Earning Capacity Degree of disablement This paper is intended for former UK police officers retired on an injury pension.

. At the heart of the recent attacks on injury pensions has been the way that degree of disablement is assessed. This paper takes a critical look at what is being done by SMPs and HR administrators and attempts to bring forward a change in approach. My view is that the Home Office's suggested method for quantifying earning capacity and thus degree of disablement is flawed. It is set out in some detail in Part 5 of 'Guidance on Medical Appeals Under The Police Pensions Regulations 1987 And The Police (Injury Benefits) Regulations 2006'1 This guidance describes a method for measuring loss of earnings, which I believe is not the correct approach as it does not comply with the Regulations. The correct approach is to quantify earning capacity at the time of the initial grant of an injury pension and any alteration in earning capacity at the time of any review, using only a medical assessment of the effects of the duty injury on the capacity to work so as to be paid It should be noted that the Guidance states, 'This [guidance] has no binding authority . . . ' The Home Office claims that it is the procedure followed by, '. . . most forces and by Boards in recent years.' It has to be borne in mind that the Home Office provides the training for SMPs and this inevitably results in SMPs being brought to think, as it is the only procedure offered to them, they are obliged or required to follow the Guidance. I may be doing some SMPs a disservice, but I can see that it could be easier for them to follow the Home Office Guidance than to work out alternative procedures for themselves. The Home Office influence inevitably skews the take-up figure and leaves me wondering if SMPs would have used a different procedure if alternatives had been offered to them or if they had been left to work out how to approach their task for themselves. The way the Home Office presents it, the Guidance is a reflection of procedure that has been developed by SMPs that the Guidance merely reflects common practice. That may not be the case, and the reverse may be a more accurate picture that the common practice (such as it is or is not) arose from the Guidance. It takes a large leap of faith to believe that SMPs are so organised, and so in agreement, as to be able to produce such a detailed method of assessment. Merely pointing to use of the Home Office's procedure is a far step away from providing confirmation that it is a lawful procedure, the only procedure, or even the best procedure. We also have to bear in mind that even if the procedure is used at review, it may produce a result similar to one achieved by another method. However, that outcome owes more to how the SMP operates the procedure than to its quality or lawfulness. Indeed, I think the prime fault in the Home Office method is that it is open to manipulation by forces, SMPs and by the Home Office so as to produce assessments that are detrimental to the rights of former disabled officers. It is timely that SMPs should be removed from what I believe to be too close a relationship with the Home Office and the forces that utilise them and that their independent role within the Regulations is more clearly acknowledged and protected against undue influence.

1 Available at www.scribd.com/wdtk

I don't propose here to conduct a line by line critique of the Guidance but I have strong reservations about its honesty, impartiality and lawfulness. Mr Gilbert, whose name appears as the author of the Guidance, has a track record of taking an inch and stretching it into a country mile. It needs to be remembered the author of the Guidance also claimed, in the Annex C guidance, in relation to reviews at normal force retirement age that, '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.' This claim was exposed as completely untrue. It was a deliberate lie. In fact no force had ever automatically reduced degree of disablement to band one, at any age. The Part 5 Guidance is written in a way that mixes unsupported assertions with erroneous paraphrasing of legislation and unfounded opinion. I strongly argue that the entirety of Part 5 of Guidance should be dumped in the waste bin. It is at best unreliable, erroneous and unlawful and at worst a deliberate underhand attempt, using smoke and mirrors, to subvert the Regulations in a way intended to reduce the amount of injury pension paid. Right at the beginning, it attempts to set the reader off on a wild goose chase: 'How an injury award is calculated 4. An injury award consists of a lump-sum gratuity and also a pension where, as is normally the case, the persons other relevant income needs to be topped up to the level of his or her minimum income guarantee.' [My emphasis] The Guidance says, '. . . as is normally the case . . ' Why is what might happen elsewhere of any relevance to how an injury award should be calculated under the Regulations? There is no need for that phrase other than to give the (false) impression that the procedure which follows is well-founded, common practice found elsewhere in the administration of other pensions and therefore applicable to police injury pensions. There is no reason for injury pensions to be governed by rules that might apply in other pension systems. Police injury pensions are governed by the Regulations and they most certainly say nothing about any earnings calculation mechanism intended to top up total income. The Guidance errs by stating that a pensioner's '. . . other relevant income needs to be topped up to the level of his or her minimum income guarantee.' This concept is repeated a few paragraphs later: 'The link with earnings is necessary because injury pensions are based on a system of "minimum income guarantee" designed to bring total income in retirement up to a certain level.' This is nonsense on steroids. The author asserts that the link with earnings is necessary, because he thinks that the Regulations intend that total income in retirement is brought up to a certain level. He seems to be saying that the pension is added to any other income to produce a total. That would not be a minimum income guarantee it would be a control mechanism that produced a cap on income. If the pensioner earned a few pounds more one year, then according to Mr Gilbert, he would see his injury pension reduced by a similar amount? He has missed the point or deliberately obscured it for the 2

