| Litany of Errors and Lies |
| This Chapter at a Glance:
• Pension Error Recalculations; ♠ Account #1 ~ Divisional Officer Grade II : ♦ Compulsory Discharge Status ~ Divisional Officer Grade II; ♦ The Data to Verify and Establish a correct APP; ♦ Discharge Statement of Pension Account – Errors; ♦ First Point~of~Law breach of Statute Law ~ Formulae; ♦ Second Point~of~Law failure to ~ Compensate ‘Ambition’ ~ Careers Lost; ♦ The ill-Health Pension to be Paid ~ Selects itself; ♦ Comments on the LCFA Defence at Court. ♠ Account #2 ~ Assistant Divisional Officer ~ Go Here; ♠ Account #3 ~ Station Officer ~ Go Here; ♠ Account #4 ~ Sub Officer ~ Go Here; ♠ Account #5 ~ Leading Firefighter ~ Go Here; ♠ Account #6 ~ Firefighters ~ Go Here ; ♠ Account #7 ~ Widows;Partners; and Beneficiaries ~ Go Here; |
| Account #1 ~ Divisional Officer Grade II |
| 1. First Point~of~Law. This Case involves the underpayment of a Divisional Officer Grade II, who since 1st February 1997, has been unlawfully paid an incorrect Rule B1 Ordinary pension instead of a Rule B3 ill-health/Injury pension based on Rule B3/B4 pensions, all of which are provisions of 1992 Statutory Instrument No:129. 2. The NJC salary scales of pensionable pay for 1996-97 were those agreed on 1st July 1996; effective on the 7th November 1996 and used as a starting point for the following calculations leading to the Average Pensionable Pay (APP) for this appointment. |
| Compulsory Discharge Status |
|
At compulsory discharge at 23:59hrs on the 31st January 1997 the Bugler had held his D.O. Grade II rank for 3.9 years. His remuneration should have been as a Divisional Officer Grade II; Third year in the Rank(Top Rate). The Bugler’s Average Pensionable Pay(APP) was taken as 1996 over the ‘last best 3’ preceding year calculations (NJC ‘Greybook’ Condition of Service) which did not include any acting Ranks (none), or any supplementary income (none), whether pensionable or not. The Bugler’s remuneration consisted of: • Pensionable Base Pay; • Pensionable Flexible Duty Supplement (FDS) • Pensionable Long Service Bounty after 15 years Service; • A total of 33.51 years Pensionable Service attracting an enhancement of 7/60th for compulsory discharge under Rule B3 ill health; all rounded up to 34.0 years under Rule A7. Translating in pension 60ths to, 20/60ths + 14 X2 (28/60ths) + 7/60ths. A Total of 55/60ths(The formula and the Pension Scheme permits this). When calculating the Bugler’s Rule B3 ill-health pension all the 3 pensionable elements are clearly identifiable in the scientific mathematical actuarial formula. The 1996-97 point on the NJC Pay Scale for the Rank consisted of: Base Pay: £31,440.00. + FDS @ 20%: £6,288.00. + Pensionable Long Service Bounty: £783.00. The Total Pension pay including immediate Index Link was £38,511.00.
FIRST ERROR The Total Pension pay including immediate Index Link was £38,511.00. The LCFAuthority miscalculated (underpaid) this Rule B3 Pension to the value of £35,031.00. Annual Deficit: £3,480.00. Statutory Compound Interest @ 8% for 24 years: £19,385.44. Principal X 24 years: £83,520.00. ————————————◊———————————— SECOND ERROR In 1997 the Pension Provider(LCC) failed under Rule B3 to Index Link immediately. Loss accrued for 2 Indexed Years: 1997 ~ £38,511.00., @ 3.6% £1,398.87.= £39,909.87. 1998 ~ £39,909.87. @ 2.8% £1,125.30.= £41,035.17. Statutory Compound Interest @8% for 2 years £428.75. The Principal for 2 years £5,048.34. Total £5,477.09. R/Total. £108382.53. ————————————◊———————————— THIRD ERROR The LCFAuthority paid an unlawful Rule B1 pension £23,354.24. Annual Deficit for 22 years (Index Link gain excluded) £17,652.73. Statutory Compound Interest @ 8% for 22 years £99,146.82. The Principal for 22 years: £388,360.06. Total: £487,506.88.
