• Injury Pension ‘Review’- A Fishing Trip? Desperation sets in?

•  The Hidden ‘Law’ of Consequences;

• Judgements of Interest.

Several disabled FSVs have made the Bugler aware of the latest desperate  throw of the Fire Authorities’ financial dice by their home spun unqualified pension ‘experts’ .

These ‘experts’ are now attempting to claw back pension expenditure from disabled FSVs- primarily one assumes to enable them to pay their own inflated salaries- by attempting to carry out random injury pension ‘reviews’, a word much favoured by Lancashire’s pension ‘experts’.

As usual, without  thought of the consequences, out comes the rattling sabre and out go the usual bullying letters to randomly selected disabled FSVs some of whom have decades long since been compulsorily discharged by the Service.

By now, trust having  been destroyed, and these ‘experts’ having been publicly exposed  as nothing more or less than unqualified charlatans, these intended ‘frighteners’ have diminished with time but it is nevertheless an unnecessarily unpleasant act affecting many families by these nazty inconsequential overpaid clerks of pension contractors and/or Fire Authorities.

If they but realised it, this naztiness simply promotes resolve in oppressed disabled Fire Service Veterans who rightly see themselves under unwarranted attack simply for having the temerity  to continue to breath, but who step by step continue to organise themselves and send feedback on these nefarious activities to the Bugler for publication.

An action which of course raises greater awareness in the FSV community and results in even more accomplished and knowledgeable resistance by disabled FSVs joined in united opposition.

This time it seems, when these Fire Authority proposed injury pension reviews are carefully evaluated, it looks as though these ‘experts’ have been too clever by half and will as a consequence of their own stupidity, lack of pension law knowledge, and general incompetence find themselves hoisted on their own petard…

It is imperative that those who are concerned about these developments organise and thoroughly prepare individually by consulting and understanding the simple law (Rule K) on this matter  which is located in the 1992 Home Office Commentary(16-Part K) allied with the Statutory Instrument 1992, SI 129 all to be found in the Bugler on line library. Go Here.

The clear legal intent of Rule K1 was to prevent early  exit abuses of the Scheme(which no one can argue with) whereby after being issued with an award-decided by the Fire Authority-a Member of their Scheme might have a ‘miraculous’ recovery from his/her condition and then jaunt off into the sunset with pockets jingling( a familiar aspect of CFO’s departures). Particularly if these ‘miracles’ have been paid the substantial  and correctly calculated enhanced B3 ill-health/injury pensions apparently due to them in the first place?

The ’92 Scheme under Rule K1 empowers the FA to cancel such fraudulent ill-health/ injury pensions but even this ‘authority’ is conditional and not limitless.

The Fire Authority in using Rule K1 must be prepared to reinstate the FSV involved in his previous rank if they conclude that the FSV has ‘recovered’ sufficiently to resume full fire fighting duties.

One assumes that this is achieved by re- implementing the full medical procedure under Rule H which it used a short time before to compulsorily discharge the same Firefighter ! This of course raises the question of the competency of all the Fire Authority Doctors and the pension ‘experts’ involved in reaching the original decision…

However, if an FSV has reached the age of 50 and completed 25 years service, OR, in retirement has reached the age of compulsory retirement for his rank then the Fire Authority cannot  use Rule K1 and an ill-health/injury pension cannot legally be cancelled.

It should be said that in the real world  Rule K1 has rarely, if ever, been invoked and in the case of these proposed johnny-come-lately ‘reviews’ it is simply an inapplicable non-starter.

Rule K2 is distinctly different from Rule K1 and it is intended to serve a completely different function.

Rule K2 limits the empowerment of the Fire Authority so that it can only specifically and exclusively   ‘review’ an injury pension for the purpose of determining whether or not the degree of disablement of an FSV has substantially altered.

The 1992 Home Office Commentary on SI129 offers pragmatic advice to Fire Authorities in respect of  Rule K2 in that this ‘review’ procedure can and should  reasonably take place during the first 5 years that an injury pension is brought into payment. After which it is expected  that this ‘monitoring’ exercise should cease. SI 129 does so by the use of Rule K2(3) which reminds Fire Authorities that Rule K2 ‘ceases to have effect’ after 5 years and at that point it ought to make a conscious decision not to pursue further individual reviews after this period of time.

In effect the Home Office hoped  that by 5 years of elapsed pension payment time a Fire Authority ought to know what they were doing with a particular individual injury pension?

The Bugler fears it was a vain hope…

Rule K2 does not empower a Fire Authority to review an ill-health pension, only the injury pension.

This prompts the reasonable question how long should any Fire Authority be permitted to carry out this ‘review’ exercise to justify its original decision which was to compulsorily discharge a disabled FSV?

