Home Office circular 021 / 2003
THE POLICE PENSION SCHEME - BETTER MANAGEMENT OF ILL-HEALTH
Dear Chief Officer
This circular provides information on changes which have been made to the Police Pensions Regulations, mostly in relation to the management of ill-health retirement, by the Police Pensions (Amendment) (No. 2) Regulations 2003. The amended regulations comprise Statutory Instrument 2003/535, which will be available at http://www.hmso.gov.uk/si/si2003/2003.htm. The changes come into force on 1 April 2003. This circular also explains the wider set of new procedures for ill-health retirement, which forces and police authorities should bring into effect on 1 July 2003. The new regulations and procedures reflect the agreement reached by the Police Negotiating Board in May 2002 on the better management of ill-health retirement.
- It should be brought to the immediate attention of force personnel officers, force medical practitioners and the administrators of the Police Pension Scheme.
- The PNB Agreement of 9 May 2002 states that:
8.1 The key objectives in the management of ill health are:
* to ensure that personnel practices in forces and the pensions regulations combine to ensure that fair and effective decisions are taken on poor attendance and ill-health retirements;
* to ensure that, where possible, police officers are rehabilitated for duty rather than retired on ill-health grounds;
* to ensure that there is greater consistency in decision making practice between forces.
- Following the May Agreement the PNB set up the Medical Retirement Working Group to draw up joint guidance on the management of ill-health retirement. Joint guidance was agreed on 30 January. A copy of this guidance is attached at Annex A. There have been consequential amendments to the Police Pensions Regulations as a result of the Agreement and the guidance.
5. This circular highlights:
A. the changes made to the current regulations;
B. what you need to do to apply the new regulations from 1 April 2003;
C. what you need to do to implement the wider set of new procedures (at Annex A) by 1 July 2003;
D. how the new regulations and new procedures impact on injury awards and decisions under regulations K1, K2 and K3;
E. the latest position on regional appeal boards.
A. Amendments to the Police Pension Regulations
- The following amendments have been made to the Police Pension Regulations. These Regulations will come into force on 1 April 2003. Please note: the points of explanation set out below are dealt with in more detail in Annex A.
- Definition of permanent (Schedule 1, paragraph 1(1) )
- Permanent is qualified to make it clear that the disablement is likely to be permanent despite appropriate normal medical treatment for the officer’s condition being applied. This is to prevent a case where a temporary condition is made permanent by refusal of treatment. As a safeguard to the officer, normal medical treatment is qualified to exclude medical treatment that it is reasonable for that officer to refuse.
- Male and female duties (Schedule 1, paragraph 1)
- Removal of the distinction between the duties of male and female officer duties in A12(2).
- Definition of infirmity (Schedule 1, paragraph 1)
- In order to make it clear that disablement, for the purpose of medical retirement, must have a recognised medical cause or be a disability as a result of injury, such as the loss of a leg, infirmity of mind or body is defined as a disease, injury or medical condition. The definition “disease, injury or medical condition” expressly includes a mental disorder, injury or condition. We are using the word mental, not psychiatric, in order to keep in step with the Mental Health Act.
- Police Authority’s A20 decision (Schedule 1, paragraph 2)
- As previously stated in HOC 43/2002, the police authority have discretion under regulation A20 not to retire an officer who has been assessed by the Selected Medical Practitioner (SMP) as permanently disabled. As well as the medical assessment the police authority should also take other factors into account in coming to a final decision. Hence we have amended Regulation A20 to require police authorities in making their determination to give due consideration to all the circumstances, advice and information available to them before reaching a decision.
- Selected Medical Practitioner / Board of doctors (Schedule 1, paragraph 3, 5)
- The police authority may decide that in exceptional circumstances the function of the SMP should be carried out by a board of doctors. The regulations therefore have a qualification to the term “duly qualified medical practitioner” and “selected medical practitioner” to take that into account. A board may be comprised of two or more doctors.
