Police Injury Pension Reviews How To Safeguard Your Pension A Practical Guide

Introduction This document is intended to provide some practical help in the form of advice to any former police officer who is facing a review of his or her injury pension. It details steps you might want to take to help ensure that the review procedure is conducted properly. They include things that you can do before, during and after a review. The paper covers checking if a review is lawful, challenging the decision to hold a review, preparing for a review, dealing with the Selected Medical Practitioner, how to appeal a review, and more. The paper may also assist administrators of injury pensions, for the aim of the author is to encourage better administration and a better understanding and implementation of the Police (Injury Benefit) Regulations 2006. Just so we all know what is being discussed here, a review of an injury pension is where the police authority instructs a selected medical practitioner (SMP) to assess if your degree of disablement has altered since the time of your last review, or retirement assessment, as appropriate. If your degree of disablement is found to have substantially altered, then the police authority (PA) will revise your pension by adjusting the amount of money you receive. That amount can go up or it can go down. If your degree of disablement is determined to have substantially improved it will go down, and vice versa. Below, there is more on what is meant by degree of disablement. Police Injury Pensions are governed by the Police (Injury Benefit) Regulations 2006, which are made under provision of the Police Pensions Act 1967. The money to pay for injury pensions comes from the normal operating budget of each police force. It does not come from the payments made into the police pension scheme by serving officers. The local police authority is responsible for making decisions concerning whether or when to review an injury pension, and in most cases will have delegated this, and the day to day administration of injury pensions, to the Chief Constable. To keep this guide as easy to read as possible the author has deliberately not quoted the Regulations, pertinent administrative law and relevant stated cases these can be found readily enough online in various places. A useful small library of documents covering the legal aspects of injury pension reviews has been published on www.scribd.com/wdtk and other information is available on the NARPO web site. This paper is intended to be a practical what-to-do guide, but a decent working knowledge of the legal background would stand any pensioner in good stead. Failing that, the best way to proceed is to show your local Federation and NARPO representatives this document and others that it points to. These two organisations stand ready to support any injury pensioner facing a review who seeks advice and assistance. 1

Background Briefing

Any injury pensioner facing a review who is a former officer from one or other of the 17 or so forces that have until recently been engaged in extensive review processes will readily understand that there has been widespread maladministration. Pensions have been reduced unlawfully. Happily, there have been some very successful legal challenges to various aspects of the administration and review of police injury pensions. Cases in the Administrative Court and complaints determined by the Pensions Ombudsman (PO) have all shown that administrators have been acting unlawfully. With the authority of the High Court and the Pensions Ombudsman behind them, injury pensioners are now much better equipped to not only identify maladministration but also to prevent or combat it. As well as excellent help from the Federation and NARPO, self-help groups such as the Association of Disabled Police Officers (ADPO) and the Police Injury Pension Information Exchange (PIPIN) can provide expertise and support. It is no exaggeration to say that the now infamous guidance contained in Annex C to Home Office circular 46/2004 sparked off a wave of unlawful process. That circular attempted to encourage forces to conduct reviews of injury pensions at normal force retirement age and at age 65 with the intention of reducing the amount paid. The circular further effectively advised that pension payments could be reduced by means of using data from the Annual Survey of Hours and Earnings as an earnings comparator when revising a pension following a review and also by assuming that at age 65 every injury pension could be reduced to the lowest band. There can be no doubt that this circular was intended to do one thing - provide encouragement to police injury pension scheme administrators to break the law by reducing injury pension payments in ways that are not permitted by the Regulations.1 The Home Office circular has been exposed as thoroughly disreputable: it contained lies and misdirection as well as advising actions that were unlawful. An account of the research that revealed the woeful shortcomings of the circular has been published on www.scribd.com/wdtk and every injury pensioner (and pension administrator) should read it. There was considerable outrage against the Home Office guidance and against the actions of those forces that took it on board and started to conduct mass reviews and reductions of injury pensions. It took five years before the Home Office reacted. In September 2009, in an address to NARPO conference, the then Policing Minister Nick Herbert promised to 'revise' the circular. This pledge effectively signalled recognition by the HO that the advice contained in Home Office circular 46/2004 was unsound and should be disregarded. A draft of the revised guidance has been drawn up, but it is not likely to be published in final form until early 2012. The Home Office wrote to all forces in March 2010 and advised that all reviews should be suspended.
1 The Police Pensions Regulations 1987 which have now been replaced by the essentially similar Police (Injury Benefit) Regulations 2006.

The majority of forces did not implement the Home Office guidance, and if you are a former officer from one or other of those force areas you will have been spared the almost unbearable stress, anxiety and financial uncertainty that has been suffered by disabled pensioners elsewhere. Don't for a minute though think that all is now sweetness and light. The Home Office is working on the revised guidance and seems to be intent on finding more ways of encouraging all forces to conduct mass reviews. A copy of an early draft of the guidance has been published on www.scribd.com/wdtk and if the final version is not radically different then every injury pensioner is likely to face a further round of unlawful attempts to reduce pensions. So much for the background. Now for the practical advice but first, a disclaimer, and a warning. The disclaimer is that the author has no legal experience or qualifications other than those gained during his police career and in what is now a nearly three year running battle to protect his injury pension. The reader should ensure that he or she obtains professional advice from local Federation and NARPO sources if called to attend a review of his or her injury pension. Every care has been taken to ensure the accuracy of the detail herein, but it is intended as a guide only and the usual caveats apply. The warning is that it is a sad fact that there is a widespread and demonstrable lack of expertise and understanding of the Regulations amongst the administrators of police injury pensions. Add bad faith to incompetence and the result is a volatile mix that is toxic to injury pensioners. In the considered opinion of the author, it would be unwise for any injury pensioner to place unquestioning trust in anything that their force or police authority says or does. This attitude of mind may go against ingrained habits of discipline and deference to senior authority, but is an essential first step towards safeguarding your pension.

