POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION - SUPPORTING MATERIALS

Index

TopicPage Number

SMP JURISDICTION, CASE MANAGEMENT 3

POWERS AND DISCRETION

The independence of the SMP;3

PPA’s powers to appoint (and un-appoint?) an SMP;6

SMP’s case management powers;14

SMP as Tribunal of Law and fact;17

Relationship of the SMP with the GMC;23

Reporting SMP’s Decision;24

How much detail should the report contain?;27

Extent Of SMP’s Discretion;28

WHAT EVIDENCE CAN A REVIEWING MEDICAL 30

AUTHORITY RELY ON

Background;30

The Statutory Framework;30

Degree Of Disablement;31

Case Law;32

Degree Of Disablement Cases;33

Review/Reconsideration Cases;34

Degree of Disablement Summary:41

Review of Injury Awards Summary:42

Evidence:45

Practical Application of the law by Medical Authority:48

APPROPRIATE LEGAL TEST TO APPLY 51

TO A RECONSIDERATION

Reasons In Relation To A Reconsideration51

DATE OF EVIDENCE AND DATE OF 55

DECISION FOR A RECONSIDERATION

Summary Of Position:55

Summary Of Reasons For Position:55

McGuinley ;56

City Of London Police;65

SMP JURISDICTION, CASE MANAGEMENT POWERS AND DISCRETION

This section will consider the following matters:

  1. The independence of the SMP;
  2. PPA’s powers to appoint (and un-appoint?) an SMP;
  3. SMP’s case management powers;
  4. SMP as Tribunal of Law and fact.
  5. Relationship of the SMP with the GMC.
  6. Reporting SMP’s Decision;
  7. Extent Of SMP’s Discretion
  1. The SMP Is Independent

1.1Although an SMP is selected by the Police Pension Authority (PPA), the PPA cannot require an SMP to approach the determination in a particular way. The only requirement placed upon the PPA when it is “considering” a relevant issue is to select an SMP to answer the statutory question or questions demanded by the matter the PPA is considering:

“…shall refer for decision to a duly qualified medical practitioner selected by them…”

As the regulations make clear in relation to the decision, it is:

“The decision of the selected medical practitioner”

1.2The PPA must ask but cannot answer the statutory question(s). The decision itself must be the SMP’s. The Introduction to the Home office Appeals Guidance, referring to the SMP also emphasises this point:

“The decisions taken by medical practitioners..”

1.3Where the SMP is answering the permanent disablement questions only, PNB Guidance stipulates that the SMP must not have been involved before with the individual (Paragraph 27) (other, presumably, than as SMP where the referral is a second or subsequent referral). This does not apply where the SMP is considering the injury questions. The independence of the SMP is also emphasised at paragraph 27. Even though the PPA and the officer may agree to the SMP undertaking the process in a particular way, the SMP still retains a discretion to do things differently:

“..but he or she may exercise discretion to consider the case on the papers if management, the officer and the FMA are all content with this.”

1.4The SMP may, but is not obliged to, undertake the determination in accordance with the officer/pensioner’s and PPA’s agreed position. As the Court of Session put it in McInlay at paragraph 44:

“He [The SMP] must form his own opinion as to the questions referred to him, and for that purpose he may make whatever enquiries he thinks fit.“

1.5The point is made with even more force at paragraph 48. Even though this passage is referring to an appellate medical authority, both the SMP and the appellate medical authority perform the same statutory function:

“He carries out such examinations and interviews of the appellant as he considers necessary. He is entitled to rely on his own medical knowledge in reaching his decision. He is not restricted to accepting or rejecting the respective contentions (if any) of the appellant and the police authority. He is free to form his own view, although it may not coincide with the contentions of either party.”

1.6According to paragraph 51 of McInley, the SMP’s discretion extends to the following matters:

  • “..it would be surprising if the medical referee were confined to the appellant as a source of information, where the veracity or reliability of the appellant's account was in issue;
  • ..if an issue of law has to be determined, the medical referee has to have access to information as to the law;
  • the medical referee received documentary evidence relating to the facts in dispute;
  • the medical referee also permitted the parties to make oral representations”

In relation to all of the above, the Court concluded:

“he was entitled to do so as a matter within his discretion.”

