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Research Conducted into Home Office Circular 46/2004 Annex C

The following is the result of research conducted into Annex C to Home Office circular 46/2004. It was initiated on the premise that the guidance contained in that circular was so very obviously far removed from anything that was visible in the Regulations or in any case law that it must be doubted. However, the research was conducted with an open mind and did not seek to establish anything other than the true facts. Note: Since this paper was first published, a landmark case, in Leeds High Court, has declared that the guidance contained in Annex C to Home Office circular 46/2004 is unlawful. That judgement thus fully justifies and endorses the findings of this research. The case is Crudance v. Northumbria Police Authority, Neutral Citation Number: [2012] EWHC 112 (Admin) Case No: CO/2417/2011 Methodology The research was conducted using requests made under the Freedom of Information Act (FOIA). The majority of the requests for information were made via the charitable web site whatdotheyknow.com. A few were made by direct email. Consequently, the majority of the requests and the responses are available for public scrutiny. The data obtained is in digital form but easily verified. Public bodies approached for information were all police forces in England and Wales, some police authorities and the Home Office. Summary On August 9th 2004 the Home Office issued its circular 46/2004 containing guidance to Chief Police Officers concerning some aspects of the management and review of police injury pensions. Annex C to the circular contained several recommendations that have resulted in some police authorities seeking to reduce injury pensions on the grounds that age is a factor that affects loss of earning capacity. Around 17 out of the 43 Police Authorities in England and Wales have implemented new policies and/or procedures based on the Home Office guidance. The majority, 26 Police Authorities, have used their discretion to disregard the guidance. Disabled former police officers and their families have suffered maladministration, stress, illness and financial loss as a result of the Home Office guidance. Research has shown that the guidance in Annex C contained inaccuracies of fact and contained what can only be called a deliberate attempt to mislead Chief Officers and police authorities.

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The guidance is essentially an attempt to usurp the function of Parliament and the courts, as it introduces an extreme and novel interpretation of legislation. The guidance, where implemented, is arguably unlawful.

Background In 2004 the Home Office issued guidance to Chief Police Officers and Police Authorities concerning some aspects of the management and review of police injury pensions. The guidance was Annex C to Home Office Circular 46/2004. The guidance suggested that injury pensions could be reviewed and reduced to the lowest possible level at age 65 and also could be reviewed and reduced at normal force retirement age by means of using the Annual Survey of Hours and Earnings (ASHE) as a comparator to calculate payment instead of using police salary scales.
Note: The circular advised using the Average Earnings Index but this was later revised to ASHE. This raises a concern that if the comparator can be changed on a whim once, it can be changed again, and the next change could be to something that further erodes the amount of pension payable. The author believes that ASHE, nor any other comparator, has a place in the calculation of police injury pension payments, but that is an issue for a different paper, and perhaps ultimately for the Administrative Court or the Pensions Ombudsman.

These measures, if implemented by police authorities, would result in significant savings from police budgets, as initially all former officers in receipt of an injury pension who were approaching or already over the age of 65 could have their injury pensions reduced to band one. Over time, all injury pensions would be reduced, either at normal force retirement age or at age 65, thereby almost completely removing the cost of injury pensions from the budget. The measures suggested in the Home Office guidance have no basis in the legislation governing police pensions. Most contentiously, all the police authorities that have implemented new policies and procedures have done so retrospectively – to former officers already in receipt of an injury pension. This is contrary to normal process and is unfair in the extreme. This has resulted in many disabled former officers having little warning that their injury pensions are to be reduced to band one. Moreover, some police authorities took the guidance to indicate that they could reduce injury pensions at age 65 by administrative action only. That is without any reference of the statutory question regarding degree of disablement to the selected medical practitioner.

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Time Line From 1987, when the Police Pensions Regulations and Police (Injury Benefit) Regulations became law, to approximately 2002, all forces and police authorities managed police injury pensions with no concept of any age-related triggers for review, nor any concept of using anything other than former police salary as a comparator in calculating the amount paid. During the late 1990’s the Government became increasingly aware of a shift in the demographics of the population. People were living longer and there were therefore a higher proportion of people of pensionable age. There was concern that pensions and other benefits could not be supported at present levels in future. A wide-ranging review process was implemented, where the burden of all public service pensions was to be reduced. Police pensions were amended in 2006 by the implementation of new legislation. This legislation did not incorporate any elements of the guidance contained in Annex C, which was issued in 2004. Due to a change in taxation rules police injury pensions became payable out of police authorities’ general funds in 2006. Due to a provision of The Police Pensions Act 1976 (Section 3.2) new pensions legislation that introduced a worsening of benefits could not be applied to any officer or former officer without first securing their consent. For some time before Home Office circular 46/2004 was issued, personnel from the Home Office Police Finance and Pensions Unit were actively seeking to persuade employees of police forces who were responsible for the administration of police injury pensions that injury pensions could be reduced at age 65, or even earlier. This appears to have been a sort of covert propaganda or misinformation campaign. It largely fell on deaf ears. The venue of choice for this campaign was the National Attendance Management Forum. In 2002 the Metropolitan Police changed the way injury pensions were calculated, through use of the ASHE data. It is not entirely clear what the Metropolitan Police are currently doing. However, a FOIA response from the Metropolitan police stated: ‘Since approximately 2002 the MPS have been using this calculation and following a review of the various procedures by the HO in 2004, this process was adopted as best practice for all forces2.’ On the 9th of August 2004 the Home Office issued circular 46/2004 and its Annex C. This document advised all forces and police authorities that they could reduce injury
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It was not.

