Police ill health retirement

Report: 4
Date: 21 December 2000
By: Commissioner

Summary

This paper outlines some of the anomalies within the 1987 Police Pensions Regulations and is provided to inform debate on any proposals arising out of the ongoing Police Pensions review.

A. Supporting information

Background

1. The role of a police officer can be physically and psychologically demanding, requiring a higher than average standard of fitness. The number of retirements on grounds of ill health will therefore be higher than those of more sedentary occupations, particularly as individuals are less able to deal with physical trauma as they age. Metropolitan officers achieve maximum pension entitlement after 30 years pensionable service, but reach age limit at 55 years. Retirement may be postponed for up to a further five years at the discretion of the Service, providing an opportunity for officers who have not achieved maximum entitlement to enhance their pension.

2. Metropolitan Police retirements on grounds of ill health rose from 292 per year in 1989 to 513 per year in 1998, whilst ordinary retirements rose from 351 to 583 in the same period. In 1998/1999 47% of all retirements were on grounds of ill health. During the 1999/2000 financial year ill health retirements were reduced to 34.2% and are currently running at 29.79%, under the Home Office target of 33%. This figure translates to 130 experienced officers retiring on grounds of ill health with a further 307 retiring on ordinary grounds, mostly at constable and sergeant ranks.

Police Pensions Regulations

Police retirements are governed by the Police Pensions Regulations 1987, which contain a number of anomalies and do not reflect current requirements. ACPO, Police Authorities, the MPS and the Federation have made contributions to the Home Office review of the Regulations, which has been ongoing for at least three years. A draft consultation document had been anticipated for the end of this year.

Ill health retirement - Regulation B3

4. The Regulations make provision for officers retired on grounds of ill health to receive an ill health pension that is calculated on the basis of length of service. In recognition of the cutting short of a career the pension is enhanced at a number of points until at 26.5 years service the officer becomes entitled to the benefits of a full 30-year pension, including the tax free lump sum. Additionally ill health pensions are index linked immediately, whereas ordinary 30-year pensions are not index linked until the pensioner reaches the age of 55 (Appendix 1).

5. MPS male ill health retirements between 1989 and 1999 have peaked at 27 years of service (full pension entitlement being achieved at 26.5 years service). Over that period, an average of 40% of male ill health retirements were officers who had reached between 26 and 30 years service. A further 9% of ill health retirements were accounted for by officers who had exceeded 30 years service. For women officers the picture is less pronounced, but shows high points at 11 years and between 15 and 17 years service (Appendix 2). Due to the way in which the enhancement is set up officers retiring on ill health grounds after serving for ten years are entitled to a ‘half pension’.

Suggested changes

Officers who have reached 30 years service should not be entitled to retire on ill health grounds. The powers of the Police Authority to use the provisions of Regulation A19 (compulsory retirement on grounds of the efficiency of the force) should be clarified. Consideration should be given to whether the enhancement to a full pension at 26.5 years service should be continued.

Injury pensions - Regulation B4

6. In recognition of the sometimes-dangerous nature of police work, extra provision is made for officers who are disabled as a result of being injured in the ‘execution of their duty’, in the form of a tax free, index linked injury pension and injury gratuity. The injury pension is designed to compensate an officer for the effect that the relevant injury has had on their earnings potential. It is calculated by comparing the officer’s average pensionable police pay (APP) with their earnings potential on retirement from the service. The injury pension together with the ill health pension is designed to provide a guaranteed minimum income (Appendix 3).

7. In most cases, it is extremely difficult for medical practitioners to determine the precise cause of a disability, particularly when the relevant injury occurred many years before. Medical practitioners including GP’s and Consultants tend to rely upon symptoms reported by an individual, and generally have no reason to seek further corroboration. Injuries occurring to officers during daily living are rarely recorded whilst those occurring at work are. It can be difficult for a police selected medical practitioner to assess disability, much less the difference between the effects of an injury at work, others at home and general wear and tear. When it comes to psychiatric conditions, it is even more difficult since the diagnosis relies to a great extent on the individual’s report of cause and effect.

