DRAFT

NOT PROTECTIVELY MARKED

GUIDANCE ON REVIEWS OF POLICE INJURY PENSIONS

1.

Introduction

1.1

Recent developments in case law make it desirable to update and

expand on existing guidance on when and how to review police injury pensions under the provisions of Regulation 37 of the Police (Injury Benefit) Regulations 2006. This guidance is intended for HR Managers, OH practitioners, medical practitioners acting as the selected medical practitioner (SMP) and for members of the Police Medical Appeal Board (PMAB).

1.2

When the injury award was first made, the SMP would have decided

that the recipient was permanently disabled as the result of an injury received in the execution of their duty. As part of the same process, the SMP would then have proceeded to assess the degree of the persons disablement to enable the police authority to calculate the appropriate level of injury award. It is this degree of disablement that is reassessed when a police authority is considering whether to revise an injury pension. By virtue of Regulation 30(6) the decision as to permanent disablement, or that the disablement was the result of an injury, is deemed to be final and must not subsequently be revisited by the SMP conducting a review under Regulation 37.

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED 2. Reason for review under Regulation 37 and Assessment of

Degree of Disablement

2.1

Regulation 37 of The Police (Injury Benefit) Regulations 2006 makes

provision for the review of injury pensions. Changes of circumstances and evidence since the last assessment (of a persons degree of disablement) have to be taken into account so as to ensure that the injury pension continues to reflect the degree of their loss of earning capacity as a result of the duty injury, and that the interests of the former officer and the public purse are protected.

2.2

The effect of the transitional provisions is that injury pension awards

made under the 1987 regulations (The Police Pensions Regulations 1987) are to be treated as if they had been made under the 2006 regulations. Regulation 37 requires that 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 finds that the degree of the pensioners disablement has substantially altered, the pension shall be revised accordingly. The process for doing so, as set out in the Regulations, is for the police authority, at suitable intervals, to refer to the SMP the same question as it asked on the first (and any subsequent) occasion, namely the degree of the persons disablement and to consider whether, in the light of the SMPs decision, the degree of the pensioners

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED disablement has substantially altered. If so, the pension must then be revised accordingly. 2.3 Regulation 7(5) provides that the degree of a persons disablement is

dependent upon the degree to which their earning capacity is affected by an injury received without their own default in the execution of their duty as a member of a police force (hereafter called the duty injury). In order to make an assessment of the degree of a persons disablement when an injury award is first made, a three stage process is necessary: (i) the SMP must make an assessment of what the persons earning capacity would have been at that point had there been no injury; (ii) the SMP must assess the persons actual level of earning capacity at that point; and (iii) the SMP must assess the loss of earning capacity which is attributable to the duty injury after discounting other causes (if any) of loss of earning capacity. A fuller description of the process for assessing degree of disablement is at Annex A.

2.4

The assessment made by the SMP of the persons actual level of

earning capacity under part (ii) of the process described above is not an assessment of a persons loss of earning capacity as a result of the duty injury, but an overall assessment of the persons loss of earning capacity as a result of their disablement. In some cases that distinction may not have practical effect because the persons disablement will have arisen entirely as a result of the duty injury. In other cases loss of earning capacity may be as a NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED result of causes that are additional to, and other than, the duty injury (for example, a separate and unrelated medical condition) and part (iii) of the process allows for a process of apportionment so that only the loss of earning capacity resulting from the duty injury can inform the assessment of the degree of disability.

2.5

Any review of an injury pension is limited to an assessment of a

persons degree of disablement, with a view to establishing whether the degree of disablement has substantially altered so that the pension should be revised accordingly. The SMP must not start from scratch in assessing the degree of disablement but must concentrate on the extent, if any, to which the degree of disablement has altered since the last occasion when it fell to be considered.

3.

When to review

3.1

Police authorities have a duty to keep all current injury pensions under

review at such intervals as they consider appropriate, including where the former officers concerned are now above the compulsory retirement age. A police authority may wish to consider asking the SMP to include in any report advice on the frequency of reviews under Regulation 37. Whilst each case should be considered on the basis of its individual circumstances, it is recommended that as a general rule, injury pensions should be reviewed at least once every five years.

NOT PROTECTIVELY MARKED

DRAFT
3.2 NOT PROTECTIVELY MARKED A review once an individual has reached the age of 65 or the current

State Pension Age (SPA) (whichever is the later) will normally be the last. To the extent that age might have an effect on earning capacity, any benefit which is designed to compensate for loss of earning capacity must necessarily be sensitive to age, but balanced against the overriding requirement that each case be treated on its individual merits. Thus there may be exceptions to making the age 65/SPA review the last - in both directions: cases where the police authority considers it appropriate, given the modest level of the former officers minimum income guarantee compared with the norm for officers of that age, not to review after the former officer has reached what would have been his or her compulsory retirement age; and cases at age 65/SPA where there is a likelihood of a further change in status which the police authority consider it appropriate to assess after a further interval.