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pensions to the lowest level at age 65. It also advised that at normal force retirement age it was no longer appropriate to use police salary scales to calculate the amount paid. Instead, the ASHE data would be used. Following this guidance some forces and police authorities began to retrospectively implement new policies and procedures, effectively aimed at reducing the cost of police injury pensions. The last Government was, in 2009, proposing and consulting on implementing new legislation to govern police injury benefits. The proposal document contains elements that are almost identical to the guidance in Annex C. If it had progressed into legislation it would not have been be applied retrospectively. Home Office Circular 46/2004 Annex C stated: ‘This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned. It is clear that a more standardised approach is needed to safeguard the rights of the Officer and ensure fair treatment across Forces. After consultation, the following Guidance has been agreed: ’ [The circular then goes on to detail the guidance] The phrases in bold typeface are the focus of the research.

Hypothesis The then Government, via the Home Office, had actively sought to provide a mechanism for Police Authorities to reduce the cost of police injury pensions. Home Office circular 46/2004 Annex C contains guidance that encourages radical and hitherto unheard of3 and unconsidered new approaches to the management and review of injury pensions. The assertions and assumptions contained in the circular were not grounded in fact, nor in legislation. They were a manipulative distortion intended to move police authorities in a direction that suited the Home Office.

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Unheard of by police injury pensioners – most of whom knew nothing about these measures until they were presented as new policy by their police authorities, in most cases some years after the circular was published.

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New policies and procedures implemented by police authorities and forces are based on guidance given in Annex C that contained an inaccurate account of then current practice and inaccurate guidance on the law. There is a prohibition in The Police Pensions Act 1976 (Section 3.2) against introducing any worsening of benefits without individual agreement, and because of the general impossibility of applying new legislation retrospectively, the ‘burden’ of police injury pensions currently paid cannot readily be reduced by legislation. The guidance was an attempt to overcome this difficulty by causing police authorities to implement new policy that effectively made major changes to the relevant Regulations and which police authorities would apply retrospectively. This would allow the then Government to claim that ‘current practice’ was closely aligned with significant elements contained in their proposals for new police injury benefits legislation. Some Police Authorities, enthusiastically aided and abetted by their Chief Constables, set aside their duty of care for their disabled former officers in preference to grasping an opportunity to divert money from injury pensions into other areas. They failed to exercise due diligence in testing the Home Office guidance for legal authority and accuracy. Research In the autumn of 2008, four years after the Home Office issued its guidance in circular 46/2004 all 43 police forces in England and Wales were asked, using the Freedom of Information Act: ‘[Home Office circular 46/2004 Annex C] identifies two categories of forces – A) one group that automatically reduced degree of disablement benefits to the lowest banding when compulsory retirement age had been reached and a second group B) that continued to pay benefits at the same rate until the death of the Officer concerned. I am attempting to identify and obtain a copy of documents that show which category (A or B) your force would have been included in prior to receipt of HOC 46/2004.’ All 43 forces responded. Of these, only one force placed themselves in category A prior to 2004. This was the Metropolitan Police. They introduced new policy in 2002. This effectively would have placed them in category B if the question had used 2001 as the cut-off date.

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Some forces qualified their answers, but the researcher is satisfied that the essential fact is that from this round of FOIA requests and responses it can be seen that all 43 forces were in category B before 2001, and 42 were in that category up to 2004. They all continued to pay benefits at the same rate until the death of the Officer concerned. This fact is directly contrary to what is claimed in Annex C, that, 'A recent survey found that practice in this area was diverse . . .' A separate round of FOIA requests to all 43 police forces/police authorities in England and Wales asked a different set of questions: ‘1) How many former officers of [your force] are currently in receipt of an injury award pension, as provided for in the Police Pensions Regulations 1987 and the Police (Injury Benefit) Regulations 2006? 2) Do you operate a policy of reducing an injury award pension to the lowest permissible band when the former officer reaches the age of 65? 3) In the years 2004 to 2008 inclusive, how many former officers’ injury award pensions were reduced to the lowest banding upon the former officer reaching the age of 65? 4) In the years 1987 to 2003 inclusive, how many former officers’ injury award pensions were reduced to the lowest banding upon the former officer reaching the age of 65? The purpose of this round of enquiries was to illuminate the position after issue of Home Office Circular 46/2004. 42 forces responded. In response to question 1 they reported that a total of 13,779 former officers were in receipt of a police injury pension. Answers to question 2 show that 17 forces/authorities now had a policy that aimed to reduce injury pensions to the lowest permissible band when the former officer reaches the age of 65. Answers to question 2 also show that 25 forces/authorities had not fully implemented policies in response to Home Office guidance some four years after the guidance was issued. Several of these responses contained further explanatory detail, including information about partial implementation, concessions, or statements that they were considering the situation.

