Research Into Home Office Circular 46/2004 - Police Injury Pensions

8/8/2019 Research Into Home Office Circular 46/2004 - Police Injury Pensions

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Research Conducted into Home Office Circular 46/2004 Annex C

The following is the result of research conducted into Annex C to Home Officecircular 46/2004. It was initiated on the premise that the guidance contained in that

circular was so very obviously far removed from anything that was visible in the

Regulations or in any case law that it must be doubted. However, the research was

conducted with an open mind and did not seek to establish anything other than the

true facts.

Note: Since this paper was first published, a landmark case, in Leeds High Court, has

declared that the guidance contained in Annex C to Home Office circular 46/2004 is

unlawful. That judgement thus fully justifies and endorses the findings of this

research. The case is Crudance v. Northumbria Police Authority, Neutral Citation

Number: [2012] EWHC 112 (Admin) Case No: CO/2417/2011

Methodology

The research was conducted using requests made under the Freedom of Information

Act (FOIA). The majority of the requests for information were made via the charitable

web site whatdotheyknow.com. A few were made by direct email. Consequently, the

majority of the requests and the responses are available for public scrutiny. The data

obtained is in digital form but easily verified. Public bodies approached for

information were all police forces in England and Wales, some police authorities andthe Home Office.

Summary

On August 9th 2004 the Home Office issued its circular 46/2004 containing guidance

to Chief Police Officers concerning some aspects of the management and review of

police injury pensions. Annex C to the circular contained several recommendations

that have resulted in some police authorities seeking to reduce injury pensions on the

grounds that age is a factor that affects loss of earning capacity.

Around 17 out of the 43 Police Authorities in England and Wales have implemented

new policies and/or procedures based on the Home Office guidance. The majority, 26

Police Authorities, have used their discretion to disregard the guidance.

Disabled former police officers and their families have suffered maladministration,

stress, illness and financial loss as a result of the Home Office guidance.

Research has shown that the guidance in Annex C contained inaccuracies of fact and

contained what can only be called a deliberate attempt to mislead Chief Officers and

police authorities.

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The guidance is essentially an attempt to usurp the function of Parliament and the

courts, as it introduces an extreme and novel interpretation of legislation. The

guidance, where implemented, is arguably unlawful.

Background

In 2004 the Home Office issued guidance to Chief Police Officers and Police

Authorities concerning some aspects of the management and review of police injury

pensions. The guidance was Annex C to Home Office Circular 46/2004.

The guidance suggested that injury pensions could be reviewed and reduced to thelowest possible level at age 65 and also could be reviewed and reduced at normal

force retirement age by means of using the Annual Survey of Hours and Earnings

(ASHE)as a comparator to calculate payment instead of using police salary scales.

Note: The circular advised using the Average Earnings Index but this was laterrevised to ASHE. This raises a concern that if the comparator can be changedon a whim once, it can be changed again, and the next change could be to

something that further erodes the amount of pension payable. The authorbelieves that ASHE, nor any other comparator, has a place in the calculation of

police injury pension payments, but that is an issue for a different paper, and

perhaps ultimately for the Administrative Court or the Pensions Ombudsman.

These measures, if implemented by police authorities, would result in significant

savings from police budgets, as initially all former officers in receipt of an injury

pension who were approaching or already over the age of 65 could have their injury

pensions reduced to band one. Over time, all injury pensions would be reduced, either

at normal force retirement age or at age 65, thereby almost completely removing the

cost of injury pensions from the budget.

The measures suggested in the Home Office guidance have no basis in the legislation

governing police pensions.

Most contentiously, all the police authorities that have implemented new policies and

procedures have done so retrospectively to former officers already in receipt of an

injury pension. This is contrary to normal process and is unfair in the extreme. This

has resulted in many disabled former officers having little warning that their injury

pensions are to be reduced to band one.

Moreover, some police authorities took the guidance to indicate that they could

reduce injury pensions at age 65 by administrative action only. That is without any

reference of the statutory question regarding degree of disablement to the selected

medical practitioner.

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Time Line

From 1987, when the Police Pensions Regulations and Police (Injury Benefit)

Regulations became law, to approximately 2002, all forces and police authorities

managed police injury pensions with no concept of any age-related triggers for

review, nor any concept of using anything other than former police salary as a

comparator in calculating the amount paid.

During the late 1990s the Government became increasingly aware of a shift in the

demographics of the population. People were living longer and there were therefore a

higher proportion of people of pensionable age.

There was concern that pensions and other benefits could not be supported at presentlevels in future. A wide-ranging review process was implemented, where the burden

of all public service pensions was to be reduced.

Police pensions were amended in 2006 by the implementation of new legislation. This

legislation did not incorporate any elements of the guidance contained in Annex C,

which was issued in 2004.

Due to a change in taxation rules police injury pensions became payable out of police

authorities general funds in 2006.

Due to a provision of The Police Pensions Act 1976 (Section 3.2) new pensions

legislation that introduced a worsening of benefits could not be applied to any officer

or former officer without first securing their consent.

For some time before Home Office circular 46/2004 was issued, personnel from the

Home Office Police Finance and Pensions Unit were actively seeking to persuade

employees of police forces who were responsible for the administration of police

injury pensions that injury pensions could be reduced at age 65, or even earlier. This

appears to have been a sort of covert propaganda or misinformation campaign. It

largely fell on deaf ears. The venue of choice for this campaign was the National

Attendance Management Forum.