- Referral in exceptional circumstances to a board of duly medical qualified practitioners may be made in the case of any questions under H1(2), whether on permanent disablement alone, or on permanent disablement combined with injury, or on injury alone and in the case of questions under K1, K2 or K3.
- H1 report (Schedule 1, paragraph 3)
- In any case where the SMP is considering permanent disablement (whether when answering H1(2)(a) and (b) only or when also answering H1(2)(c) and (d) ) he or she will complete a report and not a certificate in order to make clear that the final decision to medically retire an officer rests with the police authority and that it is not the sole determining factor in the authority’s decision.
- Cases involving injury awards only, or questions under K1, K2 or K3 are to be referred to an SMP who shall express his findings in a certificate.
- Fresh report under H2 and H3 (Schedule 1, paragraphs 4, 5)
- In H2(3) and H3 a fresh report rather than certificate will be issued where the medical authority has revised a decision where H1(6) applied. In the case of a decision under appeal or review where H1(6) did not apply a fresh certificate will be issued.
- Distribution of report (Schedule 1, paragraph 3)
- A copy of the SMP’s report in the case of any decision under H1(2)(a) or (b) is to be supplied by the police authority to the officer, without his or her needing to request it.
- Appeal against the H1 certificate (Schedule 1, paragraph 4)
- Where one or both of questions H1(2)(c) and (d) have been referred to the SMP in isolation from H1(2)(a) and (b), or where a decision is taken under K1, K2 or K3, regulation H2(1) and (2) still applies. The person must still apply to the police authority for a copy of the certificate within 14 days after being informed of a decision under regulation H1 and after being supplied with the certificate he may within 14 days give notice to the police authority of an appeal against the decision. These time limits may be extended at the discretion of the police authority.
- Appeal against the H1 report (Schedule 1, paragraph 4)
- Where an SMP has answered questions under H1(2) including one or both of questions H1(2) (a) and (b), the officer will have a period of 28, not 14 days, following his personally receiving the SMP’s H1 report during which he or she may lodge an appeal against the SMP’s medical opinion on the H1 questions. As with the present regulations, this (new) time limit may be extended at the discretion of the police authority.
A new provision is included requiring a written statement of the grounds of appeal by the officer within 28 days following the date of lodging the appeal. Where the officer gives no statement within 28 days the Police Authority need not refer the appeal to the Secretary of State (in which case the right of appeal lapses) unless the authority exercises discretion to allow a longer period for the statement.
This provision applies only to those cases involving the permanent disablement question, or permanent disablement and injury questions.
- Internal review of H1 (Schedule 1, paragraph 5)
- H3(2) has been amended to enable a decision under H1 to be referred back to the SMP, if the claimant and the police authority agree to this, even though the claimant has given notice of an appeal against the SMP’s decision. This new provision for an internal review applies until the moment the Secretary of State is notified of the appeal. This allows an opportunity for a dispute to be resolved without the expense of an appeal, but without prejudice to the claimant’s right of appeal. This applies to all questions under H1, whether on permanent disablement alone, or on permanent disablement combined with injury, or on injury alone, and including K1, K2 or K3.
The SMP should complete a fresh report only where it resolves the issue under dispute. It must be understood that there is no right of appeal against a fresh report issued after an internal review. If a fresh report will not resolve the issue to the satisfaction of the appellant, the SMP must not issue one, and the appeal under H2 against the original decision under H1 should be allowed to proceed instead.
A further change is that a review under H3(2) by agreement between the claimant and the police authority may now be carried out without the need for fresh evidence. This provision applies not only to reviews of decisions under H1 but also to review of appeal decisions under H2. Again, this may enable an appeal decision, which both parties agree is flawed, to be put right without recourse to Judicial Review.
H3(3) has been amended to enable a court or tribunal, or the claimant and the police authority by agreement, to refer a case to a board of practitioners selected by it, or agreed by them, instead of to a single duly qualified medical practitioner.
- Appeal to the Crown Court (Schedule 1, paragraph 6)
- Clarification confirming that the Crown Court is to hear any appeal against the police authority not accepting the refusal of medical treatment by a home police force officer as reasonable.