minimum income guarantee is the amount of injury pension paid, not an expression of total income and is there to provide an income even if no other earnings are present. How can it bring earnings up to a certain level? Earnings do not feature in the Regulations. Earning capacity does. As the author's premise is wrong - that the pension is there to top up total income (to effectively put a cap on total income) then his assumption that the link with earnings is necessary is also incorrect. His logic is in the form of 'as A then B' that there is causality between A and B. Therefore, the quality, or truth, of B is dependent on the quality or truth of A. The author wrongly describes the nature of an injury pension 'A' and from that incorrectly infers that earnings 'B' determine degree of disablement. I believe the purpose of the author's perverse logic is to bring focus to bear on earnings, which the Regulations do not mention, so as to set it in the mind of the reader that it is permissible to equate 'earnings' with 'earning capacity'. He seems to be saying that it is possible to use earnings, or their notional loss, to determine earning capacity. And that is where the rot sets in and why everything that follows of the suggested method to assess degree of disablement or any alteration in degree of disablement is completely invalid and utterly unlawful. Reference to earnings is not necessary to determine degree of disablement and earnings cannot determine earning capacity for they are an unreliable indicator that owes more to variable and irrelevant factors that are impossible to quantify than to the effects of the duty injury. At the heart of the confusion over how to assess degree of disablement is the false and misleading concept that there is a reliable, measurable causal link between earnings and earning capacity. I have more to say on this below, but I hope it can be agreed that how much or how little a person earns is influenced more by a raft of irrelevant factors than by earning capacity. Only the duty injury is recognised by the Regulations as being a relevant factor in determining earning capacity and thus degree of disablement. Put simply, you can't look at earnings, whether they be past, present or potential, and use them as a reliable indicator of earning capacity. Earning capacity is an exercisable power, not amenable to measurement in terms of earnings. Look at it this way an car engine's cubic capacity (which we could call earning capacity) does not tell us the maximum speed the car can go (which we could call earnings). If we knew the maximum speed of a car could we use that to determine the cubic capacity of the engine? I think not. If we later reviewed the situation and determined the maximum speed had declined or increased could we conclude that the cubic capacity had also declined or increased? I think not. Similarly, no amount of juggling of earnings, wages, jobs whether past, present or potential can ever lead one back to quantifying earning capacity. Degree of disablement is determined by the extent of erosion of earning capacity, not any calculation concerning earnings. A capacity is the the ability or power to do something in the environment of the Regulations that 'something' is work specifically work resulting in payment. The payment is nothing more than a by-product of the work. The capacity to work is what has to be measured, not the amount of payment resulting, if any. Any examination of earnings alone can never lead us to being able to quantify the available capacity to work. The capacity to work can exist without any earnings