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Answers to question 3 showed that 64 injury pensions had been reduced to the lowest level at age 65 between 2004 and 2008 inclusive. Answers to question 4 showed that no injury pensions had been reduced to the lowest level by age 65 between 1987 and 2003 inclusive. Note: Since this research was first published, more data has been obtained, illuminating the number of reviews held between January 2005 and December 2010 – this being the period from shortly after HOC 46/2004 was issued to shortly before the Home Office advised that all reviews be suspended. The latest data shows that 10 forces conducted no reviews at all in that period, whilst a further 5 forces reviewed less than 10% of injury pensions. Four out of the 43 forces in England and Wales refused to supply data. The 37 responses received revealed that 3159 injury pensions were reviewed and of those 1070 (33.87%) were reduced and 143 (4.53%) of reviewed pensions were increased whilst 1948 (61.67%) remained unaltered. The data shows that the situation during this period remained diverse, with some forces conducting what has been termed a 'more robust' approach to injury pension reviews, with some forces deliberately targeting reviews of pensioners at or over the age of 65. Other forces seemingly only conducted reviews when good reasons to do so were present. Only 22.7% of the entire population of injury pensioners faced reviews.

Conclusions of Research From these responses it can be concluded that the data gathered in the first round of research is validated in respect of the situation concerning management and review of injury pensions prior to the issue of HOC 46/2004: • It is clear that from 1987 to 2003 not a single injury pension was ever reduced as a result of the former officer attaining either normal force retirement age or state retirement age of 65. It beggars belief to think that all 43 forces/police authorities were ignorant of the correct implementation of the relevant Regulations before the Home Office issued its guidance. It is probable that they were not ignorant of the law, but were applying it with proper use of the discretion allowed. It is clear that a majority of forces/police authorities have decided not to follow Home Office guidance. 7

• • •

Significantly, the data shows that the Home Office’s claim that ‘practice in this area was diverse’ was not an accurate reflection of reality. Practice was, in fact, remarkably similar in all 43 force areas. If the non-responding force is assumed to be in category A before 2002 then the second round of validating research confirms that not a single force ever reduced an injury pension for reasons connected with age until the Home Office suggested it could be done. Rather than promote a 'fairer and more cohesive approach' the effect of the Home Office guidance was to create a widely diverse and patently unfair administration of police injury pensions, where the amount of pension paid after age 65 was dependent upon which force former officers worked in.

More Research - ‘A Recent Survey’ The data resulting from the two rounds of FOIA enquiries and their responses focussed attention on the ‘recent survey’ mentioned in Annex C. (‘A recent survey found that practice in this area was diverse.’) The survey is mentioned in such a way as to lead the reader to conclude that the data set produced by the survey underpinned the assertion that practice was diverse – that some forces reduced pensions to the lowest band at compulsory retirement age, and some did not. This would have been impossible, as any ‘recent survey’ results from 2004 would conflict directly with the data obtained by the FOIA research. There was no diverse practice. Further, it can be inferred that, as the authors of Annex C chose to mention a ‘recent survey’, then it must have been the most comprehensive, most accurate, and most up to date data set available. Also, it is unlikely, to the point of improbability, that the authors would base their assertion that practice was diverse on anything other than the best current information available. Unless – Either the survey was an invention and did not exist, or it did exist but did not show the position that the Home Office wished to show and was therefore deliberately misquoted.

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A search of the Internet revealed that an earlier FOIA request to the Home Office on a related issue had been made and responded to1. The Home Office had been asked, in relation to HOC 46/2004 and its Annex C:
‘What

legal advice was sought when retrospectively applying this advice to pensioners already in receipt of a lifetime pension? What agreement was sought through the Police Negotiating Board (PNB), if any? What surveys were undertaken, when and the results please? If agreement was not sought through the PNB could I have the minutes of the meeting that sanctioned such advice? Was this ever put against the HRA [Human Rights Act] as with Equality and Diversity issues, to ensure compliance?’ The Home Office response was: ‘The ability for police authorities to review injury awards has been in the regulations since they were made in 1987. Home Office Circular 46/2004 gives guidance regarding the process of reviewing injury awards and was issued to ensure a fairer and more consistent approach from all police authorities when reviewing injury pensions. This clarification of the situation in the Circular does not constitute retrospection. No legal advice was sought specifically on circular 46/2004. Legal advice is not routinely sought when a Home Office Circular is issued unless there is a change to the regulations or some specific point which needs legal clarification. Agreement was sought with the Police Negotiating Board (PNB) that a fair, clear and concise guide for forces would be produced when undertaking reviews of police injury pensions. The Home Office looked to strike a balance between, on the one hand, ensuring consistency as far as possible and, on the other, being overprescriptive. There was one survey, which was referred to in the guidance, which would have been conducted as part of a round the table discussion at the National Attendance Management Forum. The minutes and results from these meetings are not published. The Home Office guidance was issued following written consultation with the constituent parties of the PNB. It is for the PNB to decide whether to make public any minutes of its meetings. The Home Office does not hold records of the dates the contents of the HOC were decided or approved in the Home Office.
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The FOIA request was made in August 2006. It is, at the time of writing, still viewable on line at: http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/foiarchive-crime/3733-police-injury-awards?view=Html