  1. Can a PPA Un-appoint an SMP?

2.1There is one case, which directly addresses this issue. It is a first instance Employment Tribunal case (Doyle -v- Chief Constable of Northumbria Police).

2.2Whilst the Regulations give a power to appoint an SMP, there is no express power to un-appoint an SMP. Can a PPA nevertheless un-appoint an SMP? According to paragraph 7.3 of Doyle ET:

“The absence of an express power to remove does not mean that the appointment must continue come what may.”

At paragraph 7.6 the Tribunal concludes:

“…it may be necessary or desirable to remove an SMP.”

The Doyle judgment provides Guidance in relation to the circumstances when this discretion should be exercised. Later in paragraph 7.6, the ET writes:

“Such an example would arise for instance where an SMP having been instructed is guilty of persistent and unreasonable delay without good cause.”

2.3Although the circumstances of the Doyle ET case amounted to an occasion when the SMP should have been removed, it is no longer certain whether those circumstances would continue to apply. In the Doyle ET, changing the SMP would have amounted to a reasonable adjustment pursuant to the then Disability Discrimination Act (DDA). Paragraph 53 of the Employment Appeal Tribunal (EAT) case of Tameside -v- Mylott records as follows:

“….there was no reason to suppose that facilitating an application by the Claimant for ill-health retirement would have helped to ensure his return to work. That is self-evidently true: ill-health retirement involves leaving the job, not doing it. That raises the question whether the duty under section 4A extends, in an appropriate case, to enabling a disabled employee who is no longer able to do the work (or any available alternative) to leave the employment on favourable terms. We find it hard to see how it can. We can identify in such a case no “provision, criterion or practice” which has an adverse “effect” on the employee which offering him ill-health retirement would prevent or mitigate. The whole concept of an adjustment seems to us to involve a step or steps which make it possible for the employee to remain in employment and does not extend to, in effect, compensation for being unable to do so.”

2.4Given this judgment, it is hard to envisage any circumstance when the employment provisions of the Equality Act 2010 could apply to an SMP process. It is submitted, therefore, that any grounds advanced for removing an SMP on the grounds that to do so amounts to a reasonable adjustment pursuant to the Equality Act 2010 are no longer valid.

2.5What SMPs can take from the Doyle ET judgment is that to justify the removal of the SMP, the SMP must be “guilty” – ie there must be attributed to the SMP some culpable act or omission. Secondly, that culpable act or omission must be persistent and/or unreasonable. Thirdly, the culpable act or omission must be without cause. On any analysis, this is a very high threshold before a PPA will be justified in exercising its discretion to remove an SMP. If this analysis is correct, the discretion would not be appropriate in the following circumstances:

  • SMP proposes to take any reasonable and necessary step which the PPA disagrees with;
  • PPA learns that this particular SMP tends to determine a particular issue in a certain way contrary to the preferences of the PPA;
  • The officer/pensioner and/or the PPA object to a particular view of the law taken by the SMP where that view is tenable;
  • The officer/pensioner indicates they don’t like the SMP selected;
  • The officer/pensioner threatens to make a complaint to the GMC against the SMP without good cause;
  • The officer/pensioner takes exception to a reasonable direction given to them by the SMP
  • etc

2.6Should an SMP find themself in a position where they are being un-appointed for a reason, which would not justify that decision, they should consider formally raising the issue. Un-appointing an SMP in these circumstances is likely to be for a reason inconsistent with the statutory scheme and the policy it seeks to promote. This would be particularly relevant when the SMP considers the move may disclose an attempt by the PPA to subvert the statutory process to garner a particular outcome not justified on the facts. In these circumstances there is a strong public interest in formally raising the matter. Potential venues to ventilate these concerns include:

  • The Police and Crime Commissioner (and London equivalents);
  • The Independent Police Complaints Commissions
  • An MP
  • etc.

