Essex Police Pension Board degree of disablement assessment (regulation 37) briefing note to pensioners

The Police (Injury Benefit) Regulations - Degree of Disablement Assessment (Regulation 37) – Briefing Note for Pensioners

Introduction

Following the judgement of Mr Justice Linden in the matter of R (P Goodwin and Others) v Chief Constable of Staffordshire Police 2020 (EWHC 2477 Admin), the Police Pension Authority (PPA) has determined that it is necessary to take steps to ensure compliance with Regulation 37 of The Police (Injury Benefit) Regulations 2006 and instructed the Delegated Scheme Manager and Head of Pension Compliance & Governance to proceed accordingly, having due regard to the objective/principles set out below and views of the Essex Police Pension Board.

Scheme Manager Responsibility

The PPA / Scheme Manager (Chief Constable) is responsible for ensuring the Police Pension and Injury Benefit Regulations are applied and the Essex Police Pension Board is required to assist in the administration and management of the Essex Police Pension Fund.

The Chief Constable as Scheme Manager has agreed the objectives and planning assumptions as follows:

1. The process to be adopted must discharge the PPA’s legal obligations, including meeting his legal commitments to honour injury benefit payments at a level to which each pensioner is entitled.
2. It is not about savings or cost cutting – there will be no savings target
3. The process shall be fair and transparent, having proper regard to the welfare of those affected

“Regulation 37 re-assessment of injury pension”

(1) “Subject to the provisions of this part, where an injury is payable under this Regulations, the Police Pension Authority shall, at such regular intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered, and if after such consideration the Police Pension Authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly”.

The word “shall” means that this is not merely a power, but a duty on the police pension authority (PPA) to consider whether the degree of each pensioner’s disablement has altered. In R (P. Goodwin and others) v Chief Constable of Staffs Police (2020) (EWHC  2477 Admin) Mr Justice Linden stated:

• It is for the defendant (PPA) to decide whether a suitable interval has elapsed since the last assessment or re-assessment and, if it has, he is obliged to consider whether the degree of the pensioner’s disablement has altered. I agree with Mr Holt-Allen that there is therefore a continuing duty to monitor whether an award is being paid in accordance with the 2006 Regulations. (Para 81)
• The true abuse of power in the present case would be for the Defendant (PPA) failing to act in accordance with the 2006 Regulations. (Para 88)

PPA Requirements

Background

The Police (Injury Benefit) Regulations 2006 make payable a pension for life to ex-officers who have become permanently disabled as a result of injuries sustained in the execution of their duty. This is in addition to their Police Pension. Injury Benefit is intended to compensate them for loss of potential future earnings because of their injury. Claimants are subject to assessment by a SMP acting on behalf of the Force. Successful claimants can be awarded a gratuity plus pension. The level of gratuity and pension depends on the degree of disablement as assessed by the SMP, together with the length of the individual's service.

There are four levels of award. Band 1 (slight disablement) is for 25% disablement or less. Band 2 (minor disablement) is for more than 25% but not more than 50% disablement. Band 3 (major disablement) is for more than 50% but not more than 75% disablement. Band 4 (very severe disablement) is for more than 75% disablement. Under the Regulations, individuals have various rights of appeal if they disagree with the SMP's decision.

Regulation 37, as set out above, requires the PPA to consider, at suitable intervals, whether the degree of the pensioner’s disablement has altered.

An injury award is only revised if there has been a substantial alteration to the pensioner’s earning capability that will affect the percentage in that it warrants a move from one band to another.

The pensioner can appeal the decision to the Police Medical Appeals Board (PMAB).

Refusal to be medically examined.

If the individual fails to submit to medical examination or fails to attend the SMP's appointment, Regulation 33 enables the Police Pension Authority, on such evidence and medical advice as in his discretion he thinks necessary, to determine the appropriate degree of disablement (banding). There is no right of appeal against a decision made by the PPA under Regulation 33.

The administration, assessment and reassessment of Injury Benefit is subject to not only the relevant Regulations, but also Home Office Circulars and case law (principally decisions by the High Court and the Pensions Ombudsman). The reassessment process may therefore alter as a result of any changes in law.