Clearly any exercise of the K2 Rule above the 5 year threshold brings the criticism that this is an abuse and exploitation of due process; a cynical misapplication of the spirit and intent of this Rule K2 by Fire Authorities; or simply, as in this case, financial opportunism.

Furthermore, a revision of an injury pension under Rule K2(1) cannot result in its cancellation, only its amendment. In particular it cannot be cancelled whilst a disabled FSV is also receiving an ill-health pension which remains in payment, which itself has not been cancelled under Rule K1.

In this eagerness to misuse Rule K a  Fire Authority  may have already fallen in a trap of its own making by already making an irrevocable decision on a particular injury pension, allied with a failure in maladministration to record such a decision in the individual PRF records of FSVs which is its Statutory duty. The following example makes the point.

When many FSVs are compulsorily medically discharged  there is almost by rote an addendum written into their discharge papers by Fire Authorities (which ought to be contained in their PRF) which specifically states that they do not intend to review the injury award at any time in the future.

That being so the Fire Authority have thus fettered their right in law and as a consequence have disbarred themselves from ever exercising Rule K2, namely initiating an injury ‘review’  at any time in the future in respect of a particular disabled FSV upon whom they have made this specific decision.

 Rule K2 also implicitly lays a duty on FA Scheme managers to have in place a written pension policy in which it specifies  for its Scheme Members what the ‘intervals’ are after 5 years have elapsed which it has determined will be the ‘interval’  for future injury pension reassessment.

It has a Statutory duty to publish this policy to its Scheme Members and those currently facing retirement or compulsory discharge should ask their Fire Authority what their policy is.

One wonders how many Fire Authorities have actually done this. ? The answer is probably none.

There is yet another problem for Fire Authorities in  Rule K2  because neither the HO ‘Commentary’ nor the SI spells out procedurally exactly how the FA are to accomplish this actual injury pension ‘review’. Simply threatening to suspend an injury pension in payment is not a panacea for their self-generated problem nor is it a policy.

So once more this is an opportunity for Fire Authorities to  engage in ‘making up their own laws as they go along’. Something that is hardly novel for them because as they see it they have the whip hand and can suspend at will an injury award(which is of course another abuse of due process) and they will be legally wrong to do so under these circumstances.

Fire Authorities  would be well advised to pause at this point and consider that the law is a two way street which in common law  and other associated Acts constrains their activities and protects the FSV from their abuses; indeed there is the often forgotten unwritten law of ‘consequences’ which the Bugler will illuminate later.

At this juncture it seems useful  to remind Fire Authorities that they are in the main dealing with disabled FSV who in keeping with other disabled persons have special protection under Statute law, namely the 2010 Equality Act.

It is unlawful to harass, victimise, threaten, or discriminate against,  or to randomly identify a disabled FSV, or a number of disabled FSVs from a similar peer group of disabled FSVs, either locally, or nationally, and to treat them less favourably(equally) than this peer group.

For example, to force, under the unlawful duress of injury pension suspension,  an individual disabled FSV or a small groups of disabled FSVs to undergo a groundless injury pension  ‘review’ to the exclusion of all others in this category, without sound  well-grounded justification in law is discriminatory and simply a breach of the 2010 Equality Act. For the Equality Act 2010, Go Here.

Fire Authority pension ‘experts’ are sailing in yet more unfamiliar and indeed dangerous legal waters when dealing with disabled FSVs and the 2010 Equality Act. The intent of the Act for example in this case states that this is an all or nothing situation, equality of treatment. All compulsorily medically discharged FSVs should be subjected to an injury pension ‘review’, or none.

Furthermore under judicial Court Procedures and Rules of Disclosure a Fire Authority is not permitted to go off on a ‘fishing trip’, a description which is a well known euphemism used in legal circles, to see what , if anything, in another gross abuse of due process, it can find in a discharged disabled FSV’s private medical records.

It seems the current  first step by Fire Authorities in their present ‘fishing trip’, and their own newly concocted ‘law’ as they see it, is to insist under threat of suspension of the Injury Award, an action which has already been highlighted as a threatening contravention of the 2010 Equality Act,  that the disabled FSV signs a disclaimer allowing unbridled access to his/her private medical records accrued after compulsory medical discharge.

One is bound to ask on what legal grounds in a patent  misapplication of an extremely late disablement ‘review’ under Rule K2 can this be achieved? What quality of evidential justification will a Court require a Fire Authority to produce if they are to be successful in acquiring a Court Order for Disclosure of a an individual FSV’s medical records accrued after their compulsory discharge from the Service?  