2.7In relation to reconsiderations of an SMP’s decision (eg Reg H3(2)), the PPA must revert to the medical authority whose decision is being reconsidered:

“(2) The police pension authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him, or as the case may be it, for reconsideration, and he, or as the case may be it, shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report,..”

2.8The only situation where the PPA could appoint an alternative SMP is provided for in sub-paragraph (3):

“..medical authority is unable or unwilling to act..”

It appears from the face of the legislation that not only must the same SMP be approached but also, whether that SMP is unable or unwilling to act is for that SMP to determine. It would be wrong for a PPA to in any way attempt to fetter the discretion of the SMP. The PPA may request an SMP to approach a reconsideration in a particular way. The PPA and the officer/pensioner may even agree that a reconsideration should adopt a particular position. It is the SMP’s decision whether the SMP undertakes the reconsideration in that way.

2.9I do not think the legislation or statutory guidance permits a PPA to infer an “unwillingness” to act from a decision by an SMP to approach a reconsideration in a way different to the wishes of the PPA and the officer/pensioner (or both).

2.10In relation to whether it is the SMP whom statute gives first choice on whether to act in the reconsideration, the Home Office Commentary on the Police (Pensions) Regulations 1987 refers to "the" (definite article) doctor and "the" referee - as opposed to "a" (indefinite article).

2.11The Commentary also provides as follows:

"if that medical authority is unable or unwilling to act (he may have died, or ceased practising), the reference may be made to another medical practitioner"

2.12I don't think reg H3(2) can be interpreted as permitting a "reconsideration" by an alternative SMP. The reference to "he" emphasises this point. The Home Office, therefore, is clearly of the view that a reconsideration goes back to the decision-maker. This is certainly the view adopted by the PMAB when it undertakes reconsiderations.

2.13In Haworth at paragraph 95, the High Court, in a case dealing entirely with this statutory provision states:

", regulation 32(2) expressly contemplates that there can be more than one reconsideration by the medical authority. "

Haworth cited with approval a passage from paragraph 91 in the case of Crudace, which was also largely about this statutory provision:

"There is nothing in the wording of regulation 32(2) that limits the power to refer the matter back to the medical authority. (.....) I do not see why regulation 32(2) cannot be used to enable the SMP or (as the case may be) the PMAB to reconsider the decision in the light of the correct interpretation of the law."

Both cases refer to "the" (definite article) SMP etc (as does the Final Order itself in Haworth).

2.14In any case where the SMP is acting and it emerges that another SMP has been appointed and there is no determination, or, you are asked to reconsider another medical authority’s decision, you should make enquiries of the PPA. Why is the decision-maker not doing the reconsideration? Why is the other SMP no longer appointed etc? These are valid questions. It is important for the SMP to have a clear understanding of the position. If proper reasons are not given, your own process may itself be unlawful. You should seek advice from your medical defence union in these circumstances.

2.15By way of recap, proper reasons in relation to a reconsideration may include:

  • The SMP has died;
  • The SMP has retired;
  • The SMP has indicated he is unable or unwilling to act.

Proper reasons in relation to a primary SMP referral include:

  • A culpable act and/or omission by the SMP without good cause;
  • Persistent and unreasonable delay without good cause.

Lack of proper reasons may disclose no more than an inadequate understanding of the process by a PPA. In an extreme case, it may amount to fraud.

3Case Management Powers

3.1As has already been established, the SMP is independent, is responsible for their own process and can do whatever they consider necessary. Although the SMP has no power to compel any party to the process to do anything, the SMP can certainly direct a party to do something. If a party fails to comply with the SMP’s direction, there will be consequences depending on whether the party is the PPA or the officer/pensioner.