In 2002 the Metropolitan Police changed the way injury pensions were calculated,

through use of the ASHE data. It is not entirely clear what the Metropolitan Police are

currently doing. However, a FOIA response from the Metropolitan police stated:

Since approximately 2002 the MPS have been using this calculation and following a

review of the various procedures by the HO in 2004, this process was adopted as best

practice for all forces2.

On the 9th of August 2004 the Home Office issued circular 46/2004 and its Annex C.

This document advised all forces and police authorities that they could reduce injury

2 It was not.

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pensions to the lowest level at age 65. It also advised that at normal force retirement

age it was no longer appropriate to use police salary scales to calculate the amount

paid. Instead, the ASHE data would be used.

Following this guidance some forces and police authorities began to retrospectively

implement new policies and procedures, effectively aimed at reducing the cost of

police injury pensions.

The last Government was, in 2009, proposing and consulting on implementing new

legislation to govern police injury benefits. The proposal document contains elements

that are almost identical to the guidance in Annex C.

If it had progressed into legislation it would not have been be applied retrospectively.

Home Office Circular 46/2004 Annex C stated:

This Guidance is being issued to help ensure afairer, more cohesive approach to

the payment of injury benefits to ill-health retired officers who have reached the

compulsory retirement age with their Force. A recent survey found thatpractice inthis area was diverse. Some forces automatically reduced degree of disablement

benefits to the lowest banding when this age had been reached - others continued topay benefits at the same rate until the death of the Officer concerned.

It is clear that a more standardised approach is needed to safeguard the rights of theOfficer and ensure fair treatment across Forces.After consultation, the following

Guidance has been agreed: [The circular then goes on to detail the guidance]

The phrases in bold typeface are the focus of the research.

Hypothesis

The then Government, via the Home Office, had actively sought to provide a

mechanism for Police Authorities to reduce the cost of police injury pensions. HomeOffice circular 46/2004 Annex C contains guidance that encourages radical and

hitherto unheard of3 and unconsidered new approaches to the management and review

of injury pensions.

The assertions and assumptions contained in the circular were not grounded in fact,

nor in legislation. They were a manipulative distortion intended to move police

authorities in a direction that suited the Home Office.

3 Unheard of by police injury pensioners most of whom knew nothing about these measures until they

were presented as new policy by their police authorities, in most cases some years after the circular was

published.

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New policies and procedures implemented by police authorities and forces are based

on guidance given in Annex C that contained an inaccurate account of then current

practice and inaccurate guidance on the law.

There is a prohibition in The Police Pensions Act 1976 (Section 3.2) against

introducing any worsening of benefits without individual agreement, and because of

the general impossibility of applying new legislation retrospectively, the burden of

police injury pensions currently paid cannot readily be reduced by legislation.

The guidance was an attempt to overcome this difficulty by causing police authorities

to implement new policy that effectively made major changes to the relevant

Regulations and which police authorities would apply retrospectively. This would

allow the then Government to claim that current practice was closely aligned with

significant elements contained in their proposals for new police injury benefits

legislation.

Some Police Authorities, enthusiastically aided and abetted by their Chief Constables,

set aside their duty of care for their disabled former officers in preference to grasping

an opportunity to divert money from injury pensions into other areas. They failed to

exercise due diligence in testing the Home Office guidance for legal authority and

accuracy.

Research

In the autumn of 2008, four years after the Home Office issued its guidance in circular

46/2004 all 43 police forces in England and Wales were asked, using the Freedom of

Information Act:

[Home Office circular 46/2004 Annex C] identifies two categories of forces

A) one group that automatically reduced degree of disablement benefits to the lowest

banding when compulsory retirement age had been reached and a second group

B) that continued to pay benefits at the same rate until the death of the Officerconcerned.

I am attempting to identify and obtain a copy of documents that show which category(A or B) your force would have been included in prior to receipt of HOC 46/2004.

All 43 forces responded.

Of these, only one force placed themselves in category A prior to 2004. This was the

Metropolitan Police.

They introduced new policy in 2002. This effectively would have placed them incategory B if the question had used 2001 as the cut-off date.

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Some forces qualified their answers, but the researcher is satisfied that the essential

fact is that from this round of FOIA requests and responses it can be seen that all 43

forces were in category B before 2001, and 42 were in that category up to 2004.

They all continued to pay benefits at the same rate until the death of the Officer

concerned.

This fact is directly contrary to what is claimed in Annex C, that, 'A recent survey

found thatpractice in this area was diverse . . .'

A separate round of FOIA requests to all 43 police forces/police authorities in

England and Wales asked a different set of questions:

1)How many former officers of[your force] are currently in receipt

of an injury award pension, as provided for in the Police PensionsRegulations 1987 and the Police (Injury Benefit) Regulations 2006?

2)Do you operate a policy of reducing an injury award pension to

the lowest permissible band when the former officer reaches the ageof 65?

3)In the years 2004 to 2008 inclusive, how many former officers

injury award pensions were reduced to the lowest banding upon the

former officer reaching the age of 65?

4)In the years 1987 to 2003 inclusive, how many former officersinjury award pensions were reduced to the lowest banding upon the

former officer reaching the age of 65?

The purpose of this round of enquiries was to illuminate the position after issue of

Home Office Circular 46/2004.

42 forces responded.

In response to question 1 they reported that a total of 13,779 former officers were in

receipt of a police injury pension.

Answers to question 2 show that 17 forces/authorities now had a policy that aimed to

reduce injury pensions to the lowest permissible band when the former officer reaches

the age of 65.

Answers to question 2 also show that 25 forces/authorities had not fully implemented

policies in response to Home Office guidance some four years after the guidance was

issued.

Several of these responses contained further explanatory detail, including information

about partial implementation, concessions, or statements that they were consideringthe situation.