3.3

Where a police authority plans to carry out a further review after age

65/SPA it must make that clear to the former officer at the time it completes its age 65/SPA review.

4.

Procedure for review

4.1

A review can be initiated by the police authority or by the former officer.

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED Review initiated by the police authority 4.2 In order to avoid unnecessary detailed examination of retired officers

with severe disabilities and enable resources to be used in a focused way, it is recommended that a full review of a case of a former officer in receipt of an injury pension should only be conducted in cases where this may result in a change of status. In the first instance therefore, the review process should involve the police authority conducting a paper sift of cases.

4.3

The police authority should carry out a paper sift in consultation with

force human resources department and the occupational health unit. It should be for the police authority to decide, on advice from the human resources department and the occupational health unit, whether a review should proceed beyond the paper sift stage.

4.4

If the decision is to proceed beyond the paper sift stage, it will be for

the force human resources department and occupational health unit to prepare the case for consideration by the SMP.

4.5

The human resources department should ask the former officer to

complete a short questionnaire with details of his or her; state of health current and recent employment GP and, authorisation for the GP to provide further relevant information as requested by the occupational health unit NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED 4.6 It will then be for the occupational health unit to decide in the light of

the information provided whether to ask the GP for more information about the former officers state of health. The case should then be referred to the SMP for assessment in accordance with Regulation 30(2).

4.7

Where appropriate, the SMP may conclude the review on the basis of

the written evidence alone if it appears that the former officers loss of earning capacity has not substantially altered. The SMP must however examine a former officer where: the force personnel department or the former officer specifically requests an examination the former officer denies access to the GP; or the SMP is of the opinion that the former officers loss of earnings capacity may have substantially changed (i.e. is likely to result in a change of band for degree of disablement) Review initiated by former officer 4.8 A request by a former officer for a review must be made in writing to

the Chief Executive of the police authority and must be supported by the former officers doctor. The police authority is entitled to refuse a review if the request is not endorsed by the former officers doctor.

4.9

Where an application is accepted the process for review is as

described at paragraphs 4.5 4.7 above NOT PROTECTIVELY MARKED

DRAFT
5. NOT PROTECTIVELY MARKED Assessing whether there has been change in the degree of

disablement

5.1

The original decision of the SMP resulting in the injury award is final,

subject only to the degree of disablement having been found to have altered on a subsequent review. Therefore the question for the SMP on a review is whether there has been a change since the original decision (or last review as appropriate) in any of the circumstances which underlay the original decision on disablement.

5.2

Without prejudice to the original/review decision (since Regulation 30

provides that, subject to any appeal, the decision of the SMP is final), the SMP should familiarise him or herself with the original assessment of the qualifying duty injury made by the SMP or PMAB, whoever made the final decision, and the most recent decision on the persons loss of earning capacity and any apportionment, in order then to assess any change in the degree of disablement on the basis of the evidence now before them. In cases where it is less than clear how the original/review decision was arrived at, the SMP should re-examine the evidence and reach a view, on the balance of probabilities, on what had informed the original/review decision. It is important to note that this course of action is recommended, not with the intention of reopening the original/review decision, but rather to provide a benchmark, on the basis of what the SMP assesses are more likely than not to have been the circumstances applying at the time of the earlier decision, against which changes can be assessed. NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED 5.3 In the event that the SMP is of the opinion that the previous report

contains a fundamental error of fact or a conclusion which is not tenable and which leads to an incorrect level of payment, he or she should consult the force human resources department before completing his or her own report so that legal advice can be taken if necessary as to the next steps.

5.4 been:

A change to the degree of disablement may be seen where there has

an improvement or deterioration in the medical condition in respect of the qualifying injury;

an improvement or deterioration in the medical condition unrelated to the qualifying injury;

a change in age; a change in the labour market; or, a change in a persons skills, professional qualifications or experience.

5.5

Equally, there may be cases where the overall loss of earning capacity

remains unaltered but some other factor, such as the severity of a medical condition unconnected to police service, has altered to the extent that it can no longer be said that an individuals earning capacity is affected to the same degree by the qualifying injury. In such cases, as part of the reassessment process, the loss of earning capacity would be apportioned between the

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED different causes so that only the loss of earning capacity resulting from the duty injury can inform the reassessment of degree of disability.