Degree of Disablement Understanding what is meant by the term degree of disablement is perhaps the most controversial and difficult part of the review process, and is where SMPs, pension administrators, PAs, Chief Constables and Police Medical Appeal Boards can and do confuse themselves. If your review goes wrong, of all the ways that it can be botched, then misunderstanding what degree of disablement is and how to assess it is the main area where maladministration is likely to be present. At review, the SMP must first determine if there has been any alteration in the medical condition resultant from your duty injury. He can also see if any new job that you could theoretically do has come up. Both of these must only be from the time of your last review, or if it is your first review, from the initial assessment at the point of retirement and grant of the injury pension. In the Regulations, degree of disablement is linked to earning capacity. Please note that it is not linked to earnings capacity that single 's' makes all the difference, and it is a difference that many administrators simply do not understand. 3

You are allowed, even expected, to work whilst in receipt of an injury pension, but how much or how little you earn should not affect how much injury pension you get paid. Your age is irrelevant when it comes to assessing your degree of disablement, so holding a review at any particular age is approaching matters from completely the wrong direction. You might have gained some new qualifications, or experience, but these should have only minimal effect. It has been held in the Administrative Court2 that gaining a law degree was not, of itself, sufficient to substantially alter degree of disablement. What can be evaluated at a review - if it gets to that stage of the assessment - is your earning capacity at the time of the review. Only if the SMP can determine that either: a) there has been a substantial alteration in your medical condition or; b) some uniquely new job has appeared, can he go on to assess your earning capacity. The Pensions Ombudsman has described earning capacity as something that we all have and all retain regardless of our age or whether we chose to use it or not.3 The SMP must determine to what extent your earning capacity has been diminished by the effects of the duty injury. He will express this in percentage terms. The most important fact to note here is that only a SMP can assess and determine degree of disablement. It is a medical matter and the Regulations require that task is conducted only by a SMP. It cannot be done by any other person or body. If a letter announcing a review says that it will conduct a review 'on the papers' or words to that effect, or that it will be done by the SMP without him seeing you, or that the review is because you have reached age 65 or normal force retirement age, then alarm bells should start to ring.

A Review Has Been Arranged It is very probable that at some point during your retirement a letter will arrive on your doormat from someone at your former force Headquarters. 4The letter will tell you that your injury pension is about to be reviewed. You may have been retired for many years and never had your injury pension reviewed. You may have been told that it would never be reviewed. Or you may be recently retired following injury on duty and been told to expect a review after a couple of years. Depending on the way your police authority and force have been managing injury pensions, notice of an impending review may be an intense shock or perhaps just something that you see as a routine matter. Either way, you can be certain that your force will announce the review in such a way that it will leave you in no doubt that there is nothing that can be done to prevent it. You would be wrong to assume that is correct.

2 I said that I would keep the legal detail out of this paper, so if you want to know what the Judge said, look on the NARPO web site, or go to www.scribd.com/wdtk and read the report on the case of LAWS. 3 Ditto: look on the NARPO web site, or go to www.scribd.com/wdtk and read the report on the case of AYRE. 4 Your force will be acting as the delegated administrator on behalf of the police authority.

Old habits die hard, and some pensioners tend to think that they have no option but to comply with whatever their previous employers dictate. Similarly, forces sometimes forget that they are dealing with pensioners who are now just members of the public, not subject to orders, and with all the protection of rights that are part of a democratic society. Among these rights you have a right to fair, open and transparent treatment under the law; you have a right to negotiate the arrangements for a review date, place, venue, etc.; you also have a right to challenge and seek redress for any instance of maladministration that you might detect. Of course, you may welcome a review and be happy to see it go ahead as planned, especially if your medical carers have told you that the effects of your duty injury are stable or worsening. You may expect that a review would confirm that situation, with the result that the amount of pension paid will remain the same, or even increase. However, it may be unsafe to rely on a favourable outcome and any pensioner would be wise to take sensible precautions aimed at ensuring the review is conducted lawfully. That means not leaving things to chance. The purpose of a review is to ensure that the correct amount of pension is being paid. That seems to be fair enough, as nobody should receive something that they are not entitled to. But equally, nobody should be unfairly deprived of something that is their lawful right. Unfortunately, some forces and PA's have seen reviews as a way to reduce the amount paid out of the force budget for injury pensions.5 Disabled former officers have perhaps been seen as an unproductive drain on scarce resources, and with the current squeeze on force budgets the temptation to try to engineer reductions by manipulating the process of review will be too great for some Chief Constables to resist.

An Immediate Challenge - Reason For Review There have been instances where degree of disablement has been assessed and altered by administrative action only, with no input whatever from a SMP. Similarly, some administrators have made an assumption about the degree of disablement and have then 'advised' the SMP to accept that view. Some SMPs have had so little understanding of their role that they have placed Home Office guidance and force policy on the same level as the Regulations. The same has applied to pension administrators. The most common failing is that they have got it into their heads that the Regulations demand that all injury pensions should be reviewed, preferably at regular intervals. That is not what the Regulations say, and it is not what they intend. The PA has a wide power of discretion over whether or when a review might be held. If you have the slightest doubt that a review is going to be anything less than a well-conducted lawful procedure, then you might consider making an early challenge to the decision to hold a review. It is far better to try to stop a review than to spend the next few years appealing a result or a process that you are unhappy with.6
5 Since 2006 injury pensions are paid entirely from the force budget. 6 There is a more detailed article on this, posted on www.scribd.com/wdtk 'Police injury Pension Letter to

If you have any doubts then a little voice should be saying to you, 'Let's hold it right there!' There are two steps that can be taken if a review is announced, both with the objective of stopping the review taking place. Note that I am not advocating being awkward for the sake of it. Only if you have serious misgivings about the forthcoming review need you try to stop it. By that I mean that you know your force or PA has a bad track record in administering reviews or you have reason to suspect that a review is not going to be conducted fairly or lawfully. The first step to preventing a review going ahead should be to ask the pension administrator to provide you with the reason why it is thought that a review should be held. Public bodies should provide reasons for decisions. A decision to arrange a review is something that the police authority has wide discretion over. It can hold a review when it believes that a 'suitable interval' has passed since the last review or since initial assessment at the point of retirement. The crux of the matter is that the PA should be able to tell the pensioner exactly why it thinks a suitable interval has passed, thus allowing a review. And that means why a review is appropriate for you, personally. I can't stress this too much. Any decision to hold a review of your injury pension should come from an individual appraisal of your individual circumstances. One pensioner, one decision. Generic reasons, quotations of the Regulations or reference to policy or Home Office guidance are not reasons but excuses. Request the specific reason or reasons why your individual injury pension should, in the opinion of the PA, be reviewed. Reviews cannot be held on a whim though many administrators certainly think they can be. Similarly, reviews held to a timetable, or because a certain age has been reached may well not be at a 'suitable interval'. Be aware that some forces claim that they hold reviews when recommended by the SMP. If they present that as a reason you should request to see the report of the medic who made the recommendation.7 You should note the date that the recommendation was made. It may well have been made some time ago years even. If that is the case, then it is hardly a recommendation based on current information. Any such recommendation might well be considered to be unsafe and invalid. Really, the only valid reason for holding a review is that the PA has some reliable, current, information to hand that would lead it to reasonably believe that a review would reveal a substantial alteration in degree of disablement, or that some new job that the pensioner could do has arisen since the time of the last review. Your force may say that only by holding regular reviews can they be sure to be fair to every injury pensioner that everyone gets a review, so what could possibly be wrong with that? The answer is that it is not fair at all to put every injury pensioner through a review just on the off-chance that a few of them will end up with an adjustment to the amount paid. That approach is the very antithesis of fairness. It is rather like giving a yellow card to every member of a football team if the referee didn't see an alleged foul.