resulting. As the Pensions Ombudsman made clear, in the case of Ayre, a person retains an earning capacity whether or not he chooses to exercise it. Within the Regulations, a person's earning capacity is not a statement of how much, or how little, can be earned. It is a measure of available work-related effort. Degree of disablement is not to be determined by looking to see how much a person might earn if uninjured and comparing that to some other figure either actual earnings or a nominal wage drawn from ASHE data or elsewhere. The lack of clear definition of the term 'earning capacity' in the Regulations poses some difficulty on the SMP and on anyone who has had to apply their mind to how one might assess alteration in earning capacity at review. The focus of challenges to reviews conducted under the influence of Annex C guidance was on the age 65 reviews. In my view, this attention has masked the larger underlying fault, which is that the entire approach, as recommended by the Home Office, to assessing degree of disablement when an injury pension is granted and also at review is fundamentally flawed because of the confusion between 'earnings' and 'earning capacity' and introduction of the false concept that the injury pension is there to compensate for lost earnings. This flaw has remained largely hidden because so far it has been only peripherally examined in the High Court or by the Pensions Ombudsman. It is rather like the iceberg which sank the Titanic mostly underwater and out of sight, but capable of causing enormous damage. The absence of clear direction combined with an unwarranted certainty that matters were being dealt with lawfully has created much confusion, not all of it innocent. A good many years ago Mr Justice Stephen in Re Castioni [1891] had this to say: 'I have had on many occasions, to draft Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.' I regret it is all too obvious that there has been a sulphurous mixture of ignorant misunderstanding, overlaid with a heavy dose of deliberate misunderstanding, of the Regulations and how they intend degree of disablement shall be determined. Given that 'earning capacity' was adequately defined as far back as 2003, in Crocker, and was well examined by the Pensions Ombudsman in the case of Ayre in 2009, there really is no excuse for seeing its meaning altered, or confused, in any official document from any source. Unfortunately, it seems abuse of the phrase is commonplace so much so that it has been almost supplanted by the cuckoo phrases used by those who should know better. Good and lawful administration is not helped when people who have to apply the law depart from the words and phrases contained in the legislation and indulge in casual paraphrasing or thoughtless substitution. Such lapses should not appear in anything which originates from someone of whom we have an expectation that they get things right. Casual paraphrasing and thoughtless substitution from a professional is indicative of lazy thought processes and poor skill levels, or even of a desire to manipulate the Regulations to the disadvantage of pensioners. Those false phrases are seemingly innocent but they have exerted a malign effect on the administration of injury pensions.

It is not acceptable for those who administer injury pensions to take the phrase 'earning capacity' and change it into 'earnings capacity', 'loss of earnings' or 'loss of earnings capacity' or 'loss of potential earning capacity' as the fancy takes them. Examples such as these are found scattered throughout the Home Office guidance, in forces' policy and procedure documents, in reports, letters and minutes. Each time 'earning capacity' is transformed into something that is an inequivalent paraphrase or substitution, the meaning and intent of the Regulations is twisted. This leads inevitably to misunderstanding and incorrect application of the Regulations. As this error has become embedded in the administration of injury pensions I have to try to make it a clear as I can here that 'earning capacity' is the measure of available physical and mental facility, placed within the work environment. It is a measure of what a person in capable of doing, and thus capable of earning. It is not a measure of what a person is capable of earning and thus capable of doing. Earnings may result from work, and be the intended outcome of work, but the amount of those earnings does not depend solely on earning capacity. I would draw your attention to the case of Simpson, heard at Leeds High Court earlier this year. This case could not have made it clearer neither the pension, nor the amount of pension paid, has anything whatever to do with earnings. Simpson 12. 'The two grounds in respect of which the Court of Appeal granted permission to the claimant to challenge the Guidance are: first, that the Guidance is inconsistent with the Regulations (ground 1A); and, second, that the Guidance is wrong in that it mistakes earnings for earning capacity (ground 1B).' Simpson 13. 'As for ground 1B, Mr Lock submits that the test under Regulation 7(5) is based on the loss of a former officer's earning capacity, not his actual loss of earnings. In this regard he relies on the judgment of Ouseley J in R (South Wales Police Authority) v. The Medical Referee (Dr David Anton) and Crocker [2003] EWHC 3115 Admin where the judge said at paragraph 42: "The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers.'[My emphasis] Simpson 32. 'I also reject Mr Sanders' submission that the purpose of an injury pension is to make up for the financial consequences of an enforced inability to continue operating as a member of a police force. Regulation 7(4) is the gateway into the benefit, defining disablement. Regulation 7(5) is concerned with the assessment of loss of earning capacity. The degree of a person's disablement should be determined by reference to the degree to which his (emphasis added) earning capacity has been affected as a result of the injury. The focus is on the individual's earning capacity which, in the case of a former officer, may or may not involve the police officer's salary. As Ouseley J noted in Crocker, the task in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not an assessment of whether somebody would actually pay him to do what he is capable of doing.' [My emphasis] 5