Put simply, how will a Fire Authority produce prima facie evidence of what is in effect a sweeping allegation of fraud by a disabled FSV in a very late case ‘review’ under Rule K2 because there can be no other explanation for their ‘reviews’, unless of course they care to admit that this is simply financial opportunism driven by desperation?

Fraud  is of course a criminal practice with which Fire Authorities, particularly Lancashire, are extremely well read in themselves, engaging as they do in the daily practice of collective fraud of disabled FSVs.

What are Fire Authorities going to do if this self-evident abuse of due process is challenged on an individual or even class action basis ?

Fire Authorities will have to produce a comprehensive explanation in law in Court of the legal necessity (based on what?) for all these late injury pension ‘reviews’. The mere fact of this lateness simply confirms de facto, as all FSVs well know in practice, the  mass maladministration of FSVs pensions under their Statutory control.

One would have thought that in addition they are going to have to produce individual PRF records which will demonstrate that they have previously in good faith carried out an initial ‘review’ in the 5 year grace and favour period(and if not in routine pension administration ,why not?) and that this next follow up ‘review’ is due under their written ‘interval’ policy, and evidentially supported and warranted.

If they are unable to produce evidence of an initial review and the confirming evidence contained in an FSV’s PRF and in a letter(at that time) in which they informed the FSV that they did carry out a ‘review’, even without his knowledge or participation and in the absence of any written ‘intervals’ policy how are Fire Authorities going to justify this particular maladministration in court when their actions are challenged?

If there is mass resistance to this ‘fishing trip’ by a collective of disabled FSVs then the Fire Authority involved will have to take every single dissenting disabled FSV to Court to get an individual Disclosure Order for that person’s medical records accrued after their compulsory discharge. It is unlikely that any Court worth its salt is going to permit such a ‘fishing  trip’ involving  extremely personal medical records which may, or may not, have anything to do with the an injury pension.

Where is the Fire Authority likely to find the budgetary resource for such an exercise in futility because each case is treated by the Court as an individual case , not a class action?

All this allied with associated bad PR which it is bound to court public opinion whereby a Fire Authority are demonstrably seen to be pillorying their own disabled FSVs. 

Do Fire Authorities think that for one moment their contractors are going to bear this huge expense even under a contractual Service Level Agreement which places the burden for such a ‘review’ on the contractor, when in fact the contractors will simply remind the Fire Authority that the Statutory duty remains with them and thus their budgets?

There are of course other hidden consequences for a Fire Authority who initiate these ill-conceived  ‘reviews’.

It is a consequence and a sad fact of life that with age all medical conditions deteriorate.

It is also a consequence that any disabled FSV when threatened by such a ‘review’ will respond with a multifaceted approach.

Firstly, and wisely, the disabled FSV will call for a complete copy of his PRF to see what exactly the FA have done, or more likely not done, since his compulsory medical discharge in terms of injury pensions ‘reviews’ and the maintained and recorded status of his injury pension in his PRF which is a Statutory duty of the Fire Authority?

Secondly, he will if possible, seek out his own original Consultant( or the replacement Consultant who continues to hold his medical files) who was involved with the Fire Authority’s medical assessors in the original percentage assessment of his disability which resulted in the agreed  percentage disability leading to his discharge and the payment of an ill-health/injury pensions.

Thirdly, he will arrange to privately visit his own Consultant/Doctor to have them reassess the level of his current disability. The resultant report will almost invariably confirm a medical deterioration which will without doubt lead to an increase in the percentage of disability recorded and lead ultimately to further enhanced injury pension payments, including back pay with interest.

Fourthly, and because the SI129 does not resist it in law, the disabled FSV will formally request that the Fire Authority  ‘review’ his injury pension award  with the intent of  having his disablement percentage reassessed and re-categorised upwards; a request which will require a Fire Authority  to employ and pay for 2 X independent medical examiners for their services; plus the reclaimable expenses of the FSV.

A ‘review’ which will almost inevitably confirm in most cases, if not all, that medical deterioration has occurred and thus disability increased and that as a consequence medical disability re-categorisation under Rule K2 is required .

The Home Office Commentary has an interesting way of putting this in relation to Rule K2 … “ If your degree of disablement is found to have altered substantially, bringing you into a new category, your pension will be revised accordingly.”

Unfortunately for Fire Authorities they forgot that revision could also lead to increased benefits for the disabled FSVs a long way from their original idea of reducing his pension.

In this case it is more benefits for disabled FSVs and more expenditure for the Fire Authority.

Naturally any such re-categorisation, namely an increase in the disability percentage, will require this percentage to be factored through the complete mathematical recalculations formula procedure for a B3 ill-health award from which an injury pension award is automatically calculated/generated  a consequence which will inevitably lead to enhanced injury benefit payments to the disabled FSV involved.