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Answers to question 3 showed that 64 injury pensions had been reduced to the lowest

level at age 65 between 2004 and 2008 inclusive.

Answers to question 4 showed that no injury pensions had been reduced to the lowestlevel by age 65 between 1987 and 2003 inclusive.

Note: Since this research was first published, more data has been

obtained, illuminating the number of reviews held between January 2005

and December 2010 this being the period from shortly after HOC46/2004 was issued to shortly before the Home Office advised that all

reviews be suspended.

The latest data shows that 10 forces conducted no reviews at all in that

period, whilst a further 5 forces reviewed less than 10% of injury

pensions. Four out of the 43 forces in England and Wales refused tosupply data. The 37 responses received revealed that 3159 injurypensions were reviewed and of those 1070 (33.87%) were reduced and

143 (4.53%) of reviewed pensions were increased whilst 1948 (61.67%)

remained unaltered.

The data shows that the situation during this period remained diverse,with some forces conducting what has been termed a 'more robust'

approach to injury pension reviews, with some forces deliberately

targeting reviews of pensioners at or over the age of 65. Other forcesseemingly only conducted reviews when good reasons to do so were

present. Only 22.7% of the entire population of injury pensioners facedreviews.

Conclusions of Research

From these responses it can be concluded that the data gathered in the first round of

research is validated in respect of the situation concerning management and review of

injury pensions prior to the issue of HOC 46/2004:

It is clear that from 1987 to 2003 not a single injury pension was ever reduced

as a result of the former officer attaining either normal force retirement age or

state retirement age of 65.

It beggars belief to think that all 43 forces/police authorities were ignorant of

the correct implementation of the relevant Regulations before the Home Office

issued its guidance. It is probable that they were not ignorant of the law, but

were applying it with proper use of the discretion allowed.

It is clear that a majority of forces/police authorities have decided not tofollow Home Office guidance.

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Significantly, the data shows that the Home Offices claim that practice inthis area was diversewas not an accurate reflection of reality.

Practice was, in fact, remarkably similar in all 43 force areas.

If the non-responding force is assumed to be in category A before 2002 then

the second round of validating research confirms that not a single force ever

reduced an injury pension for reasons connected with age until the Home

Office suggested it could be done.

Rather than promote a 'fairer and more cohesive approach' the effect of theHome Office guidance was to create a widely diverse and patently unfair

administration of police injury pensions, where the amount of pension paidafter age 65 was dependent upon which force former officers worked in.

More Research - A Recent Survey

The data resulting from the two rounds of FOIA enquiries and their responses

focussed attention on the recentsurvey mentioned in Annex C. (A recent survey

found thatpractice in this area was diverse.)

The survey is mentioned in such a way as to lead the reader to conclude that the data

set produced by the survey underpinned the assertion that practice was diverse that

some forces reduced pensions to the lowest band at compulsory retirement age, and

some did not.

This would have been impossible, as any recentsurvey results from 2004 wouldconflict directly with the data obtained by the FOIA research. There was no diverse

practice.

Further, it can be inferred that, as the authors of Annex C chose to mention a recentsurvey, then it must have been the most comprehensive, most accurate, and most upto date data set available. Also, it is unlikely, to the point of improbability, that the

authors would base their assertion that practice was diverse on anything other than the

best current information available.

Unless

Either the survey was an invention and did not exist, or it did exist but did not show

the position that the Home Office wished to show and was therefore deliberately

misquoted.

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A search of the Internet revealed that an earlier FOIA request to the Home Office on a

related issue had been made and responded to1. The Home Office had been asked, in

relation to HOC 46/2004 and its Annex C:

What legal advice was sought when retrospectively applying this advice to

pensioners already in receipt of a lifetime pension?

What agreement was sought through the Police Negotiating Board (PNB), if any?

What surveys were undertaken, when and the results please?

If agreement was not sought through the PNB could I have the minutes of the meeting

that sanctioned such advice?

Was this ever put against the HRA [Human Rights Act] as with Equality andDiversity issues, to ensure compliance?

The Home Office response was:

The ability for police authorities to review injury awards has been in the regulationssince they were made in 1987. Home Office Circular 46/2004 gives guidance

regarding the process of reviewing injury awards and was issued to ensure a fairerand more consistent approach from all police authorities when reviewing injury

pensions. This clarification of the situation in the Circular does not constitute

retrospection.

No legal advice was sought specifically on circular 46/2004. Legal advice is not

routinely sought when a Home Office Circular is issued unless there is a change tothe regulations or some specific point which needs legal clarification.

Agreement was sought with the Police Negotiating Board (PNB) that a fair, clear andconcise guide for forces would be produced when undertaking reviews of police

injury pensions. The Home Office looked to strike a balance between, on the onehand, ensuring consistency as far as possible and, on the other, being over-

prescriptive.

There was one survey, which was referred to in the guidance, which would have been

conducted as part of a round the table discussion at the National AttendanceManagement Forum. The minutes and results from these meetings are not published.

The Home Office guidance was issued following written consultation with the

constituent parties of the PNB. It is for the PNB to decide whether to make public anyminutes of its meetings. The Home Office does not hold records of the dates the

contents of the HOC were decided or approved in the Home Office.

