Police Injury Pensions - Draft Revised Home Office Guidance

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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 person’s 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.


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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 person’s 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 pensioner’s disablement

has altered; and if after such consideration the police authority finds that the

degree of the pensioner’s 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 person’s disablement and to consider

whether, in the light of the SMP’s decision, “the degree of the pensioner’s


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NOT PROTECTIVELY MARKEDdisablement has substantially altered”. If so, the pension must then be revised

accordingly.

2.3 Regulation 7(5) provides that the degree of a person’s 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 person’s disablement when an injury award

is first made, a three stage process is necessary:

(i) the SMP must make an assessment of what the person’s earning

capacity would have been at that point had there been no injury;

(ii) the SMP must assess the person’s 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 person’s actual level of

earning capacity under part (ii) of the process described above is not an

assessment of a person’s loss of earning capacity as a result of the duty

injury, but an overall assessment of the person’s loss of earning capacity as a

result of their disablement. In some cases that distinction may not have

practical effect because the person’s disablement will have arisen entirely as

a result of the duty injury. In other cases loss of earning capacity may be as a


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NOT PROTECTIVELY MARKEDresult 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

person’s 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.


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NOT PROTECTIVELY MARKED3.2 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 officer’s 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.


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NOT PROTECTIVELY MARKEDReview 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


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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 officer’s 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 officer’s 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 officer’s 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 officer’s doctor. The police authority is entitled to refuse a review if the

request is not endorsed by the former officer’s doctor.

4.9 Where an application is accepted the process for review is as

described at paragraphs 4.5 – 4.7 above


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NOT PROTECTIVELY MARKED5. 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 person’s 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.


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

been:

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 person’s 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 individual’s 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


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NOT PROTECTIVELY MARKEDdifferent 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:


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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 person’s 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 SMP’s 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 SMP’s opinion of what that was on the

balance of probabilities);

the changes to the underlying circumstances that have

occurred in the interim; and,


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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 SMP’s 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 SMP’s decision. Where the SMP’s decision is overturned on appeal,

the PMAB’s decision is also implemented with effect from the date of the

SMP’s decision. Where there is an appeal the police authority may delay

implementing the SMP’s decision until the outcome of the appeal, but on the

understanding that any change will be back-dated to the point where the

SMP’s decision would have taken effect.

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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 person’s

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 ofDisablement

Gratuity as % of

appMinimum income guarantee as % of

average pensionable pay Less

than 5years' service

5 or more butless than

15years' service

15 or more

but less than

25 yrs’ service

25 or moreyears' service


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NOT PROTECTIVELY MARKED25% or less (slight disablement)

12.5% 15% 30% 45% 60%

More than 25% but not more than 50% (minor disablement)

25% 40% 50% 60% 70%

More than 50% but not more than 75% (major disablement)

37.5% 65% 70% 75% 80%

More than 75% (very severe disablement)

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 ¾ 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 in-

patient 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


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NOT PROTECTIVELY MARKEDthese 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 person’s 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


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NOT PROTECTIVELY MARKEDcurrent 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 person’s earning capacity can be established in the

light of the SMP’s assessment of the person’s 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


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NOT PROTECTIVELY MARKEDabroad 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.

9 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 post-

injury earning capacity. Similarly income in the form of commissions may

often be a clearer indicator of the current economic climate than the person’s

earning capacity.


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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 officer’s 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 pre-

injury earning capacity. Prior to 1 October 2006, the CRAs were 55, 57, 60 or

65 depending on the person’s 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


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NOT PROTECTIVELY MARKEDwould not have been old enough to be compulsorily retired under the pre-

October 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 person’s 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 person’s 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.


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NOT PROTECTIVELY MARKEDExample

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


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NOT PROTECTIVELY MARKEDtherefore 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


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NOT PROTECTIVELY MARKED21. 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).


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Police Injury Pensions - Draft Revised Home Office Guidance

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