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The Police Negotiating Board’s website http://www.lge.gov.uk/lge/core/page.do?pageId=54117 provides information on the date of the meeting in which the PNB agreed that guidance on the management of ill-health retirements should be published. The relevant PNB Circular is 03/19. This website does not hold records of the minutes of meetings. Any policy is considered in the light of the Human Rights Act and equality and diversity issues but this matter raised no specific issues. In particular, there were no retrospective changes to the regulations that the guidance was based on.’ At this point, it can be hypothesised that the ‘recent survey’ mentioned in Annex C might possibly not be a well conceived, well conducted and methodologically sound survey. A ‘round the table discussion’ may produce some useable data, but the quality of that data would depend on a number of factors, including the quality of the information available to those taking part and would also depend for completeness on the number of forces represented at the meeting. Accordingly, further FOIA requests were made, directed to the Home Office. An initial request revealed that the National Attendance Management Forum was in the practice of meeting at the Tally Ho! Training centre of West Midlands Police. A further request to the Home Office elicited the response: ‘The survey was part of round the table discussions at the National Attendance Management Meeting at the West Midlands Police.’ From this it can be seen that the Home Office has shifted from its statement that the survey resulted from a singular round the table discussion to it being the result of an unspecified number of discussions over a period of time. This would seem to further erode any claim that this was a properly conducted survey. FOIA requests were made to West Midlands Police and produced edited copies of minutes resulting from the seven meetings of the National Attendance Management Forum held from January 2001 to April 2004 where police injury pensions were discussed. The minutes did not reveal anything that could be interpreted as ‘round the table discussions’ about then current practice concerning reviews of police injury pensions. The Home Office was then asked to identify the dates of the meetings when the ‘round the table discussions’ took place. They were unable to do so, and stated,

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‘There is no further information available as the West Midlands Police provided all the relevant dates.’ The Home Office was also asked: “In Annex C to Home Office Circular 46/2004 the following was stated: 'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.' I am requesting that you supply me with a list of the forces that, according to the 'recent survey' that is mentioned, automatically reduced degree of disablement benefits to the lowest banding when compulsory retirement age with those forces had been reached.” The Home Office replied, ‘The Home Office does not hold this information.’ This can only be an admission that the Home Office never had any information whatever that any force automatically reduced degree of disablement to the lowest band at compulsory retirement age. The Home Office was also asked to produce any documents, notes, etc. resulting from the ‘round the table discussions’ at the meetings of the National Attendance Management Forum that would have been used to construct the ‘recent survey’. The Home Office replied, ‘After a thorough search we have not been able to trace any notes taken prior to or after these meetings.’ The Home Office also advised: ‘I understand that the West Midlands Police have responded to you with various extracts from meetings that refer to the ‘round the table’ discussions which took place at the National Attendance Management Meetings at the West Midlands Police. These discussions were referred to in Annex C as the ‘survey’. There was no further survey that took place.’ One list of delegates at one meeting was obtained. It showed that Mr John Gilbert of the Police Finance and Pensions Unit of the Home Office, whose name appears as the author of Home Office Circular 46/2004, was a delegate. His name appears in several of the edited minutes of other meetings. The other delegates were mainly civilian and police staff employed in Personnel or Human Relations Departments of police forces. At the meeting for which the researcher has the list of delegates only 28 of the 43 police forces in England and Wales were represented.

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One notable minute of a meeting held on the 9th of October 2002 records that the Home Office had circulated a letter to all forces, dated 8th July 2002, concerning payment of injury awards to officers over normal force retirement age. I quote: ‘This [letter] affectively advises that forces can use the lowest banding for awards from age 60. A discussion followed on how to handle existing cases in the system and the potential for public relations problems if the issue is handled badly and/or forces take different approaches/ policies. It might be better to look at all new cases and give claimants notice from the outset on the likely position at age 60.’ A copy of the 8th of July 2002 letter was obtained. From Michael Ruff of The Police Pensions and Retirement Policy Section of the Home Office, it states: ‘As it appears that the Regulations do not currently permit an injury award to be cancelled merely because of the age of the pensioner, we have in the past advised that police authorities may wish to consider using the lowest banding for injury awards from age 60 because of the expectation of lower earnings from this age.’ (Note: The Regulations require that an injury pension is paid at a level indicated by ‘degree of disablement’. It is not paid at a level that is indicated by an expectation of lower earnings. Degree of disablement is the extent to which the former officer’s earning capacity – not earnings - has been affected by the relevant injury. Only the relevant injury can be considered when assessing earning capacity. Age is an irrelevant factor and cannot be considered.) The Home Office was asked about this letter and replied, ‘The letter of 8 July refers to a review of the police injury awards system which in fact did not go ahead in 2002.’ It may 'refer to a review' as claimed, but it clearly evidences that the Home Office had for some time prior to July 2002 been advising that injury pensions could be reduced on review from age 60. The edited minutes of meetings of the National Attendance Management Forum and responses from the Home Office provided nothing that helps identify the ‘recent survey’ mentioned in Annex C. To all intents and purposes it never took place. The Home Office was unable to produce a shred of evidence that would prove that the survey took place. The guidance referred to a 'recent survey' yet the Home Office can not produce any data that resulted from any such survey. The minutes and FOIA responses tend to show that the Home Office was actively guiding, directing and influencing those people directly tasked with managing police injury pensions, and were doing it in a way that apparently effectively removed these events from the normal consultation process involving the bodies charged with representing the interests of serving and retired police officers. A behind closed doors campaign to make it appear legal and acceptable to reduce injury pensions on grounds of age had been undertaken since some time before 2002. 12

Annex C to Home Office Circular 46/2004 contained guidance that advised a dramatic departure from established policy and practice, and recommended actions that are unlawful in respect of the review of injury pensions. Therefore, it was felt to be important to attempt to trace the origin of the guidance. Accordingly, as his name appears as signatory to the guidance, the following request was made to Mr. John Alexander Gilbert, a civil servant who was then Head of the Police Pensions and Retirement Policy Section at the Home Office. Mr Ian Moire of that Section provided the answers, shown in italics:
I am making a request to you under the terms of the Freedom of Information Act. Essentially, I am asking the Home Office for information, but as I know that you have had a long-standing personal involvement and knowledge of the subject of my request I felt it best if I approach you direct. Your name appears on Home Office Circular 46/2004. 1) Would you please advise me if this means that you were the author of the above circular and its Annexes?