1 The FOIA request was made in August 2006. It is, at the time of writing, still viewable on line at:

http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/foi-

archive-crime/3733-police-injury-awards?view=Html

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http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/foi-archive-crime/3733-police-injury-awards?view=Htmlhttp://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/foi-archive-crime/3733-police-injury-awards?view=Htmlhttp://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/foi-archive-crime/3733-police-injury-awards?view=Htmlhttp://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/foi-archive-crime/3733-police-injury-awards?view=Html


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The Police Negotiating Boards website -

http://www.lge.gov.uk/lge/core/page.do?pageId=54117

provides information on the date of the meeting in which the PNB agreed that

guidance on the management of ill-health retirements should be published. Therelevant PNB Circular is 03/19. This website does not hold records of the minutes of

meetings.

Any policy is considered in the light of the Human Rights Act and equality and

diversity issues but this matter raised no specific issues. In particular, there were noretrospective changes to the regulations that the guidance was based on.

At this point, it can be hypothesised that the recentsurvey mentioned in Annex Cmight possibly not be a well conceived, well conducted and methodologically sound

survey.

A round the table discussion may produce some useable data, but the quality of that

data would depend on a number of factors, including the quality of the information

available to those taking part and would also depend for completeness on the number

of forces represented at the meeting.

Accordingly, further FOIA requests were made, directed to the Home Office.

An initial request revealed that the National Attendance Management Forum was in

the practice of meeting at the Tally Ho! Training centre of West Midlands Police.

A further request to the Home Office elicited the response:

The survey was part of round the table discussions at the NationalAttendance Management Meeting at the West Midlands Police.

From this it can be seen that the Home Office has shifted from its statement that the

survey resulted from a singular round the table discussion to it being the result of an

unspecified number of discussions over a period of time. This would seem to furthererode any claim that this was a properly conducted survey.

FOIA requests were made to West Midlands Police and produced edited copies of

minutes resulting from the seven meetings of the National Attendance Management

Forum held from January 2001 to April 2004 where police injury pensions were

discussed.

The minutes did not reveal anything that could be interpreted as round the tablediscussions about then current practice concerning reviews of police injury pensions.

The Home Office was then asked to identify the dates of the meetings when theround the table discussions took place. They were unable to do so, and stated,

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There is no further information available as the West Midlands Police provided allthe relevant dates.

The Home Office was also asked:

In Annex C to Home Office Circular 46/2004 the following was stated:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the

payment of injury benefits to ill-health retired officers who have reached the

compulsory retirement age with their Force. A recent survey found that practice in

this area was diverse. Some forces automatically reduced degree of disablement

benefits to the lowest banding when this age had been reached - others continued to

pay benefits at the same rate until the death of the Officer concerned .'

I am requesting that you supply me with a list of the forces that, according to the'recent survey' that is mentioned, automatically reduced degree of disablementbenefits to the lowest banding when compulsory retirement age with those forces had

been reached.

The Home Office replied, The Home Office does not hold this information.

This can only be an admission that the Home Office never had any information

whatever that any force automatically reduced degree of disablement to the lowest

band at compulsory retirement age.

The Home Office was also asked to produce any documents, notes, etc. resulting from

the round the table discussions at the meetings of the National AttendanceManagement Forum that would have been used to construct the recentsurvey.

The Home Office replied, After a thorough search we have not been able to trace

any notes taken prior to or after these meetings.

The Home Office also advised:

I understand that the West Midlands Police have responded to you with various

extracts from meetings that refer to the round the table discussions which tookplace at the National Attendance Management Meetings at the West Midlands Police.

These discussions were referred to in Annex C as the survey. There was no further

survey that took place.

One list of delegates at one meeting was obtained. It showed that Mr John Gilbert of

the Police Finance and Pensions Unit of the Home Office, whose name appears as the

author of Home Office Circular 46/2004, was a delegate. His name appears in several

of the edited minutes of other meetings. The other delegates were mainly civilian and

police staff employed in Personnel or Human Relations Departments of police forces.

At the meeting for which the researcher has the list of delegates only 28 of the 43police forces in England and Wales were represented.

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One notable minute of a meeting held on the 9 th of October 2002 records that the

Home Office had circulated a letter to all forces, dated 8th July 2002, concerning

payment of injury awards to officers over normal force retirement age. I quote:

This [letter] affectively advises that forces can use the lowest banding for awards

from age 60. A discussion followed on how to handle existing cases in the system andthe potential for public relations problems if the issue is handled badly and/or forces

take different approaches/ policies. It might be better to look at all new cases and

give claimants notice from the outset on the likely position at age 60.

A copy of the 8th of July 2002 letter was obtained.

From Michael Ruff of The Police Pensions and Retirement Policy Section of the

Home Office, it states:

As it appears that the Regulations do not currently permit an injury award to becancelled merely because of the age of the pensioner, we have in the past advised

that police authorities may wish to consider using the lowest banding for injury

awards from age 60 because of the expectation of lower earnings from this age.

(Note: The Regulations require that an injury pension is paid at a level indicated by

degree of disablement. It is not paid at a level that is indicated by an expectation of

lower earnings. Degree of disablement is the extent to which the former officers

earning capacity not earnings - has been affected by the relevant injury. Only the

relevant injury can be considered when assessing earning capacity. Age is an

irrelevant factor and cannot be considered.)

The Home Office was asked about this letter and replied, The letter of 8 July refers

to a review of the police injury awards system which in fact did not go ahead in2002.

It may 'refer to a review' as claimed, but it clearly evidences that the Home Office had

for some time prior to July 2002 been advising that injury pensions could be reduced

on review from age 60.

The edited minutes of meetings of the National Attendance Management Forum andresponses from the Home Office provided nothing that helps identify the recent

survey mentioned in Annex C. To all intents and purposes it never took place. The

Home Office was unable to produce a shred of evidence that would prove that the

survey took place. The guidance referred to a 'recent survey' yet the Home Office can

not produce any data that resulted from any such survey.