Challenge Decision to Review.' 7 You have a right to almost all data held that references you, under the terms of the Data Protection Act. You also have a right to most information that a public body holds, though there are exemptions.

So, do please ask your pension administrator to provide the individual reason why a review is being arranged for you, as an individual. If the reason is not a valid one, then you could consider a challenge at this stage. See step two, below. If the pensioner has some evidence that can be shown to the PA, before a review goes ahead, that the medical condition resulting from the duty injury has not altered substantially, then the PA really has no reason to hold a review. Realistically, it is likely that any challenge may well be brushed aside, at least initially. Many administrators readily quote that they have a 'duty' imposed under the Regulations to conduct regular reviews. This is a mistaken view, but it is difficult to argue with someone who is convinced they are right and you are wrong. Cynically, some forces take the view that it is easier for them to place onto the pensioner the onus of proving them wrong rather than explaining why they think they are right. They will play the long game, hoping that you won't have the will or the resources to combat them. Injury pensioners across the country have been in dispute with their pension administrators for some years now. This means that your force, even if it has behaved honourably and lawfully so far is bound to be aware of the arguments that have been raging. Don't for a moment trust that there is anyone in your force who has an extensive understanding of the Regulations or associated law. They will, however, know the tactics that other forces have used and will also, unfortunately, have been exposed to a great deal of misinformation. They will be coming under renewed pressure from the Home Office to commence mass regular reviews. They will also be under pressure from the forces that initially implemented the 2004 Home Office guidance, who will want a show of solidarity for the future. Never-the-less, mounting a challenge at this stage may produce a positive result, and at the very least will lay down a marker indicating that you will not tolerate any unlawful process. You will have shown that you intend to contest the process and the letters that you exchange during this initial challenge will serve to add to the record of maladministration that can be presented to the Pensions Ombudsman at a later stage, if necessary. Step two in trying to prevent a review can be taken if you are not satisfied that there is a valid reason for a review being held and your initial attempt to reach agreement that a review is not appropriate has failed. It involves a procedure that every force and every PA will have in place, but may not have told you about. It is called an Internal Dispute Resolution Process (IDRP). Bear in mind that it is entirely likely that your pension administrator will claim that you cannot do other than cooperate with a review and that you can argue about it afterwards if you want to. You may even receive thinly veiled 'threats' that failure to go along with the process will result in automatic reduction of your pension to the lowest band. This action would be unlawful. You may also be told that if you ask for a PMAB then the force will claim its costs from you if your appeal fails. That is nothing less than bullying and should be resisted. Don't let yourself be bullied or bamboozled. The Regulations are on your side. There is no lawful way for your pension to be reduced solely because you are in negotiations concerning whether or 7

not a review should go ahead. There is no penalty whatever even for wilfully or negligently failing to present yourself for examination to such medical examination or to attend such interviews as the SMP may consider necessary in order to enable him to make his decision. I'm not advocating you act that way there is a world of difference between constructive dialogue and burying your head in the sand. In circumstances of wilful or negligent refusal all that can happen is that the SMP will have to make his decision on degree of disablement without seeing you, in the light of such medical advice and evidence that the PA thinks necessary. It would be totally unreasonable, and unfair for a PA to press ahead with a review whilst you are working through a process to resolve a difference of opinion. In other words, if you request an IDRP then the review should be put on hold until the IDRP is completed. Making a request for an IDRP is as simple as writing a letter setting out the details why you consider the force or the PA is acting wrongly. Be sure to ask for a copy of any policy document or such-like that sets out how an IDRP will be conducted, and whilst you are at it, ask for a copy of any policy document or any other document that sets out any procedures for the administration and review of police injury pensions. You may be surprised to find that one or other of these rather important guides to procedure don't actually exist quite a lot of forces have never got round to writing them. An IDRP is not an independent look at the issue, but an internal one. Frankly, there is little chance of your force immediately coming round to your point of view, but if you don't try you won't find out. Also, I firmly believe that pressure of numbers plays a big part in achieving change. If every injury pensioner challenged their PA's right to hold a review whenever maladministration or unlawful process is reasonably suspected, then change can be achieved. So, why ask for an IDRP if the outcome is almost certainly a foregone conclusion? Well, firstly, it delays matters a little, which may allow you more time to prepare. Secondly, it may cause more senior people in the force and/or the PA to actually do some thinking about the rights and wrongs of the way they are operating. Thirdly, it adds considerably to your file of documents showing that you have acted reasonably and have given the force/PA an opportunity to draw back from committing themselves to an unlawful action. Finally, and this is the clincher if you wait until after the review to request an IDRP, then the time it takes to reach a conclusion will take you beyond the time limit you have to request an appeal to a PMAB. Moreover, the Pensions Ombudsman will not accept a complaint unless you have tried to resolve matters via an IDRP. An IDRP is a straightforward two-stage process. You write a letter requesting an IDRP and set out the grounds for your complaint. Address it to the CEO of the police authority. A senior person in your force will probably be appointed to handle stage one. An IDRP will only need go to the second stage if there is no satisfactory resolution in stage one. For this second stage your force may possibly hand it to a more senior person in the force or even ask someone not employed by the force to review the initial decision. Note that this is no guarantee whatever of impartiality. No matter who conducts each stage of the IDRP they are doing so on behalf of the body that you are in dispute with. It is not an independent review but is nothing more than the organisation you have issues with taking a second look at any decisions that have been made. There are guidelines set by the Pensions Regulator on time limits. Stage one should not take longer than four months and stage two no longer than another four months. You can add another couple of weeks onto each for the decision to be communicated, so an IDRP can take up to nine months, during which time you should continue to receive your pension at whatever rate it is at. 8