‘Mr Gilbert did approve the Circular and the annexes although the content of the documents were drafted by members of the pensions team’.
2) Could you please describe in brief detail how the circular was written? In particular I would like to know if the author sought expert legal advice or if any reference documents were consulted such as statutes, case law, etc. etc.

‘The Circular was written on the basis of providing clear and concise guidance to police authorities on the process of reviewing police injury awards. There are no parts of Home Office Circular 46/2004 which have statutory effect and the guidance was designed to fit in with the Police Pensions Regulations. We do not hold any documentary evidence with regard to legal advice or references to statutes or case law.’
3) I would also like to know who authorised the circular for release?

‘Mr Gilbert authorised the circular for release.’
I am aware that certain concepts presented in Annex C of the circular were being presented by the Home Office at meetings of the National Attendance Management Forum, held at the West Midlands Police Tally Ho! Training Centre, some years before they appeared in circular 46/2004. In particular, I refer to the concept of it being acceptable for police authorities to consider reducing police injury award pensions to the lowest band at normal force retirement age and at age 65. I have a copy of a letter dated 8th July 2002, signed by Mr Michael Ruff of the Police Pensions and Retirement Policy Section of the Home Office that was circulated to delegates of the above Forum. It states,

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‘As it appears that the Regulations do not currently permit an injury award to be

cancelled merely because of the age of the pensioner we have in the past advised that police authorities may wish to consider using the lowest banding for injury awards from age 60 because of the expectation of lower earnings from this age.’
4) Could you please provide any and all documentary evidence of the advice that Mr Ruff stated had been given ‘in the past’?

‘Under section 12 of the Act, the Home Office is not obliged to comply with any information request where the prescribed costs of supplying you with the information exceed £600. The £600 limit applies to all central government departments and is based on work being carried out at a rate of £25 per hour, which equates to 3½ days’ work per request. Prescribed costs include those which cover the cost of locating and retrieving information, and preparing our response to you. They do not include considering whether any information is exempt from disclosure, overheads such as heating or lighting, or disbursements such as photocopying or postage. We have estimated that the cost of answering your request in question 4 would exceed the £600 limit and we are therefore unable to comply with this request. To confirm whether there is any documentary evidence which fits in with this request would require a manual check of a large number of archived files.’
In order to assist you and to ease your workload in responding to this request, the focus of my request is to understand how the concept of age-triggered review and reduction of injury pensions arose. It clearly started somewhere, and I ask that you provide me with a clear and unambiguous answer to this question: 5) Where, when and by whom, and in what form did the concept originate? For example, is there some case law, legal opinion, learned advice or the conclusions of a committee, politician or other individual or body that was the source of the concept?

‘Home Office Circular 46/2004 was drafted following round the table discussions at the quarterly Management Attendance Meetings at the West Midlands Police. These meetings were attended by representatives from all police forces to discuss various issues relating to the management of ill-health within the police service. Although the Annex in the Circular refers to a ‘survey’ on ill-health the survey was part of these discussions.’ Next, the researcher was interested in what involvement the official representatives of serving and retired officers had in the formulation of the Home Office guidance, given that the Home Office claimed that consultation had taken place. The pay and terms of conditions of all UK police officers are negotiated through the Police Negotiating Board (PNB). Local Government Employers provides the Employers' Side of the PNB while the Police Federation, the Superintendents’ Association and the Chief Police Officers’ Staff Association represent the Staff Side. Notably, the National Association of Retired Police Officers (NARPO) is not represented on the PNB. It need not be, for the PNB is concerned with the pay and 14

conditions of employment of serving and future retirees, not currently retired former officers. The Home Office had stated in answer to a FOIA question (above - HO Ref. FOI 3773): ‘Agreement was sought with the Police Negotiating Board (PNB) that a fair, clear and concise guide for forces would be produced when undertaking reviews of police injury pensions.’ However, at a meeting of the National Attendance Management Forum held on the 6th April 2004 (only four months before Home Office circular 46/2004 was issued) Linda Van Den Hende of the Metropolitan Police advised about her concerns regarding lack of consultation with the Police Negotiating Board, the Association of Police Authorities and the Association of Chief Police Officers. Tellingly, Mr Elliott, Chief Executive Officer of NARPO, who was a Police Federation member of the PNB at the relevant time, has said, in reference to Home Office Circular 46/2004 and its Annex C: ‘The PNB did not agree the Circular. It is a Home Office Circular. The PNB did agree a joint circular on 'Improving the Management of Ill Health'. This circular . . . [is] the PNB Circular which is number 03/19. This joint advice from the PNB is about managing 'ill health' not specifically about the management of injury pensions.’ Mr Elliott was further asked: “As you were on the staff side of the PNB at the relevant time could you please comment on the Home Office’s statements, in response to a Freedom of Information Act request, that: ‘Agreement was sought with the Police Negotiating Board (PNB) that a fair, clear and concise guide for forces would be produced when undertaking reviews of police injury pensions.’ And; ‘The Home Office guidance was issued following written consultation with the constituent parties of the PNB.’ You will note that the HO says that agreement was sought. Was it in fact actually obtained? If so, could you please advise me how I can get a copy of the minutes of the relevant PNB meeting/s? Do you have any comment to make on the Home Office statement? Can you shed some light on the ‘written consultation’? What exactly does this mean? Can you please advise me how I can get a copy of this written consultation? Do you have any comment to make on the Home Office statement?” 15

