Agenda Item: 9 To: From: Date: Full Police Authority Chief Constable 1st October 2012

INJURY ON DUTY AWARDS 1.0 1.1 Purpose The purpose of this paper is to introduce a draft new policy to support the administration of injury on duty (IOD) awards. The paper also sets out proposals for transitional arrangements to recognise the substantial changes contained within the draft new policy from that which had existed since the adoption of guidance contained within Home Office Circular (HOC) 46/2004. The new draft policy relies on the appropriate regulations. It makes no reference whatsoever to HOC 46/2004. It seeks to be fair and open and introduces approaches to decision making and documentation in a manifestly transparent way.

1.2

2.0 2.1

Background The fundamental role of the police is to protect the public. In discharging this onerous responsibility officers are required from time to time to place themselves in harms way. Occasionally this will result in injury or illness the cause of which can properly be seen to be as having been caused by the duty which officers have sworn to do. In these circumstances it is right and proper that those officers are properly compensated in line with the statutory provisions designed so to do. The Police Pensions Regulations 1987 set out comprehensive arrangements for various awards to officers and their dependants in a range of circumstances. In particular Part B deals with not only ordinary pensions but also ill-health awards and injury awards. These awards are distinct. An illhealth award relates to a retirement in certain circumstances and the provision of an ill-health pension calculated according to the Regulations. An injury award relates to where ill health has occurred as a result of an injury on duty and comprises both a gratuity and a further pension, again calculated in accordance with the Regulations. The Police (Injury Benefits) Regulations 2006 revoke and re-enact the 1987 Regulations and provide the current statutory provisions for IOD awards. From time to time the Home Office issues guidance by way of circulars to which Chief Constables must have regard. The Home Office issued HOC
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2.2

2.3 2.4

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46/2004 which contained Annex C entitled Home Office Guidance for Forces on Reviews of Injury Awards. This guidance included the approach to be taken when officers reach compulsory retirement age and state pension age, as well a proposal for age related triggers for reviews. 2.5 HOC 46/2004 became the catalyst for a revision of the policy in Cambridgeshire. A revised policy was presented to the Police Authority in April 2007 which substantially reflected the guidance within the circular. Notwithstanding the Regulations and the Guidance, considerable representation was made by and on behalf of existing pensioners in relation to previous correspondence received by them from the force. This included that they would be subject to no further reviews, and that their injury pension would be for life. The implication within the representations made was that some of our pensioners would face substantial financial hardship if their injury pensions were reduced and that this would be inconsistent with previous promises made to them. Nevertheless, the proposal to the Authority to reintroduce reviews of injury awards according to the guidelines in HOC 46/2004 for the majority of injury award holders was agreed by a majority vote, subject to some further work being undertaken. The proposed new policy came into force and a number of pensioners over the age of 65 were subject to a subsequent review which resulted in a decision to reduce their injury pension. In the shadow of on-going judicial reviews elsewhere and further representations, the policy was suspended and, unless instructed differently by an external body, those adversely affected had their injury pensions restored to their former levels including back pay, and so in absolute financial terms have not suffered any loss. Since that time there has been considerable correspondence between pensioners, the Authority, and the Constabulary. Cases have been referred to the Pensions Ombudsman (and indeed some remain live at the date of this report) as well as to the internal dispute resolution procedure. The Constabulary has received a huge amount of correspondence. There are literally hundreds of queries raised by IOD pensioners, and considerable effort on behalf of the force has been made to respond to the issues which have been raised. At the same time similar issues have been played out across the country. Not all forces chose to incorporate HOC 46/2004, but a significant proportion did. Their pensioners have also been active in challenging the approach advocated by the Home Office. This has led to a raft of cases at the Police Medical Appeals Board and in the courts. Relevant cases continue to be discussed by the courts right up until the date of this report. The conclusion now apparent is that substantial elements of HOC 46/2004 have been determined to be unlawful in all practical respects. In March 2010 the Home Office wrote to Police Authorities and Chief Officers announcing its intention to review HOC 46/2004 and also advising Police Authorities to defer any further reviews (with the exception of any reviews requested by a pensioner) until case law had been established. We still await the Home Office review.
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2.6

2.7

2.8

2.9

2.10

2.11

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2.12

The on-going uncertainty amongst pensioners, the level of on-going correspondence and the absence of any further advice prompted DCC Feavyour to set up a review of our scheme when he assumed chief officer responsibility for HR matters in 2011.

3.0 3.1

Review of IOD Awards The DCC wrote to all IOD pensioners informing them of his review and to ask whether an open meeting with him would be something they would find helpful. He received endorsement of the proposal to hold a meeting together with repeated representations about the existing policy of the Constabulary. He wrote again giving notice of the meeting and subsequently held a meeting at a Community Centre in Cambridgeshire in March 2012. The DCC prepared a summary of the meeting and forwarded this to all IOD pensioners together with an invitation to make comments in relation to what any new policy should contain. He received numerous responses (some at considerable length), which actually cover only very few main themes. Firstly, some of the feedback contains raw anger and great animosity directed variously at the Police Authority, the Constabulary and also towards certain individuals who have been involved in the policy development and delivery of reviews. The level of some of the vitriol is commented on to demonstrate the degree of feeling amongst the IOD pensioners. It is also apparent from the feedback that the open meeting was covertly recorded. Had the DCC been asked to record the meeting he would have been pleased to do so. There is a theme within the correspondence from our IOD pensioners about them feeling targeted by the Authority and the Constabulary hell-bent on reducing pensions which they are entitled to, either as a means to reduce some budget deficit or otherwise simply being vindictive to a particularly vulnerable group of former police officers. The rationale expressed by these pensioners for the frustrations they feel is wrongly placed. It is a fact that the budgetary implications of any revision of IOD pensions were noted as far back as 2007 but there have never been any projections as to potential outcomes; indeed it has been recognised from the outset that reviews of IOD pensions can lead to them going either up and down. Furthermore, the DCC has spoken to nearly everybody within the Constabulary and Police Authority who has been engaged in the IOD policy process and he is absolutely clear that their intention throughout has been to administer a scheme consistent with the Regulations and Guidance as they understood it to be at the time. Some of our pensioners will find this difficult to accept but this comprehensive review and its conclusions will go some way to
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3.2