- Appeal by overseas police officer (Schedule 1, paragraph 7)
- Clarification confirming that a Tribunal under regulation H6 is to hear any appeal against the police authority not accepting the refusal of medical treatment by an overseas policeman, an inspector of constabulary and a central police office as reasonable.
- Miscellaneous (Schedule 1, paragraph 8, 9)
- Minor amendments to the Part M of the Police Pensions Regulations (inserted by the Police Pensions (Pension Sharing) Regulations 2002 No. 3202), where reference was made to “rule” rather than “regulation”.
- Definitions of infirmity(Schedule 1, paragraph 10)
- Insertion in Schedule A and the glossary of expressions that “infirmity” has the meaning assigned in regulation A12(5).
- Miscellaneous (Schedule 2, Schedule 2, Regulation 3)
- Amendment of the Police Pensions (Additional Voluntary Contributions) Regulations 1991 to renumber as Regulation 10B that which was inserted by paragraph 3 of Schedule 2 to the Police Pensions (Pension Sharing) Regulations 2002 as regulation 10A. There is already a Regulation 10A by virtue of the Police Pension (Amendment) Regulations 2003.
B. What you need to do to apply the new regulations from 1 April 2003
- Police authorities, chief officers, HR departments and medical advisers should note the new regulations as soon as possible so that the new procedures and criteria which directly flow from them are in place from 1 April. Wherever possible the relevant passages in the Guidance at Annex A will be referred to. (A reference to the police authority includes a reference to any person duly delegated by the authority to carry out the relevant function under the Police Pensions Regulations.) These changes will affect procedures in the following ways:
i. New definition of permanent to be assessed on the assumption that the person will receive normal appropriate medical treatment - paragraph 7 above - ** action FMA/SMP and police authority **
Þ the SMP should take this into account when completing his or her report and decision on permanent disablement (first footnote in the form suggested for recording the decision refers); see paragraph 12 and 13 of Annex B to the Guidance (Annex A);
Þ the police authority will need to decide whether or not refusal of treatment is reasonable in any case where the SMP decides that a person is not permanently disabled because there is normal appropriate treatment available to the officer; see paragraph 14 of Annex B to Guidance.
ii. Clarification that an appeal by an officer against a police authority not accepting his or her refusal of medical treatment (which the SMP considers would prevent permanent disablement) as reasonable is to be made under H5 (to a Crown Court) or under H6 (to a Tribunal) as applicable - ** action police authority to note **.
iii. Note that “permanent” in regulation A12 has not been given a definition in the regulations as amended, but is explained in the Guidance - ** action FMA/SMP and police authority **
Þ the SMP and police authority should note that permanent is to be given its natural meaning and should in any case mean up to at least an officer’s compulsory retirement age - see paragraph 9 of Annex B to Guidance.
iv. Removal of the distinction between the duties of male and female officer - paragraph 8 above - ** no action ** , simply to note the discontinuance of a redundant provision;
v. New definition of infirmity - paragraph 9 above - ** action FMA/SMP ** .
Þ This confirms what is already good practice, by ensuring that disablement for the purpose of the Police Pensions Regulations must have a recognised medical cause or be a disability as a result of an injury - see paragraphs 6-7 of Annex B to Guidance.
vi. New requirement that the police authority’s A20 decision should give due consideration to all the circumstances, advice and information available to them before reaching a decision on ill-health retirement- ** action police authority **
Þ In advance of the full introduction of the new procedures in the guidance (from 1 July) it will be for the police authority to decide how best to apply this provision, but the authority should at least check first with management and the officer for their views before making an A20 decision - it may not be practicable to apply paragraph 50 of the Guidance formally before 1 July, but in the mean time a police authority may find the paragraph helpful in giving the gist of the issues to be considered at the A20 stage.
vii. New power for police authority, in exceptional cases, to select a board of two or more doctors to decide an issue under regulation H1 (including K1, K2 and K3), in place of a single SMP - ** action FMA and police authority .