Mr. Elliott replied: ‘There was no agreement at the PNB about the circular . . . that is not surprising as it was not discussed. The second comment is very revealing as it in a way acknowledges that no agreement was reached at PNB on this topic as if agreement had been reached or detailed discussion taken place then there would have been no need to write to the constituent parties as part of a ‘consultation' exercise. I have spoken to the Federation and they have no record of any detailed correspondence on this topic from the Home Office or to the Home Office.’

Conclusions It seems that the Home Office has been economical with the truth on three separate occasions. The first two were a statement about a ‘recent survey’ that did not exist and a misrepresentation of the facts in Annex C to HOC 46/2004. The third was the way that it was claimed that agreement to the circular and, by implication, its contents had been secured with the PNB. Dealing firstly with the latter situation, it can be noted that the Home Office does not state that agreement had been reached, only that it had been sought. This subtle use of language is classic obfuscation. It appears to be saying one thing by allowing the reader to draw a false conclusion. It is deliberate and calculated misdirection.

Clearly, from the evidence of an impeccable witness, who was present at the PNB meetings, whose recollection is confirmed by the Police Federation, the Home Office neither sought nor secured agreement with the PNB over the content of HOC 46/2004 and its Annex C.

The PNB is concerned with future arrangements. It is not constituted, nor authorised, to negotiate any retrospective alterations to the management of police injury pensions affecting former officers already in receipt of an injury pension. Its role is necessarily prospective, not retrospective. The PNB has no remit to negotiate on behalf of existing injury pensioners. It can be seen, however, that there was piecemeal discussion between the Home Office and various employees of police forces on the occasions of the various meetings of the National Attendance Management Forum. The force employees were not official representatives of serving or retired officers and had no authority to enter into any agreement, consultation or negotiation on their behalf. No representatives of the Police Federation or of NARPO were present at meetings of the National Attendance Management Forum. The role of delegates to the NAMF should have been confined to administrative arrangements on matters concerning sickness rates, etc. When the discussions turned 16

to the management of existing police injury pensions by the introduction of novel and radical new policy including age-related triggers for review and the reduction of pensions to the lowest band at certain ages the delegates arguably overstepped their authority. • The guidance in Annex C was issued without consultation – a deficiency that the Home Office has sought to redress by giving the false impression that the PNB agreed to it. The Home Office is not obliged to consult before issuing guidance. However, lack of consultation is not the chief issue. The Home Office claimed it had consulted the PNB when in fact it did not. The only ‘consultation’ was in fact, with delegates to the National Attendance Management Forum – an unelected body with no mandate to involve themselves in agreements concerning retired former police officers.

Next, dealing with the matter of the lies apparent in Annex C: the reality of the situation concerning the management and review of police injury pensions prior to the issue of HOC 46/2004 and its Annex C was diametrically opposed to the Home Office’s claim that ‘practice was diverse.’ • In fact, the research shows that, in 2004, 42 out of 43 forces all consistently followed the same practice, which was to continue to pay injury pensions without any consideration of age-related triggers for review or reduction. Only the Metropolitan Police did otherwise. This situation did not represent diverse practice.

A majority, 25 forces/police authorities, have chosen to not implement new policies and procedures based on the guidance contained in Home Office circular 46/2004 Annex C. It seems probable that the Home Office guidance was a deliberate misguidance, in that it gave a false and misleading impression that there was support amongst police authorities and forces for age-related triggers for reductions in injury pensions, when in fact there was no support, other than possibly in the Metropolitan Police. A few police authorities, notably Cleveland in 2002, had explored the idea of introducing age-related triggers for reductions in injury pensions, but had rejected the concept. The suggestion, prior to the guidance being issued, that the Metropolitan Police approach had been accepted as ‘best practice’ was not an accurate statement of fact.

