to the “agreement” once Staffordshire realised they had a damage limitation problem to contain?
Other forces have paid back millions in unlawful deductions. The Metropolitan Police does not review at all arguably because of the £80m added police authorities’ bills.
Police authorities may have to find tens of millions of pounds extra to fund their pension liabilities after a retired inspector won a landmark legal challenge preserving his income. The ruling by a court in Leeds overturns Home Office guidance that permitted a review of the pensions of injured officers once they reach retirement age and resulted in lower payments.
Staffordshire is again hell-bent on breaking the law by unlawfully holding reviews. IODPA wishes to make it clear to all concerned that no reviews should take place until past errors have been identified and corrected.