Found in SI129, Page 61(PDF), Schedule 2, Part V Injury Awards, Go Here.

Found in HO Commentary  Part 07, Pages B4-2 & B4-3(PDF 28-29). Go Here.

Furthermore, it is possible in certain cases that this reclassification of the percentage of disability will also result in knock on consequences with the DWP whereby a disabled FSV can now claim a Disability Carer’s Allowance for his spouse/carer/partner; an allowance which is of course not deductible from an ill-health/injury award because it is paid directly to the carer, not the disabled FSV.

Such are the unforeseen consequence for Fire Authorities for their unwarranted bullying, which far from reducing their pension pay roll will simply increase them.

Once more illustrating the lesson that it pays to employ  qualified pension experts who actually know what they are doing including those who set them to work in the first  place.

The Bugler view is that all those concerned disabled FSVs who regard this development with trepidation and dismay should  put these thoughts aside and regard what their Fire Authority is proposing to do as an opportunity to proactively have their percentage of disability reassessed to their advantage.

A re-evaluation and re-categorisation which will, in the vast majority of cases, result  in a percentage increase which when factored into a recalculated enhanced ill-health/injury pension  lead to a substantial increases in person pension incomes.

Before agreeing to any such ‘review’, which should not permit access to private medical records accrued after compulsory discharge a disabled FSV would be wise to initiate the following simple steps:

1. Acquire and review a full copy of their PRFiles from their Fire Authority;

2. Study this current Bugler document and the relevant law in the Bugler library;

3. Initiate a private consultation/evaluation of the level of their present percentage of disability;

4. In the light of a positive result, place a written request before the Fire Authority for a reassessment of the level of their disablement under Rules K2 and H.

The Bugler is indebted to disabled FSV WMD for his contribution to the ‘fishing trip’ argument by contributing the following legal judgements of interest which Fire Authorities and their pension contractors may care to consider.

The first judgement took place in December 2003 in the Royal Courts of Justice within the Administrative Court which in particular looks a Local Authorities and their execise of Statutory powers. This Judgment supports the common law, and the Bugler’s view that Fire Authorities are not empowered at a whim under SI.129 to commence late reviews of any ‘envisaged’ substantial alteration in degree of disablement of compulsorily retired disabled FSVs.

CROCKER, 32 and 38, where Justice Ouseley(Judges normally sit on their own in this Court) stated in reference to ‘reviews ‘:

“’These are reviews which can be undertaken as occasion requires rather than at mandatory, but necessarily arbitrary intervals, and there is no need to speculate as and when circumstances dictate the pension is reviewed.

The only reason which can properly support a decision to hold a review is an evidence supported belief that a review will reveal a substantial alteration in degree of disablement. A review held for any other reason would be arguably unlawful.”.

This entirely supports the Bugler’s view that Fire Authorities cannot whimsically wander off on a ‘fishing trip’ to see what they can find. They can only do so on the basis of “evidence supported belief”. One wonders where they are likely to get this evidence from? Their crystal balls?

The second judgement is contained in the Pensions Ombudsman’s Determination on maladministration and criticism of the Northampton Police Authority on 30th June 2011, under the aegis of the Pension Schemes Act 1993,

Part X. Case No: 80008/ where, in the case of Sharp against Northampton Police Authority the Pension Ombudsman stated the following:

“… The fact that the review was improperly carried out and came after an interval of 12 years in which there had been no mention of a review will have caused him considerable distress. I find that this should also be recognised and make directions accordingly.”.

Even the Courts, which now includes the Pensions Ombudsman, and as predicted by the Bugler, will cast a very jaundiced eye on such a late ‘fishing trip’reviews.

The Home Office Commentary, SI 129, and the Bugler opinion all make the same point in respect of the Statutory 5 year period within which a Fire Authority are reasonably expected to get an FSVs’s pension right and that any proposed reviews which come after such a period are simply Fire Authorities whistling in the financial wind.

The defences to such pension management stupidity seem almost limitless.

Take for example a hypothetical case where a Fire Authority have failed to look at a disabled FSV’s PRF for 10 or more years and have failed their statutory duty which was to resolve/not resolve the future ‘interval’ of the implementation of such reviews.

Disabled FSV are entirely within their rights, given the Courts’ consistent attitude, to claim that not only have Fire Authorities failed their Statutory duty but that in addition have failed to apply procedural fairness within a general failure of duty of care which is their primary Statutory pension duty to all Scheme Members.

All of this exposes Fire Authorities, rightly, to a claim against them of maladministration .

In point of fact knowing that they have Statutory duties, which  they now know they have clearly failed, elevates their failures in law into the category of misfeasance which is an even graver matter.