5.6

Apportionment would also apply in those cases where more than one

injury may have resulted in the same medical condition but not all of the injuries are duty injuries. In these circumstances the SMP would need to apportion the extents to which the differing injuries have caused the medical condition so that the degree of disablement is aligned to the extent only to which the duty injury (or duty injuries) has contributed to the condition, and hence resulted in the loss of earning capacity.

5.7

There is also the situation where loss of earning capacity is attributable

to a duty injury exacerbating a pre-existing condition. In this scenario, apportionment would only be appropriate where the underlying condition, on its own, had also caused a loss of earning capacity.

5.8

If there have been no changes in any of the facts of the case since the

last assessment of degree of disablement, the SMP will confirm that the degree of disablement is unchanged and submit a report accordingly.

5.9

Where there has been a change in the underlying circumstances, the

SMP will need to establish whether it amounts to a substantial alteration in the degree of disablement attributable to the duty injury, taking the following steps:

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED establish the level of earnings the former officer would be capable of had he or she not been injured. This can be the persons police earnings updated to the time of re-assessment or an estimate of earnings outside the police service if the former officer has reached what would have been his or her compulsory retirement age. establish or confirm the clinical diagnoses, current health status and assess the functional capability of the person; determine the type of work the person may reasonably perform taking into account their capabilities, training and occupational experience; assess the reasonable level of remuneration related to work capabilities; and, assess apportionment as appropriate and in the light of current circumstances.

5.10

It is suggested that the SMPs conclusions are expressed in terms of: the situation at the time of the last assessment (based either on the records or, if insufficient evidence is available, on the SMPs opinion of what that was on the balance of probabilities); the changes to the underlying circumstances that have occurred in the interim; and,

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED the extent of the resulting change to the degree of disablement, based on what the person can now do. Note: See also Annex A

7.

Outcome of review

7.1

The consequence of a review of the degree of disablement within

Regulation 30(2)(d) is that the degree of disablement either has or has not changed substantially. It has changed substantially if the result is that a recipient of an Injury Award moves between the different bands of entitlement. In the event of a recipient being dissatisfied with the SMPs assessment there is a right of appeal to the PMAB.

7.2

Where a review results in a change of banding, any consequential

change in the injury pension should be implemented with effect from the date of the SMPs decision. Where the SMPs decision is overturned on appeal, the PMABs decision is also implemented with effect from the date of the SMPs decision. Where there is an appeal the police authority may delay implementing the SMPs decision until the outcome of the appeal, but on the understanding that any change will be back-dated to the point where the SMPs decision would have taken effect.

------------------------------------------------------------------------------------------------

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED

Assessing Degree of Disablement

Annex A

Degree of disablement 1. For the purposes of police injury awards degree of disablement

means the extent to which the SMP assesses a person's earning capacity has been affected by the relevant injury. The link with earnings is necessary because injury pensions are based on a system of "minimum income guarantee" designed to bring total income in retirement up to a certain level. The Regulations define degree of disablement as follows: 7. - (5) 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 as a member of a police force: Note that degree of disablement is always related to loss of earning capacity.

Table Degree of Disablement Gratuity as % of app Minimum income guarantee as % of average pensionable pay Less 5 or 15 or 25 or than 5 more but more more years' less than but less years' service 15 than service years' 25 yrs service service

NOT PROTECTIVELY MARKED

DRAFT
25% or less (slight disablement) More than 25% but not more than 50% (minor disablement) More than 50% but not more than 75% (major disablement) More than 75% (very severe disablement) NOT PROTECTIVELY MARKED 12.5% 15% 30% 45% 25% 40% 50% 60% 60% 70%

37.5%

65%

70%

75%

80%

50%

85%

85%

85%

85%

Note that, for example, a person with a degree of disablement of 35% at 10 years' service would have a "minimum income guarantee" of 50% of his or her average pensionable pay. The police authority would then deduct of any other police pension (e.g. an ordinary or ill-health pension) and any relevant benefit entitlements and pay the balance as a non-taxable injury pension. 2. In almost all cases it will be a matter for the SMP to judge the degree of

disablement in terms of bands. However where specific conditions are met the Regulations lay down that the degree of disablement should be 100%: 7. - (5) Provided that a person shall be deemed to be totally disabled if, as a result of such an injury, he is receiving treatment as an inpatient at a hospital.

How does the SMP calculate the degree of disablement? 3. An SMP may have difficulty in putting an exact figure on the extent to

which earning capacity has been affected by the relevant injury. The task is made easier by the fact that the degree of disablement column is divided into 4 bands - slight, minor, major and severe. Percentage differences within NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED these bands do not affect the award.