Having raised the spectre of a flawed procedure it seems sensible to look at a solution rather than endlessly pick over the problem. Hopefully, what I present below will show that there is an alternative procedure that the SMP can use at review a way of assessing whether there has been an alteration in degree of disablement that is lawful, capable of clear understanding by all concerned, and avoids the unnecessary complications of the method suggested by the Home Office. I suspect that I am proposing nothing especially new. It would be very interesting to put it to past FMAs to see if my view gels with the way that they used to conduct reviews. The only empirical evidence I have comes from the reviews I attended. I don't recollect ever having been asked about earnings, or having possible jobs suggested to me, or any mumbo jumbo about loss of earnings or comparison of wages. I do recall being asked about my injury and its effects particularly how it might affect my ability to work and thus to earn. I argue there is no need for the SMP, or anyone else, to have access at review to any information about a person's earnings, past, present, or potential. Nor is there any need for the SMP or a Human Resources Department to try to conduct a job-matching exercise by identifying a job which the individual could do. The SMP should not need to look at any data showing earnings, for any section or category of society, be they average, median or mean earnings. His task is entirely a medical one. Erroneously, the Guidance advises that the SMP begins to assess degree of disablement by an exploration of irrelevant factors: '10. In order to assess the degree of disablement the SMP will need to consider by reference to the persons background, skills and qualifications what kind of employment he or she could undertake, allowing for the particular effects of the qualifying injury.' Starting with an exploration of jobs and earnings is going at the task from entirely the wrong direction. The starting point at any review is the injury and the effects of the injury on the ability to work. The SMP can determine at review if there has been any alteration in degree of disablement, and if necessary, whether or not any alteration is substantial, by an examination and assessment of any alteration in the individual's current, post-injury, physical and mental capabilities, as set within the environment of paid work, compared to the last final decision on degree of disablement. It needs to be borne in mind the pensioner's degree of disablement has been fixed, and is final (subject only to Reg. 31 appeal or Reg 32 reconsideration) unless the SMP assesses there has been a substantial alteration in degree of disablement, caused by some change in the effects on working capability of the duty injury, and only the duty injury. He is prohibited from conducting a fresh assessment of degree of disablement, even as a means of using that to compare with the previous assessment. He also cannot revisit causation or diagnosis or apportionment. A scientific approach demands that the SMP can only properly arrive at an assessment from the known facts before him. His task is not to hypothesise about future earnings and jobs, but to ascertain if there is any alteration in degree of disablement, which itself rests on available earning capacity, which, in turn, is determined by the effects of the duty injury, and only the duty injury. 6