————————————◊———————————— FOURTH ERROR SERPS incorrect deduction @£27.20 PA + 8% interest + principal. £734.34. Total Deficit: £734.34. ————————————◊———————————— Running Total Deficit: £596,960.21. + Plus Costs £XXXXX.XX.? + Lost sales of SS(9th Ed) to Symbol Seeker Publishing Company £XXXXX.XX.? N.B. By paying an unlawful Rule B1 Ordinary Pension, instead of a Rule B3 ill-health Pension, all other emoluments calculated from this incorrect Rule B1 Ordinary pension, e.g, B4 Pension; Gratuities; Commutation etc, are also wrong. |
| The Data to Verify and Establish a correct APP |
| Dear Reader, when taking and following this example it ought to be followed right to its conclusion…which is the presentation of your Account to the LCFA. It is a principal of law that the debtor should always be presented with a bill… Data for this Firefighter… • Verifies the Name; Paul Peter Burns; • Verifies the Address; 7, Kings Drive Fulwood Preston Lancs England PR2 3HN; • Verifies the correct Date of birth; 29th June 1943. • Verifies and calculates the correct Date of Service induction and age at induction for pensionable purposes; 29th July 1963; 20 years 31 days (20.08yrs) ; • Verifies and calculates the correct compulsory age of discharge(uninjured ~ 60 years rank relevant); 28th July 2003 (23:59hrs) – 60 Years of age; • Verifies and calculates the correct Notional (hypothetical) years and days Service which could have been completed at his 60th Birthday; He could have served ~ 39 years and 334 days ~ 39.92 Years Service, but by Rule A7 counts as 40 years; and thus would have earned a Rule B1 pension, time served, fit and able. • Verifies and calculates the correct age at discharge date; He was aged 53 years 217 days (53.59 years); • Verifies and calculates the correctly projected Date of Compulsory Discharge after applying the Statutory ‘Terms of Notice’ relevant to the Rank; 31st January 1997(23:59hrs); • Verifies and calculates under Rule A7 the correct Total Actual Pensionable Service completed in years & days (converted to decimals of a year) ; years are taken as 365 days, and leap days are also counted ; Rule A7 and its simple formula, ‘Reckoning of service for purposes of awards’ is the applicable Rule; Go Here; ‘B’, in this formula is defined as, ‘the number of completed days in any remaining part of a year’, and accordingly a part of a year which includes 29th February in a leap year and comprises 365 days shall be treated as a whole year’. In this case the ‘material’ date of compulsory discharge 31st January 1997 was finally issued on 29th November 1996 and although 1997 was a ‘part year’ and 1996 was a Leap Year both shall computed as a whole years of 365 days; • Verifies and calculates the percentage of disability (loss of earning capacity) awarded; Disability was 5%, that is, the loss of future earning capacity, by reason of in-Service damaged hearing. • Verifies and calculates the correct actual Rank and pensionable Pay Scale at discharge; calculates and adds the additional 20% pensionable Flexible Duty Supplement which was applicable; D.O.II Pay Scale for the ‘best’ year, plus 20% pensionable Flexible Duty Supplement and Long Srvice Bounty, was £38,511.00. ; • Verifies, whether or not, consultation with the LC Fire Authority took place on ‘what you could have earned’, including and/or, Promotion by “reference to” the actual Rank and Pay Scales in effect on the last day of Service. No Consultation; Had the Bugler not been injured in service, and his career prematurely ended by a ‘qualifying’ injury, he was entitled to serve until aged 60 years (midnight 28th June 2003) in his substantive rank, a further 6 years and 148 days(6.41 years ~ 7 years ~ under Rule A7), during which he ‘would more than could’ have earned further promotion and increased income, if only, by reason of the fical advance of annual pay settlements; • Verifies and calculates the Total Actual Pensionable Service completed in years and days (converted to decimals of a year); years are taken as 365 days, and leap days are also counted; The Total Actual Pensionable Service in this case was 33.51 years but by Rule A7 counts as 34 years (20+14) ; • Verifies and calculates the correct 60ths of the notional pension set against the length of pensionable Service, but “never counting less than 1/60th” (e.g. decimal point of a 1/60th?) in plain English always rounding up for calculation purposes; See Rule A7(1) Page 10 SI No:129, Go Here . The total Actual Pensionable Service in this case was 33.51 years but for formulaic calculation purposes under Rule A7 is 34.0 years.This equates in pension 60ths to 20/60ths + 14X2= 28/60ths + 7/60ths for compulsory discharge under Rule B3. Total 55/60ths. • Verifies and calculates the correct Average Pensionable Pay(APP) on the relevant date (the last day of Service) over the ‘last best 3 calculations’ of the 3 previous years based on the ‘actual’ rank and pay scales in force; pay on temporary promotion is pensionable, but acting up allowances are not; For calculating the APP the ‘last best year(s)’ (NJC~Greybook) was taken as the 7th November 1996 to 31st January 1997 because no acting ranks or temporary ranks occurred in the 3 preceding years; • Verifies the correct DWP status in respect of Statutory deductible DWP Benefits from Rule B3 (ill-health) and Rule B4 (Injury Awards) by contacting the DWP with the FSV’s written consent; None in payment at the point of compulsory discharge; neither informed of rights, nor envisaged; Remember – Every single day/penny lost is a pension pay package lost to Beneficiaries ! |