4.

The Regulations do not set out a specified procedure for assessing the

degree of a person's disablement. The Administrative Court has, however, commented that the task in assessing earning capacity is to assess what the person is capable of doing and thus capable of earning. It is not a labour market assessment of whether somebody would actually pay that person to do what he or she is capable of doing, whether or not in competition with other workers.

5.

In order to assess the degree of disablement the SMP will need to

consider by reference to the persons background, skills and qualifications what kind of employment he or she could undertake, allowing for the particular effects of the qualifying injury. The SMP should seek information from the police authority to help with this assessment. A relevant consideration is whether the person could manage that job full-time or would have to work part-time.

6.

There would then need to be a direct comparison between the person's

earnings when employed as a police officer and the potential earnings in an outside job. (If the person has actually found another job at the time of the assessment, there is an expectation that the SMP would take this factor into account. The officer should provide evidence of his or her current salary if this is the case. ) It is not necessary for the person to have found work for an assessment to be made of degree of earning capacity. Nor do earnings in a NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED current job necessarily accurately reflect potential earnings, if the present job is not commensurate with the person's experience, skills and educational qualifications. Although the relevant injury may have prevented the person from continuing to work as a police officer, where fitness standards are exceptionally high, the person may be fully capable of taking up other employment.

7.

If the person's employment prospects are such that he or she could

expect to earn, in an outside occupation, as much if not more than he or she was earning as a police officer, then the degree of disablement would be virtually nothing, which would place them in the "slight disablement" category. At the other extreme, if the person is incapable of earning any money because of the relevant injury he or she will have a degree of disablement in the very severe category. As noted, Regulation 7(5) provides that if the person is receiving hospital in-patient treatment as a result of the relevant injury, then he or she should be deemed to be totally (i.e. 100%) disabled for that period.

How is the comparison between outside earnings and police earnings made? 8. In all cases the police authority will ensure that the SMP is provided

with information about current outside earnings and the relevant job descriptions so that the persons earning capacity can be established in the light of the SMPs assessment of the persons capabilities after the injury. It is reasonable to use as a starting point the level of earnings in the UK as a whole. The fact that a person is living in a place of high unemployment or NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED abroad should not affect the issue of earning capacity as a result of disablement. The likely attitude of employers or of the labour market towards those suffering the physical or mental disability in question is also irrelevant to the question of earning capacity.

Where an application is made for an injury award at the same time or

immediately after medical retirement, the likely outside pensionable (or basic) earnings should be compared with the pensionable police salary earned when last serving and will not need to be adjusted for inflation. The police salary should include any competence related threshold payment given to the officer, since that is also pensionable. If the officer was not in receipt of a competence related threshold payment at the point of retirement no further account should be taken of it in his or her case. London weighting, which is pensionable, should also be taken into account if it is to be assessed against outside earnings with a pensionable London weighting allowance.

10.

The reason for using pensionable earnings for assessing both pre- and

post-retirement earning capacity is to arrive at the fairest and most robust measure of loss of earning capacity for the purpose of a pension which may be payable for a considerable period of time. Income from overtime, and other allowances, special priority payments or bonuses should not be taken into consideration either for the purpose of establishing pre-injury or postinjury earning capacity. Similarly income in the form of commissions may often be a clearer indicator of the current economic climate than the persons earning capacity. NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED Example If a person had earnings as a police officer of 25,000 a year and it is thought that he or she could now earn 20,000 a year, then the loss in earning capacity would be 5,000, which would be 20% and would place the person in the "slight disablement" category. 11. In the case of an after-appearing injury, or in the case of a review of

degree of disablement, the medical retirement may have occurred a considerable time ago. In such cases the former police pensionable salary should be revalued to current police pay levels to the equivalent point on the salary scale for the rank concerned. This will allow full account to be taken of the effect of inflation during the intervening period. No account should be taken of the amount of any police pension received by the person when considering a retired officers current earnings.

Degree of disablement after compulsory retirement age 12. Once a former officer reaches what would have been his or her

compulsory retirement age (CRA) under the Police Pensions Regulations it is no longer appropriate to use a police pay scale as the basis for his or her preinjury earning capacity. Prior to 1 October 2006, the CRAs were 55, 57, 60 or 65 depending on the persons force and rank at the point of leaving the police service. As of 1 October, the CRAs are 60 or 65 depending only on rank at the point of leaving the police service.

13.

The introduction of the new CRAs means that if the former officer NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED would not have been old enough to be compulsorily retired under the preOctober 2006 arrangements applying to his or her former rank and force, the police authority should use the new CRA when reviewing an injury award. If the former officer would have been old enough to be compulsorily retired under the pre-October 2006 arrangements, they should be reviewed on the basis of their pre-October 2006 CRA.