8. Injury pensions are divided into four bands (Appendix 3). Depending upon the level of service and the ‘degree of disablement’, guaranteed minimum income could amount to as much as 85% of the officer’s average pensionable pay. Due to the drafting of the current Regulations, even if the guaranteed minimum income is being considerably exceeded the injury pension has to be paid at the level of the bottom band (0-25%).

9. A constable with 25 years service and an average pensionable pay of £28,827 retiring in June 2000, with an injury pension in the second band would have received:

Ill health pension

£13,299

Injury pension

£6,025

Totalling

£19,324 per annum.

Lump sum

£66,496

Injury gratuity

£6,714

Additionally such an officer would be free to undertake a new career, their pension only being affected if it could be shown that the minimum income guarantee was being exceeded or under certain circumstances, if they have recovered.

10. Despite the fact that injury pensions are designed to compensate officers for loss of earnings they do not cease at compulsory police retirement age (55 years) nor normal retirement age but are paid for life. Both ill health and injury pensions are subject to review, described at paragraphs 23 & 24.

11. There is no time limit on claims for injury pensions with claims having been made by pensioners up to and over state retirement age, some more than 20 years after retirement.

Suggested changes

Given that the injury pension is intended to compensate for loss of earnings, specific provision should be made so that at 55 years (compulsory retirement age) the loss of earnings calculation should not be based on Police APP but on the job market. The injury pension should cease at state retirement age, and there should be a threshold below which no award will be paid. Claims for injury pensions should be time limited.

Calculating the potential loss of earnings capacity is extremely difficult, with variables including, claims of regional pay differences, disputes over the availability of work and officers retiring abroad. It may therefore be of value to consider removing the link with earnings potential and make the calculation on the basis of the disability alone, as is the DSS practice.

Injury in the execution of duty - Regulation A11

12. In order to qualify for an injury pension and gratuity an individual must be permanently disabled from performing the duties of a police officer and - an injury ‘in the execution of duty’ must have caused or substantially contributed to that disablement.

13. Due to the wording of the Regulation, ‘injury in the execution of duty’ is defined as an injury that occurs ‘while on duty’ - essentially a temporal definition. Given its literal interpretation any injury to an officer whilst at work, qualifies for consideration of an award, including orthopaedic injuries caused by slipping on the stairs in the station, falling off a chair, lifting a heavy tea pot or stooping to pick up a briefcase.

14. The definition also includes injuries whilst travelling to and from work, this may have been relevant when officers lived locally and travelled in uniform but that is not the practice now. Since 1 April 1999 19 injury awards have been granted as a result of this provision. Should an officer be injured whilst dealing with an ‘incident’ whilst off duty there is other provision for them to be covered by the Regulations.

15. Regulations have their origins in a less litigious age where ‘injuries’ were physical and ‘stress’ related conditions were not widely acknowledged. Under the current Regulations claims of psychological injury have included:

• An officer whose psychological condition was allegedly caused by management failing to implement his recommendations on the assessment system used for police probationers;
• Receipt of a ‘poor appraisal’ and a requirement to improve performance;
• Imminent transfer from a specialist section;
• The stress of being subject to a discipline and/or criminal investigation;
• Feeling unsupported by management after taking supervisory action;
• General overwork;
• Numerous events witnessed or dealt with throughout a police career;
• Argument or disagreement with a supervisor.

16. Historically injury pensions have been granted in respect of disabilities arising out of playing sport whilst either on duty or whilst representing the service. It is now the practice of the Authority to refuse such claims along with claims for ‘stress related’ disabilities arising out of the investigation or prosecution of disciplinary or criminal proceedings against an officer. One such claim is currently awaiting a hearing at the Court of Appeal.

17. Officers suffering industrial type injuries at work can seek legal redress and frequently do, it is argued that this is a more appropriate than an injury pension which by its title was not intended for this purpose.