Þ the decision to refer a case in this way is for the for the **police authority to take under H1 - see paragraph 24 of the Guidance;
Þ the FMA is best placed to alert the police authority to the fact that a case has particular difficulties - paragraph 24.
viii. New procedure under which the SMP shall express his or her findings in a report, not a certificate, in a case where H1(6) applies (ie which involves the consideration of permanent disablement) - ** action FMA/SMP. **
Þ see Part 1 of Annex B to this circular for the suggested form of the conclusion to such a report under H1 - see paragraph 26 of the Guidance. (Use of Part 2 of the report - the report on capability - will commence from 1 July.)
ix. New procedure under which a fresh report rather than certificate will be issued under H2(3) or H3 where the medical authority has revised a decision where H1(6) applied (ie a decision involving the issue of permanent disablement) - ** action FMA/SMP **.
x. New procedure under which a person who is the subject of the SMP’s medical report must be given a copy of it without having to request it - ** action police authority .
Þ On receipt of the report from the SMP, the **police authority should send a copy to the officer - see paragraph 29 of Guidance.
xi. New entitlement under which a person who is dissatisfied with a decision where regulation H1(6) applies will have a period of 28, not 14 days following him personally receiving the SMP’s H1 report during which he or she may give notice of an appeal. As with the present regulations, this (new) time limit may be extended at the discretion of the police authority - ** action police authority **
Þ Police authority to note new procedures - see paragraph 32 of Guidance.
Þ Police authority to notify affected officers and appellants.
xii. New requirement under which, following notice of an appeal against a decision taken where H1(6) applies, the appellant must provide a written statement of the grounds of appeal within 28 days following the date of notice. Where the appellant gives no statement within 28 days the Police Authority need not refer the appeal unless it exercises discretion to allow a longer period - ** action police authority **
Þ Police authority to note new procedures - see paragraphs 33-34 of Guidance.
Þ Police authority to notify affected appellants.
xiii. New procedure under which, following notice of appeal under regulation H2 but before the Secretary of State has been notified, the police authority and the claimant may agree to refer a decision back to the SMP for reconsideration. This internal review without prejudice to an appeal applies to any question decided under H1 or under K1, K2 or K3, and may be done without the need for fresh evidence - ** action FMA/SMP and police authority **
Þ SMP and police authority to note new procedures - see paragraph 35 of Guidance.
Þ SMP to note that if a fresh report will not resolve the issue to the satisfaction of the officer, the SMP must not issue one, so that the appeal under H2 against the original decision under H1 may proceed instead - paragraph 35.
xiv. New procedure under which an appeal decision under regulation H2 - on any question under H1 or under K1, K2 or K3 - may, by agreement between the police authority and the appellant, be referred back to the medical referee for reconsideration. This may be done without the need for fresh evidence - ** action police authority to note facility which may avoid the need for Judicial Reviews **.
xv. New power under H3(3) for a court or tribunal, or the claimant and the police authority by agreement, to refer a case to a board of practitioners selected by it, or agreed by them, instead of to a single duly qualified medical practitioner - ** action police authority to note **.
C. What you need to do to implement the wider set of new procedures by 1 July 2003;
In order to achieve an orderly introduction of the better management of ill-health guidance, it has been agreed in the PNB that there will be a three-month implementation period, from 1 April - 1 July 2003, for all parts of the Guidance at Annex A which do not come into force on 1 April by virtue of changes to the regulations. To ensure that all forces are ready to implement the procedures in the guidance in time for 1 July some preparation will need to be made.
- The new procedures are set out in the guidance but the following are suggested as ** the key action points **:
- Separating the role of the SMP from that of the FMA, save in exceptional cases, with the FMA playing a separate but key role in the assessment of permanent disablement - Guidance paragraphs 17-27.
A particular issue here is to ensure the independence of the SMP from the pressures that can arise from being the FMA for the same force as the police officer, whose case is being considered, is a member of. At the same time there is a need to ensure that the SMP is fully competent to deal with such cases.