That necessarily means the known facts can only be medical facts. Any facts about potential earnings or comparisons between earnings, or ratios between earnings, or calculation of theoretical 'lost' earnings is in the realm of speculation and bears no relevance to the task in hand. Nor is the SMP, or anyone else, required to give an opinion on what sort of jobs a pensioner might be able to undertake, or to what extent the pensioner could perform in those jobs, or what someone might pay him. That would be a labour market assessment, which is expressly forbidden. Where a pensioner is working, or has been working, and thus earning, it is impossible, for all practical purposes and for the purpose of the Regulations, to filter out the disabling effects of the duty injury from the multitude of other factors that could affect the earnings of a pensioner. If such a calculation were attempted, the variables would be infinitely abstruse due to their interaction and their resultant propensity to mask the singular effects of the duty injury. The case of Turner, however, raised the suggestion that degree of disablement might alter if either a) the condition of a pensioner improved so that he could take employment in a job that otherwise he would have been unable to manage, or b) that some new job suddenly became available that the pensioner could manage without having experienced any alteration in his condition. I think this is a diversion into improbable theory and is not something that detracts from my grounded proposition that at review the SMP need not concern himself with speculation about possible jobs. In the instance of a) occurring, the improvement in the pensioner's condition would be detected by a medical examination, and only if it were a substantial alteration could the job be taken as a confirmatory factor. It is important not to confuse cause and effect. There would need to be an improvement in the medical condition before the the job could be taken. Taking the job does not, of itself, indicate a change in the medical condition. The job would, therefore, not be relevant, for if the SMP determined there was a substantial alteration - an improvement - in the pensioner's medical condition then surely the pension stands to be revised purely on that basis. The job has merely alerted the pensioner and presumably the Police Authority to the probability that a review might be appropriate. In the case of b) I believe that Mr Lock was speaking with mischievous intent, indulging in drollery at the expense of the opposing QC, not expecting the court to take his words at face value, for he must have known, as a moment's thought will confirm, that the likelihood of some completely new sort of job suddenly becoming available is so rare as to be extremely improbable. I think it would be extremely difficult for anyone to point to a job and prove that it was completely new in nature. I suggest that what was reported in Turner is applicable only to two specific circumstances and is not amenable to general application. It does not open the door to allowing other factors to be considered relevant to determining degree of disablement or any alteration in degree of disablement. Those who administer injury pensions should understand that earning capacity can of course be affected by a multitude of factors, but that, within the Regulations, earning capacity holds a specific status which insulates it from all other influences save one: only the duty injury can have any effect in causing alteration in earning capacity. The Laws appeal is now the lead case in respect of injury pensions and it helpfully clarifies matters so that there should be no further confusion. Laws Appeal 27:

'Objectively, the extent to which a pensioner remains disabled from work by reason of a duty injury must be capable of being affected by the acquisition of new skills. The question under 7(5) then is, what is the impact of the duty injury on the pensioner's earning capacity as the SMP/Board find it on the facts before them.' Laws Appeal 28: 'The issue as to the claimant's law degree will not be a determinant of the appeal's result but the impact of her law degree will fall to be considered on any such further review. I would venture the opinion that, unless there are then further facts now unknown to us, its impact is likely to be modest. While of course her gaining the degree demonstrates a level of intellectual ability as well as determination on the claimant's part, unless it has concrete results in terms of actual job prospects (and the degree is not, of course, a professional qualification) its effect on her earning capacity seems to me to be largely speculative.' It is likely to be the norm for the SMP to see pensioners who are working and earning. The Regulations anticipate this, and make no provision for the amount of pension to be adjusted according to how much or how little the pensioner earns. Instead, they speak of a minimum income guarantee an amount that will be paid regardless of how much or how little a pensioner earns. Thus it is unwise, when considering degree of disablement, to look at the fact a pensioner is working, doubly unwise to look at the amount he is earning and just plain stupid to use either the fact of working or the amount of earnings to attempt to infer and then quantify earning capacity and thus degree of disablement. I came across a word that very aptly helps describe the situation facing the SMP, should he embark on an exploration of jobs and earnings, past present or future. The word is stochastic. The Oxford English Dictionary defines it as, ' Having a random probability distribution or pattern that may be analysed statistically but may not be predicted precisely'. The online Free Dictionary defines it as, 'Of, relating to, or characterized by conjecture; conjectural.' Stochastic thus refers to systems whose behaviour is intrinsically non-deterministic and sporadic. In plain language, blooming hard to see the wood for the trees. Such a system is the interrelation of of random and unpredictable variables that combine to create any particular income stream. To give a flavour of the stochastic situation of attempting to determine degree of disablement, we can view the relationship between earnings and the labour market in terms of supply and demand. The supply is the work a person might be able to do. What the person can do by way of work is determined by his capacity to work. What he is willing to do for any given wage is a matter of personal preferences, which are difficult to measure with any certainty for they are subject to fluctuation, sometimes rapid and substantial. Demand is the availability of jobs that the individual is able and willing to do for the wage offered. A stream of actual earnings is a series of varying outcomes of a complex stochastic process involving the interaction of a person's capabilities and preferences with the needs and demands of employers. Thus data on previous, present or potential earnings presents an uncertain basis of fact from which to draw any clear inference. Moreover, without a crystal ball, the SMP cannot accurately come to a view on future potential earnings, which depend on chance and choice as well as on skills, qualifications and abilities, all of which are variables capable of indeterminate fluctuation.