If, despite a polite objection, followed by a formal objection by way of IDRP, the review goes ahead, then the PA cannot back-date any reduction in pension. It costs the pensioner nothing to request and initiate an IDRP. There is no penalty for taking this route. You will have built up a valuable record of your objections and the response to those objections. This will stand you in good stead if you need to take your case to the pensions ombudsman or to a judicial review. Federation, NARPO and Others Before you embark on any challenge, it is vitally important that you tell your local Federation representative that you are expecting a review of your injury pension. You may not be a member of NARPO, but if you are, contact your local representative. It can't be emphasised too much that you should not undergo a review without at the very least speaking to the Federation. The level and quality of help you can expect from this direction will vary all representatives of both organisations are volunteers, either serving or retired officers. Some will be well informed on injury pension issues, whilst others may not be. Regardless of the quality of help you get, (and a lot of it will be excellent quality) it is better than no help at all, and local reps have the facilities of the national head offices to call on, so please do work with them. It may surprise you to know that your local NARPO will have no idea how many of their members are in receipt of an injury pension. Also, all injury pensioners will not be members of NARPO. This means that you are prevented from easy communication with fellow injury pensioners in your area to exchange ideas, recount experiences, plan a strategy, etc. Let's face it, this is exactly what suits your former force divide and conquer. Therefore, you should make every effort to discover if there is a local self-help group of injury pensioners. If there is not already a local self-help group then you could ask your local NARPO to form one. NARPO could identify any injury pensioners who might be interested by requesting that the force sends out a letter to all injury pensioners from NARPO, inviting them to make contact. It might not be your cup of tea to start a self-help group, but having one dedicated to fighting any maladministration of injury pensions for former officers from your force will be one of the most effective steps that can be taken to achieve justice. You should also make contact with ADPO by sending an introductory email to the Membership Secretary at whatsyourforcedoing@yahoo.co.uk There is also a web based forum for injury pensioners called Police Injury Pension Information Network (PIPIN). It can be found at www.pipin.org.uk Both ADPO and PIPIN work in harmony with the Federation and NARPO and are complementary to the assistance and advice that those two organisations offer. Whatever you do, there is no way that you should attempt to face and deal with a review on your own. There is plenty of help available, so be sure to ask for it.

The Pensions Advisory Service It might be worth your while to make contact with a body called The Pensions Advisory Service (TPAS). They have a web site8 and you can talk to them on the phone or email them. They are, and I quote from their web site, '. . . an independent non-profit organisation that provides free information, advice and guidance on the whole spectrum of pensions, including state, company, personal and stakeholder schemes. ' Only contact TPAS when or if you have initiated an IDRP. They need something concrete to work with. Send them a copy of your complaint letter. They will assist you through the process, and will have advisors who have experience of dealing with other injury pensioners. Contacting TPAS also serves to show that you are willing to work towards a resolution and will help your position if you later have to make a complaint to the Pensions Ombudsman.

Dealing With Officialdom It is worth emphasising that all communication between a pensioner and his or her force, the SMP or the police authority should be by letter or email. It is vital that you keep a full record, so please avoid telephone calls as far as possible. If you do discuss anything on the phone insist that written confirmation is sent. It is all too easy for someone to deny saying something on the telephone. Moreover, speaking to someone does not always allow you to put your point of view across as clearly or as logically as you might wish. Tempers can rise, and feathers can be rustled. A letter, by contrast, can be composed in your own time and will of course be polite and impersonal. You need to look ahead. Hope for a satisfactory and fair outcome from your review, but plan for the worst. Should you need to make a complaint, or go to a Police Medical Appeal Board (PMAB) or to the Pensions Ombudsman then you will need every scrap of evidence. Keep everything and file it properly. Deal with the top of the tree. Letters from your force will usually come from someone who is just doing a routine job. They are not at a pay grade where they can make important decisions, so don't expect them to. Address any letters or emails to the Chief Constable and mark them 'personal'. The objective is to ensure that the Chief cannot say that he or she is not aware of any issues you raise. The Chief Constable will pass your letter on down the line for attention. During your dealings with your former force you will probably receive letters from a bewildering number of different people, all with fancy job titles, but always direct your letters to the Chief Constable. In fact, it is good idea to send a copy of every letter you send to the Chief Constable to the Chief Executive Officer of the police authority. Mark your letters to the Chief Constable with 'Copy to CEO of PA'. The PA is ultimately responsible for making any decision to hold a review, so it is only right that you keep that body in the loop. We can't have anyone claiming ignorance of the issues that you are raising.
8 http://www.pensionsadvisoryservice.org.uk

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The Role of the Police Authority As mentioned above, the police authority holds the ultimate responsibility for deciding whether or when a review should be held and for the grant of an injury pension. This is written into the Regulations, in my view, because it is simply not right that a Chief Constable should be making those sort of decisions. It can be assumed that the CC will have personal knowledge of the pensioner, or at least has ready access to his or her file. The judgement of the CC, with the best will in the world, can be coloured by personal opinions. Since 2006, the cost of injury pensions is met entirely from the police budget, so there is now even more reason to believe that it is wrong that any CC should be concerned in any decisions concerning the grant or review of injury pensions. Yet, this is exactly what always has been the case, and continues to be the case. So far as is known, it has been common practice for police authorities to delegate all responsibility for the administration of injury pensions to the Chief Constable. There will be differences in degree of delegation, but in the worst instances the PA will have simply left the CC to get on with it and will have played no part whatever in monitoring or supervising or signing off decisions on grant of injury pensions or reviews of injury pensions. This is an area that you might like to look into. A statutory power of discretion must be exercised by the body to whom it is granted, though properly devised delegation is allowed. That means the decision made by the delegated person or body must be supervised and approved by the PA. If the PA takes no part in supervising and/or approving decisions taken in-force regarding whether or when a review of an injury pension might be appropriate, then the PA may well have 'divested' itself of its discretionary decision-making power. You could ask the PA for the Scheme of Delegation that assigns responsibility to the CC. There will also be records in the form of minutes of PA meetings, force meetings and reports. It will be a lot of work to obtain these documents,9 but you may find that the PA has in fact divested itself of its legal responsibility to make decisions concerning the grant and review of injury pensions. If that is the case and it would need an expert such as the PO to judge it it were then any review held might well be unlawful. The PA is composed of elected local councillors with some lay members. Its role is to secure the maintenance of an efficient and effective police service. To do this it, along with other duties, sets the policing budget, sets priorities and targets, monitors complaints against the police, appoints the Chief Constable and liaises with other forces and PAs the Home Office. It also has a specific statutory duty under the Regulations to decide whether or when a review of an injury pension should take place. The PA is assisted by the Chief Executive Officer (CEO), and this person is a professional appointee who will have the necessary qualifications, including an understanding of administrative law. The CEO will be required to provide effective, high quality guidance, advice and support to the Police Authority and its members to ensure the Police Authority meets its statutory duties and strategic objectives.

