Injury on Duty Pensions: Frequently Asked Questions.
What are injury on duty pensions?
Also referred to as injury pensions, injury awards and injury supplements. When a police officer retires they are paid a police pension. If the officer has to retire owing to an injury received in the execution of their duties they are also entitled to an injury pension which is intended to provide a minimum income guarantee because their police pension can be less, often considerably less, than they would have received if they had been able to continue until normal retirement age. The term 'pension' was used in the Police Pension Regulations 1987 (and previously 1973) but this changed with the introduction of the Police Injury Benefit Regulations 2006 when the 'pension' became 'benefit'.
What are the criteria?
The officer has to have been injured in the course of their duties through no fault of their own. The injury has to be permanent .
Who makes decisions?
The Police Authorities appoint Doctors referred to as selected medical practitioners (SMP). The SMP assesses the disability and it’s effect on earning capacity together with factors such as rank and length of service. The SMP then makes the award which falls into four bands (Band one is the least). Although the SMP is employed by the Police Authority/Commissioner/Force, the function should be an independent one.
Do Police Officers have to pay pension contributions?
Yes, police officers pay a high rate of pension contributions.
Once the Officer has retired, is that it?
No, The Police Pension Regulations provide for Police Forces to review the award at suitable intervals, the Pension Authority has discretion in deciding what a ‘suitable interval’ may be. This allows for the payment to be adjusted if there have been any significant changes e.g. The injury condition becomes better or worse, the SMP is also required to assess disability in terms of ‘earning capacity’ which is not directly related to the severity of the injury. In the unlikely case of a complete recovery, presumably the officer could be reinstated.
Is the pension payable for life?
Yes, the injury pension is for life but may be reviewed at suitable intervals. Everything changed when the Home Office issued guidance in Annex C of Home Office Circular 46/2004. Existing pensions which may or may not have been subject to review previously were now reviewed under the new guidance which, in some forces was pursued aggressively.
Have the Police Pension Regulations Changed?
There are new regulations but apparently the relevant provisions from previous regulations have been carried over pretty much unchanged.
So what's the problem?
The problem is that although the Regulations are unchanged, many Police Authorities ( probably slightly less than half of the authorities in England and Wales) changed their policy following the issue of the guidance in HOC46/2004 and introduced reviews triggered when the retired officer reaches the ages of 60 and 65. Although this guidance and policies based on it have been declared unlawful and withdrawn, forces are still attempting to find ways to reduce IOD bands in order to make budget savings.
Why is that?
The Home Office issued new advice to Police Authorities. Home Office Circular 46/2004 suggested that Police Authorities could review retired officers at the age of 60 (the new retirement age for serving officers even though the retired officers compulsory retirement age was likely to have been 55) when instead of police pay being used as the comparator to assess the level of pension, they would apply a comparator based on average national earning (ASHE) which would result in a much lower payment in many cases. At the age of 65 (State Retirement Age) when it was suggested that the injury award could, in the absence of ‘cogent reasons’, be reduced to the minimum permissible band (one). Police Authorities saw that they could make large financial savings by targeting injury pensions.
(Please note: This item is historical with parts of HOC46/2004 being declared unlawful in 2012 and Police Authorities being replaced by Police and Crime Commissioners later that same year).
Is it compulsory for Police Authorities to do this?
The requirement to review injury pensions is not new and has existed within the Regulations for many years. What has occurred is that some police authorities didn’t have a review procedure, whilst others did. The regulations require 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 find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly”. The Regulations allow for some discretion and in the past, generally reviews took into account the welfare of the pensioner and were conducted in a benign way to determine if the correct level of pension was being paid in accordance with the regulations. Following HOC46/2004 reviews were aimed at cost savings. Not all Police Authorities subscribed to this guidance and continued with their existing policies.
What would that mean in financial terms?
This can be complex and involves variables such as length of service and rank as well as the level of disability. One example would be a pensioner with a certain level of service band 2 injury who was receiving a pension of £12.000 per annum. Band 2 provides a minimum income guarantee of 50% (Base on service, rank and salary at time of retirement). If the injury award is reduced to band 1 then a minimum income guarantee of 30% would apply and the pension would be reduced to £8000 per annum. Those with very serious injuries or permanent conditions will be on a higher banding and stand to lose more.
How many injured former officers are affected by this?
It is difficult to establish just how many officers are facing a cut in pension. Nationally, in 2009 it was estimated that about 13000 ex officers were receiving injury pensions but different force areas have different policy. For instance the Metropolitan police have about 3500 participants but the Met policy has been not to apply the review reductions at 65 for those officers who retired before 2006. Some other forces also do not apply reviews to the over 65’s. Yet other forces have applied new policy with a vengeance - reducing the injury awards of ex officers at 65 and even those who are now in their 70’s and 80’s.
This new policy does not appear to be fair, was the previous policy fair?