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Even now, some seven years after the Home Office guidance was issued, the fact that 25 police authorities have not implemented new policy, seems to indicate that they have concerns over the validity, legality and propriety of the guidance. • The Home Office has been unable to produce any documentary evidence that the ‘recent survey’ either took place as described or actually existed in any form whatever. A series of ‘round the table discussions’ does not come anywhere near to qualifying as a survey. The National Attendance Management Forum delegates did not include any members of the Police Federation or of NARPO. Views and opinions expressed by delegates were therefore not balanced by views and opinions of elected representatives of serving and retired officers. If the Home Office guidance was based almost entirely on this unrepresentative body of opinion, as appears to be the case, then it must be treated as tainted with strong elements of bias. There is a strong suspicion that the Home Office delegates at the National Attendance Management Forum actually initiated the concepts of agerelated triggers for review and reduction of injury pension and use of the ASHE data as a comparator for calculating levels of payment. There is no evidence that shows that the delegates of the National Attendance Management Forum ever voted on these concepts and proposed measures, or showed any enthusiasm for them. The Home Office, in its guidance, wrote with complete authority about a 'recent survey' and what it showed but did this without an iota of supporting data. The Home Office has been invited to provide the data, but has admitted that none exists. The Home Office does not have, and presumably never had, any information about any forces that automatically reduced injury pensions at normal force retirement age. This is confirmed by the answer given to a FOIA question, that the Home Office does not hold information on which forces by 2004 automatically reduced injury pensions at age 65. West Midlands Police provided edited minutes of the meetings of the National Attendance Management Forum and those minutes do not record any 'round the table discussions' having taken place on the matter concerned.

It is odd that the Home Office felt able to give guidance to police authorities and Chief Officers on such an important measure when it was, on its own admission, not in possession of a shred of evidence to show that any force area actually did operate a policy to reduce injury pensions.

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• It seems reasonable, given the evidence, to now conclude that the 'recent survey' never existed and was merely an invention, added to Annex C guidance in order to give apparent weight to the suggestion that it was common practice to reduce injury pensions at normal retirement age. • The Home Office assertion that ‘practice in this area was diverse’ is a complete untruth. • The Home Office guidance contained in Annex C is therefore highly suspect. • It was issued without any legal advice having been provided. • Guidance issued without any supportive evidence is reckless in the extreme. If guidance is issued that deliberately states a set of circumstances that in fact did not exist then that guidance is manipulative and perverse. • Guidance from the Home Office that rests its case for arguing a certain course of action on a provably untrue assertion of then current practice should be treated with the utmost caution. • Police authorities do not have to follow Home Office guidance and in the case of HOC 46/2004 Annex C they would seem to have a more than adequate reason to reject the guidance as unsound. • Any police authority or Chief Constable that becomes aware that they have been manipulated by the guidance contained in Annex C should certainly reconsider any decision that may have been taken to implement new policy and procedure resulting from the guidance. • Far from producing a ‘fairer and more cohesive approach’ the Home Office guidance has resulted in a patchwork of differing approaches effectively meaning that the level of the injury pension paid after normal force retirement age and after age 65 depends entirely on which force the former officer belonged to. This is not a fair and cohesive way to conduct the management of injury pensions that are regulated by legislation applicable to all 43 police authority areas. Before the Home Office issued its guidance all force areas were arguably operating a fair, proportionate, legal and cohesive approach to the management and review of injury pensions, and were doing so totally within the letter and the spirit of the Regulations. There was no need, nor any popular demand, for any changes to the way things were being done, save perhaps within the Metropolitan Police. The Home Office guidance has persuaded some venal police authorities and Chief Constables to implement new policies that arguably breach several areas of legislation. 19

Why Did the Home Office Lie? As with much research, answers suggest new questions. One such question must be, ‘Why did the Home Office lie?’ The usual purpose for telling a lie is either to avoid an unfortunate consequence or to obtain an advantage that telling the truth would not bring. In the case of Annex C guidance, I feel that it is reasonable to draw the conclusion that it was the latter. I doubt that anything short of a Parliamentary enquiry will be sufficient to bring forth the reason for the Home Office choosing to mislead and misdirect police authorities, so no research has been done to test the hypothesis, which is this: The Home Office wished to encourage police authorities to implement new policy and procedures for the management of police injury pensions so that they could claim that proposals for new legislation governing police injury benefits were merely a housekeeping exercise, reflecting established practice, thus easing the passage of new injury benefit legislation through Parliament. In August 2008 the Home office issued a consultation paper entitled ‘Review of Police Injury Benefits.’ Some of the key features proposed are almost identical to those found in Home Office circular 46/2004 Annex C. Before examining the similarities it is necessary to note that Mr. Coaker, then Minister of State for Policing, Crime and Security, who penned the introduction to the proposal document, has stated in a letter I have to hand, that ‘ . . . we are currently in the process of a policy review of the police injury system (the first such review). While any changes would not apply to existing pensioners it is certainly possible that the debate that results from the public consultation exercise may help us to evaluate whether the current guidance could usefully be revised.’ This raises an alarming consequence. If the public consultation exercise resulted in the abandonment of age-related triggers for review and reduction of injury pensions and rejection of the ASHE data as a comparator, then all former officers who have had their pensions reduced as a result of Annex C would have been dealt with in a way that would not become enshrined in legislation. The legitimacy of age-triggered review and reduction and use of the ASHE figures as a comparator does not rest within current legislation. Their only claim for legitimacy arises from the Home Office guidance, and that, now discredited, guidance may well have been amended due to consultation concerning what was then proposed future legislation. Due to the general election, we shall never know what might have transpired. We do know that the then Policing Minister, Mr. Hanson, promised that the guidance would be 'reviewed'. As far as the researcher knows that 20