The minutes and FOIA responses tend to show that the Home Office was actively

guiding, directing and influencing those people directly tasked with managing police

injury pensions, and were doing it in a way that apparently effectively removed these

events from the normal consultation process involving the bodies charged with

representing the interests of serving and retired police officers. A behind closed doorscampaign to make it appear legal and acceptable to reduce injury pensions on grounds

of age had been undertaken since some time before 2002.

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Annex C to Home Office Circular 46/2004 contained guidance that advised a

dramatic departure from established policy and practice, and recommended actions

that are unlawful in respect of the review of injury pensions. Therefore, it was felt to

be important to attempt to trace the origin of the guidance.

Accordingly, as his name appears as signatory to the guidance, the following request

was made to Mr. John Alexander Gilbert, a civil servant who was then Head of the

Police Pensions and Retirement Policy Section at the Home Office. Mr Ian Moire of

that Section provided the answers, shown in italics:

I am making a request to you under the terms of the Freedom of Information Act.

Essentially, I am asking the Home Office for information, but as I know that you havehad a long-standing personal involvement and knowledge of the subject of my

request I felt it best if I approach you direct.

Your name appears on Home Office Circular 46/2004.

1) Would you please advise me if this means that you were the author of the abovecircular and its Annexes?

Mr Gilbert did approve the Circular and the annexes although the content of the

documents were drafted by members of the pensions team.

2) Could you please describe in brief detail how the circular was written? In particularI would like to know if the author sought expert legal advice or if any referencedocuments were consulted such as statutes, case law, etc. etc.

The Circular was written on the basis of providing clear and concise guidance to

police authorities on the process of reviewing police injury awards. There are noparts of Home Office Circular 46/2004 which have statutory effectand the guidance

was designed to fit in with the Police Pensions Regulations. We do not hold anydocumentary evidence with regard to legal advice or references to statutes or case

law.

3) I would also like to know who authorised the circular for release?

Mr Gilbert authorised the circular for release.

I am aware that certain concepts presented in Annex C of the circular were beingpresented by the Home Office at meetings of the National Attendance ManagementForum, held at the West Midlands Police Tally Ho! Training Centre, some yearsbefore they appeared in circular 46/2004. In particular, I refer to the concept of itbeing acceptable for police authorities to consider reducing police injury awardpensions to the lowest band at normal force retirement age and at age 65.

I have a copy of a letter dated 8th July 2002, signed by Mr Michael Ruff of the PolicePensions and Retirement Policy Section of the Home Office that was circulated to

delegates of the above Forum. It states,

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As it appears that the Regulations do not currently permit an injury award to be

cancelled merely because of the age of the pensioner we have in the past advised that

police authorities may wish to consider using the lowest banding for injury awards

from age 60 because of the expectation of lower earnings from this age.

4) Could you please provide any and all documentary evidence of the advice that MrRuff stated had been given in the past?

Under section 12 of the Act, the Home Office is not obliged to comply with any

information request where the prescribed costs of supplying you with the informationexceed 600. The 600 limit applies to all central government departments and is

based on work being carried out at a rate of 25 per hour, which equates to 3 dayswork per request. Prescribed costs include those which cover the cost of locating and

retrieving information, and preparing our response to you. They do not include

considering whether any information is exempt from disclosure, overheads such asheating or lighting, or disbursements such as photocopying or postage.

We have estimated that the cost of answering your request in question 4 would exceed

the 600 limit and we are therefore unable to comply with this request. To confirm

whether there is any documentary evidence which fits in with this request wouldrequire a manual check of a large number of archived files.

In order to assist you and to ease your workload in responding to this request, thefocus of my request is to understand how the concept of age-triggered review andreduction of injury pensions arose. It clearly started somewhere, and I ask that you

provide me with a clear and unambiguous answer to this question:

5) Where, when and by whom, and in what form did the concept originate? Forexample, is there some case law, legal opinion, learned advice or the conclusions ofa committee, politician or other individual or body that was the source of the concept?

Home Office Circular 46/2004 was drafted following round the table discussions at

the quarterly Management Attendance Meetings at the West Midlands Police. Thesemeetings were attended by representatives from all police forces to discuss various

issues relating to the management of ill-health within the police service. Although the

Annex in the Circular refers to a survey on ill-health the survey was part of these

discussions.

Next, the researcher was interested in what involvement the official representatives of

serving and retired officers had in the formulation of the Home Office guidance, given

that the Home Office claimed that consultation had taken place.

The pay and terms of conditions of all UK police officers are negotiated through the

Police Negotiating Board (PNB). Local Government Employers provides the

Employers' Side of the PNB while the Police Federation, the Superintendents

Association and the Chief Police Officers Staff Association represent the Staff Side.

Notably, the National Association of Retired Police Officers (NARPO) is notrepresented on the PNB. It need not be, for the PNB is concerned with the pay and

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conditions of employment of serving and future retirees, not currently retired former

officers.

The Home Office had stated in answer to a FOIA question (above - HO Ref. FOI3773):

Agreement was sought with the Police Negotiating Board (PNB) that a fair, clear

and concise guide for forces would be produced when undertaking reviews of police

injury pensions.

However, at a meeting of the National Attendance Management Forum held on the 6 th

April 2004 (only four months before Home Office circular 46/2004 was issued) Linda

Van Den Hende of the Metropolitan Police advised about her concerns regarding lack

of consultation with the Police Negotiating Board, the Association of Police

Authorities and the Association of Chief Police Officers.