3.3

3.4

3.5

3.6

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restoring some of the lost trust and confidence that these former colleagues have in the organisation. 3.7 Elsewhere within the feedback have been some instructive comments. Much reference has been made to the changing landscape in the cases which have gone before various tribunals. Indeed this has been a feature of all of the feedback we have received. What is also clear from the correspondence which has been sent in and from the discussions which took place at the meeting in March, is that the Regulations relating to IOD awards are poorly drafted and hard to understand which leaves pensioners in a difficult, if indeed, confused situation when they come to try and understand the process of awards in the first place and subsequent reassessment. In addition to local consultation the DCC has also undertaken research nationally. This has included consultation with other forces and with relevant HR leads on IOD awards. This consultation is also informing his new role as ACPO lead on IOD awards. To that end he has involved himself in a working group to discuss the future of the policy. He has spoken to the Home Office who have shared their intention to issue revised guidance in due course. However, there is no timescale for this work and a number of competing priorities. My hope is that the Cambridgeshire policy and any work coordinated on behalf of ACPO will also shape any future Home Office guidance. This review has also involved substantial desk research by the DCC personally incorporating the relevant regulations and a raft of stated cases. The experiences of forces elsewhere and in particular the experience of those forces that embraced HOC 46/2004 has are analogous to that in Cambridgeshire. It is of note that forces who did reduce pensioners to the lowest banding following a literal understanding of what the guidance called for are currently considering how to respond to judicial reviews which have determined their actions to be unlawful.

3.8

3.9

3.10 3.11

4.0 4.1

Draft New Policy We have prepared draft local guidance for Injury on Duty Awards which is attached to this report. It incorporates an introduction, applicability and details of the new policy itself and administrative procedure to be followed. The policy itself is defined by the Regulations.

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4.2

Introduction

4.2.1 This section sets out the key regulations in relation to awards of an injury on duty gratuity and pension. It is clear that in the absence of a steer within the policy that the Regulations themselves should be referred to. 4.2.2 The policy makes no reference whatsoever to HOC 46/2004, recognising the developments that have been taking place in the application of that circular over recent years. We have taken the unusual step of referring to this covering report in the guidance document. This is done to ensure that if the policy is revisited in the future, the covering report which went to the Police Authority is also taken into consideration as it provides a context to the preparation of the policy. 4.2.3 Reference is made in the introduction to the Constabulary being slow to revisit the policy and very slow to revisit the transitional arrangements. It is clearly the case that any change in the law through regulation or case law may require the policy to be changed. However, we would reiterate the need to provide IOD pensioners with the clarity and certainty of expectation which has been absent for some years. 4.2.4 The introduction also alludes to the need for greater information to be provided to IOD recipients and therefore introduces the concept of an IOD Information Pack to ensure the fullest information is available to pensioners both in terms of the process, the decisions made and the information used upon which to base those decisions.

4.3

Applicability

4.3.1 This section clarifies that IOD awards are only available to former police officers. This is part of the statutory framework.

4.4

The Policy

4.4.1 This section sets out the various regulations and what they mean in terms of the application of the policy. The first point relates to payment of gratuities and pensions which will be made in accordance with the regulations. The importance of this section is that there is no reference to any budget pressures and this provision is therefore designed to provide reassurance to IOD recipients that payment of their entitlements will not be affected by budgetary pressures.

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4.4.2 The policy continues with comments in relation to:

the definition of a police officers injury award granting of an IOD award calculation of the amount of an IOD award the definition of degree of disablement reports by the selected medical practitioner appeals reassessment

4.4.3 The guidance concludes with procedural arrangements which will apply in terms of the administration of IOD awards. 4.4.4 The adoption of this new policy will mean that existing IOD recipients will not have had access to the degree of documentation and the approach set out in the policy. The principles within the new draft policy should be adhered to, but the transitional arrangements which move existing IOD recipients forward need to be separately considered as set out below.

5.0 5.1

Transitional Arrangements Many of our existing IOD recipients have been subject to reviews by the SMP and indeed some have been subject to numerous reviews. By contrast, some have not been reviewed at all and they should have been reviewed. The majority of the reviews have not resulted in a substantial alteration to the degree of disablement and therefore the pensions have not been revised. Furthermore, had the draft new policy been in place many of the existing pensioners would have by now reached the point of an open ended interval before any further review. That is to say that other than in exceptional circumstances, the Police Authority would not initiate any further reviews recognising that reassessments under Regulation 37(1) have taken place and the degree of disablement had not altered substantially, if indeed at all. The draft new policy insists on the need for reassessments under Regulation 37(1) and makes it clear that this is a duty which the Authority cannot avoid. The introduction also sets out its objective to be more transparent in the way in which such reviews are administered and existing pensioners have not enjoyed that level of information. The policy also seeks to reflect that where a degree of disablement has been determined to be stable (i.e. there is no substantial alteration across three consecutive determinations in a period of at least 7 years) then no further review will be planned.
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5.2

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5.3

Further to the statement at 4.4.4 above that the principles implicit in the new draft policy should be adhered to, an Annex to the draft guidance is attached with proposals for incorporating existing IOD pensioners. This proposal is consistent with the Regulations insofar as it provides a framework within which to conduct Regulation 37(1) reassessments and that framework itself simply determines a series of definitions as to what is to be considered a suitable interval. Additionally, the proposals endeavour to interpret how any reassessments which have already happened might properly be considered alongside the draft new policy. The adoption of the current policy in 2007 lead to the reassessment of some pensioners over the age of 65 as mentioned in 2.7 above. Based on the understanding of the Regulations now, as informed by recent case law, the basis of those decisions is unlawful. I propose therefore that such reassessments are formally annulled. Had we known then what we know today, those reassessments would not have taken place. The Constabulary has some cases pending from the Pensions Ombudsman from pensioners who were reviewed on the basis set out in 5.4 above. It is proposed that these cases are not contested (in so far as they complain that the relevant reviews were unlawful) and that the individual cases are expedited on that basis.