| Discharge Statement of Pension Account – Errors |
|
Normally only one set of final pension calculations should be issued by the Fire Authority, though sometimes 2 or more corrected ‘updates’ occur. There is a classical case on record where a disabled FSV was discharged on the 30th April 1992 under ‘Article 14’ of the 1973 Pension Scheme when in fact he ought to have been discharged under Rule B3 of the 1992 Scheme which he automatically became a Member of when it was enacted on the 1st March 1992 … meanness it seems, has no boundaries. His original discharge statement was later altered by tippexing out ‘Article 14’ and the hand drafted words ‘Rule B3’ was entered but this pension ‘expert’ then proceeded to pay him a hybrid 40/60ths Rule B1 pension. One supposes if the pension calculation is to be wrong it may as well be all wrong! This has led to substantial underpayments to this very disabled Firefighter to the value of some £45k+ over the last 24 years as he struggled, with pride, living alone to make ends meet. Firefighters should always check their final entire calculations commencing with the Basic Data to ensure total accuracy to a penny: 1. During the compulsory discharge process the LCFAuthority issued the Bugler with three discharge accounting statements, one in September 1996, and a two in November 1996. All of which stated that he was being compulsorily discharged under the ‘enhanced’ Rule B3 ill-Health Pension (service compulsorily terminated) and Rule B4 Injury Pension (Tax Free for life); this final document included a once only payment known as an Injury Gratuity (an ex gratia) payment. 2. In breach of the Statute law the Bugler was actually paid an incorrect ‘hybrid’ 40/60ths, Rule B1 Ordinary (time served) pension (an administrative ‘creep’ error carried forward incorrectly from the 1973 Scheme) which is directly in contravention of SI No:129 law which states under Rule B1 that a B1 pension cannot be paid if a Rule B3 ill health award has become an entitlement, which it had, by the decision of the LCFAuthority to discharge him under Rules B3 and B4. 3. With one exception( for those serving on the 10th July 1956 Page 82-Substitution Pages~which the Bugler was not), there is, categorically, no direct statement of, or implied reference to, any form of 40/60ths ‘capping’, or limitation of any formulae (except in its mathematical construction, or its calculated result, in respect of a Rule B1 ‘Ordinary’ or Rule B3 ill-health; or more importantly the ‘Notional Retirement Pension’, in the entire 88 page 1992 Statutory Instrument No:129. 4. A Rule B1 Ordinary pension can only be paid upon completion of Service, able bodied, and uninjured. 5. The Bugler’s first accounting on the 10th September 1996 was incorrect because the length of pensionable service and the APP were incorrect. This document was withdrawn without explanation by the LCFAuthority. 6. The second accounting on the 13th November 1996, was then re-issued on the 29th November 1996; Once more it was incorrect with the following inaccuracies: • The Post Code on the address was incorrect; • The Pensionable Service was incorrect and even though it had been corrected in freehand it was still incorrect; • The APP was incorrect; • The Pension Increase (PI) was not correctly paid. PI was not paid immediately from the commencement of the Bugler’s B1(B3?) pension which it ought to have been. It was paid 14 months later when he became 55 but in the meantime his incorrect pension had been additionally eroded. • This has resulted in the following direct loss of the PI link for 1.41yrs @ xx RPI increase which has been quantified @ 8% compound interest over the lifetime, 24 years, of the existing pension. Go Here. • Whilst this might not seem significant it will be for example if a Firefighter was discharged through injury at a very early point in their service. In theory they might lose up to 33 years (joined and injured at 18) of automatic RPI increases until they become automatically entitled at 55 or 60 years of age, which is a continuing annual financial loss. • The SERPS deduction was incorrect. National Insurance Modification(SERPS),Schedule 2 Part VII was immediately and incorrectly deducted. See Rule A7(1) & ‘Commentary’ BGen-2 to-4 & ‘Commentary’ BookBGen-2… “The reduction will begin when you reach state pensionable age and continue the whole time your pension is in employment”. This has resulted in the following direct loss 12.41yrs @ 27.20 pa = £337.55 + 8% compound interest £81.54 + Principal = £734.34. 7. It goes almost without saying that because the Rule B4 Injury pension with its Gratuity is calculated from a incorrectly calculated APP the consequential pensions, emoluments, and commutation are all wrong in underpayment as well. 8. Now for a look at the errors on the compulsory discharge account statement by the LCFAuthority pension ‘experts’.Go Here. |
| First Point~of~Law breach of Statute Law ~ Formulae |
| The first Point~of~Law in this Litigation is the LCFA’s refusal to implement the Statute Law namely,
1992 Statutory Instrument No:129, Schedule 2, Part III, Rule B3, ill-health Pension, specifically Paragraphs 4 & 5. However, it helps the narrative of understanding to start at the point of a Rule B1 pension formula .