Tellingly, Mr Elliott, Chief Executive Officer of NARPO, who was a Police

Federation member of the PNB at the relevant time, has said, in reference to Home

Office Circular 46/2004 and its Annex C:

The PNB did not agree the Circular. It is a Home Office Circular. The PNB didagree a joint circular on 'Improving the Management of Ill Health'. This circular . . .[is] the PNB Circular which is number 03/19. This joint advice from the PNB is about

managing 'ill health' not specifically about the management of injury pensions.

Mr Elliott was further asked:

As you were on the staff side of the PNB at the relevant time could you please

comment on the Home Offices statements, in response to a Freedom of Information

Act request, that:

Agreement was sought with the Police Negotiating Board (PNB) that a fair, clear

and concise guide for forces would be produced when undertaking reviews of police

injury pensions.

And;

The Home Office guidance was issued following written consultation with the

constituent parties of the PNB.

You will note that the HO says that agreement was sought. Was it in fact actually

obtained? If so, could you please advise me how I can get a copy of the minutes of the

relevant PNB meeting/s? Do you have any comment to make on the Home Office

statement?

Can you shed some light on the written consultation? What exactly does this mean?

Can you please advise me how I can get a copy of this written consultation? Do youhave any comment to make on the Home Office statement?

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Mr. Elliott replied:

There was no agreementat the PNB about the circular . . . that is not surprising as

it was not discussed. The second comment is very revealing as it in a wayacknowledges that no agreement was reached at PNB on this topic as if agreement

had been reached or detailed discussion taken place then there would have been noneed to write to the constituent parties as part of a consultation' exercise. I have

spoken to the Federation and they have no record of any detailed correspondence on

this topic from the Home Office or to the Home Office.

Conclusions

It seems that the Home Office has been economical with the truth on three separate

occasions. The first two were a statement about a recent survey that did not exist and

a misrepresentation of the facts in Annex C to HOC 46/2004. The third was the way

that it was claimed that agreement to the circular and, by implication, its contents had

been secured with the PNB.

Dealing firstly with the latter situation, it can be noted that the Home Office does not

state that agreement had been reached, only that it had been sought. This subtle use of

language is classic obfuscation. It appears to be saying one thing by allowing the

reader to draw a false conclusion. It is deliberate and calculated misdirection.

Clearly, from the evidence of an impeccable witness, who was present at

the PNB meetings, whose recollection is confirmed by the Police

Federation, the Home Office neither sought nor secured agreement with

the PNB over the content of HOC 46/2004 and its Annex C.

The PNB is concerned with future arrangements. It is not constituted, nor authorised,

to negotiate any retrospective alterations to the management of police injury pensions

affecting former officers already in receipt of an injury pension. Its role is necessarily

prospective, not retrospective. The PNB has no remit to negotiate on behalf ofexisting injury pensioners.

It can be seen, however, that there was piecemeal discussion between the Home

Office and various employees of police forces on the occasions of the various

meetings of the National Attendance Management Forum. The force employees were

not official representatives of serving or retired officers and had no authority to enter

into any agreement, consultation or negotiation on their behalf.

No representatives of the Police Federation or of NARPO were present at meetings of

the National Attendance Management Forum.

The role of delegates to the NAMF should have been confined to administrative

arrangements on matters concerning sickness rates, etc. When the discussions turned

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to the management of existing police injury pensions by the introduction of novel and

radical new policy including age-related triggers for review and the reduction of

pensions to the lowest band at certain ages the delegates arguably overstepped their

authority.

The guidance in Annex C was issued without consultation a deficiency

that the Home Office has sought to redress by giving the false impression

that the PNB agreed to it.

The Home Office is not obliged to consult before issuing guidance.

However, lack of consultation is not the chief issue. The Home Office

claimed it had consulted the PNB when in fact it did not.

The only consultation was in fact, with delegates to the National

Attendance Management Forum an unelected body with no mandate to

involve themselves in agreements concerning retired former police

officers.

Next, dealing with the matter of the lies apparent in Annex C: the reality of the

situation concerning the management and review of police injury pensions prior to the

issue of HOC 46/2004 and its Annex C was diametrically opposed to the Home

Offices claim that practice was diverse.

In fact, the research shows that, in 2004, 42 out of 43 forces all

consistently followed the same practice, which was to continue to payinjury pensions without any consideration of age-related triggers for

review or reduction. Only the Metropolitan Police did otherwise.

This situation did not represent diverse practice.

A majority, 25 forces/police authorities, have chosen to not implement new policies

and procedures based on the guidance contained in Home Office circular 46/2004

Annex C.

It seems probable that the Home Office guidance was a deliberate misguidance, in

that it gave a false and misleading impression that there was support amongst policeauthorities and forces for age-related triggers for reductions in injury pensions, when

in fact there was no support, other than possibly in the Metropolitan Police.

A few police authorities, notably Cleveland in 2002, had explored the idea of

introducing age-related triggers for reductions in injury pensions, but had rejected the

concept.

The suggestion, prior to the guidance being issued, that the Metropolitan Police

approach had been accepted as best practice was not an accurate statement of fact.

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Even now, some seven years after the Home Office guidance was issued, the fact that

25 police authorities have not implemented new policy, seems to indicate that they

have concerns over the validity, legality and propriety of the guidance.

The Home Office has been unable to produce any documentary evidence

that the recent survey either took place as described or actually existed

in any form whatever. A series of round the table discussions does not

come anywhere near to qualifying as a survey.

The National Attendance Management Forum delegates did not include

any members of the Police Federation or of NARPO. Views and opinions

expressed by delegates were therefore not balanced by views and opinions

of elected representatives of serving and retired officers. If the Home

Office guidance was based almost entirely on this unrepresentative body

of opinion, as appears to be the case, then it must be treated as tainted

with strong elements of bias.