intention still stands. In March 2010 the Home Office advised all forces to suspend all reviews pending the result of two appeals in the High Court – surely an admission that the guidance is intensely suspect. The Pensions Ombudsman, in a recent determination in the case of AYRE vs. Humberside Police Authority has stated that, ‘But the Scheme is governed by Regulations and Mr Ayre is right when he says that the Guidance cannot override the relevant Regulations, as HPA accepts. Although I agree with HPA that I should adopt a common sense and purposive interpretation of the relevant Regulations I cannot go beyond that. Such an approach does not extend to imposing a meaning on the Regulations that they do not hold – even if that meaning is the one that HPA (and possibly Home Office) think that the Regulations should in all logic hold.’ In other words, the Home Office, in Annex C, was indulging in wishful thinking. It advised actions that it would like to be allowable by the Regulations, but those actions are not in fact supported by the Regulations. It should be kept firmly in mind that any new legislation that might have arisen from the proposals made by the former Government, and any that may be made by the present Government cannot, and will not, be applied retrospectively. In other words, former officers already in receipt of an injury pension would not have to face agetriggered reviews and reductions, nor the ASHE comparator. This raises a most pertinent question: If new legislation containing provisions for injury benefits cannot be applied retrospectively, then how can it possibly be legal, proportionate, or even appropriate for almost identical provisions to be applied retrospectively merely by reference to Home Office guidance? Further, if new legislation is needed to bring in these new approaches, then how can the Home Office claim, ‘The Circular reflected long-standing legislation and introduced no new provisions.4’? It clearly did introduce new provisions – and provisions so novel and extreme that they need to be included in proposed future legislation. • If age-related triggers for review and reduction of injury pensions are somehow hidden in existing legislation, and only revealed by the guidance, then there would be no need for them to have been written into proposed new legislation. The 2006 Regulations provided an opportunity for the Government to include the concepts contained in Annex C, yet this opportunity was passed by.

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Quote from a letter dated 13th June 2009 from the Rt. Hon. David Hanson MP, Minister of State for Policing, Crime and Security

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These matters, which would surely would have been debated vigorously when the proposed new legislation was to be steered through Parliament, are arguably the driving motivation behind the Home Office’s attempt to manipulate police authorities into implementing policy and procedures conforming to features contained in their highly contentious and mendacious guidance. The Home Office would no doubt have preferred that its proposals passed into law with as few obstructions as possible. Its purpose would have been met by being able to say that established practice was already in line with proposed new legislation, thus easing its process through Parliament. If the Government had not issued circular 46/2004 this would not have been the case. The circular was the culmination of several years of mostly abortive behind closed doors lobbying and manipulation, notably via the National Attendance Management Forum. It was a last, desperate attempt to achieve a difficult task – that of persuading right-minded and moral folk to do something that was of questionable morality and of arguable legality. Those police authorities that have resisted can be rightly congratulated for exercising common sense and humanity. Those police authorities that have been blinded by the lure of taking money from injury pensions and spending it elsewhere have already been judged and found wanting by their disabled former officers, and others. These police authorities may well yet be judged further and found derelict in law. (Note: and now, at last, this is happening.)

Comment: Interpretation Of Legislation In a significant departure from normal democratic process, the Home Office avoided consultation with official representatives of serving and former officers and also used inaccurate and misleading information to encourage police authorities to implement new policies and procedures that amount to a change in the relevant legislation. Implementation of new policies and procedures by police authorities regarding the review and management of police injury pensions that includes age-related triggers for review and reduction and other aspects not visible in the relevant legislation would seem to place those authorities in the position of acting ultra vires – acting beyond their legal powers. A recent determination by the Pensions Ombudsman, in the case of AYRES, has shown that consideration of age as a factor in determining loss of earning capacity is unlawful: ‘There are no special provisions in the Regulations relating to degree of disablement at age 65. The degree of disablement at that age remains to be determined solely by reference to the degree that earning capacity has been affected.’ 22

Police authorities have used an extreme and novel interpretation of the Regulations, as advised by the Home Office, to implement new policies and procedures. Interpretation of legislation is solely the prerogative of the Courts. Lord Simonds, in the case of Magor & St Mellons RDS v Newport Corporation (1952) made clear that it should be noted that statutory interpretation does not extend to reading words into the statute to rectify or change an Act. It is generally held that the courts cannot fill in the gaps. He said, 'If a gap is disclosed the remedy lies in an amending Act' as for a judge to do otherwise is a 'naked usurpation of the legislative function under the thin disguise of interpretation'. In the case of Royal College of Nursing v DHSS (1981) Lord Denning said, ‘... I feel that we as judges must go by the very words of the statute - without stretching it one way or the other - and writing nothing in which is not there.’ If it is unwise for a judge to creatively interpret legislation, then how much more so is it unwise and undemocratic for a Government department or a police authority to produce extreme and novel interpretation - solely for the purpose of saving money? This is venal behaviour completely unbecoming of a public authority. There is no mention of any age-triggered review process in the Regulations, nor is there the slightest indication that the injury pension can be reduced because earning capacity might automatically diminish at age 65. The Regulations are quite clear – the injury pension is payable for life, at a rate that is determined by loss of earning capacity occasioned by the injury on duty. • The recently departed Government, and some police authorities, may not like the way the Regulations are worded. However, it is not for the Government, nor for police authorities, aided and abetted by Chief Constables, to effectively amend legislation by means of Home Office circular and retrospectively applied new policy and procedure.

Comments on this document are welcomed and can be sent to atebion2me@gmail.com

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