- Applying the new guidance on [disablement for] the ordinary duties of a member of the force - paragraphs 1-5 of Annex B to Guidance.
- The FMA and SMP supplementing, save in exceptional cases, their assessment of permanent disablement with an assessment of the officer’s capability - Annex C to Guidance.
- Involving the chief constable or the person delegated for that purpose in providing information to the police authority before it reaches its decision under A20 - Guidance paragraphs 38-45.
- The police authority also taking the views of the officer before it reaches its decision under A20 - Guidance paragraph 46.
- A check-list and procedure for the police authority when deciding how to exercise its discretion under A20 - Guidance paragraphs 47 - 51.
- Agreeing local protocols between police authorities and chief officers for:
- the extent and level of delegation;
- procedures for officers, force managers and the FMA to adopt to manage ill-health;
- qualifications of the medical practitioners to serve as FMA and SMP in such cases;
- whether to co-operate with other police authorities in securing the services of suitable SMPs;
- arrangements for progress in each case to be monitored by a nominated member of the HR department to help the police authority ensure that it is dealt with expeditiously at all stages; and
- arrangements for the force to report and the police authority monitor the force’s exercise of powers under H1 and A20 that have been delegated to it.
The APA will be issuing guidance to police authorities on the key issues they should consider in drawing up local protocols - Guidance paragraphs 4-5.
- The Guidance is intended to cover a variety of cases, ranging from those where the decision is finely balanced to cases which are urgent or where there is little reasonable doubt as to the correct course. The Guidance should be used flexibly, with use made of the expedited or shortened procedures wherever appropriate. The Guidance should be applied to help in the effective management of ill-health retirement, not hinder it.
D. How the new regulations and new procedures impact on injury awards and decisions under regulations K1, K2 and K3;
- The PNB Agreement noted the possibility of the need to review injury awards should the current government review of such awards in the public sector make recommendations for change. Before any such review is completed, the current changes to the management of permanent disablement require consequential changes to the handling of injury awards. The following guidance is necessary in relation to injury awards in view of the changes made by the Police Pensions (Amendment) (No.2) Regulations with effect from 1 April 2003. Reference is also made here to the procedures under regulations K1, K2 and K3. This is not comprehensive guidance about injury awards, K1, K2 or K3, but deals specifically with points arising from the changes to the Police Pensions Regulations and the new procedures set out in the Guidance.
- Effect of new regulations on injury awards
- An injury award is payable under Regulation B4 to a person who has ceased to be a member of a force and is permanently disabled as a result of an injury received without his or her own default in the execution of his or her duty. ** The changes set out in paragraphs 38 and 39 below come into effect on 1 April. **
Injury awards considered on their own
37. In any case involving the reference to the SMP only of the question at H1(2)(c) and (d) (whether the disablement is the result of an injury and, if so, the degree of the loss of earning capacity as a result) the 1987 Regulations remain unamended except in one respect.
- The only exception is that the officer who appeals against a decision under H1(2) (c) or (d) will also be offered an opportunity for an internal review of the issue in dispute under H3 without prejudice to his or her outstanding appeal, as set out in paragraph 35 of the Guidance.
Injury awards considered together with permanent disablement
39. The new regulations apply in any case where the questions at H1(2) (c) and (d) are asked together with the questions at paragraphs (a) and (b) (whether the officer is disabled and, if so, whether that disablement is likely to be permanent). This means that:
* the decision on all the questions asked must be made in the form of a report, not a certificate. A suggested example of the form in which the decision should be given is attached at part 1 of Annex C to this circular;
* the right of appeal is altered as explained in paragraphs 18-20 above.
- Effect of new procedures on potential injury awards
- In addition to the changes to the regulations the procedures set out in the Guidance have implications for how cases involving injury are handled. ** The changes in procedures set out in paragraphs 44 to 47 below should be brought into effect on 1 July **,
Cases where consideration of an injury award is held over
41. Where a police officer is to be assessed by the SMP for permanent disablement in circumstances which do not require urgent consideration of an injury award - see paragraph 43 below - it will be inappropriate for the police authority to consider the question of granting such an award unless and until the officer is subsequently found to be permanently disabled and retired.