Calculation #1 ~ Schedule 2 – Personal Awards – Part I – Rule B1 – Ordinary Pension “A is the persons’s average pensionable pay, and B is the period in years(subject to a maximum of 5 years) by which his pensionable service exceeds 25 years.”
“…the amount of an ordinary pension is- ” 30 X A + 2 X A X B 60 60 The notional/hypothetical yield of this formula is as follows: 30 X 36045 + 2 X 36045 X 5 = £24,030.00.pa 60 60 N.B.1. Clearly the accomplished formula was designed allow the accruing of a maximum of 40/60ths of APP for 30 years service. N.B.2. The first section of the formula recognises the accruing of 30/60ths of the pension; the second section recognises the accruing (topping up) to a maximum 10/60ths of pension; in total 40/60ths of APP. Comments on Rule B1 Ordinary Pensions 1. Do remember this is for the award of a Rule B1 Ordinary Pension; 30 years time served; able bodied at completion; having accrued 40/60ths of their pension; up to this voluntary retirement point. 2. But because the Bugler, by choice of himself and the LCFA, by default approval, continued to serve beyond 30 years Service he could enhance his final pension by continuing to earn 2/60ths per year (the formula allows so) whilst also enhancing his income by earning annual increases which would work towards his final APP; 3. There is no Statutory requirement to retire at the 30 years Service point, many Officers and Firefighters continued to serve until 55/60 years of age (rank equivalent),until compulsory retirement point in law and to pay their pension contributions; 4. There were pragmatic advantages for the Service and Personnel: • The Service retained, in the main, highly ( Home Office Fire Service College) trained, accomplished, experienced, and committed Statutory qualified Officers and Firefighters all holding Rank by Statutory qualification, and restricted by Service-to-Rank limitation, who also had the voluntary option to retire at any point in time after 30 years Service, prior to the Statutory 55/60 years of age limits; • Many Personnel achieved further professional qualifications via either University, Open University, or the Institution of Fire Engineers. • The Service continued to receive the 11% ‘bonus’ of these Officers and Firefighters Pension Scheme Contributions for no final outlay; • Conversely Officers and Firefighters continued to engage in the career they valued; to enjoy the likely, annual pay increases generated under the automatic ‘Pay Formula’ which they ‘would/could earn’ ; the ambitious possibility of promotion at all Rank levels using established in-service criteria; all only limited by declining commutation tables and Statutory age discharge.
Calculation #2 ~ Schedule 2 – Personal Awards – Part III – Rule B3 – Paragraph 4 Given the Bugler’s length of pensionable service of more than 10 years, at compulsory discharge point ~ his last day of Service ~ Paragraphs 2 & 3 formulae are ignored because the Paragraphs 4 and 5 formulae apply… Paragraph 4 calculation: The “amount of the ill-health pension is the ‘greater’ of…” 20 X A 60 and- 7 X A + A X D + 2 X A X E 60 60 60 ‘A’ “is” the Bugler’s APP on the last day of Service in 1997 ~ £38,511.00; ‘D’ is the period in Service up to 20 years ~ 20 (earning 1/60th pa ~ 20/60ths); ‘E’ is the period in Service which exceeds 20 years ~ 14 (earning 2/60ths pa ~28/60ths).
