We are aware that the position on this matter is varied throughout the country with some Forces deducting ESA and others not deducting it.
ESA is a direct replacement for Incapacity benefit so on first sight one would expect it to be deductible, however Incapacity Benefit is expressly detailed as a ‘relevant benefit’ under Schedule 3 of The Police [Injury Benefit] Regulations 2006; ESA however as it is a new DWP benefit is not so detailed.
In an effort to clarify the situation we recently wrote to the Home Office seeking clarification of the matter. The response we received from the Home Office included the following:
In principle, we believe it would be appropriate to change both the police pension and injury benefit regulations to make ESA deductible.
This obviously leads us to surmise that the Home Office are of the opinion that ESA is not deductible from an Injury Pension at present. The letter also makes it clear that Police Forces are responsible for administering pensions within the regulations and in view of this we suggest that those who are having ESA deducted from their Injury Pension write to their Force in an attempt to clarify the matter and receive back any monies unlawfully deducted.
We have prepared a template letter for you to use to write to your Force use the link below:
The High Court has quashed Guidance issued by the Home Office which has been used to reduce the injury pensions of thousands of injured former police officers. All of these cuts to the pensions of former injured officers will now have to be further reviewed. The court ordered the Home Office to publicise the withdrawal of the unlawful guidance on its website. The notice is at https://www.gov.uk/government/publications/police-pensions-notification
The Home Office Guidance, published in 2004, recommended that police injury pensions should be reviewed when injured former police officers reached their Compulsory Retirement Age (“CRA”) at which they would have retired from the force (if not injured) and recommended using the lower “National Average Earnings” as a guide for loss of salary at that point. This resulted in drastic cuts to the pensions paid to former officers. Injured officers who could not work found their incomes slashed at either age 55 or 60, depending on when the officer joined the Force.
That method was challenged in a High Court case brought by lawyers at Cartwright King on behalf of former officer, John Slater. The government has now conceded that the guidance is unlawful and that reviews at a CRA must relate to the individual circumstances of the officer. This means the blanket National Average Earnings figures cannot be used to cut pensions. The Court ordered the Home Office to write to all police forces withdrawing the Guidance within 14 days and to publicise the withdrawal on the Home Office Website.
Mark Lake, the specialist solicitor who took the case for Mr Slater with funding from the Police Federation said
“This is a significant victory for injured former police officers. A very large number of former officers are entitled to have reductions in their pensions at their CRA set aside as a result of this case. We warned the Home Office several years ago that this part of the Guidance was unlawful but it took yet another Judicial Review challenge in the High Court before the government were prepared to accept they had issued unlawful guidance”.
Mark Lake instructed David Lock QC of Landmark Chambers who has appeared successfully for former officers in many cases concerning police pensions.
If you believe you have had your injury award reduced as a consequence of you reaching Compulsory Retirement Age and the use of the National Average Earnings [ASHE], you should write to your Force requesting that your Injury Award be re-instated to its former Band.
See below template letter for use in making such request.
The Court in this case concluded that an approach based on acceleration or aggravation is not appropriate. If, at the time when the question is referred to the Selected Medical Practitioner there is a disablement which is permanent, and if the duty injury caused or substantially contributed to that disablement at that time, the right to receive an injury award arises.
INJURY AWARDS AND DWP BENEFITS
We are aware that The Home Office have recently requested Police Pension Administrators to send a letter out to all retired officers in receipt of an injury award to request details of any DWP benefits they may be in receipt of.
This information is a requirement of The Police [Injury Benefit] Regulations 2006 and is used, together with other factors when calculating the amount of the actual injury award paid monthly to the pensioner.
The amount of a retired officers injury award is calculated in accordance with Schedule 3 of The Police [Injury Benefit] Regulations 2006 and paragraph 7 of said Schedule outlines that any injury award shall be reduced by the amount of any additional benefits [as indicated in sub paragraph 3] received by the pensioner.
It is however important to be aware that the relevant benefits are those DWP benefits payable to pensioners for the qualifying injury on duty only. Any benefits payable for a different injury are not taken into account and are not deductable from the injury pension.
It is also important to note that should a pensioner cease receiving incapacity Benefit or Severe Disablement Allowance and become 'fit for work', but later resume receiving the same benefits, the pensioner is given the 'benefit of the doubt' that they are payable for a different disability and they would then not be deducted from any injury pension.
We did ask the Home Office to include this information in the letter being sent to those affected.
For further information on Relevant Benefits use the links below:
Please see links to further relevant information below:
SCHEDULE 3 POLICE[INJURY BENEFIT] REGULATIONS 2006
HOME OFFICE EXPLANATORY NOTE
EXTRACT FROM POLICE PENSION SCHEME ADVISORY BOOKLET
If you are concerned regarding any potential 'overpayments' please see the advice below regarding the recovery of overpayments:
RECOVERY OF OVERPAYMENTS
PENSIONS ADVISORY SERVICE ADVICE ON OVERPAYMENTS
SUGGESTED COURSE OF ACTION
A recent decision in the case of HAWORTH has confirmed that there is no 'time limit' in relation to a request for a reconsideration of an injury award decision and that Police Authorities should give due cognisance of the merits of the request before deciding not to agree such a request on merely time delay or reasons of cost.