5.4

5.5

6.0 6.1

Feedback on Draft Policy Throughout the review the DCC has undertaken to give existing IOD recipients the opportunity to comment on any draft policy before it is formally adopted. He wrote again to all 200 IOD pensioners with copies of a draft of a covering report, the policy and transitional arrangements (all dated July 2012). He enclosed a pro forma to seek approval or otherwise for the proposals and I invited feedback. Responses were received from 43 pensioners. Thirty three were supportive of the proposals, five were not and five felt unable to express a view either way. The local branches of the National Association of Retired Police Officers (NARPO) and the Police Federation were supportive of the proposals. The national office of NARPO are also supportive of the direction of travel. There was also much feedback from those who were in favour of the proposals as well as those who were not. The biggest element of the feedback contained frustration of the recent efforts to administer the scheme consistent with comments at 3.3 above. Helpfully, a number of pensioners expressed their thanks for the work undertaken during the review and we are grateful for their support.
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6.2

6.3

6.4

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6.5

A number of pensioners also expressed how difficult to understand they found the material. The detailed comments which were made have wherever possible, been reflected in changes which have been made to the draft which is now attached. These include: Strengthening confidentiality in the handling of personal medical information. Definition of relevant additional benefits Location of SMP appointment Expenses to travel for appointments Comparator wages Pensioners who have never been reviewed who have been retired a very long time. The final two bullet points need further comment.

6.6

The issue of comparator wages has always been of considerable concern. Our approach therefore sets out clear parameters for the SMP to follow, treating each case on its merits. The introduction of IOD Information Packs will thereafter provide transparency in the considerations which have taken place and allow any aggrieved pensioner to make an appeal under the Regulations in possession of all of the information used to make a determination in their particular case. The other issue is of some of our pensioners not having ever been reviewed despite in some cases over 20 years having gone by since their retirement. The Regulations require the police authority to consider alterations to the degree of a pensioners disablement. However, there is a common theme within such cases considered by the pensions ombudsman to the effect that such lengthy intervals effectively make unfair any subsequent reviews, particularly where the organisation has not advised the pensioner that their pension might be reviewed. This exactly replicates the case with some Cambridgeshire pensioners who are in possession of letters stating they will never be reviewed. Proposals for a way forward are in the draft transitional arrangements. A further draft policy was prepared dated August 2012 together with an updated report to the Police Authority for its meeting on 7th September. The DCCs intention was that Members would therefore see the draft which IOD pensioners and other stakeholders has seen, amended by virtue of the comments received. However, his best intentions were self-defeating on two counts. Firstly, the August draft had of course not been seen by the pensioners so he was not entitled to say that it had their support. Secondly (and compounding the issue), it contained elements which the pensioners were fundamentally opposed to namely the mention of ASHE and the potential for further
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6.7

6.8

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reassessment despite the introduction of an open ended interval implying no further review. 6.10 ASHE is the Annual Survey of Hours and Earning as published by the office of national statistics. The issue is as follows: When determining the earning capacity but for the relevant injury, the SMP will properly look at the appropriate police officer salary for the person concerned at least up until compulsory retirement age (CRA) (after all the person concerned could have continued as an officer had he or she not been injured on duty). Beyond the CRA, the DCC had proposed an ASHE figure as a default value. We have withdrawn this proposal in favour or the Regulation 30(2)(d) question which leaves the decision to the SMP. The other issue relates to the potential for a reassessment beyond the point where the IOD pensioner has been placed on an open ended interval. The point of an open ended interval is to define at such intervals as may be suitable to the effect that no further reviews will be planned. This relies on an implicit assumption that the injury will not get worse or better. If the injury gets worse, it will still remain open to the person concerned to request a review. If the injury gets better, and information comes to the attention of the Constabulary which would justify a review and the Chief Officer with responsibility for HR certifies that a review would be justified, then a further review can be called for. Such a call-in reassessment will only be undertaken in exceptional circumstances.

6.11

6.12

7.0 7.1

Conclusion This is a complex area of policy despite some views to the contrary. Administration in Cambridgeshire in recent years has been contentious because of that complexity and in spite of genuine efforts by staff to administer this scheme effectively. Many local pensioners do not accept this analysis. The DCC has apologised to our pensioners both in his letters and at the open meeting for the obvious anxiety which they have felt despite our best efforts. The draft policy and transitional arrangements which have been constructed represent a fair reflection of the purpose of the scheme, the Regulations and the aspirations of our pensioners and it is commended to the Authority. The adoption of the policy would be a positive step but it will require further work under strong leadership to embed it in Cambridgeshire. The DCC, as my chief officer lead for HR needs to continue his close involvement in its implementation which will include that all existing pensioners are provided with a personal update as to their situation within the next 12 months.
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7.2

7.3

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8.0 8.1 8.2 8.3 8.4 8.5 8.6 8.7

Recommendation That the Authority note this report and in particular the background to the administration of the scheme and the review. That the Authority notes that formal consultations in respect of the policy and transitional arrangements have now taken place with existing pensioners. That the Authority agrees the policy. That the Authority agrees the transitional arrangements. That the Authority notes the apology that the DCC has given to our pensioners. That the Authority agrees with the proposal to expedite resolution of outstanding Ombudsman cases consistent with the policy. That the Authority instructs the Constabulary to expedite personal updates to all of our pensioners and to resolve any grievances in line with both the detail and spirit of the policy.

Bibliography

Source Document(s)

Contact Officer

Location

DCC John Feavyour

Cambridgeshire Constabulary Hinchingbrooke Park Huntingdon PE29 6NP

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INJURY ON DUTY AWARD POLICY

CONTENTS

1. 2. 3.