The calculations yield: 20 X 38511 = £12,837.00. 60 and- 7 X 38511 + 38511 X 20 + 2 X 38511 X 14 = £35,301.75 (55/60ths) 60 60 60
N.B.1. The first formula pays 20/60ths of the APP which includes 7/60ths (enhanced) for compulsory discharge under Rule B3 ill-health; but this formula is only used after 13 years of Service (13+7=20); N.B.2. The second formula consists of 3 sections; the first pensionable section is 7/60th (enhancement) of the APP for compulsory discharge under Rule B3 ill-health ; the second pensionable section is 20/60ths for 20 years Service, each year accruing 1/60th; the third pensionable section is for the years served after the first 20 years (to a maximum of 20 years) but with each year accruing 2/60ths per year and all counted as complete years; totalling 55/60ths; N.B.3.This Notional Calculation #2 also applies the ‘greater’ Rule L4(3) to the two formulae which finally yields £35,301.75., and is, for the moment, the first notional Rule B3 ill-health pension contender. N.B. Two year Index Link failure corrected. Comments on Paragraph 4 1. In reality these formulae are not compensating but restitutional, because whilst the employers might unwisely claim it is compensating or generous, it was in fact negotiated as part of the final resolution of the brutal, first ever 9 weeks, 1977/78 National Fire Service Strike (Bugler was deeply involved, being the co-author of the ‘Pay Formula’) which culminated in the drafting and origination of the 1992 S.I.No.129 which in retrospect finally recognised the appalling Terms and Conditions under which, until then, Firefighters laboured, which included a Firefighter receiving Social Security benefits for his family so he could go to work! These new T&C were published as Conditions of Service within the national NJC ‘Grey Book’. 2. It is of particular note that the larger (second) formula could in theory, and indeed in practice, pay out until the very last day of Service, whilst personnel contributed to the Pension Scheme and having the potential for injury; having earned 67/60ths of the generated APP; and because the Scheme Rules in the construction of the mathematical formulae, de facto, say so. N.B.Mr.D.Hamilton Technical Director of the Pensions Advisory Service is quoted as stating: “Your pension will only grow beyond 40/60ths if the scheme rules say so. Certainly legislation will not prohibit this, but it does not require it to happen.”. 3. The ’92 Pension Scheme Firefighters paid 11% pa Pension Scheme contributions (at a time when national average contributions was 2-3%) and as a consequence of a no fault accident were then compulsorily discharged being paid their pension from their own originated and funded Scheme (which Local Authorities did not contribute to ~ the Taxpayer made up the deficit) which Firefighters had negotiated in good faith and agreed with their Employers who, it must be said, also concluded the negotiations in good faith. 4. The question therefore arises where would Common Law compensation, for no fault illness or injury leading to loss of career earnings, ‘what you could have earned’, come from for the careers cut short (the Lost Career Years) of the ambitious, if not from the S.I No:129 ? 5. This is what Paragraph 4, as we shall see, was designed to do by the actuaries and litigation drafters working to direction from concluded national negotiations; though it seems at least one ill prepared junior Judge, LJ Fancourt at the Court of Appeal, thought it was all so much crystal ball gazing…was it indeed? Ironically, when this Judge finally draws his pension he ought to remember, with gratitude, that very recently it was with the support of the Firefighters of the Fire Brigades Union (of which the Bugler remains a Member) that his and the Judiciaries’ pensions were secured…Noblesse Oblige? |
| Second Point~of~Law failure to ~ Compensate ‘Losses’ |
| The second Point~of~Law in this Litigation is the LCFA’s continuing refusal to implement the Statute Law, namely,
1992 Statutory Instrument No:129, Schedule 2, Part III, Rule B3, ill-health Pension, specifically Paragraph 5 consisting of two parts, (1) & (2). It is a matter of case law and Common Law that the Courts do recognise the consequential loss of earnings capacity ((‘ or what you could have earned’) * if the Firefighter had not been injured)) ; loss of amenity of income; and lost careers; in effect to compensate for direct loss, including ‘ambition’, one of the supremely natural occurring human traits… * Commentary B3-2.