The previous policy was accepted as fair and did not lead to many legal challenges. Home Office Circular 46/2004 tried to justify the changes by claiming that the old system was ‘diverse’ and the new one is promoted in the name of ‘fairness and cohesion’. In actual fact, Freedom of Information research indicates that the previous system was very consistent and that, in the forces responding to FOI requests, not a single pensioner had had their injury award reduced in the years prior to the introduction of the HOC circular. The new policy created a counterproductive ‘diverse’ post code lottery type of situation which is unfair and lacks cohesion.
Please note: This item is historical with parts of HOC46/2004 being declared unlawful in 2012 and the remainder being withdrawn in 2014. Police Authorities have now been replaced by Police and Crime Commissioners.
Probably the best way to determine if the guidance is fair is to peruse some of the important cases that have been decided by legal scrutiny: Crocker (2003) is relevant but later cases are extremely relevant to the guidance: Pollard (2009), Turner (2009), Laws (2010), Crudace (2011) and Simpson (2012) are all very important together with a number of determinations by the Pensions Ombudsman such as Ayre and Sharp. These cases are not an exhaustive list but are a good start to study how the guidance has been regarded when tested independently.
Can the pensioner appeal against a decision to reduce their injury award?
Yes, there is an appeal process. The cost should be met by the Police Authority but there are reports of at least one force area that was discouraging pensioners from appealing by threatening to make them pay the appeal costs, estimated at that time to be about £6000.00. This threat certainly gives the lie to the stated claim that the guidance is ‘fair and cohesive’ . The force responsible has faced Judicial criticism for this course of action.
Why has the Home Office issued this advice to Police Authorities?
It certainly cannot be out of fairness, as claimed. The only likely reason can be cost savings. The welfare of the pensioner appears not to be a consideration.
Has this been challenged?
Yes, there have been many legal challenges either through Police Medical Appeals Board (PMAB) appeals, via the Pensions Ombudsman or by way of Judicial Review. The unlawful guidance produced by the Home Office was something of a cart blanche for the Police Authorities to plunder injury pensions and , has been stated previously, some forces were very aggressive in pursuing injury pension reduction. In one notorious instance, a police force SMP reduced the injury pensions of 79 ex officers over the age of 65 to the lowest level on a single day. This was a disgraceful event which lead to very stern criticism in one of the landmark legal cases which lead to those aspects of the guidance dealing with ex officers over 65 to be declared inconsistent with the regulations and unlawful. Those parts of the guidance were cancelled by the Home Office in Home Office circular 007/2012.
Additionally, in 2009 the then Police Minister promised that another look would be taken at the guidance but in early 2018 we are still waiting for the revised guidance to be issued. In March 2010 the Home office advised Police Authorities to suspend their review programmes pending the issue of revised guidance. It appear that some Authorities have resumed, or are restarting reviews but it is thought these will be in claimed to be in accordance with Regulations and not the guidance.
There are a number of important cases which have defined what SMP’s and Police Authorities can and cannot do, in addition to those which have defined the legal status of parts of these policies.
As and when ‘post HOC46/2004’ policies emerge, we will endeavour to provide information via our News Section, Forum and our Information Page in the Member’s Section of this web site.
Will the legal challenges continue now that part of the guidance has been declared illegal?
Yes, This is a complex subject and there are a number of areas which remain to be clarified. When this attack on injury pensions commenced, it came as a great shock and caused great anxiety among injury pensioners. Some lost large parts of their incomes, some lost their homes and some suffered financial hardship. Many suffered health problems. But these were ex police officers who rose to the challenge and who, over time became organised and gained considerable knowledge and ability. Supported by an excellent legal team they have been successful. There is more to do.
What is likely to happen in the future?
The Home Office has not yet issued any new guidance after it’s former advice was declared unlawful and withdrawn. What has happened is that some forces have commenced formulating new IOD policies which they claim will be in accordance with the appropriate regulations. Notably, Cambridgeshire has introduced a new policy for the force which involved consultation with IOD pensioners, the Police Federation and other bodies. Despite the level of consultation, there are misgivings among some IOD pensioners, which is not surprising given the way they have been previously treated. The proposed policy was accepted by Cambridgeshire Police Authority on 1st October 2012. It was thought that this policy may form the basis of future Home Office guidance but that is now seen as unlikely.
In March 2013, The National Attendance Management Forum (NAMF now NWEF), a ‘talking shop’ of members of Police Forces etc, produced some new draft guidance (please see documents under the heading ‘Post HO46/2004 Policies’ on the Information section. At this stage we don’t know what policies will be adopted by forces. Some forces will certainly be attracted if they think cost savings can be made. However, we have seen previously how shortsighted policies which have failed to abide with Regulations have been disastrous for forces.
The National Attendance Management Forum (NAMF) (now renamed NWEF the National Wellbeing & Engagement Forum) has no legal powers and it is thought likely that the College of Policing will become involved in future IOD policy and guidance matters. This is a new phase and we will have to wait to see how it all develops. . Police Forces have lost the trust of IOD pensioners and they will have to work hard to regain that trust.
Any new policy is certain to be tested and it is quite clear that there will some elements that will be subject to Judicial scrutiny.