Introduction Applicability The Policy 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 Payment Police Officers Injury Award Granting of an IOD Award Calculation of the Amount of an IOD Award Degree of Disablement Reports by the Selected Medical Practitioner Appeals Reassessment of Injury Pension

4.

Procedure 4.1 4.2 4.3 4.4 4.5 4.6 Application for an IOD Award Consideration of IOD Award IOD Information Pack Appeals Reassessment Refusal to be Medically Examined

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1. 1.1

Introduction The aim of this policy is to highlight the key provisions within The Police (Injury Benefit) Regulations 2006 which relate to Injury on Duty (IOD) awards and to set out how those provisions will be administered. References to the Regulations in this policy are references to the 2006 Regulations unless stated otherwise. This policy was drafted and introduced in 2012 after a lengthy period of disagreement between Cambridgeshire Police Authority and numerous IOD pensioners. This disagreement is rehearsed in the paper to the Police Authority on 1st October 2012. IOD pensioners need to have a degree of certainty about their future income. The Constabulary will therefore be slow to revisit this policy unless new regulations or case law require it to do so. Reference to the Police Authority paper in the policy is to ensure that it would be taken account of should there be any future review of this policy. The policy has an annex; transitional arrangements for IOD pensioners who were in receipt of their award prior to the adoption of this policy. These transitional arrangements are necessary to bring the administration of such IOD pensions into line with the policy. The Constabulary will be very slow to revisit these arrangements. The Regulations make provision for payments to police officers who are permanently disabled as a result of an injury received without their own default in the execution of duty as a police officer: an IOD. The Regulations also contain provisions in respect of the death of an officer following an IOD and also extend to other allowances e.g. for dependent relatives. This policy reflects the Regulations and in particular the most common issues which relate to the grant of an IOD award, and the potential reassessments of IOD pensions. This policy therefore brings together the key sections of the Regulations and incorporates the procedure to be followed in such circumstances. The policy does not cover all of the injury benefit provisions; therefore the Regulations should be referred to if matters are not covered here. Former officers in receipt of an IOD award are by definition permanently disabled. Irrespective of the nature of that disability those former officers will therefore be more vulnerable to anxiety and insecurity and this policy is designed to provide a clear explanation so that they can better understand the Regulations that apply to them and how the scheme will be administered in Cambridgeshire. In recognition of the complexity of the IOD procedure, an IOD Information Pack will be produced to accompany the initial IOD award and upon any reassessment. This Pack will contain a copy of this policy, a copy of the report by the selected medical practitioner, a copy of the calculations by
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1.2

1.3

1.4

1.5

1.6

1.7

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finance department and how to appeal any decision if appropriate. Beyond this, the Chief Officer with responsibility for the policy will ensure that reasonable steps will be taken to answer questions from pensioners and to work with any pensioner who chooses to appeal any of the decisions made during the process. 2. 2.1 Applicability Regulation 11(1) sets out that a police officers injury award applies to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty. IOD awards are therefore available only to former police officers. The Policy Payment

2.2 3. 3.1

3.1.1 Payment of gratuities and pensions will be made in accordance with the Regulations. 3.2 Police Officers Injury Award

3.2.1 Regulation 11(2) explains that an IOD award comprises a gratuity and an injury pension, both calculated in accordance with Schedule 3 to the Regulations. 3.2.2 An IOD award therefore comprises two elements. There is a gratuity paid as a lump sum at the point of award. This is a one off payment. 3.2.3 There is also a pension which is payable for life but subject to revision (increase or reduction) in accordance with Regulation 37(1), or forfeiture under Part K of a different set of regulations namely the Police Pension Regulations 1987 (the 1987 Regulations). 3.2.4 Any revision under Regulation 37 would reflect a substantial change in the degree of disablement; any forfeiture under Part K of the 1987 Regulations would reflect the cessation of the disability. 3.2.5 IOD awards are therefore separate and distinct from ill-heath pensions. An officer who suffers from ill heath irrespective of its cause can be considered for an ill-health retirement and associated pension. An ill-health pension is an enhanced pension, payable for life from the date of retirement and index linked. Ill-Heath Retirement policy is not covered by this policy. Ill-health pensions are never reduced in value unless the disability ceases and the pension is terminated.
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3.2.6 It follows that a former officer who has been retired on the grounds of ill health and who has been granted an IOD award will receive three payments namely an ill-health pension, an IOD gratuity and an injury pension. Only the injury pension is subject to potential revision. 3.3 Granting of an IOD Award

3.3.1 Regulation 30(1) sets out that the question as to whether a person is entitled to any, and if so what, awards under these Regulations shall be determined in the first instance by the police authority. 3.3.2 Cambridgeshire Police Authority has delegated the administration of IOD procedures to the Constabulary having agreed this policy. The Constabulary discharges its delegated responsibility through the human resources (HR) department under the oversight of the Chief Officer with portfolio responsibility for HR. 3.3.3 Regulation 30(2) sets out that where a police authority is considering whether a person is permanently disabled, it shall refer for decision to a duly qualified medical practitioner selected by them (the selected medical practitioner or SMP) the following questions a) b) whether the person is disabled; whether the disablement is likely to be permanent

and, if it is further considering whether to grant an injury pension, c) whether the disablement is the result of an injury received in the execution of duty, and the degree of the persons disablement;

d)

and, if it is considering whether to revise an injury pension, shall so refer question (d) above. 3.3.4 The police authority has procured the services of its SMP and will refer the four questions in Regulation 30(2) in IOD cases. It will agree to an IOD award if the SMP determines that the person concerned is disabled, that the disablement is likely to be permanent and that it is as a result of an injury on duty received without his or her own default in the execution of their duty. 3.3.5 There is a right of appeal by the person concerned against any of the decisions of the SMP. 3.3.6 The amount of an IOD award, both the gratuity and the pension, will be calculated in accordance with Schedule 3 to the Regulations.