Calculation #3 ~ Schedule 2 – Personal Awards – Part III – Rule B3 – Paragraph 5 (1) This Paragraph 5, part (1), deals with the calculation of the “notional retirement pension” on the hypothetical basis of if; ‘IF’ the Bugler had completed his Service at 40 years… The problem, just one of many, for the LCFA was that by their Rule B3/B4 decision, leading to his compulsory discharge, the Bugler did not actually complete his Service, and the LCFA’s Statutory decision bound them, both by pension law and contract law, to pay, at the very least, his B3/B4 pensions. Continuing to follow Paragraph 5, word for word, we must run the B3 Paragraph 4 formula again on the basis of the notional/theoretical completion of Service up to, either age 55 or 60 , to see “what you could have earned”; where and how the LCFA ‘experts’ completely lost themselves, the unlawful ‘solutions’ they arrived at, and the endless problems they self- generated, with the results we see today… “Where – If the person had continued to serve until he could be required to retire on account of age, he would have become entitled to an ordinary pension or short service pension (“the notional retirement pension”), and…” This formula “is” the same APP as Calculation #2 only notionally/hypothetically taken to the 60th birthday/40th year of Service: This Notional Calculation #3 yields the following:
7 X 38511 + 38511 X 20 + 2 X 38511 X 20 = £43,003.95 (67/60ths). 60 60 60
N.B.1. This Notional B3 Calculation #3 yields £43,003.95. on the basis of the simple insertion into the third section of the formula of 20 years additional service (accruing 2/60ths pension per year), which with the original 20 years (accruing 1/60th pension per year) makes a total of 40 years service; (67/60ths of pensionable pay, or APP). N.B.2. This Notional Calculation #3 assumes an unchanged APP (Rank, Pay, and Conditions of Service) as Calculation #2, in other words no promotion. N.B.3.This Notional Calculation #3 yields £43,003.95., and is for the moment, the second notional Rule B3 ill-health pension contender. Comments on Paragraph 5 (1) 1. For the first time this Notional Calculation #3 actually addresses Compensation by yielding a notional £43,003.93., namely, what the Bugler ‘could have earned’ had his Service not been cut short by injury and compulsory discharge and as a consequence loss of income in…’the Lost Years’. 2. This Notional Calculation #3 presumes that the Bugler in his remaining 6.5 years of a successful career would not have received further promotion but would have received his Rank associated salary and pay rises, what ‘he could have earned. 3. The LCFA In their layman’s ‘reading of the law’ (Without ever having had a single legal ‘Opinion’ on it) at this point simply ignored this compensating Paragraph and decided bizarrely, perversely, and unlawfully, to ignore the fact that the Bugler, by their decisions, had not completed his Service and they in their chaotic contradiction ‘awarded’ him a Rule B1 Ordinary pension in direct contravention of Rule B1 which states that if they had originally awarded a Rule B3/B4 they cannot in any shape, form, or implied deliberately misleading description, legally award a B1; but they continue to make up their own laws (even today) as they fraudulently trudge on hoping we will all die. 4. Least the LCFA considers this is a good money grabbing ‘policy’ of institutionalised theft the LFCA should bear in mind that if a young recruit at 18 years of age commenced his Service on the last day of 2004 when the ’92 Scheme was finally closed to new entrant members, all being well this Probationer will continue to serve until 40 years later s/he will serve until December 2044 and, if the national statistics are to be believed, will continue to draw his/her correct pension until the end of this century. The problem is that today’s Firefighters are more aware of the LCFA’s continuing criminality having directly experienced it themselves recently and which now involves the undeclared transfer of current in-Service Firefighters onto the 2006 Scheme without their knowledge or authorisation, the subject of current national litigation; a surreptitious action which threatens in-service Firefighters’ pensions by the very ‘guardian’ administrators who are Statute bound to take care of his/her pension investment in their Pension Fund… The Geni is now out of the bottle…and what a bottle it is… Calculation #4 ~ Schedule 2 – Personal Awards – Part III – Rule B3 – Paragraph 5 (2) 1. Mr.Justice Fancourt, at the second Appeal Hearing, on the 3rd July 2020 stated…“Well, this clause 5 takes some reading”…well it certainly does, but that is what he gets handsomely paid for and will be reflected in his pension; yet, he failed to try. Was that his brief? 