His Honour Mr Justice KING at paragraph 96 opined:
regulation 32(2) should be construed as a free standing mechanism as part of the system of checks and balances in the regulations to ensure that the pension award, either by way of an initial award or on a review to the former police officer by either the SMP or PMAB, has been determined in accordance with the regulations and that the retired officer is being paid the sum to which he is entitled under the regulations. It must be the overall policy of the scheme that the award of pension reflects such entitlement and I see no reason why regulation 32(2) should be construed simply as a mechanism to correct mistakes which might nonetheless be able to be corrected by some other means.
He goes on to opine at Paragraph 97:
In other words I am persuaded that in the light of the statutory scheme as a whole, there is no reason not to construe regulation 32(2) as in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right, which is this case.
In paragraph 104 His Honour Mr Justice King opined:
First and foremost in failing to have any regard to the underlying merits of the claimant’s application, and in refusing consent regardless of the strength of these merits, this was a decision not in accordance with the statutory purpose for which in my judgment the discretionary power under regulation 32(2) was given, namely as a mechanism whereby mistakes in the determination and assessment of pension entitlement under the regulations can be corrected in particular where they cannot otherwise be put right, and one which thwarted or ran counter to the policy and objects of the statutory scheme, namely that a former police officer permanently disabled in the execution of his duty through no fault of his own should be paid the full pension to which he is entitled under the regulations.
FULL DETAILS OF THE HAWORTH JUDGEMENT CAN BE FOUND USING THE BELOW LINK.
His Honour MR JUSTICE SUPPERSTONE has ruled that there is no statutory basis in the Police [Injury Benefit] Regulations to support a different approach to a Regulation 37 review at different ages.
TO VIEW THE FULL JUDGEMENT CLICK ON THE ABOVE HEADING.
The recent decision of His Honour Judge Behrens, sitting in the High Court confirms at Para 32 that:
In my view the test proposed in the Guidance is not in accordance with regulation 37. The SMP is not entitled to conclude that “in the absence of cogent reason” the pensioner’s uninjured earning capacity is reduced to zero when he attains the age of 65. Rather, if the Police Authority refers the matter to him for review when the pensioner attains the age of 65 he must carry out a proper review in accordance with regulation 37. Thus he must consider whether the degree of the pensioner's disablement has altered and if so whether the alteration is substantial.
Any member who has had their Injury Pension reduced in this manner in accordance with the contents of HOC 46/2004 is now strongly urged to write to their Police Authority and Pension Administrators and seek a reinstatement of their Injury Pension to its previous banding from the date it was so unlawfully reduced.
This decision has now been re-inforced by the case of SIMPSON heard on 21st February 2012 full details will follow when available.
The Home Office have now written to Police Pension Administrators as a result of the SIMPSON case pointing out that the process suggested for reviews of those aged 65 years is unlawful.
A suggested draft letter to the police authority is available via the below link:
Use the link below for the full judgement:
PENSION OMBUDSMAN DECISION
A recent Ombudsman decision in the case of SHARP has further reinforced the fact that those aged 65 years or over cannot be 'automatically' reduced to the lowest Band on the assumption that they no longer have an earning capacity, as suggested in HOC 46/2004.
The Ombudsman also determined that Mr SHARP's request for a Reconsideration under Regulation 32 PIBR 2006 should have been granted.
Full case determination below:
ALREADY REVIEWED AND REDUCED?
If your injury award has already been reviewed and subsequently reduced and you believe it has been done outside the Regulations and relevant case law then use the links below to view your next course of action together with a draft letter which you can complete and send to the Police Authority requesting a further review.
Course of Action
Draft Letter to Police Authority
Application to Pensions Ombudsman
HOME OFFICE ISSUE INTERIM GUIDANCE
The Home Office have now issued interim guidance in relation to Home Office Circular 46/2004 in which they advise all Police Authorities to defer any further reviews of injury awards until the outcome of the LAWS case has been determined by the Court of Appeal. This decision is expected sometime in August 2010.
The only exception to this advice is where a case involves a deterioration of a medical condition.
Whilst this is good news for many NARPO members who are awaiting an injury award review, it does not resolve the situation that some of our members find themselves in who have already been reviewed and reduced or who are awaiting an appeal hearing.
It is important that members in these situations continue following the advice set out on the website. This would include seeking a reconsideration under Regulation 32, lodging an appeal to the Police Medical Appeal Board or making a complaint to the Pensions Ombudsman, as is appropriate to their personal circumstances. We recommend this course of action with a view to protecting time limits and to continue to highlight what we consider to be a maladministration of the Injury Benefit System in some forces.
NARPO will be seeking some further concessions from the Home Office in relation to those already affected and a comprehensive rewrite of the Home Office circular, but until that is forthcoming members should continue to pursue their case on the basis of the advice already provided.
Home Office Letter to All Police Authorities
In a South Wales Appeal the PMAB upheld the police pensioners Appeal and in their decision they seem to accepted that the over 65's do indeed have an earning capacity. See precis below kindly provided by South Wales Police Federation.
PMAB decision South Wales
The PMAB in a West Yorkshire pensioner appeal have upheld the pensioners Appeal against reduction to a Band 1 injury award. Use the link below for further details.
PMAB decision Precis West Yorkshire
The PMAB in decisions involving a Norrthumbria police pensioners have concluded that an Injury Award Review should be carried out using the same process, irrespective of a persons age and that a medical assessment must be carried out together with an assessment of a persons earning capacity. For further information use the links below.
PMAB Decision Northumbria Precis
GOING THROUGH THE APPEAL PROCESS?