There is a strong suspicion that the Home Office delegates at the National

Attendance Management Forum actually initiated the concepts of age-

related triggers for review and reduction of injury pension and use of the

ASHE data as a comparator for calculating levels of payment.

There is no evidence that shows that the delegates of the National

Attendance Management Forum ever voted on these concepts and

proposed measures, or showed any enthusiasm for them.

The Home Office, in its guidance, wrote with complete authority about a

'recent survey'and what it showed but did this without an iota of

supporting data. The Home Office has been invited to provide the data,

but has admitted that none exists.

The Home Office does not have, and presumably never had, any

information about any forces that automatically reduced injury pensions

at normal force retirement age. This is confirmed by the answer given to

a FOIA question, that the Home Office does not hold information on

which forces by 2004 automatically reduced injury pensions at age 65.

West Midlands Police provided edited minutes of the meetings of the

National Attendance Management Forum and those minutes do not

record any 'round the table discussions'having taken place on the matter

concerned.

It is odd that the Home Office felt able to give guidance to police authorities and

Chief Officers on such an important measure when it was, on its own admission, not

in possession of a shred of evidence to show that any force area actually did operate a

policy to reduce injury pensions.

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It seems reasonable, given the evidence, to now conclude that the 'recent

survey'never existed and was merely an invention, added to Annex C

guidance in order to give apparent weight to the suggestion that it was

common practice to reduce injury pensions at normal retirement age.

The Home Office assertion that practice in this area was diverse is a

complete untruth.

The Home Office guidance contained in Annex C is therefore highly

suspect.

It was issued without any legal advice having been provided.

Guidance issued without any supportive evidence is reckless in theextreme. If guidance is issued that deliberately states a set of circumstances

that in fact did not exist then that guidance is manipulative and perverse.

Guidance from the Home Office that rests its case for arguing a certain

course of action on a provably untrue assertion of then current practice

should be treated with the utmost caution.

Police authorities do not have to follow Home Office guidance and in the

case of HOC 46/2004 Annex C they would seem to have a more than

adequate reason to reject the guidance as unsound.

Any police authority or Chief Constable that becomes aware that they

have been manipulated by the guidance contained in Annex C should

certainly reconsider any decision that may have been taken to implement

new policy and procedure resulting from the guidance.

Far from producing a fairer and more cohesive approach the Home

Office guidance has resulted in a patchwork of differing approaches

effectively meaning that the level of the injury pension paid after normal

force retirement age and after age 65 depends entirely on which force the

former officer belonged to.

This is not a fair and cohesive way to conduct the management of injury pensions that

are regulated by legislation applicable to all 43 police authority areas.

Before the Home Office issued its guidance all force areas were arguably operating a

fair, proportionate, legal and cohesive approach to the management and review of

injury pensions, and were doing so totally within the letter and the spirit of the

Regulations. There was no need, nor any popular demand, for any changes to the way

things were being done, save perhaps within the Metropolitan Police.

The Home Office guidance has persuaded some venal police authorities and ChiefConstables to implement new policies that arguably breach several areas of

legislation.

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Why Did the Home Office Lie?

As with much research, answers suggest new questions. One such question must be,

Why did the Home Office lie?

The usual purpose for telling a lie is either to avoid an unfortunate consequence or to

obtain an advantage that telling the truth would not bring.

In the case of Annex C guidance, I feel that it is reasonable to draw the conclusion

that it was the latter.

I doubt that anything short of a Parliamentary enquiry will be sufficient to bring forththe reason for the Home Office choosing to mislead and misdirect police authorities,

so no research has been done to test the hypothesis, which is this:

The Home Office wished to encourage police authorities to implement new policy and

procedures for the management of police injury pensions so that they could claim that

proposals for new legislation governing police injury benefits were merely a

housekeeping exercise, reflecting established practice, thus easing the passage of new

injury benefit legislation through Parliament.

In August 2008 the Home office issued a consultation paper entitled Review of

Police Injury Benefits. Some of the key features proposed are almost identical to

those found in Home Office circular 46/2004 Annex C.

Before examining the similarities it is necessary to note that Mr. Coaker, then

Minister of State for Policing, Crime and Security, who penned the introduction to the

proposal document, has stated in a letter I have to hand, that . . . we are currently inthe process of a policy review of the police injury system (the first such review). While

any changes would not apply to existing pensioners it is certainly possible that the

debate that results from the public consultation exercise may help us to evaluatewhether the current guidance could usefully be revised.

This raises an alarming consequence. If the public consultation exercise resulted in

the abandonment of age-related triggers for review and reduction of injury pensions

and rejection of the ASHE data as a comparator, then all former officers who have

had their pensions reduced as a result of Annex C would have been dealt with in a

way that would not become enshrined in legislation.

The legitimacy of age-triggered review and reduction and use of the ASHE figures as

a comparatordoes not rest within current legislation. Their only claim for

legitimacy arises from the Home Office guidance, and that, now discredited,

guidance may well have been amended due to consultation concerning what was then

proposed future legislation. Due to the general election, we shall never know whatmight have transpired. We do know that the then Policing Minister, Mr. Hanson,

promised that the guidance would be 'reviewed'. As far as the researcher knows that

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intention still stands. In March 2010 the Home Office advised all forces to suspend all

reviews pending the result of two appeals in the High Court surely an admission that

the guidance is intensely suspect.

The Pensions Ombudsman, in a recent determination in the case of AYRE vs.