Suggested changes

Whilst it is not easy to cater for all eventualities, a definition similar to that used for Regulation 46 Police Act (reduction of pay through sickness absence) should be adopted. This would make it clear that the injury must have been sustained or contracted in the course of and by reason of the performance of the duties of the office of a constable. Travel to and from work should be excluded, as should claims relating to disciplinary or criminal investigations against an officer.

Deferred Pensions - Regulation B5.

18. Officers who have resigned of their own volition, who are dismissed or required to resign will have their police pension deferred, normally to the age of 60. However if they become ‘disabled’ the pension may be brought into payment immediately. The current test of disability is satisfied when a claimant is unable to perform the ordinary duties of a police officer - resulting in the following examples receiving early payment of their deferred pensions:

• An officer who was dismissed, who was otherwise well, claiming to be suffering from a phobic anxiety which would prevent him from entering a police station;
• An officer claiming that the disparity in punishment awarded by a discipline board which resulted in his being required to resign had caused his depression;
• An officer who resigned to undertake a change of career, and who was still in full time employment, applied for and received early payment of his deferred pension over ten years after his retirement, as he was no longer able to work as a police officer.

19. Frequently claims are received from individuals within days of dismissal or being required to resign from the service. Officers granted deferred pensions are also entitled to apply for injury pensions.

Suggested changes

The test for a deferred pension should not be linked to an inability to perform the role of a Police Officer, but to a permanent inability through disability to work at all. Officers, who are dismissed, required to resign or who retire facing discipline should not be entitled to claim a deferred pension or injury pension for a condition relating to those proceedings.

Default - Regulation A11 (4) & K3

20. There is provision within the Regulations at A11 (4) for an injury pension to be refused if the injury is wholly or mainly due to an individual’s serious and culpable negligence or misconduct, a very high standard.

21. Further provision is made under Regulation K3 for the Police Authority to reduce an officer’s ill health and/or injury pension(s) if they have brought about or substantially contributed to their disability. This can only be applied provided they have not reached 25 years service. It is not clear why the 25-year restriction exists, but it has given rise to situations where although it is clear that officers have brought about their own disability they cannot have any penalty applied to their pensions. Police Authority representatives have only relatively recently considered applying this provision and have discovered that there are no guidelines or procedures set out.

Suggested changes

Whilst there is provision to refuse an injury pension, the test to be applied is so high that it is difficult to do so, by making the definition ‘serious or culpable negligence or misconduct’ the test would be more realistic. Regulation K3 should be applicable to any officer who has brought about or substantially contributed to their disability regardless of length of service.

Reviews of pensions - Regulation K1 & K2

22. There is provision under part K of the Regulations for ill health and injury pensions to be reviewed. This provision allows that if an individual, retired on ill health grounds, is found to have recovered the Police Authority may invite them to re-join. Should an individual decline to do so, the ill health pension may be terminated and deferred, provided they have not reached age limit or would have achieved the equivalent of 25 years service. An injury pension cannot be terminated if the individual is in receipt of an ordinary, ill health or short service pension.

• This has led to situations where injury pensions have been granted on the best medical advice, later discovered to have been wrong. Where an individual’s medical condition did not allow them to re-join it has been held that the wording of the Regulation did not allow the injury pension to be stopped or reduced.
• The same would apply if it could be shown that an on duty incident accepted at the time to have caused a disability is later found not to have occurred.
• Furthermore, an officer retired on ill health grounds and subsequently convicted of dishonesty, (therefore ineligible to re-join), who was found to have recovered from the disability could not have the injury or ill health pension terminated.

23. It is not clear whether the provisions of part K can be applied to deferred pensions, if it cannot it would result in the situation where

• In respect of reviews - an officer who had been dismissed or resigned and had obtained payment of a deferred pension could not have it taken away even if it could be shown that they had fully recovered or had totally misrepresented their condition to obtain the pension.
• In respect of default - where two officers, one of whom had been dismissed and the other with an otherwise exemplary service record who was still serving brought about their own disability, the serving officer could have their pension reduced whereas the officer who had been dismissed could not.