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3.4

Calculation of the Amount of an IOD Award

3.4.1 Schedule 3 to the Regulations sets out in paragraph 1 that the amount of an IOD gratuity shall be calculated by reference to the persons degree of disablement and their average pensionable pay; and in paragraph 2 that the amount of an IOD pension shall be calculated by reference to the persons degree of disablement, their average pensionable pay and the period in years of their pensionable service. 3.4.2 Paragraph 3 incorporates a Table which sets out gratuities and minimum income guarantees expressed as a percentage of average pensionable pay as follows:
Degree of disablement Gratuity Minimum income guarantee % of average pensionable pay < 5 yrs 5 15 yrs 15 - 25 yrs > 25 yrs

Up to 25% Slight 26-50% Minor 51 75% Major Over 75% Very Severe

12.5% 25% 37.5% 50%

15% 40% 65% 85%

30% 50% 70% 85%

45% 60% 75% 85%

60% 70% 80% 85%

3.4.3 It is therefore apparent that each and every IOD award will be different and subject to a unique calculation. Furthermore, Schedule 3 goes on to reduce the amount of injury pension payable by three-quarters of any other police pension, including any ill-health pension (paragraph 6) and by an amount equal to certain social security benefits (paragraph 7). 3.4.4 Finance department therefore use the following values in order to calculate the amount of an IOD gratuity: Degree of disablement Average pensionable pay 3.4.5 By way of illustration and referring to the Table above, an officer with a major degree of disablement will receive a gratuity equal to 37.5% of his or her average pensionable pay. 3.4.6 Finance department will use the following values in order to calculate the amount of an IOD pension: Degree of disablement
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Average pensionable pay Pensionable service of any other police pension e.g. ordinary or ill-health pension Sum of any relevant additional benefits payable for the same injury. 3.4.7 By way of illustration and referring to the Table above, an officer with a minor degree of disablement, with 20 years pensionable service will receive a pension equal to 60% of his or her average pensionable pay reduced by the sum of of any other police pension and any relevant additional benefits. 3.4.8 The average pensionable pay, pensionable service and other police pension values are determined by the finance department. In brief, average pensionable pay is typically the best years salary of the last three years worked. The pensionable service is service in the police added to by any other relevant service transferred in e.g. certain military service, previous employers schemes or private pension plans. Other pension values are as calculated by reference to Schedule B of the 1987 Regulations. 3.4.9 In order to calculate any additional benefits, IOD recipients will be asked to complete a form to identify what benefits they receive or have applied for. Finance department will assess whether any such benefits fall to be considered in the calculation of an IOD pension, apply any relevant reduction and make a note of the calculation for inclusion in the IOD Information Pack. 3.4.10 Deductible benefits include Industrial Injuries Benefits under Sect 94 SSCB 1992: Disablement Benefits: i) Disablement Pension ii) Increase for Constant Attendance iii) Increase for Severe Disablement iv) Unemployability Supplement v) Increase in Unemployability Supplement vi) Disablement Gratuity vii) Disablement Pension increase during hospital treatment Reduced Earnings Allowance. Retirement allowance. Industrial Death Benefit. Incapacity Benefit until the first day after retirement which is not or is deemed not to be a day of incapacity for work. [Replaced by Employment and Support Allowance] Severe Disablement Allowance and any increases Deductible benefits do not include: Disability Living Allowance
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 Mobility Allowance Carers Allowance Industrial Injuries payable for a different injury/condition other than the qualifying duty injury or the relevant proportion of the industrial injuries benefit thereof. Incapacity Benefit once there has been a day deemed not to be a day of incapacity for work [benefit of the doubt principle]. 3.4.11 The degree of disablement is classified in the Regulations as slight, minor, major or very severe as set out in the Table above. Referring to these levels as Band 1 to Band 4 respectively has become commonplace. 3.5 Degree of disablement

3.5.1 Disablement is specifically defined in Regulation 7. Degree of disablement is also explained; it is not the same as degree of disability. 3.5.2 The question as to whether a person concerned is disabled and whether the disablement is likely to be permanent are matters for the SMP (Regulation 30(2)). 3.5.3 Regulation 7(4) states that disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a member of the force 3.5.4 Regulation 7(5) states: Where it is necessary to determine the degree of a persons disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty 3.5.5 The question as to whether a person concerned came about their disablement on duty and the degree of their disablement are matters for the SMP (Regulation 30(2)). 3.5.6 It is to be stressed that the degree of disablement is not solely a consideration of degree of disability. By virtue of Regulation 7(5), it relates to earning capacity. It is not a test of whether the person concerned is earning a wage nor is it whether he or she wants to work, whether work of a particular kind is available or indeed whether the person concerned would be selected for any job which might be available. It is a test of function and given that function, what the earning capacity is of the person concerned as a percentage of what it would have been but for the relevant injury. 3.5.7 In order to assess the degree to which earning capacity has been affected as a result of the relevant injury, the SMP will determine two values namely the
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persons actual earning capacity and the persons earning capacity but for the relevant injury. 3.5.8 The persons actual earning capacity will be determined through consideration of what the person concerned could earn at the time the consideration takes place. The persons earning capacity but for the relevant injury will be determined through consideration of what the person concerned would have been able to earn if the relevant injury was not present. The SMP will take account of any representation made by the person concerned when determining earning capacity. 3.5.9 When determining earning capacity, the SMP will set out the type of work or kind of job, full time or part time, that the person concerned could or would be able to do. These details will be passed to the HR department to identify at least three jobs to match the kind of job described by the SMP. The SMP will thereafter consider the research and decide which job or jobs the person concerned could or would be able to do. This will enable the percentage degree of disablement to be determined and the SMP will prepare a report of the consideration and determination accordingly. 3.6 Reports by the Selected Medical Practitioner