14A. In the absence of a cogent reason for a higher or lower outside earnings level, it is suggested that the basis for the persons earning capacity, had there been no injury, should be the national median earnings (from the Annual Survey of Hours and Earnings - ASHE) for the appropriate age group (e.g. the average earnings of the population over 60 age, where that applies). OR 14B. In the absence of a cogent reason for a higher or lower outside earnings level, it is suggested that the basis for the persons earning capacity had there been no injury should be the national mean average (from the Annual Survey of Hours and Earnings - ASHE) for the population overall.

15.

The ASHE figure taken should be for the population overall. It will be

for the SMP, after seeking such information from the police authority about the background to this case as he or she needs, to decide whether the ASHE figure can be used. This is because it is or needs to be increased in the light of the sort of work the person would have been expected to be capable of had he or she not been injured.

NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED Example If the ASHE figure is 22,000 a year and the former officer is capable of earning 13,200 a year, then the loss of earning capacity would be 8,800, which would be 40% and would place the person in the minor disablement category. 16. Once a former officer reaches the age of 65 he or she will have

reached State Pension Age irrespective of gender. In the absence of a cogent reason otherwise, the SMP may place the former officer in the lowest band of Degree of Disablement. At such a point the former officer would normally no longer be expected to be in employment. 17. It should be noted that while the default retirement age of 65 set in the

Employment Equality (Age) Regulations does not apply to police officers as office holders, it does apply to employees and that age remains one at which a former officer can be taken to be no longer economically active. However, each case needs to be considered in compliance with the Police Pensions Regulations and in the light of the individual circumstances. We consider that the Age Regulations add extra weight to the requirement in the Police Injury Benefit Regulations that each case which is reviewed should be considered on its merits and in the light of any points made on behalf of the former officer. Note - It is important that the correct procedures are followed in such cases in accordance with regulations 37 and 30 and that the issue is referred to the SMP for decision.

Apportionment 18. The Administrative Court has taken the view that a two-stage approach

is required in determining degree of disablement. First, the loss of earning capacity is to be assessed. Secondly, the SMP needs to determine the degree to which that loss is the result of a qualifying injury. The SMP NOT PROTECTIVELY MARKED

DRAFT
NOT PROTECTIVELY MARKED therefore needs to discount the effect of a non-qualifying injury and any other cause whether classified as an injury or not - e.g. a non-duty injury, and injury received through default, or some other cause. The focus of the regulations is not exclusively on contrasting duty and non-duty injuries.

19.

Before apportionment can arise each factor must separately have

caused some degree of loss of earning capacity on its own (see paragraph 20 below). In considering apportionment the SMP will therefore need to consider the issue of causation. This is a separate exercise from testing for entitlement for an injury award by reason of the injury causing or substantially contributing to the disablement. However, as in the case of determining whether disablement is attributable to a qualifying injury, the SMP will have to consider apportionment on the basis of the evidence and applying his or her medical judgement.

More than one medical condition causing loss of earning capacity 20. The simplest case of apportionment is where there are two separate

causes of loss of earning capacity, each making a contribution to the loss. Where, for instance, a person is disabled partly on account of a medical condition occasioned by a qualifying injury and partly by another medical condition , the degree of disablement must be assessed on the basis of an apportionment of the disablement to take account only of the condition occasioned by the relevant injury.

More than one injury within same condition causing loss of earning capacity NOT PROTECTIVELY MARKED

DRAFT
21. NOT PROTECTIVELY MARKED Apportionment may also be appropriate where there is no other

medical condition, as mentioned above, but where it is found that there has been more than one injury involved which causes loss of earning capacity and where not all the injuries were received in the execution of duty. In such a case the percentage of degree of disablement should be apportioned, applying the same proportion that the injury or injuries in the execution of duty have contributed to the loss of earning capacity as a result of the disablement.

22.

There is also the situation where loss of earning capacity is attributable

to a qualifying injury exacerbating a pre-existing condition. Apportionment is appropriate here only where the underlying condition, on its own, had also caused a loss of earning capacity. The suggested test is the question: Would there have been a loss of earning capacity but for the injury? Example If the officer was on a police salary of 30,000, a potential earnings capacity with all disabling conditions of 12,000 would result in a 60% loss of earnings capacity before apportionment. If another, unrelated condition has caused 25% of the loss, and a related but pre-existing condition has caused another 25%, the total reduction would be 50% of the original 60% which would equate to a degree of disablement of 30% (minor banding).

NOT PROTECTIVELY MARKED