Home Office Circular 46/2004 Annex C
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 suggested that injury pensions could be reduced to the lowest possible level at age 65 and also could be 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.
These measures, if implemented by police authorities, would result in significant savings from police budgets.
The measures suggested in the Home Office guidance arguably have no basis in the legislation governing police pensions.
From 1987 to approximately 2001 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.
At some point 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.
The present Government had greatly increased the number of employees in public service occupations. There was some 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.
Due to a change in taxation rules police injury pensions became payable out of police authorities’ general funds in 2006 and were no longer recoverable from central Government.
Due to a provision of The Police Pensions Act 1976 (Section 3.1) new pensions legislation that introduced a worsening of benefits could not be applied to any officer or former officer without first securing their consent.
The Government is proposing new legislation to govern police injury benefits. This legislation will not be applied retrospectively.
Therefore the ‘burden’ of police injury pensions currently paid cannot readily be reduced by legislation.
In 2002 the Metropolitan Police changed the way injury pensions were calculated. They state:
‘Once an individual reaches compulsory retirement age, now 60, but was 55 years of age, the comparator changes, as they are no longer expected to earn the salary of a police officer. The comparator then becomes the National Average Earnings figure rather than the police salary. As this figure is lower than the salary of a police officer the difference is usually smaller and thus the injury pension lower. 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 forces.’
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 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 implement new policy and procedure, effectively aimed at reducing the cost of police injury pensions.
‘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.’
The Government, via the Home Office has actively sought to reduce the cost of police injury pensions. Home Office circular 46/2004 Annex C contains guidance that encourages radical and hitherto unheard of 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. They were a manipulative distortion intended to move police authorities in a direction that suited the Government. New policy and procedure implemented by police authorities and forces are therefore based on an inaccurate account of then current practice.
Using the Freedom of Information Act (FOIA) all 43 police forces in England and Wales were asked:
‘[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.’
42 out of the 43 forces responded.
Of these, only one force placed themselves in category A. This was the Metropolitan Police.
One force, Gloucestershire has not responded within the time limit set by the legislation. They have been pressed for a response. Other information obtained indicates that they were in category B.
Therefore, only the Metropolitan Police can be positively confirmed as having been in category A. 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.
From this round of FOIA requests and responses it can be seen that all 43 forces were in category B before 2001, and that they all continued to pay benefits at the same rate until the death of the Officer concerned - until the Home Office suggested that they could do otherwise.
A second 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
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?
5) In the years 2004 to 2008 inclusive, how many formal complaints have been made against officers of ACPO rank in [your force] regarding matters in any way connected with the administration of reviews of police injury awards?’
The purpose of this round of enquiries was to illuminate the position after issue of Home Office Circular 46/2004.
To date 40 forces have responded.
In response to question 1 they report that a total of 12,988 former officers are in receipt of a police injury pension.
Answers to question 2 show that 18 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 21 forces/authorities had not implemented policies in response to Home Office guidance.
Several of these responses contained further explanatory detail, including information about partial implementation, concessions, or statements that they were considering the situation.
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. This period of 14 years is the time from implementation of the Police Pensions Regulations 1987 and when Cleveland Police brought in new policy.
Answers to question 5 showed that 3 formal complaints had been made against ACPO ranks in the years 2004 to 2008 inclusive.
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 2002 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.
This 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 consistent.
N.B. An ordinary definition of ‘diverse’ from the Oxford English Dictionary is ‘widely varied’.
If the non-responding forces are 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.
‘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.
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.
This would seem to have been impossible as it conflicts directly with the data obtained by the FOIA research.
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. It is unlikely, to the point of improbability, that the authors would base their assertion of diversity of practice on anything other than the best current information available.
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.
A search of the Internet revealed that an earlier FOIA request to the Home Office on a related issue had produced a response that stated:
‘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.’
This response is clearly referring to Annex C of HOC 46/2004, and the researcher has confirmed this in later correspondence with the Home Office.
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.
At this point the Home Office would not say more and failed to produce the ‘recent 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 January 2004.
The Home Office was asked to identify the dates of the meetings when the ‘round the table discussions’ took place. They have not responded to date.
The West Midlands minutes showed that whilst some details concerning the management of police injury pensions were discussed there was nothing minuted that could in any way be interpreted as a ‘round the table discussion’ of then current practice.
One list of delegates at one meeting was obtained. It showed that Mr John Gilbert of the Pensions Department 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.
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.
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 state retirement age. I quote:
‘This 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.’
At a meeting held on the 6th April 2004 Linda Van De 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.
Whilst these edited minutes have produced nothing that helps identify the ‘recent survey’ mentioned in Annex C, they do 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 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.
Further research is in hand on a number of issues arising from these minutes.
Meanwhile, the Home Office and West Midlands Police have been asked to produce any documents of whatever nature that refer to or illustrate the information resulting from the claimed round the table discussion/s and to produce anything that shows what data was obtained and anything that illustrates how that information was transformed into a ‘recent survey’.
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 42 out of 43 forces all 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 does not represent diverse practice.
Around 21 forces/police authorities have chosen to not implement new policy and procedure based on the guidance contained in Home Office circular 46/2004 Annex C.
The Home Office has been unable or unwilling to produce any documentary evidence that the ‘recent survey’ either took place as described or actually existed in any form whatever.
The Home Office guidance contained in Annex C is therefore highly suspect. 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 an unsubstantiated 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 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 way to conduct the management of injury pensions that are regulated by legislation applicable to all 43 police authority areas.
The Home Office used inaccurate and misleading information to encourage police authorities to implement new policy and procedure that amounts to a change in the relevant legislation, without benefit of normal democratic and Parliamentary process.
Implementation of new policy and procedure 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.
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.’
Interpretation of legislation is ultimately and solely the prerogative of the Courts.
The Human Rights Act 1998 Section 3 (1) states that ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’
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 research has not further examined the legality or otherwise of any new policy and procedures resulting from the Home Office guidance, nor of the guidance itself. However, it is suggested that any policy based on unsound guidance may well be vulnerable to challenge in the courts.