- Where an officer has been assessed as permanently disabled under H1 and is being retained in the force, any related injury award would not fall to be considered until the officer had retired. The police authority should ensure that all relevant contemporary medical and non-medical records are kept to enable full consideration of a potential future claim for an injury award. Any incident which may relate to a future claim should therefore be fully recorded and investigated by management and the FMA as necessary - where appropriate in accordance with Health and Safety requirements. The same approach should apply to any illness or other condition, which may be the result of a process or a series of events.
Cases where an injury award is considered in conjunction with permanent disablement
43. For the reasons stated above, it will normally be appropriate to consider the question of medical retirement before considering the issue of an injury award. There may, however, be cases where the police authority decides in the particular circumstances to refer questions at H1(2) (c) and (d) to the SMP at the same time as the questions at H1(2) (a) and (b). There are two sets of circumstances in which this may apply:
* serving officers who are seriously disabled; where the procedures set out in paragraph 30 in the Guidance apply, or in other cases where it is clear from the outset that there is little prospect of retaining the officer in the force - in such circumstances the expedited procedure at paragraph 31 of the Guidance can be expected to apply; and
* injury claims arising after retirement.
In such cases referral of all four questions to the SMP will be via the FMA except in the special circumstances set out in paragraph 30 of the Guidance. Save in cases where the FMA acts as the SMP, the FMA will include in the medical background he or she is providing the SMP all relevant medical records and reports to enable the SMP to make a decision on the additional question of an injury. The FMA should supplement his or her opinion on the issue of permanent disablement with a section relating to the question of an injury award if the SMP assesses the officer as permanently disabled. The FMA should include in that section of the opinion an outline of what he or she considers to be the key issues relevant to the question whether disablement is the result of an injury, but there is no need for the FMA to come to a conclusion on the matter. Copies of the FMA’s advice will be sent to the police authority and the officer as set out in paragraph 23 of the Guidance.
Where the SMP decides that the officer is permanently disabled as a result of an injury, he or she will, go on to decide the issue of degree of disablement, taking advice as necessary from the force HR Department about the person’s salary and qualifications. The completed report will be sent to the police authority and from there to the officer in accordance with paragraphs 28 and 29 of the Guidance.
As in a case involving only the issue of permanent disablement, an officer will have 28 days from receipt of the report to give notice of appeal and a further 28 days within which to state the grounds of the appeal. As in the procedures for appeals set out at paragraphs 32 to 34 of the Guidance, in each case the 28-day period may be extended at the discretion of the police authority. The officer also has access to the possibility of an internal review of the decision under H3 without prejudice to his or her appeal, explained in paragraph 35 of the Guidance.
- Questions for the SMP under K1, K2 and K3
- Questions under K1, K2 and K3 should still be put direct to the SMP for the issue of a certificate. They remain unaffected by the amendment regulations and the Guidance except that in all cases it is now possible to refer the relevant question to a board of SMPs.
- The procedures under K1 (relating to reviewing the ill-health pension of a retired officer) are being reviewed, together with the need for a provision for reviewing the permanent disablement of a serving officer.
E. The latest position on regional appeal boards
The Home Office-led Contract Panel are working on securing a contract with the supplier of a new system of medical appeal boards, which will replace the present system of single independent Medical Referees. The aim is to have these appeal boards in place later this year with the necessary regulation changes also in place.
We will issue another circular and the necessary guidance as soon as this is possible. The new guidance on appeal boards will be incorporated and consolidated into the attached Guidance. In the mean time there are no references to appeal boards in the attached Guidance except in the case of the flow chart at Annex A to the Guidance.
In the mean time arrangements will be made to ensure that medical referees are briefed on the changes taking place. An example of the report decision the referee will be required to complete is at Annex D to this circular.
Police Pensions and Retirement Policy Section