2. This Paragraph, for a second time, addresses compensation; only this time specifically recognising the need to make provision for all Ranks for the loss of their careers; had they such ambitions, whether dormant, or not. 3. In the absence of Statutory or expert Commentary wording clearly expressing Parliamentary intentions the question then arises what pragmatic criteria ought reasonably be applied in recognising and quantifying ambitious Firefighters’ ‘careers’ which were lost ? This cannot be a crystal ball gazing exercise; it must be based on recorded personnel data including(in brief) such attributes as Statutory and academic qualifications held, awards, and satisfactory overall performance. In the context of the Fire Service of the ’92 Pension Scheme era this is a straight forward issue to address; the historical data is all there. 4. The Fire Service which emerged from WWII in 1947 was a changed organisation. It was effectively a Statutory paramilitary organisation with Statutory discipline exercising punitive powers; Statutory Promotion Regulations; Statutory Home Office Rank examinations with Statutory ‘Service-to-hold-Rank’ requirements; this all added to the esprit de corps. 5. This structure encouraged a professional career based on a plethora of “ofqual” Statutory and voluntary professional/academic qualification opportunities; for example, through University, the Open University, or the Institution of Fire Engineers providing nationally recognised qualification by examination; finally with all Officers of all ranks being required to regularly attend cradle-to-grave professional education at the Home Office Fire Service College where the Bugler served for 2 years on the academic staff and latterly as a Student. 6. Calculation #4, is a B3 Paragraph 5(2) compensating notional pension, which also emerges from under the umbrella of “Or what you could have earned by compulsory retirement age …”, Was the Bugler and others not entitled to consider promotion as a possibility/probability under this statement … ‘what you could have earned” ? That was clearly the intention designed into the Statutory Instrument. 7. The Bugler had held his existing rank for almost 4 years. It was a reasonable expectation that shortly he would have been promoted to Senior Divisional Officer and in the time remaining of his Service to finally attain at least the Rank of Assistant Chief Fire Officer (ACO-£67,850.06), or 75% of the CFO’s salary. “The notional retirement pension is to be calculated by reference to the person’s actual average pensionable pay.”. 8.The Bugler reminds his Readers that there are three key phrases contained within this statement of law; firstly, “notional retirement pension”; secondly, “by reference to”; thirdly “actual average pensionable pay”. 9.The first phrase “notional retirement pension” reminds us that until the ill-health pension is finally decided, all calculations are ‘notional’, that is, hypothetical. 10.The second phrase ‘by reference to’ (as compared to) specifically points the way in supporting the acquisition of this data. But ‘by reference to’, what? This is an invitation to compare; by reference to A, B, or C etc., simple English tells us so. But compare what with what? It can only be, in the question of lost promotion, to compare the Rank to Pay Scales in effect at the point of compulsory retirement with the Rank and Pay which the Bugler and others held at his/their compulsory discharge point (their APPs); this is confirmed by the use of the third phrase. 11. The third phrase “actual average pensionable pay” is based on the Rank which the Bugler and others could have achieved in the ‘Lost Years’ by using the actual Rank to Pay Scales (not a ‘notional’ or hypothetical Rank and Pay Scale) in force at the time of his/their compulsory discharges which is essential data for the complete calculation of these notional retirement pensions. 12. To digress for a moment, to go back to the ‘meanings of words’ . The world renowned Fire Service College taught both the Bugler and disabled FSV~FMG on its highest level gruelling law course the distinct meaning of words in particular ‘shall’; ‘may’; ‘and’; ‘or’; ‘could’; ‘would’; and our old friend, ‘is’. For example , ‘shall’ and ‘is’, in Firefighter speak are set in concrete. There is simply not the slightest form of ambiguity…it ‘is’ as it ‘is’…and it ‘shall’ be so. There are clear distinctions in Paragraph 5 (2) in law by the use of ‘by reference to’, compared with a Paragraph 4 APP which is described as “is” as opposed to the use of the word ‘notional’ (hypothetical) in ‘notional retirement pension’ in the former. 13. The recognition for this financial loss, including perceived promotion, and its compensation are contained within the Statute wording of Paragraph 5 (2)… One should also be mindful of the words in the expert Commentary (Section K-5) which ought not to be dismissed lightly as ‘not the law’ because these words of guidance to all come directly from the pens of the very Actuarial Mathematical Scientists who designed and drafted this Statutory Instrument, and ultimately this Pension Scheme: “ Commentary ‘Points to Note’ : K-5. The broad purposes of your ill-health pension are: – to compensate you for the interruption of your career, and (once you reach the age when you could have retired with a pension) That is why: a. once you have reached the age at which you could have retired with a pension: 14. The familiar formula which follows uses a different APP from the APP used in Calculation #2 which was based on an APP which had an oblique reference to Rank via Pay Scales. This APP works in reverse working from the Rank which could have been achieved back into the Pay Scale. Its function is to recognise ambition and achievement in the ‘Lost Years’ cut short by injury and compulsory discharge only it does so notionally/hypothetically with mathematical logic taken to the 60th birthday and/or the 40th year of Service: This Calculation #4 is based on the assumption that the Bugler would have ‘earned’ the Rank of Assistant Chief Fire Officer(ACFO~Gold Book 1997) in the ‘Lost Years’ (Res ipsa loquitur) by the end of his Service: This compensating formula yields:
