Agenda Item: 7 To: From: Date: Full Police Authority Deputy Chief Constable 7th September 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 paper reflects my considerable personal involvement in a review of the policy and I have therefore taken the unusual step of presenting a report in the first person to allow me to reflect the degree of emotion and sensitivity evident throughout the review. Indeed trying to reconcile the various statutory regulations and the hopes and aspirations of our IOD pensioners has proved impossible. Nevertheless I hope that if the Authority is able to endorse my proposals in this report then a milestone will have been reached in relation to the current concerns of those pensioners and clarity will be in place for the future administration of the scheme. 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. I will conclude the paper with proposals for the next steps.

1.2

1.3

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
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that those officers are properly compensated in line with the statutory provisions designed so to do. 2.2 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 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. 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
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2.3

2.4

2.5

2.6

2.7

affected had their injury pensions restored to their former levels including back pay, and so in absolute financial terms have not suffered any loss. 2.8 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. I have personally examined an inordinate 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 HOC 46/2004 has 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. The on-going uncertainty amongst pensioners, the level of on-going correspondence and the absence of any further advice prompted me to set up a review of our scheme when I assumed chief officer responsibility for HR matters in 2011.

2.9

2.10

2.11

2.12

3.0

Review of IOD Awards

3.1

I wrote to all IOD pensioners informing them of my review and to ask whether an open meeting with me would be something they would find helpful. I received endorsement of my proposal to hold a meeting together with repeated representations about the existing policy of the Constabulary. I wrote again giving notice of the meeting and subsequently held a meeting at a Community Centre in Cambridgeshire in March 2012.
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3.2

I 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. I have received numerous responses (some at considerable length), which in my judgement actually cover only very few main themes. Firstly, 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; and to me. The level of some of the vitriol is something which I have never experienced in my professional career and I share it 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 I been asked to record the meeting I would have been pleased to do so. I am very disappointed at this underhand activity but it further serves to demonstrate how some pensioners feel about their situation. 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. Moreover, I have spoken to nearly everybody within the Constabulary and Police Authority who has been engaged in the IOD policy process and is absolutely clear from my perspective 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 I hope that this comprehensive review and its conclusions will go some way to restoring some of the lost trust and confidence that these former colleagues have in the organisation. 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 I have received.

3.3

3.4

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3.6

3.7

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3.8

What is also clear to me 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 I have also undertaken research nationally. This has included consultation with other forces and with relevant HR leads on IOD awards. This consultation is also informing my new role as ACPO lead on IOD awards. To that end I have involved myself in a working group to discuss the future of the policy. I have spoken to the Home Office who have shared with me 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 I coordinate on behalf of ACPO will also shape any future Home Office guidance. My review has also involved substantial desk research 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.

3.9

3.10

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4.0 4.1

Draft New Policy I 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. Introduction

4.2

4.2.1 Within this section I have set out the key regulations in relation to awards of an injury on duty gratuity and pension. I have been clear that in the absence of a steer within the policy that the Regulations themselves should be referred to.

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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. I 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 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 In this section I clarify that IOD awards are only available to former police officers. This is part of the statutory framework. 4.4 The Policy

4.4.1 In this section I have set 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. 4.4.2 The policy continues with comments in relation to: the definition of a police officers injury 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 I have concluded the guidance with procedural arrangements which will apply in terms of the administration of IOD awards.
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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 and I set out my proposals 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 successive determinations in a period of at least 7 years) then no further review will be planned. Further to the statement at 4.4.4 above that the principles implicit in the new draft policy should be adhered to, I have attached as an Annex to the draft guidance 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
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5.2

5.3

5.4

reassessments are formally annulled. Had we known then what we know today, those reassessments would not have taken place. 5.5 I have some cases pending from the Pensions Ombudsman from pensioners who were reviewed on the basis set out in 5.4 above. I propose 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 by me on that basis.

6.0 6.1

Feedback on Draft Policy Throughout my review I have undertaken to give existing IOD recipients the opportunity to comment on any draft policy before it is formally adopted. I wrote again to all 200 IOD pensioners with copies of the drafts of this covering report, the policy and transitional arrangements. I enclosed a pro forma to seek approval or otherwise for the proposals and I invited feedback. I have received responses 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 are 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 my comments at 3.3 above. Helpfully, a number of pensioners expressed their thanks for the work undertaken during the review and I am grateful for their support. A number of pensioners also expressed how difficult to understand they found the material. I will address this in the next steps below. The detailed comments which were made have wherever possible, been reflected in changes which I have 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
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6.2

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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. I cannot reconcile the views of some pensioners with the proposals. My approach therefore is to set out clear parameters for the SMP to follow, treating each case on its merits and providing default values to fall back on. 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 these 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. I propose a way forward in the draft transitional arrangements.

6.7

7.0

Conclusion

7.1

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. I have apologised to our pensioners both in my letters and at the open meeting for the obvious anxiety which they have felt despite our best efforts. I believe that the draft policy and transitional arrangements which I have constructed represent a fair reflection of the purpose of the scheme, the Regulations and the aspirations of our pensioners and I commend it to the Authority.
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7.2

7.3

The adoption of the policy would be a positive step but it will require further work under strong leadership to embed it in Cambridgeshire. I intend to continue my 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.

8.0

Recommendation

8.1

That the Authority note this report and in particular the background to the administration of the scheme and my 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 I have 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 me 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.

8.2

8.3 8.4 8.5 8.6

8.9

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Bibliography Source Document(s) Contact Officer DCC John Feavyour Location Cambridgeshire Constabulary Hinchingbrooke Park Huntingdon PE29 6NP

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