Factors which may affect the Degree of Disablement

A substantial deterioration or improvement in the pensioner's overall medical condition

This can be either the actual qualifying injury giving rise to the award itself or any other medical condition that impacts on the pensioner's overall work capability.  In this respect, if there is no substantial change to the qualifying injury, but a substantial change to the pensioner's overall medical condition, which of itself has a greater impact on earning's capability, this can be taken into account by way of apportionment. The SMP can take account only of the causes relating to the qualifying injury. The SMP cannot introduce into the reassessment any new medical conditions caused by injuries sustained on duty which were not part of the original assessment for an injury award.

A substantial change to the overall earning capability of the pensioner

Notwithstanding there is no identified change to the pensioner's actual medical condition, it is possible for the matter to be assessed with regards to recognised changes in the employment field that may substantially affect their overall earning capacity.  To this end it would be possible to recognise that there are either work, education or training prospects available now that were not available previously, or that work possibilities taken into account previously no longer exist.  Either scenario could give rise to a determination that a substantial downgrading or upgrading of the award is possible.

Age

The fact that an injury pensioner has now reached State Pension Age no longer means that their award will be reduced automatically to Band 1 (the lowest banding).  The same criteria must be applied as outlined above in all cases.

Criteria for selecting Injury Benefit Pensioners for degree of disablement review.

There is a total of 272 pensioners in receipt of an injury award. For each IB pensioner, the Selected Medical Practitioner recommends an appropriate time period for re-assessment (typically 36 months or in some cases five years). The current situation is there is a significant number of injury award pensioners that have exceeded their recommended reassessment period and several pensioners that have never had any reassessment. The Scheme Manager, with support from the Essex Police Pension Board, are required to address this issue.

A fair, logical and proportionate selection for assessment is to select on a case-by-case basis (in the circumstances of the particular case) using the following criteria:

1. IBP’s that have exceeded their recommended last re-assessment period;
2. IBP’s that have never had a degree of disablement re-assessment; and
3. For pensioners in Band 1 “minor injuries” – to schedule assessments following assessment of other bands on the basis that the injury is minor and the likelihood of a substantial change in medical condition is lesser with the caveat that any Band 1 pensioner that requests a re-assessment is provided with one.

This ensures that the Scheme Manager does not select using gender, race, disability type, other protected characteristic or specific injury type. In both the above categories, 1 and 2, reviewing with the longest period of elapsed time from reassessment or, in cases with no reassessment from grant of original injury award, the first will apply.

Exceptions

Following consideration by the Essex Police Pensions Board, the following Injury Benefit pensioners will not be subject to a review:

• All IB pensioners aged 65, 66 or 67 or over depending on their relevant pensioner normal state retirement age;
• IB pensioners who have been diagnosed as terminally ill;
• IB pensioners who have received their Injury Award within the last 3 years unless the Selected Medical Practitioner (SMP) had recommended that their case be re-assessed within a shorter period;
• IB pensioners who have been re-assessed within the last three years; and
• Injuries that are permanent and so severe that there is never a point at which there is any purpose in asking the SMP to consider whether their degree of disablement has altered (R (P Goodwin and Others) v Chief Constable of Staffordshire Police 2020 EWHC 2477 Admin, Mr Justice Linden’s judgement para 81).

Can an IBP receive reimbursement for travelling or other expenses incurred as part of the Review process?

No.  The Force does not reimburse expenses related to this. It is the pensioner’s responsibility to make themselves available for medical examination by the Selected Medical Practitioner.

Appeals

All IB pensioner will have the right to appeal to PMAB with no cost to the IB pensioner. In cases where there is no co-operation or failure to attend and participate in the SMP medical examination resulting in SMP is not able to provide a Degree of Disablement assessment then Regulation 33 (see below applies). There is no appeal to PMAB when Regulation 33 is used.

Monitoring

Essex Police Pension Board

The Essex Police Pension Board will have oversight and monitor progress of applying Regulation 37 and advise the Scheme Manager of progress as part of the statutory annual Scheme Manager reporting arrangements.

Appendices

1. Draft Process
2. Notice to IB pensioner of selection.
3. Guidance information for IB pensioner