9 See Using the Freedom of Information Act and Data Protection Act, below.

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The CEO will also usually act as Monitoring Officer, and in that role will work with members and officers of the PA to secure high standards of probity and fairness in decision-making, and thus build public trust and confidence in the Authority. In other words, the CEO must help ensure that everything the PA does is lawful and ethical. From that brief overview, you will readily see that it is vital that you keep the CEO fully informed of everything that is going on concerning your injury pension. Be aware, too, that the PA holds meetings that are open to the public. You can attend these meetings if you have a mind to. You also will have the right to ask a question of the PA at one or other of these meetings. Some pensioners have done just that. The question, and its response, will go on the official minutes, so I leave it up to you to think about what your question might address. The most effective questions will be short, confined to one point only and a proper question, not a rant. An example might be something like, 'Will the PA please explain why it thinks it is lawful to conduct reviews of injury pensions when a former officer reaches the age of 65?' At the very least, the PA will have to think about your question and provide an answer. More evidence to add to your file and perhaps more minds brought to realise that there is a problem that needs a solution. Note that you will need to give notice of wanting to ask a question, and will have to submit it well before the meeting. You can attend and ask it in person, or you can have it read out in your absence and responded to. The response will not be off-the-cuff but will have been carefully considered and read from a prepared paper. Most police authorities have web sites and on them you may be able to find out more about asking questions.

Research The SMP Any review of your injury pension should include an examination and assessment of your current medical condition, by a SMP. This person will be a medical Doctor and should have qualifications in occupational health. The Home Office has agreed recommended minimum qualifications for any doctor who is engaged as a SMP. (Details are on www.scribd.com/wdtk ) The first step of preparing for a review therefore is to obtain the name and professional qualifications of the SMP and check if he or she meets the recommended standards for qualifications. Do this by asking your pension administrator to provide the information, including the doctor's General Medical Council (GMC) registration number. Then go to the web site of the GMC and view the list of registered medical practitioners, which contains details of all the doctors on the GMC's register. This might sound like an unnecessary check, but there was a recent instance of a doctor whose licence to practice medicine had been suspended who was continuing to work as a panel member on a Police Medical Appeal Board. Find out all you can about the SMP. A search of the Internet can usually provide useful information. He may be employed directly by the force or the police authority, but it is increasingly likely that he will be supplied by an agency a commercial for-profit company. 12

Your pension administrator may tell you that the SMP will not be able to discuss the Regulations or case law at your review. This is nonsense. The SMP will be acting in a quasi-judicial capacity and has to consider all relevant information relating to a review of your injury pension. Can you imagine a Magistrate refusing to hear an objection by the solicitor for the defence? Remember, the SMP has been selected and appointed to make a decision for the police authority. He will have received training devised by the Home Office and will have received instructions from the force or PA concerning your review. He may not be aware of relevant case law, so you should absolutely ensure that you discuss this with him. Your local NARPO and/or Federation representative will help provide the details you need. It may be useful to write to the SMP before the review. Expect difficulties to be placed in your way your pension administrator may be reluctant to provide a contact address and may try to discourage pre-review contact. You could consider asking the SMP to confirm that he has received appropriate training on conducting reviews and has informed himself of the impact of recent case law and determinations by the Pensions Ombudsman. You could also ask him to provide a copy of any instructions, directions, guidance or advice given to him by the force, the PA or his agency. Making early contact will allow you to get some insight into his state of preparedness and professionalism. Once an SMP has been assigned to conduct your review a patient/doctor relationship will have been established. This brings with it certain obligations. A doctor has an over-riding duty of care to any patient and be assured that examining and assessing you on behalf of a third party places you firmly in the category of patient. The SMP also must respect your medical confidentiality. This might seem contradictory, for what you tell him and what he ascertains from any examination will form part of his report back to your pension administrator. In practice there is little objection to this happening, provided the force has adequate measures to protect the confidentiality of any medical information, but beware if the SMP starts to ask about how your injury was caused, or what other illnesses and injuries you might have had at that time. He may claim that it assists him to build up a complete picture of your medical history, but his task under the Regulations is only to decide if your degree of disablement has altered since the time of the last review. He cannot revisit earlier events, as the decision taken at the last review is a final decision.

Practical Arrangements Assuming that your review is going ahead, then you could spend some time taking care of the practical arrangements. An early action you should take should be to insist that you are actually seen by a SMP. This may not be possible in some cases, especially if you live overseas, or have difficulty travelling. In those cases a review can be completed in your absence, but it must be by the SMP. If you now live in a different part of the UK, away from you old force area, you may be willing to travel back to your home force, but you can always try asking that the SMP travels to see you, or that your force arranges for an SMP from your current locality to conduct the review. 13