Humberside Police Authority has stated that,

But the Scheme is governed by Regulations and Mr Ayre is right when he says that

the Guidance cannot override the relevant Regulations, as HPA accepts. Although Iagree with HPA that I should adopt a common sense and purposive interpretation of

the relevant Regulations I cannot go beyond that. Such an approach does notextend to imposing a meaning on the Regulations that they do not hold even if

that meaning is the one that HPA (and possibly Home Office) think that the

Regulations should in all logic hold.

In other words, the Home Office, in Annex C, was indulging in wishful thinking. It

advised actions that it would like to be allowable by the Regulations, but those

actions are not in fact supported by the Regulations.

It should be kept firmly in mind that any new legislation that might have arisen from

the proposals made by the former Government, and any that may be made by the

present Government cannot, and will not, be applied retrospectively. In other words,

former officers already in receipt of an injury pension would not have to face age-

triggered reviews and reductions, nor the ASHE comparator.

This raises a most pertinent question:

If new legislation containing provisions for injury benefits cannot be applied

retrospectively, then how can it possibly be legal, proportionate, or even

appropriate for almost identical provisions to be applied retrospectively merely

by reference to Home Office guidance?

Further, if new legislation is needed to bring in these new approaches, then how can

the Home Office claim, The Circular reflected long-standing legislation andintroduced no new provisions.4? It clearly did introduce new provisions and

provisions so novel and extreme that they need to be included in proposed futurelegislation.

If age-related triggers for review and reduction of injury pensions are

somehow hidden in existing legislation, and only revealed by the

guidance, then there would be no need for them to have been written into

proposed new legislation.

The 2006 Regulations provided an opportunity for the Government to

include the concepts contained in Annex C, yet this opportunity was

passed by.

4 Quote from a letter dated 13 th June 2009 from the Rt. Hon. David Hanson MP, Minister of State for

Policing, Crime and Security

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These matters, which would surely would have been debated vigorously when the

proposed new legislation was to be steered through Parliament, are arguably the

driving motivation behind the Home Offices attempt to manipulate police authorities

into implementing policy and procedures conforming to features contained in theirhighly contentious and mendacious guidance.

The Home Office would no doubt have preferred that its proposals passed into law

with as few obstructions as possible. Its purpose would have been met by being able

to say that established practice was already in line with proposed new legislation, thus

easing its process through Parliament. If the Government had not issued circular

46/2004 this would not have been the case.

The circular was the culmination of several years of mostly abortive behind closed

doors lobbying and manipulation, notably via the National Attendance Management

Forum. It was a last, desperate attempt to achieve a difficult task that of persuadingright-minded and moral folk to do something that was of questionable morality and of

arguable legality.

Those police authorities that have resisted can be rightly congratulated for exercising

common sense and humanity. Those police authorities that have been blinded by the

lure of taking money from injury pensions and spending it elsewhere have already

been judged and found wanting by their disabled former officers, and others. These

police authorities may well yet be judged further and found derelict in law. (Note: and

now, at last, this is happening.)

Comment: Interpretation Of Legislation

In a significant departure from normal democratic process, the Home Office avoided

consultation with official representatives of serving and former officers and also used

inaccurate and misleading information to encourage police authorities to implement

new policies and procedures that amount to a change in the relevant legislation.

Implementation of new policies and procedures by police authorities regarding the

review and management of police injury pensions that includes age-related triggers

for review and reduction and other aspects not visible in the relevant legislation would

seem to place those authorities in the position of acting ultra vires acting beyondtheir legal powers.

A recent determination by the Pensions Ombudsman, in the case of AYRES, has

shown that consideration of age as a factor in determining loss of earning capacity is

unlawful:

There are no special provisions in the Regulations relating to degree of disablementat age 65. The degree of disablement at that age remains to be determined solely by

reference to the degree that earning capacity has been affected.

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Police authorities have used an extreme and novel interpretation of the Regulations, as

advised by the Home Office, to implement new policies and procedures.

Interpretation of legislation is solely the prerogative of the Courts.

Lord Simonds, in the case of Magor & St Mellons RDS v Newport Corporation(1952) made clear that it should be noted that statutory interpretation does not extendto reading words into the statute to rectify or change an Act. It is generally held that

the courts cannot fill in the gaps. He said, 'If a gap is disclosed the remedy lies in anamending Act' as for a judge to do otherwise is a 'naked usurpation of the legislative

function under the thin disguise of interpretation'.

In the case of Royal College of Nursing v DHSS (1981) Lord Denning said, ... I feelthat we as judges must go by the very words of the statute - without stretching it one

way or the other - and writing nothing in which is not there.

If it is unwise for a judge to creatively interpret legislation, then how much more so is

it unwise and undemocratic for a Government department or a police authority to

produce extreme and novel interpretation - solely for the purpose of saving money?

This is venal behaviour completely unbecoming of a public authority.

There is no mention of any age-triggered review process in the Regulations, nor is

there the slightest indication that the injury pension can be reduced because earning

capacity might automatically diminish at age 65. The Regulations are quite clear the

injury pension is payable for life, at a rate that is determined by loss of earning

capacity occasioned by the injury on duty.

The recently departed Government, and some police authorities, may not

like the way the Regulations are worded. However, it is not for the

Government, nor for police authorities, aided and abetted by Chief

Constables, to effectively amend legislation by means of Home Office

circular and retrospectively applied new policy and procedure.

Comments on this document are welcomed and can be sent to

[email protected]

Research Into Home Office Circular 46/2004 - Police Injury Pensions

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Transcript of Research Into Home Office Circular 46/2004 - Police Injury Pensions