3.6.1 Regulation 30(2) is clear about the four questions which shall be referred to the SMP. Regulation 30(6) states that the decisions made by the SMP shall be expressed in the form of a report, a copy of which shall be supplied to the person concerned. 3.6.2 The report from the SMP will cover the question or questions addressed and contain sufficient information so that the person concerned is informed of the basis for those decisions. The report from the SMP will be included in the IOD Information Pack. 3.6.3 The first three questions (Regulation 30(2) a), b) and c)) are medical questions and the SMP will try to reflect his or her medical assessment in plain terminology so that the person concerned may better understand it. The report should nevertheless be as explicit in medical terms as possible, recognising that it will form the basis for any subsequent review, particularly a reassessment under Regulation 37(1) which considers whether the degree of the pensioners disablement has altered. 3.6.4 The fourth question relates to degree of disablement and as defined in Regulation 7(5), relates to earning capacity. The SMP report will contain reference to the information which he or she has used to determine the degree of disablement including any salary or job comparisons and why they are appropriate in determining the degree of disablement. Copies of any reference documentation will be attached to the report for transparency.
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3.6.5 The degree of disablement is not the simple difference between two salary points. It is the degree to which earning capacity has been affected by the relevant injury and is expressed in terms of a percentage. 3.6.6 By way of illustration, if the SMP decided that an IOD pensioner had an earning capacity of 20k with her duty injury but would have been able to earn 30k if she did not have the duty injury, then the degree of disablement would be 33%, i.e. a difference of 10k as a percentage of 30k. 3.6.7 Another calculation might see a pensioners earning capacity of 40k with the relevant injury and 60k without it. In this case the degree of disablement is also 33%. 3.6.8 These illustrations are designed to demonstrate that it is not the value of any earning capacity on its own, with or without the duty injury, but the degree to which the earning capacity has been affected by the duty injury. The percentage value arrived at is then used in the first column of the Table in Schedule 3. 3.7 Appeals

3.7.1 Regulation 30(6) sets out that the decision of the SMP in respect of the four questions referred to him or her shall, subject to Regulations 31 and 32, be final. 3.7.2 Regulation 31 provides for an appeal to a police medical appeals board (PMAB). Giving notice of such an appeal should normally be within 28 days after receiving the SMP report and the grounds for the appeal should normally follow within a further 28 days. The PMAB can replace any decision of the SMP and will itself issue a report. 3.7.3 Regulation 32 provides for a reconsideration of any of the decisions of the SMP or the PMAB if the police authority and the person concerned agree. There is no time limit on this provision which is designed to allow for agreed defects in an earlier decision to be revisited. 3.7.4 The reference to the finality of the decisions made by the SMP which initiate an IOD award means that any subsequent reassessment (that is a Regulation 37(1) reassessment) cannot revisit the initial award. Therefore once an injury pension begins, it will continue for the life of the person concerned. The amount of the injury pension may however change on reassessment of the degree of disablement under Regulation 37(1). 3.8 Reassessment of Injury Pension

3.8.1 Regulation 37(1) states:

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the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioners disablement has altered; and if after such consideration the police authority find that the degree of the pensioners disablement has substantially altered, the pension shall be revised accordingly. 3.8.2 Consideration of the degree of disablement shall be referred to the SMP as provided for under Regulation 30(2). 3.8.3 The reassessment of the degree of disablement applies to IOD pensions. It has no bearing on the IOD gratuity, or on any ill-heath pension. 3.8.4 It is implicit in this Regulation that the degree of disablement can go up or down. The police authority is under a duty to consider whether this has happened. Earning capacity can be affected by both the disability of the person concerned and the external environment e.g. the emergence of a particular new job. Both of these factors need to be taken account of in any reassessment. 3.8.5 It is stressed that a reassessment under Regulation 37(1) is concerned only with whether or not there has been a change: substantially altered, in the words of the Regulation. It is not open to the SMP to change a pension on a review by virtue of a conclusion that the clinical basis of earlier assessment was wrong. In short, unless there has been a change in the disability of the person concerned and/or a change in the external factors such as the sudden onset of a new form of job since the last review, then that cannot be a substantial change in degree of disablement. 3.8.6 Reassessment intervals will be different for individual pensioners to reflect their individual circumstances. It is therefore inappropriate for there to be a rigid timetable for such reviews. Also, any potential revision to the amount of IOD pension payable relies on a substantial alteration of a degree of disablement. Furthermore, pensioners with mental health issues may find the very process of being subject to a review detrimental to their health. 3.8.7 The initial award of an IOD pension is predicated on the opinion of the SMP that the disablement of the person concerned is likely to be permanent. At this point in time, the SMP will be able to form a view as to when any change in disability might be expected and the police authority will ask for that opinion to determine what suitable interval is appropriate for a first reassessment. In recognition of the fact that a substantial alteration in degree of disablement would be necessary before an injury pension is revised, this first interval shall normally be not less than two years and not more than approximately five years.

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3.8.8 A substantial alteration in the pensioners degree of disablement will be taken to mean that his or her banding would alter, except that, if it would be reduced, it will only be considered to be a substantial alteration if the change is more than 10%. This has the effect of defining as substantial any alteration which increases the degree of disablement from one band to another; but excluding any alteration which reduces the degree of disablement from one band to another unless it is more than 10%. For example, 51% to 42% equates to 9% change but no change in banding which will be determined to remain at 51%. 3.8.9 If on any reassessment under Regulation 37(1) the SMP decides that there has been a substantial alteration in the degree of disablement, the police authority will ask for and act on his or her opinion to determine what suitable interval is appropriate for a subsequent reassessment. This subsequent interval shall normally be not less than two years and not more than approximately five years. 3.8.10 If on any reassessment under Regulation 37(1) the SMP decides that there has not been a substantial alteration in the degree of disablement, the police authority will ask for and act on his or her opinion to determine what suitable interval is appropriate for a subsequent reassessment. This subsequent interval shall normally be not less than five years and not more than approximately ten years. 3.8.11 If three consecutive SMP determinations spread over a period of at least seven years conclude with the same banding of the degree of disablement, the next suitable interval shall be open ended i.e. the police authority will not further reassess the degree of disablement unless either asked to do so by the person concerned or in exceptional circumstances. 3.8.12 An IOD pensioner can request a Regulation 37(1) reassessment at any time. Such a request will be particularly appropriate if the person concerned has experienced a substantial deterioration in health as a result of the relevant injury. The Police Authority will agree to such a request but will normally require an interval of at least two years between reassessments. 3.8.13 The Police Authority will retain the option to call for a Regulation 37(1) reassessment in exceptional circumstances if information comes to light which would necessitate a further review. It is clearly fair both for the Constabulary and for the community that someone who starts out with a pension on the basis of a certain medical condition should not continue to draw a pension, or any kind of benefit, which is no longer justified by reason of some improvement on their condition, or of course the reverse. 3.8.14 Any call-in reassessment as described in 3.8.13 above will only take place with the authority of the Chief Officer with responsibility for the HR portfolio. This is to ensure that such a reassessment is only undertaken in exceptional
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circumstances such as where the person concerned has made a considerable recovery. 3.8.15 Any increase in pension as a result of reassessment will be actioned without delay. Any reduction in pension in such circumstances will take effect three months after the payday following the decision or if there is an appeal against a decision, the payday following the outcome of the appeal. 4.0 4.1 Procedure Application for an IOD Award