The SMP is, in any event, required to conduct his assessment in the reality of the here and now. He should therefore confine his deliberations to the observable facts before him. Crocker 33: 'The concept of earning capacity might be thought itself to contain an element of future potential, but the more normal earning capacity connotations of capacity are of what is now achievable, to be contrasted with actual achievement, rather than with what in the future might become achievable.' Thus the SMP is actually not permitted to look to the future. This would seem to prohibit not just speculation about future earning capacity but also any speculation about future employment or earnings. The only way through the miasma of conflicting, contradictory and irrelevant information and speculation is to look only at the medical condition and assess if it has altered, and if so to determine if it is a substantial alteration affecting a person's capability, his potential, to engage in work which results in earnings. Remember, the SMP is not permitted to make a fresh assessment of degree of disablement. His only duty at review is to decide whether, since the last final decision, there has been a change, a 'substantial alteration'. As only the effects of a duty injury are relevant in determining earning capacity and thus degree of disablement, it follows that, when looking for any change, the SMP must look only at the duty injury. I appreciate this view differs significantly from what has been promoted (I am tempted to say touted) by the Home Office guidance, but I believe my view is supported by the Regulations, by case law and by logic, whereas the Home Office view is not. The Home Office has never produced any evidence to support its guidance, and its logic has been proved to be faulty to the extent that it has been declared unlawful in certain respects. 2006 Regulation 7-(5): 'Where it is necessary to determine the degree of a persons disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force.' The causal link is between the injury and earning capacity. It is not between earnings, (past, present or potential) and earning capacity. Laws 49: 'In my judgment, they erred in taking this change in the claimant's skill set into account in order to determine that there were now jobs available to her which were not available to her previously. A change in the claimant's skill set because of her law degree is not, in my judgment, a change in the claimant's earning capacity "as a result of" the duty injury, as required by the regulations. The combination of regulation 7(5) and regulation 30(1)(d) requires that the assessment of any alteration in the degree of disablement is limited to those 9

factors which are the result of the duty injury. The assessment process looks for the loss caused by the duty injury and nothing else. It should therefore discount the effect of any other factors (see the decision of Ouseley J in R (South Wales Police Authority) ex parte Anton and Crocker [2003] EWHC Admin 3115, in particular at paragraph 52.' [My emphasis] The phrase 'earning capacity' has been well analysed and pronounced upon in several High Court cases, notably in Crocker, 42: 'The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers.' [My emphasis] This view has been accepted and confirmed in more recent cases. An assessment of what a person is 'capable of doing' does not need to extend to matching available effort to a particular job or a particular stream of earnings. It is an assessment of available physical and mental effort of available capacity to work. Once that is matched to a job or to a wage, it becomes an assessment of the output resulting from the input and is thus a labour market assessment. The phrase, 'capable of doing and thus capable of earning' should not be taken as an invitation to allocate a job or a wage to an individual or to quantify that wage, but rather to allocate a general and broad assessment that the individual could earn something in the range of 0% to 100% of whatever amount he might otherwise achieve but for the disabling effects of the duty injury. It is not necessary to select a monetary expression of what he could earn but for the disabling effects of the injury it represents 100% whether it is 5,000 a year, 50,000 a year or 5 a year. Let me return to Crocker. The judge opined, 'The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning.' The first step in the assessment at review, with Crocker in mind, is to form a view on what the person is now capable of doing. This is not a job interview where skills, experience and qualifications need to be examined at review the SMP should conduct a medical examination, intended to assess any change in the person's physical and mental capabilities. It is a measurement of available input effort. It is not a measurement of what jobs and earnings might result. Logically, it cannot be otherwise, for the Regulations insist the task is handed to a suitably qualified medical practitioner. If the task was one of listing qualities other than medical ones or of looking at jobs and wages then the Regulations would have handed the task to a human resources expert, or a personnel manager, or an economist. The task then is to see what the injured person retains of the ability to work. The result of the work is earnings, so it is clear the assessment of work capability (the 'doing' in Crocker) must be set within the specific environment of paid employment. I am no medic, but I can suggest the sort of tests the SMP might apply would revolve around the person's physical abilities, such as lifting, standing, walking, fine motor skills, bending and climbing, hearing and sight; cognitive abilities, such as reasoning, memory, perception, visual and spatial processing; and psychological factors such as motivation, mood, temperament and interest.