Ask about travelling expenses the Regulations make no mention of expenses, but you should claim for them. Most forces seem to be happy to pay for reasonable costs incurred in attending a review. Also, insist that the review is conducted in premises that are neutral territory and suitable to accommodate your particular disability and this includes psychological disability. I know of former officers who could not bring themselves to enter police premises, so a review at FHQ, for example may not a suitable venue for some people. If the date or time set by the force is not convenient to you, then tell them, and negotiate another date and time. Many forces have been in the habit of sending out a form with the notice of review, asking for all sorts of personal information. Some of this might be innocuous address, age, contact details, etc. but beware any questions about employment, earnings, savings, marital status, ownership of a house, and so on. This sort of information is private and the force has no business asking for it. The intention, they will say if you ask, is to provide information that the SMP can use to assess your degree of disablement. Remember, degree of disablement is linked to loss of earning capacity, and if your force think that means your actual earnings or employment, then they may well think that they can ask you for details. They can't. Anything to do with your finances or employment is a matter between you and the SMP and he may not need to ask you anything on those lines if he decides that there has been no substantial alteration in your medical condition resultant from the duty injury. If you are asked by the force for financial and other personal details, simply refuse, and tell the force that you will provide them, if asked, to the SMP, and only the SMP. Much the same applies to any request for medical reports from your medical carers your GP or specialists. Do you really want your medical records being handled by goodness knows who at FHQ? What control over access do you think there will be? Your medical records are a matter only for the SMP. He may decide to file them in the Occupational Health department, but you should check with him what arrangements are in place to protect medical confidentiality. You should make it very clear to him that he must not divulge them to any third party without your express permission. It can be very much to your advantage to obtain a report or reports from your medical carers shortly before a review. This is especially true if you believe that your medical condition has been stable or has worsened since the last review. The SMP will have to take these reports into account when assessing you or making any decisions. He is very unlikely to be an expert in your particular disability. His only recommended specialism is that of occupational health. That specialism only comes into play when or if he has to work out the extent that your injury affects your earning capacity. It would be a bold SMP who would not take full account of a report from a specialist, who in medical terms, outranks him. Equally, a report from your GP must carry a lot of weight and cannot be disregarded or not given proper weight. The SMP will be expected to make his decision on the information before him at the time of the review. Don't expect your pension administrator to ensure that the SMP has all relevant and most recent information. It will be up to you.

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Your medical carers such as your GP and any specialists will know you and the history of your injury, whereas the SMP has under an hour to make his assessment. Your own medical carers will have a far deeper understanding of your duty injury and its effects that the SMP will be able to ascertain in a fairly brief assessment. Some administrators will tell you that the SMP will call for reports if he thinks it is necessary. That leaves you open, for if the SMP completes the review and reduces your pension without seeing recent reports from your medical carers then all you can do is begin the appeal process. The fact is, it is very important that you ensure the SMP has up to date medical information either shortly before the review or at the time of the review. I have already indicated that early contact with local NARPO and the Federation are a must-do. When you know you will be reviewed, you will want to ensure, if at all possible, that you will be seen by the SMP and will not have a review done on the papers. You can take a 'friend' with you to the review. Ostensibly, this is allowed for as some pensioners may need physical assistance but a friend can provide moral support too. Ideally, your friend ought to be the local Federation representative. Make sure that you discuss matters fully with your designated friend well in advance of the review. You will want to ensure that he or she is well briefed on your circumstances and is up to speed on any developments in case law or determinations by the PO. There really is no point in taking someone along who has no idea how a properly conducted review ought to proceed. Meet with your friend some time well before the meeting even a few days before and plan your strategy. Don't assume that the SMP is in charge and you have to go along with whatever he wants. The review should not descend into a confrontation, but you do need to stand up for your right to a fair procedure. If the SMP is likely to step away from that, then you need to politely correct him. I know of one review where the pensioner presented the SMP with a digest of recent case law and determinations by the PO which resulted in the SMP suspending the review immediately so that he could take legal advice. A friend is not permitted to take part in the proceedings, but that does not mean that he has to remain silent. He can advise you where necessary and if he does so in the presence of the SMP the SMP will hear that advice, which may be a way of ensuring he keeps things within the law. Your friend can take notes, but usually making a voice recording will not be permitted. It is up to the SMP, so you can always ask, and if he is happy, then by all means make a recording. In general the best approach to an impending review is to look carefully and with a critical and inquisitive eye on everything that you are told. Don't just breeze along to the review with a naive trust that everyone has your best interests at heart and actually knows what they are doing. Make sensible preparations and make a record of the event.

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After The Review The SMP is required to submit his findings to the PA by way of a report. To me, and I guess to you, this sounds like it ought to be a detailed paper setting out how the SMP approached the review, what relevant factors he considered and what irrelevant factors he discounted. He should give an account of what medical records he had to hand and how he conducted his examination. He should describe his process of reasoning that lead to his decision, whatever that may be. Unfortunately, some SMPS may not be aware that they have to provide a report, and in any case, there is no guidance or recommendations that set out what a report should contain. Worse, the Home Office, who agreed with the Police Negotiating Board that the SMP should produce a report and not a certificate, then muddied the waters by indicating that the old-style certificate could serve as a report. The idea of having a detailed report was that, if a pensioner appealed to a PMAB, then the Board members would have a clearer idea of what the SMP had done and how he arrived at his decision. Experience had shown that some SMPs (too many perhaps) have memory loss when asked to give evidence to a PMAB. Some simply do not attend the PMAB, for various reasons. The Regulations say that the pensioner will be supplied with a copy of the SMP's report, so if one does not appear in the post within about a week or two of the review, start asking for it. If it turns out to be a certificate, rather than a detailed report, get your NARPO or Federation representative to dig out the relevant Home Office circular that shows a report is required,10 and demand that the SMP writes a proper report. Assuming that you are unhappy with either the outcome of the review, or with the way it was conducted, you need to be aware of certain time-constraints that govern possible further action. You can, as of right, launch a formal appeal against the decision, by way of a hearing before a Police Medical Appeal Board. You could make a formal complaint against the force, the PA or the SMP. You could ask for an IDRP, as outlined above, or you could ask for a reconsideration by the SMP of his decision. There is also the possibility of a complaint to the Pensions Ombudsman or a full-blown application to the Administrative Court for a judicial review. The time limits pretty much restrict your options: A formal complaint about anyone or any body concerned will take months and thus close the door on other avenues. I suggest that you leave this option open. You can always make a formal complaint at a later stage, as there is no time limit. An IDRP can take up to nine months or longer. The best time for an IDRP has definitely got to be before you actually face a review, but if you have had a review then you should firstly ask for a 'reconsideration'. A reconsideration is a facility offered by the Regulations to allow an easy and fast way to correct a decision by the SMP that looks faulty in law or procedure. The pensioner and the PA must both agree to a reconsideration. It should be promptly held, but could possibly be commenced and then put on hold indefinitely. However, a request for a reconsideration can be made after the review, 10 Home Office circular 003/2004 available on line at www.scribd.com/wdtk 16