4.1.1 Any former officer can apply for consideration of an IOD award. The process for such consideration will commence with a simple notification to the HR department by the person concerned that he or she wishes to be so considered. This notification can be received in any way that is convenient e.g. letter, e-mail or telephone. 4.1.2 The notification will trigger a formal request from the HR department for information to support the application. The request will be accompanied by a copy of this policy to assist the former officer with their understanding of the procedure; it will be in the form of a questionnaire and included in the request will be: confirmation of the former officers personal details details of the nature of the duty injury an update on current health any information which the pensioner believes ought to be considered by the SMP when considering the four questions in Regulation 30(2) including earning capacity with and without the duty injury any documentary evidence to support any of the above including available medical reports a consent form to obtain relevant medical reports details of any benefits being received preferred contact details to facilitate consideration by the SMP 4.1.3 On receipt of the completed questionnaire, HR department staff will acknowledge the application and prepare the case for consideration by the SMP. This may involve further contact with the applicant to clarify any details or to request a meeting with relevant parties. The purpose of this work is to give the SMP the best opportunity to prepare for a subsequent appointment.
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4.2

Consideration of IOD Award

4.2.1 Before an appointment is made for the person concerned, the SMP will be provided with the written material available in the case. This will include the reply to the questionnaire. The SMP will determine whether an appointment is necessary in order to properly answer the questions asked on behalf of the Authority. The SMP may ask for more information from the HR department before making this determination. 4.2.2 In deciding whether it is necessary to call the person concerned for an appointment, the SMP will take into account any known mental health issues. If in the SMPs opinion the attendance of the person concerned for an appointment would be detrimental to their mental health, and the SMP is able to properly answer the questions to the Authority, then the SMP can determine that an appointment is not necessary. 4.2.3 If in deciding whether it is necessary to call the person concerned for an appointment, the SMPs opinion is that the written material on its own for any ill health matter is sufficient to properly answer the questions to the Authority, then the SMP can determine that an appointment is not necessary. 4.2.4 If the SMP determines that an appointment is not necessary, the person concerned can nevertheless ask for an appointment as part of the SMPs consideration and an appointment will be arranged. 4.2.5 Once the SMP has determined that an appointment is necessary, or one is requested by the person concerned, HR staff will make the arrangements. The appointment will normally be at the Occupational Health Unit at police HQ or the SMPs surgery. The SMP will consider any request by the person concerned for an appointment elsewhere and will take into account any representation made e.g. anxiety about attending police premises. 4.2.6 Reasonable travel expenses will be paid for IOD pensioners to attend for an appointment. 4.2.7 Regulation 30(7) states that the report from the SMP shall be supplied to the person who is the subject of that report. The regulations and policy surrounding IOD awards are complex and the force wants to ensure that, as far as practicable, former officers are provided with further information to assist understanding and demonstrate transparency of the process which will be more information than required by the Regulations. This will be achieved with the provision of an IOD Information Pack after the SMP or PMAB has provided the report. 4.3 IOD Information Pack

4.3.1 An IOD Information Pack will be provided at the conclusion of referrals to a medical authority under Regulations 30, 31, 32 or 37 (initial consideration,
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appeal to PMAB, reconsideration or reassessment) and will contain as a minimum: a covering letter setting out the conclusion to the respective process a copy of this policy document a copy of the SMP or PMAB report with attachments if appropriate a copy of the financial calculations for any gratuity and pension advice as to any appeal route open to the person concerned 4.4 Appeals

4.4.1 Appeals can be under Regulations 31 or 32. 4.4.2 Regulation 31(1) states that where a person is dissatisfied with the decision as set out in the SMPs report, an appeal may be made to the PMAB. Notice of an intention to appeal should be given to the HR department within 28 days of receiving the SMPs report. A further 28 days is allowed to provide the grounds for the appeal. These time limits will be treated flexibly as is allowed for under the Regulation. 4.4.3 On receipt of the grounds for appeal, the HR department will refer the matter to the PMAB who will hear the case. If the PMAB disagrees with any decision of the SMP, it will issue a report to replace the report by the SMP, which will be final. At this point a new IOD Information Pack will be issued with the PMAB report taking the place of the SMP report. 4.4.4 Regulation 32(2) allows for the police authority and the claimant to agree to revisit any previous final decision of a medical authority. A former officer who wishes to pursue a Regulation 32(2) referral should write to the Constabulary for the information of the Chief Officer with oversight of the HR department setting out brief details as to why this should be considered. The Chief Officer will consider the matter and take HR advice as appropriate before making a determination. 4.4.5 In deciding whether to agree to a Regulation 32(2) referral, the Chief Officer will look to use the provision as a mechanism to correct mistakes either as to fact or as to law. If the case is made on either of these grounds, the Authority will agree to a referral. 4.5 Reassessment