3.2The SMP’s power to direct is subject to a test of necessity. The SMP is given a very wide discretion as to what is necessary. The Regulations adopt the following form of words:

“..as the medical authority may consider necessary in order to enable him to make his decision…”

An SMP must be able to justify a step the SMP proposes to take on the grounds that it is necessary. The step must relate to the decision the SMP is required to take.

3.3If the PPA fails to take a necessary step, the officer/pensioner may make an application to the Crown Court on the grounds that the PPAs refusal to take the step amounts to a:

“..refusal of the police authority to admit a claim to receive as of right an award.”

The Crown Court has a power to:

“make such order in the matter as appears to it to be just.”

This would include ordering the PPA to take the step the SMP deems necessary.

3.4This point has never been tested. If a PPA elects not to take a step the SMP considers necessary, the SMP can not (nor should the SMP) complete the determination. The effect of a PPA electing not to take a step is the same as “a refusal (…..) to admit a claim (….)”. A refusal to admit a claim is a refusal to appoint a medical authority in circumstances where one should be appointed. Appointing a medical authority and then preventing that authority from discharging their statutory duty is conceptually the same as refusing to appoint one in the first place. Such a refusal by the PPA is likely also to amount to maladministration within the jurisdiction of the Pensions Ombudsman.

3.5An officer/pensioner who elects not to take a step the SMP considers necessary risks the process being concluded by management: on the grounds that the election amounts to a failure:

“..to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision.”

Where the PPA reaches this conclusion it,:

“.may make its determination on such evidence and medical advice as they in their discretion think necessary.”

3.6Even though the Regulations refer to medical examination and interviews, the provisions have no meaning unless included in those terms are the necessary preparatory steps before those events can take place. A medical examination would be largely meaningless without, eg, prior sight of the relevant medical records. If the SMP considers a step “necessary” then the SMP should direct the officer/pensioner to take it.

3.7The scope of this provision was considered in the first instance Employment Tribunal case of Doyle. In relation to whether the provisions encompass acts preparatory to a medical examination or interview, the Tribunal informsat paragraphs 3.31 and 7.12 of its judgment:

“We conclude that that interpretation is probably justified” (3.31)

“He was entitled to apply a purposive interpretation of H4 as set out in paragraph 3.31 above.” (7.12)

3.8If the officer/pensioner elects not to comply with a directed step, the SMP should write to the PPA, informing the PPA:

  • what the necessary step(s) is(are);
  • How the SMP communicated the requirement including any copy correspondence;
  • How the SMP knows the step has not been taken (eg correspondence from officer/pensioner expressly refusing, effluxion of time etc);

The SMP should inform the PPA that the SMP will take no further action until the necessary step has been complied with.

3.9When undertaking a reconsideration, the PPA cannot rely on the refusal to be medically examined provisions since the reconsideration process is consensual. The SMP should still, however, be able to direct the parties to take the steps the SMP considers necessary to complete the SMP’s decision. PPAs should, when agreeing to a reconsideration, do so on the basis that the officer/pensioner complies with all steps deemed necessary by the SMP. In the event of non-compliance, the consent should be deemed withdrawn and the process aborted. If it is not clear from the documentation received that the PPA’s consent is given on this basis, the SMP should obtain this to avoid misunderstandings later in the process.

4Resolving Disputes

4.1The SMP is a tribunal of fact and law.

Disputes of Law

4.2As a tribunal of law, the SMP will need to interpret the correct statutory test for the issue the SMP is determining. The SMP may be presented with different interpretations of the law by the officer/pensioner and the PPA. The SMP will need to resolve that difference and explain how the SMP interprets the law and why the SMP rejects a particular view – or indeed both views where the SMP is unable to accept either of these views. This includes the scenario where both parties agree on what they consider the applicable law to be. The SMP is free to disagree.

4.3The most authoritative sources of the applicable law are the regulations themselves and the cases from the High Court/Court of Session and Court of Appeal. The determinations of the Pensions Ombudsman can also be very informative. There is also a considerable body of statutory Guidance emanating from the Home Office. Most of this guidance is the product of negotiations undertaken by the Police Negotiating Board (PNB).