without limit of time. Realistically, I suggest that it ought to be made within a reasonable period of time, but if you had a review, say, a year ago, and only now became aware of this provision, that ought to be considered a reasonable request. If a reconsideration is not granted or does not produce a satisfactory result then you could launch an appeal to the PMAB, wait to see what results, then return to the route of IDRP and on to the Pensions Ombudsman. Notification of intended appeal to a PMAB must be made within 28 days of notification of the result of the review. Strictly, the Regulations say 28 days after receiving the SMP's report, and the PA is allowed to extend the time limit but don't bank on it. The best tactic, therefore, must be to decide if you can face the prospect of an appeal to a PMAB. If you decide not to take that route, then it does not close the door on asking for an IDRP and then going to the Pensions Ombudsman. Application for a judicial review must normally be made within three months of the decision that you are challenging. Note, this is not the actual court hearing, only the application for one. Frankly, few pensioners will want to take matters to the Administrative Court, and what has been happening is that the Federation is hand-picking a few cases to take there and is providing the financial backing. Also note that you can apply for a JR after the result of a PMAB the three months time limit then applies to the date from which the PMAB made its decision. The Pensions Ombudsman will not consider a complaint unless there has been an IDRP and has a time limit of normally three years after the events, or within three years of them first coming to your attention. He also won't consider a complaint to his office if you are in the middle of a formal complaint against any of the parties concerned. His role is that of attempted mediation first, and a binding determination it that is necessary. Perhaps reading this will help you understand why I reckon it is better to try to stop a review taking place rather than dealing with a challenge after the event. Practically, then, what should be done? I suggest that the first move is to promptly that means without delay, immediately - request that the PA require the SMP to reconsider his decision. The Regulations, without me needing to go into detail here,11 provide that a PA and a pensioner can agree to ask the SMP to think again about his decision. Of course, you will need more than a simple request. You will need to be able to provide some reason or reasons that indicate the SMP has got things wrong. Some new evidence perhaps, such as a new determination by the PO or a recent judicial review, or even evidence that you reasonably believe the SMP failed to give proper weight to the expert opinion of your medical carers. The SMP's report might well provide the evidence you need. Remember, the clock is ticking, so insist that the PA either agree to a reconsideration or refuse your request well before the 28 day deadline for initiating a PMAB appeal runs out. I have to tell you that there is documentary evidence that forces really don't like this option. They ought to, for it provides a route to a fast and inexpensive resolution to the differences that lay between you. They don't like fast, for that means they might have to admit someone has made a mistake they generally prefer to try to keep things dragging on for as long as possible so as to put off the evil day when someone may be called to account.
11 It is Regulation 32-(2) of the Police (Injury Benefit) Regulations 2006

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If you hear nothing from the PA within the time limit, then don't wait any longer - just go ahead and request a PMAB within the 28 days, or take the decision not to go that way. I must make it as clear as I can that if you don't appeal to a PMAB it by no way closes the door to obtaining justice via the Pensions Ombudsman. I am ignoring here any considerations of whether or not you can face the prospect of a PMAB. It will be your call, as only you can decide if fighting for your pension at a PMAB is something you are able or willing to do. There are dangers as well as opportunities present at a PMAB. It is going to be a stressful experience, of that you can be sure. The force and the PA will wheel out a representative who may claim to be a pensions expert and of course that impresses the Board. They might even insert a solicitor. You, meanwhile, are supposed to only bring a friend or supporter. The Boards in the past have made some truly terrible mistakes, leaving the pensioner the only option of an expensive and uncertain route to a judicial review. Only the most determined, or those with the best support, and deep pockets are able to contemplate a JR. On a positive note, the PMABs made something of a u-turn in January 201012. PMABs are provided by a for-profit commercial company, Health Management Ltd. (HML) At a carefully selected Board the Head Board member Dr. David Wallington stated in a way that was clearly intended to demonstrate the general future position of PMABs, that, (I paraphrase) Home Office guidance had no part to play in the administration or reviews of police injury pensions. Also positively, one pensioner got a Board's agreement that his friend would be an eminent London barrister, David Lock, who has been at the forefront of exposing and demolishing the maladministration that has been going on. The police authority concerned immediately withdrew and settled the pensioner's claim for a restoration of his pension to its previous level rather than see the PMAB go ahead.

Using the Freedom of Information Act and Data Protection Act Earlier in this paper I briefly mentioned that it would be a good idea to get hold of policy documents and other material that is relevant to the administration of police injury pensions. So, in this section is a short guide how to do just that. Under the Freedom Of Information Act 2000 (FOIA) you have a right to ask any public body for any information that they might have, on any subject. Most forces maintain a freedom of information office, who generally are very helpful. The Act only applies to public bodies, so commercial companies and private associations are exempt. You can ask police forces, police authorities, the Home Office or any other Government department, non-departmental public bodies, committees and advisory bodies, etc. for information but organisations like ACPO, which is in fact now a private limited company, and the Association of
12 The transcript of the PMAB hearing is available online at www.scribd.com/wdtk - 'Police Injury Pensions Northumbria PMAB'. Note that this u-turn came just a few weeks before the Home Office advised that all reviews should be suspended until further notice.

