Please note this is a direct link to a GOV.UK website PDF which was updated in February 2015. You may find some of the Pension Administrators have changed. Please note that NARPO has been advised as of March 2016 that West Mercia and Warwickshire is now dealt with by: Kier Business Services, PO Box 485, Middlesborough TS1 9EE. Tel: 01642 727399
Injury Award Reviews and funding
We are aware that some Forces are currently conducting Injury Award Reviews under Regulation 37 Police [Injury Benefit] Regulations 2006.
The recent FISHER v Northumbria case reinforces previous case law when determining the ‘uninjured’ earnings capacity, when carrying out a review under Regulation 37; and we would remind members of the TURNER case, which concluded that:
The SMP is not entitled to take into account jobs which were previously available to the pensioner (even if not considered at the last review) or which the pensioner had previously carried out since these jobs cannot be evidence of a change in the pensioner’s degree of disablement.
The SLATER case is also relevant in that it concluded:
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
We have recently been in contact with the National Police Federation regarding support and funding issues for our Members, including the matters of legal advice and representation.
Whilst the National position is that the Federation will support cases involving retired officers but legal advice and representation will only be granted based on the merits of each individual case. This same process now exists for serving officers.
We have become aware that some local Police Federations have decided that they will not assist or support retired members involved in this process in any way and will not forward any claim forms requesting funding from the National Police Federation.
In view of this we would advise our Members to approach their local Police Federation in the first instance to seek their support, advice and funding. Thankfully, we are grateful to the majority of local Police Federations who are still willing to support retired members in accordance with Federation rules.
If this is not forthcoming, the Member has the option of contacting their local NARPO Branch and/or NARPO HQ for advice and assistance and we will do our best to advise you in challenging the decision yourself.
If these options are not available, or appropriate, or if you prefer, you can seek your own legal advice at your own expense. We appreciate this is not ideal, but we have liaised with a specialist firm of Solicitors who can assess the circumstances of an individual’s case and give the appropriate advice at a fixed fee. They are Haven Solicitors
However, it is a Member’s choice to decide if they wish to take legal advice and which firm they choose to instruct on their behalf.
Employment Support Allowance
Letters have been sent by Kier in February and March to Members in receipt of injury pensions.
Another letter has been sent on 17th March by Equiniti to its Members in receipt of injury pensions.
Other Pension Administrators may also send out something similar.
The way the Regulations were amended means that they can now reduce injury awards by the amount of contribution based ESA someone is receiving irrespective of what it is being received for, or if there has been a break.
We are in correspondence with the Policing Minister and Home Office in relation to this, which is a severe worsening of our Members' status prior to this amendment, and as such, we are liaising with the Police Federation and taking legal advice on this matter in an effort to resolve the problem.
The advice to members is that if they believe they are entitled to the contributions based ESA, they should apply. The below links to the Government website and Disability Rights UK Factsheet provide additional advice on this matter. The DWP may be able to assist further.
If you are in the process of applying for ESA, please add this to the form when returning your reply to the Pension Administrator.
This is effective from 10th February 2017, but not retrospective.
These Regulations amend the Police (Injury Benefit) Regulations 2006 to insert a reference to the employment and support allowance paid under sections 1(2)(a) or 1B of the Welfare Reform Act 2007. This means that the amount of injury benefit pension received by a person who is also entitled to employment and support allowance must be reduced by the amount of employment and support allowance to which they are entitled.
Abolition of the ESA Work Related Activity Component
The Welfare Reform and Act 2016 legislated for the abolition of the Work-Related Activity Component (WRAC) of ESA for new claimants from April 2017.
Work-Related Activity Component paid to those in the WRAG would be abolished for new claims from April 2017. The equivalent element in Universal Credit will also be abolished. This will be a reduction of £29.05 a week (based on 2016-17 rates) and aligns the rate of payment with those claiming Jobseeker’s Allowance (2016-17 rate: £73.10 a week). Existing claimants will not be affected, while there will be protections for those who may move into the WRAG or Universal Credit equivalent from the Support Group.
Employment Support Allowance- Deductions before February 2017
Prior to 10th February 2017, ESA was not deductible from an injury pension.
Please see the following advice if ESA was deducted prior to this date and a draft letter to send to Forces-
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.
INJURY AWARDS AND DWP BENEFITS
We are aware that The Home Office has 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 officer's injury award is calculated in accordance with Schedule 3 of The Police [Injury Benefit] Regulations 2006. 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
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.
Any member who has had his/her 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
In a South Wales Appeal the Police Medical Appeal Board (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 Northumbria 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