7 X 67850.06 + 67850.06 X 20 + 2 X 67850.06 X 20 = £75,765.90 (67/60ths). 60 60 60
N.B.This Notional Calculation #4 yields £75,765.90., and is for the moment, the third notional Rule B3 ill-health pension contender. Comments on Paragraph 5 (2) It is of particular note that the Commentary’s ‘Point of Interest’ K-5 makes the ‘Point’ that when the Bugler might have reached his compulsory retirement, aged 60 and/or 40 years Service it was intended that the ill-health pension would continue to be paid ‘as is’ because the ill health pension simply could not be interfered with, ‘cancelled’, or “capped”. |
| The ill-Health Pension to be Paid ~ Selects itself |
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15. For the purpose of working to a conclusion the ‘Notional’ must be converted into ‘Reality’. This final step changes these hypotheses into the reality of what the ill-health Rule B3 Pension “is” to be paid, in recompense for this loss of employment, income, and promotion ‘in the lost years’ of the future. 16. A Paragraph 4, Rule B3 pension is distinguished as an ‘ill–health pension’ from the alternative under Paragraph 5 which is called ‘the notional retirement pension’, whilst remembering that the sole purpose of the Statutory Instrument (in this respect) is to compensate for Common Law loss. 17. At this final stage of the completion of the all calculations it ought to be remembered, they all remain ‘notional’ in law, in search of the final legitimate ‘retirement pension’ which will become the ill-health pension to finally be paid, and to that end the final step in arriving at the single pension to be paid as the final Paragraph 5 pension, is to compare the three already calculated contenders, namely: By reference to: ‘A’, is the Paragraph 4 nominal restitutionary pension calculation £35,301.75. ‘B,’ is the Paragraph 5(1) nominal compensatory pension calculation £43,003.93. ‘C’, is the Paragraph 5 (2) nominal compensatory pension calculation £75,765.90.
‘A’, is the Paragraph 4 nominal restitutionary pension calculation £35,301.75. N.B.1. Where, ‘the amount calculated in accordance with paragraph 3 or 4 exceeds the amount of the notional retirement pension, the amount of the ill–health pension is that of the notional retirement pension”. N.B.2. Self evidently the Paragraph 4 calculation does not exceed the amount of the ‘notional retirement pension’ in the calculations which followed. ‘B,’ is the Paragraph 5(1) nominal compensatory pension calculation £43,003.93. N.B.3. This calculation is based on the hypothesis that even though Service had not been completed, neither had further promotion been achieved, in the period left to be served. ‘C’, is the Paragraph 5 (2) nominal compensatory pension calculation £75,765.90. N.B.4.This calculation is based on the fact that even though the Bugler and other’s Service had not been completed, further promotion would, in probability, have taken place based of the recorded annual performance reviews and other similar annual evaluations, which were all recorded as individual career data. Therefore, by the simple process of self-elimination and mathematical logic the final pension to be paid to the Bugler should have been £75,765.90.pa gross when it was first put into payment on the 1st February 1997. For the recalculated underpaid Pension Account. Go Here. |
| Comments on the LCFA Defence at Court |
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For the LCFA to suggest in its risible defence at Court that: • in spite of the self-evident fact that those it discharged injured could not complete their Service; • in spite of the fact that it awarded a B3 Pension to those it compulsorily discharged; • in spite of their written admissions that the law does not permit them to pay a B1 Ordinary pension, they do so; • in spite of all the demonstrated B3 formulae calculations; • to then, in a faux conferment of legitimacy, set a B1 formula to mathematically and unlawfully challenge these results of B3 formulae calculations is not only to create their own ‘law’, for which not a scintilla of evidence exists in the 88 pages of the Statutory Instrument, and/or the 394 Pages of the Home Office Commentary; but is to deny the existence of Rule B3 and its simple logic; actions which can only be described as bizarre, incongruous, and contemptuous lawlessness. |