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Police Authorities, which is a private association, are not open to FOIA requests. Also, don't use the FOIA to make requests for personal data about yourself. This is not covered by the FOIA, but is covered by the Data Protection Act see below. Public bodies must supply the information, unless there is a valid exemption. There are 23 exemptions, and you will find that some few police forces take great pains to try to use them. Most police forces comply with the spirit of the Act and readily provide the information requested. The FOIA requires public bodies to assist you to identify the information, so if you are not quite sure what you want, or can only give a general description, that should not put you off asking. Clearly, the more precise your request the better. You should identify the information you want as clearly as possible. Use straightforward, polite language; avoid basing your request or question on assumptions or opinions, or mixing requests with complaints or comments. Think carefully about what you want and set out your request as simply as you can. If you want a large amount of information on a number of topics, then split it up into several requests and make them a week or two apart, for one exemption is that there is a limit on the cost of retrieval. The right to request information only covers recorded information which includes information held on computers, in emails and in printed or handwritten documents as well as images, video and audio recordings. It is no good at all asking for someone's opinion, or reason for doing or not doing something unless you think that these actually got recorded in some way. Your request can be in the form of a question, rather than a request for specific documents, but the authority does not have to answer your question if this would mean creating new information or giving an opinion or judgement that is not already recorded. Before making a request, check to see if the information is perhaps already in the public domain. Many police forces, police authorities and Government departments have specific parts of their web sites devoted to FOIA matters and routinely display information about requests already made. Elsewhere on their web sites you may find documents, such as minutes of meetings, policy documents and so on. Use one or other or several different Internet search engines such as Google or Bing to look for the information. It is a bit of an arcane art, but careful use of key words or phrases can dig up very useful information. Get to know and understand the 'advanced' search facilities of the search engines, as they multiply the accuracy and power of the search. You can make a FOIA request by letter or by email. You do have to give an address to which the requested information can be sent, and again, that can be a postal address or an email address. Note that you are absolutely allowed to use a name other than your own. I know that many pensioners are concerned at being marked down as trouble makers, so anonymity can be desirable. A few forces are known to have tried to lable people who make FOIA requests as 'vexatious' so that they can be ignored. Practically, by far the best way to make a FOIA request is via this web site : www.whatdotheyknow.com This web site makes the whole process much easier. No writing and posting letters, your request is 19

delivered immediately. You need to register using an alias or username if you value your anonymity and give an email address, which is not divulged by the web site to the public body you are seeking information from. I suggest that you create an email address especially for the purpose, using one or other of the free web-based email facilities such as Yahoo!, AOL Mail, GMX Mail or Google Mail. Once registered, making a FOIA request is simple. The site has a comprehensive list of public bodies, linked to the email address they use for dealing with FOIA requests. The list includes all police forces and police authorities. Type up your request, check it for spelling and accuracy, and click send. The site will tell you what the date will be 20 days ahead, and if a response has not come by then it will send you a notification. It will also notify you when a response has arrived. Any documents sent you can be downloaded. They will be in standard formats readable and printable on most computers. The site contains a lot if useful information about the FOIA and making requests, but its biggest advantage is that your request, and any response, will be displayed publicly. In this way, you will be helping other injury pensioners who might not have the strength, knowledge or the will to use the FOIA but who might desperately need the information that you have obtained. The search engines will inevitably identify your request and its response so anyone searching for injury pension related material will be sure to find it. There is no point whatever in making repeated requests for the same information. If your initial request is refused and you think that the refusal is not particularly valid, then you can ask the public body to review its decision. Make a request for an 'internal review' of the decision. You will need to set out your reasons, so a little research into the exemption that the public body has claimed, and a deep dig into the web site of the Information Commissioner may well provide you with a key that could open the door. Often, exemptions are appealed and the Information Commissioner will have written up his findings. The person refusing you the information may not realise that the exemption he is using, or the way he is using it, is not appropriate, and has already been adjudicated on in a similar case, so a check online, using the key words of the exemption can turn up very useful knowledge that can get a refusal overturned. If an internal review confirms a refusal, then you have a right to appeal to the Information Commissioner. Again, you would need to set out your arguments clearly and logically. It can take months to go through an internal review and an appeal to the Information Commissioner, so if you go that route you will need a lot of patience and a firm belief that the information has been withheld unreasonably. Whilst I am talking about time, I should mention that a request must be responded to within 20 working days. If you have heard nothing after 20 working days, then make a follow-up enquiry, reminding the public body that it is a legal requirement to respond within the time limit. You ought to have had at least an initial acknowledgement that your request has been received within a week of making it that is just common politeness, but some forces leave you hanging there until 20 or more working days later they refuse to supply the information. I must stress that these are the exceptions. If the public body needs more time, it should tell you and also provide an estimate of when it will provide the information. 20

In my experience, some public bodies respond well within the time limit much depends on the amount of information and how readily it can be found in their files. Others seem to deliberately wait to respond until the 20 days are up. It is worth noting that ACPO set up a central clearing station for FOIA requests to police forces. It is called the ACPO Central Referral Unit (CRU). You can download a copy of its manual13 and I recommend it as a most useful and helpful guide to anyone considering making a FOIA request to a police force. The FOIA is a valuable tool for anyone who wishes to obtain information and it has been used by many police injury pensioners to research and to gather evidence. The Data Protection Act (DPA) is also useful. You will know that your force has a file or files full of your personal information. Your service history, for example, but also there may be other files with your name on, or emails, memoranda or computer records that you have no idea exist. Under the DPA you have a right to be given copies of all personal data relating to you that any organisation holds or processes. Note that 'organisation' is not restricted to public bodies it includes commercial companies. That means companies that act as agencies for SMPs and that provide health services to police forces and police authorities in other ways are included. Personal data means data which relate to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual. It makes sense to find out what data is held on you. Much of it will be routine and unobjectionable, but even so there may be inaccuracies. In some instances there may be data that is very informative and could help you ensure your injury pension is administered properly. You are entitled to be: a) told whether any personal data is being processed; b) given a description of the personal data, the reasons it is being processed, and whether it will be c) given to any other organisations or people; d) given a copy of the information comprising the data; and e)given details of the source of the data (where this is available). All you need to do is make a 'data subject access request.' This is a letter to the organisation concerned in which you ask to be supplied with all personal data. Note that there is a fee involved but it is just 10.00. You will need to supply proof of identity. Most forces will have further information on how to make a data subject access request, so a check on their web site or a phone call to the data protection officer will provide all the help you need.
13 http://www.met.police.uk/foi/pdfs/other_information/corporate/acpo_foi_guidance.pdf

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Conclusions If you have any misgivings that a forthcoming review will be in any way unlawful, then make early representations to the Chief Constable and the police authority. Make contact with NARPO and the Federation. Make contact with other injury pensioners from your own force and elsewhere. Don't try to deal with a review on your own. Do get to know what your rights are to make a formal challenge to any maladministration. Gather in all evidence and file it carefully. Never give in. If anyone has any comments or would like to help add to and expand this paper, then they would be gratefully received. Contact me via atebion2me[AT]gmx.com 5th Oct 2011

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