4.5.1 The procedure for a Regulation 37(1) reassessment will be initiated by the HR department who will write to the IOD pensioner to inform him or her that a reassessment is due. The letter will be accompanied by a copy of this policy
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as a reminder to the former officer, and copies of the previous SMP report and the previous financial calculation all of which had been provided as part of the IOD Information Pack after the last assessment. The letter will include a questionnaire and included in the request will be: confirmation of the pensioners personal details an update on current health any information which the pensioner believes ought to be considered by the SMP when considering the question in Regulation 30(2)(d) relating to earning capacity with and without the duty injury any documentary evidence to support any of the above including available medical reports a consent form to obtain relevant medical reports dating back to the last final decision. details of any benefits being received preferred contact details to facilitate consideration by the SMP 4.5.2 If the person concerned was previously assessed as having a slight degree of disablement (band 1), then an additional note will be included with the letter. It will explain that if it is the pensioners view that there has been no change in his or her degree of disablement and they wish their reassessment to reflect this position, they can elect for this to be the case and no further information is required. In such a case, the SMP will make the decision on that information alone and is bound to conclude that there has been no substantial change in the degree of disablement. 4.5.3 On receipt of the completed questionnaire, HR department staff will acknowledge it and, with the exception of the band 1 example in the paragraph above, prepare the case for consideration by the SMP in the same way as for consideration for the initial award as mentioned above. 4.5.4 The SMP will consider the necessity for an appointment in the same way as for consideration for the initial award as mentioned above. 4.5.5 If the person concerned was previously assessed as having a slight degree of disablement (band 1), then in deciding whether it is necessary to call the person concerned for an appointment, the SMP can assume that there has not been a substantial change in degree of disablement and that an appointment is therefore not necessary. 4.5.6 If the person concerned is on band 1 and requests an appointment, then an appointment will be arranged.
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4.6

Refusal to be Medically Examined

4.6.1 Regulation 33 explains that if a person concerned wilfully or negligently fails to submit to a medical examination when the medical authority has been asked questions under the Regulations, the Authority is entitled to make their determination on such evidence and medical advice as they in their discretion think necessary. If this happens at the PMAB, the appeal shall be deemed to be withdrawn. Ends

DCC John Feavyour 20th September 2012

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Annex IOD Award Transition Arrangements for Regulation 37(1) Reassessments

These transition arrangements relate to the procedure to be adopted only for IOD recipients who were in receipt of their award prior to the adoption of the new policy in 2012. The information provided to existing pensioners prior to any review will clearly fall short of that which will be available to pensioners who receive IOD Information Packs as part of the 2012 policy. The Constabulary will therefore use its best efforts to provide as much information as possible to meet the spirit of the policy. 1.0 1.1 IOD pensioners who have not had a Regulation 37(1) reassessment If the IOD award was granted within the preceding 5 years, then under the new policy a reassessment would have been arranged within the period not less than 2 years from the date of the award but not later than approximately 5 years after the award. The Constabulary will therefore write to the pensioner and invite him or her to identify a date in the period between 2 and 5 years from the date of the award and will arrange for a reassessment on or around that date accordingly. In the absence of a reply from the pensioner then the reassessment will be arranged for a date on or around 5 years after the date of the award. Once this reassessment has taken place any subsequent reassessments will be undertaken consistent with the new policy. If the IOD award was granted more than 5 years ago but less than 15 years ago, then under the new policy the first reassessment should have taken place. The Constabulary will therefore arrange for a reassessment as soon as practicable. Once this reassessment has taken place any subsequent reassessments will be undertaken consistent with the new policy. If the IOD award was granted more than 15 years ago and they are under whatever was the compulsory retirement age for an officer of their rank on retirement, then under the new policy the pensioner would have already undertaken not only a first reassessment but also a subsequent reassessment. The Constabulary will therefore arrange for a reassessment as soon as practicable. In this case, when it comes to determining the number of decisions made by the SMP in a period exceeding 7 years then this reassessment will count as two decisions. This has the effect that where the decision of the SMP is that there is no substantial alteration in the degree of disablement, the pensioner can rely on there having been three successive decisions of the SMP without change and the next suitable interval shall be open ended. Conversely, if the decision of the SMP is that there has been a substantial alteration in the degree of disablement, the pensioner will be subject to a subsequent reassessment and that subsequent assessment
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1.2

1.3

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should be after a further 7 years. Once this reassessment has taken place any subsequent reassessments will be undertaken consistent with the new policy. 1.4 If the IOD award was granted more than 15 years ago and they are over whatever was the compulsory retirement age for their rank (e.g. 55 for a constable) then the suitable interval will be defined as open ended. This means that there will not be any further review unless requested by the pensioner (see paragraph 3.8.12 of the policy) or called in by the Authority (paragraphs 3.8.13/14) IOD pensioners who have had a Regulation 37(1) reassessment If the IOD award was granted within the preceding 5 years, then under the new policy a reassessment would have been arranged within the period not less than 2 years from the date of the award but not later than approximately 5 years after the award. At least one such reassessment has taken place. The Constabulary will therefore arrange for a reassessment for a date on or around 7 years after the date of the award. Once this reassessment has taken place any subsequent reassessments will be undertaken consistent with the new policy. If the IOD award was granted more than 5 years ago but less than 15 years ago, then under the new policy the first reassessment should have taken place and a subsequent reassessment should have been arranged or have taken place. If there have been three successive SMP decisions over a period of at least 7 years then the new policy can be applied. Otherwise the Constabulary will write to the pensioner and invite him or her to identify a date in the period between 7 and 15 years from the date of the award and will arrange for a reassessment on or around that date accordingly. In the absence of a reply from the pensioner then the reassessment will be arranged for a date on or around 15 years after the date of the award. Once this reassessment has taken place any subsequent reassessments will be undertaken consistent with the new policy. If the IOD award was granted more than 15 years ago, then under the new policy the pensioner would have already undertaken not only a first reassessment but also a subsequent reassessment. In these circumstances the next suitable interval will be open ended.

2.0 2.1

2.2

2.3

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