Suggested changes

It should be possible to revoke injury pensions where it can be shown that decisions made at the time, based on the known facts or medical opinion were incorrect. It should also be possible to revoke deferred pensions under the above circumstances or where it can be shown that the individual is no longer disabled, without having to offer an individual the opportunity to re-join, where this is inappropriate. It should be clearly stated within the Regulations that all of the provisions of part K apply to deferred pensions.

Police Authority powers to investigate claims for injury awards - Reg. H1 (1) & (2)

24. Under Regulation H1 (1) there appears to be a clear provision for the Police Authority to determine whether a person is entitled to any and if so, what award under the Regulations. The MPS has taken this to mean that the Police Authority has the right to investigate the factual basis of any claim and to determine the process by which consideration of medical retirement should take place.

25. Regulation H1 (2) however states - ‘Where the Police Authority are considering whether a person is permanently disabled, they shall refer for a decision to a duly qualified medical practitioner selected by them, whether the person is disabled and whether the disablement is likely to be permanent’. Judicial interpretation on this issue differs, with a one ruling to the effect that as soon as the Police Authority is made aware that an officer wants to leave on ill health grounds, they are considering the issue and therefore must refer the relevant questions to the SMP. In effect this puts the process firmly under the control of the officer, who only has to write to the Police Authority to ensure that the SMP has to make a decision from which medical retirement may well flow.

26. H1 (2) goes on to state ‘if the Police Authority are further considering whether to grant an injury pension, (they) shall so refer the following questions - whether the disablement is the result of an injury received in the execution of duty, and the degree of the person’s disablement. Literally interpreted, as soon as a request is received by the Police Authority they would have to ask the SMP to investigate the factual and legal basis of the claim, a clearly inappropriate outcome.

27. There are rights of appeal against any decision made by either the Police Authority or the SMP. In the case of the Police Authority, the appeal is to the Crown Court and in the case of the SMP it is to an independent medical referee. This illustrates the poor drafting of the above section, since if a literal interpretation were to be applied, matters of fact and law would fall to the medical referee to determine and the avenue of appeal to Crown Court would be redundant. This section has been the subject of a number of stated cases, and continues to provoke recourse to litigation.

Suggested changes

Regulation H1 must be re-worded to ensure that the right of the Police Authority to determine issues of fact and law is clearly set out.

Rights of Appeal

28. Currently Home Office appointed medical referees deal with appeals against decisions made by the SMP. The Home Office spread the load, and so referees have variable medical experience and gain little understanding of the Pensions Regulations. Few have any detailed knowledge of the procedures that should be followed and most are ill equipped to deal with the issue of loss of earnings capacity.

Suggested changes

A number of permanent panels should be set up around the country. These should include experts in the relevant field of medicine, an occupational health specialist and if the link with earnings is to be maintained, an individual with the personnel expertise to assist to determine the earnings potential of the officer. Factual appeals could be dealt with by the civil court rather than a criminal court.

Police pensions review

29. The Review of the Regulations is long overdue, and eagerly awaited. It is believed that the financial provisions within the current Regulations encourage officers to take early retirement on grounds of ill health. Consideration should be given to exploring whether the revised Regulations could be applied retrospectively to all officers and not just to new joiners.

Police pensions costs

30 On the broader issue of affordability, the MPA Treasurer is planning to produce a paper on the long-term financial implications of police pension costs in the New Year.

B. Recommendations

Members are asked to consider this paper in order to form a view on the Police Pensions Review consultation paper when it is published.

C. Financial implications

There are no financial implications arising directly from this paper.

D. Review arrangements

This section is not applicable to this paper.

E. Background papers

The following is a statutory list of background papers (under the Local Government Act 1972 S.100 D) which disclose facts or matters on which the report is based and which have been relied on to a material extent in preparing this report. They are available on request to either the contact officer listed below or to the Clerk to the Police Authority at the address indicated on the agenda.

• Police Pensions Regulations 1987

F. Contact details

The author of this report is Linda Van den Hende, MPS.

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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