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I could go on, but I think you will get the general gist of what I am saying. A suitably qualified medical practitioner will know what tests to apply to the individual and how to grade the results so as to provide a figure within a broad percentage range indicative of the level of work ability retained. You will note there need be no move to apply the retained ability to potential outcome in the form of a job or a wage. The Regulations are unconcerned about how much a pensioner might be able to earn within his diminished capabilities. They are concerned to provide a minimum income guarantee, so that in the worst-case scenario, where the pensioner has no income from work, he has the pension to help pay the bills. I trust that logic and a grounded sense of reality indicates it is impossible to put a meaningful monetary value on the output of a person's capability to work. To attempt to do so is to engage in pure speculation. Having examined the first part of the phrase in Crocker, '. . . what the interested party is capable of doing . . .' this leaves us with the qualifying second part of, '. . . thus capable of earning.' In my view, this is has been sadly, even wilfully, misinterpreted. It has been taken to indicate the SMP must go off on a job matching exercise coupled with speculation about potential wages. This is all totally unnecessary. At review, the SMP will have determined the amount of work capability remaining after the disabling effects of the duty injury have been taken into account, by adding or subtracting any alteration he detects. He thus has a view of available work capability which, when compared to the last final decision, indicates whether the alteration is an improvement or a deterioration and whether it is a substantial alteration. From the above, emerges a picture of how the SMP can lawfully conduct his task, at review, of assessing whether there has been any alteration on degree of disablement, and if so whether it is a substantial alteration. He can place a value on it, if he thinks it helpful, expressed in percentage terms, but really there is no call for him to do other than decide which of the four bands set out in Schedule 3 is the appropriate one in which to place the degree of disablement. The SMP need not seek to provide a precise value of any alteration, for it should be readily apparent if any alteration is a substantial one, and only a substantial alteration allows a pension to be revised. Degree of disablement is thus simply obtained from nothing more than a medical examination to determine any alteration in the effects of the duty injury, and nothing else, on earning capacity. Provided that the SMP issues a detailed report, setting out what he did and how his observations, examination and any tests he used were conducted, together with the reasons behind his decision, then there should be little cause for dispute. I believe that this approach would completely satisfy the requirements of the Regulations and would remove any opportunity for unscrupulous or muddled manipulation of data drawn from wages, earnings or jobs. The usual caveats apply to this document. I am not a qualified legal expert. This document sets out my view on degree of disablement and needs to be considered against any opposing views. I could take a tip from the technique employed by the Home Office and say it is only guidance, whilst intending the guidance to be followed without accepting any responsibility for any consequential difficulties. The Simpson case has put paid to that slippery subterfuge and I have to admit to a warm feeling of schadenfreude at seeing the Home Office finally being criticised for its actions and being 11

told its guidance is unlawful. As a retired former officer on an injury pension my aim is to do what I can to inform and to encourage other IOD pensioners to stand up for their rights. I welcome any comments on this, and other documents posted on www.scribd.com/wdtk please don't be shy, contribute to the discussion and help sharpen our understanding of the developing situation. Email me at atebion2me[AT]gmail.com No IOD pensioner need face maladministration without help. There is support from NARPO and the Federation at local and national level and these two organisations should be the first port of call for anyone needing advice. However, there is also advice and support available via the web site of http://www.pipin.org.uk/ and also there is an email based support group send an introductory email establishing your bona fides to whatsyourforcedoing[AT]yahoo.co.uk

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