Local Government Pension Scheme · CAS-100315-L7P0

CAS-100315-L7P0

Ombudsman’s Determination Applicant Ms H

Scheme Local Government Pension Scheme (the Scheme)

Respondents Cafcass

City of Bradford Metropolitan District Council (the Council)

Outcome

Complaint summary Ms H’s complaint concerns the decision to award her ill health retirement benefits as a deferred, rather than an active, member of the Scheme.

Background information, including submissions from the parties CAS-100315-L7P0

As you are aware I have been offered a post where I will be able to work part - time, and also focus my attention on services to children and families outside of the court arena. A move to more preventative and restorative services is something I have been considering for a while now.

I would like to express my thanks to all my colleagues at Cafcass, and after more than 15 years in the organisation, this has not been an easy decision to arrive at. However, I do believe it is the right decision for me and potentially the organisation, to get a fresh perspective.

…”

“As a public body, I know that you are aware of the immense challenges that our budgets are under this year and given that we have already recruited and filled your post we do not have the budget available for you to return either on an extended notice basis or full time.”

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“There was a period earlier during 2021, when we had determined that there was budget for an additional Service Manager in … to provide additional management capacity to…and… However, due to the immense challenges on our budget, it was subsequently determined that this post could no longer be funded, thus as I explained in my email to you on 22 June 2021, the successful candidate who had originally been appointed to this post would instead undertake the management of the … team which you were leaving.”

“In your chronology, you have raised that…did not discuss with you a referral to Occupational Health when you contacted her about rescinding your notice or extending your notice period. I think it was reasonable for…to be first considering your initial request at this stage to rescind or extend your notice and to consider how she could support you during this period. Our first consideration with all employees who are unwell is how we can support them to return to work.

I think that it is important to note, a referral to Occupational Health with a request to consider ill health retirement (which legally is a dismissal from employment), would only usually be considered for employees whose employment is ongoing and for whom we have been advised that there was no prospect of them being able to return to work. With your initial request being to rescind your resignation or extend your notice period to support you in a speedier and fuller recovery, it was reasonable for…to believe at that time that you wanted to return to your role as a Service Manager. I do not believe that it would have been appropriate for…to have been discussing with you the rescission of your notice, how she could support you return to work and at the same time the process for a determination of a lack of fitness to work to such a degree that ill-health retirement had to be considered.

…

As a former employee, you can write to Cafcass at any time to ask for consideration to be given to accessing your deferred benefits on the grounds of ill health. I am aware that you did this on 21 September 2021 (after you had left Cafcass) and that colleagues in Human Resources are currently progressing this request for you with a referral to Occupational Health.”

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Adjudicator’s Opinion

Cafcass’ decision not to rescind Ms H’s resignation or extend the notice period is an employment matter, which is not within the Ombudsman’s jurisdiction to determine.

Members’ entitlements to benefits when taking early retirement due to ill health are determined by the scheme rules or regulations. The scheme rules or regulations determine the circumstances in which members are eligible for ill health benefits, the 8 CAS-100315-L7P0 conditions which they must satisfy, and the way in which decisions about ill health benefits must be taken.

If an employee resigns, there is no dismissal at law (that is an entitlement to bring a claim of unfair or wrongful dismissal or redundancy pay) unless the employee has resigned in response to the employer creating a hostile work environment (constructive dismissal) or has been forced to resign.

Neither constructive dismissal nor a forced resignation applies here.

As Ms H’s employment did not end on the grounds of capability due to ill health, she is not entitled to be considered for ill health retirement as an active member.

Ms H submits that if the correct diagnosis had been made before her employment ended, this would have triggered her full pension entitlements1.

But that is applying the benefit of hindsight. It was not until after Ms H had left Cafcass that the brain tumour was diagnosed. While the tumour existed prior to her employment ending, the true state of her health was not then known or suspected.

Cafcass has confirmed that Ms H is receiving the full value of her accrued pensions based on her contributions and pensionable service up until her employment ended.

Ombudsman’s decision Ms H has provided no comments on the Adjudicator’s Opinion.

While I empathise with Ms H, I agree with the Adjudicator’s Opinion for the reasons set out above in paragraphs 33 to 45.

I do not uphold Ms H’s complaint.

1 By ‘full pension entitlements’, I presume Ms H means enhanced benefits for ill health retirement as an active member. 9 CAS-100315-L7P0 Anthony Arter CBE

Deputy Pensions Ombudsman 31 October 2023

10 CAS-100315-L7P0 Appendix 1 The Local Government Pension Scheme Regulations 2013 (SI2013/2356) (as amended)

At the time Ms H’s employment ceased, regulation 35, ‘Early payment of retirement pension on ill-health grounds: active members’, provided:

“(1) An active member who has qualifying service for a period of two years and whose employment is terminated by a Scheme employer on the grounds of ill-health or infirmity of mind or body before that member reaches normal pension age, is entitled to, and must take, early payment of a retirement pension if that member satisfies the conditions in paragraphs (3) and (4) of this regulation.

(2) The amount of the retirement pension that a member who satisfies the conditions mentioned in paragraph (1) receives, is determined by which of the benefit tiers specified in paragraphs (5) to (7) that member qualifies for, calculated in accordance with regulation 39 (calculation of ill-health pension amounts).

(3) The first condition is that the member is, as a result of ill-health or infirmity of mind or body, permanently incapable of discharging efficiently the duties of the employment the member was engaged in.

(4) The second condition is that the member, as a result of ill-health or infirmity of mind or body, is not immediately capable of undertaking any gainful employment.

(5) A member is entitled to Tier 1 benefits if that member is unlikely to be capable of undertaking gainful employment before normal pension age.

(6) A member is entitled to Tier 2 benefits if that member -

(a) is not entitled to Tier 1 benefits; and

(b) is unlikely to be capable of undertaking any gainful employment within three years of leaving the employment; but

(c) is likely to be able to undertake gainful employment before reaching normal pension age.

(7) Subject to regulation 37 (special provision in respect of members receiving Tier 3 benefits), if the member is likely to be capable of undertaking gainful employment within three years of leaving the employment, or before normal pension age if earlier, that member is entitled to Tier 3 benefits for so long as the member is not in gainful employment, up to a maximum of three years from the date the member left the employment.”

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“(1) A decision as to whether a member is entitled under regulation 35 (early payment of retirement pension on ill-health grounds: active members) to early payment of retirement pension on grounds of ill- health or infirmity of mind or body, and if so which tier of benefits the member qualifies for, shall be made by the member's Scheme employer after that authority has obtained a certificate from an IRMP as to -

(a) whether the member satisfies the conditions in regulation 35(3) and (4); and if so,

(b) how long the member is unlikely to be capable of undertaking gainful employment; and

(c) where a member has been working reduced contractual hours and had reduced pay as a consequence of the reduction in contractual hours, whether that member was in part time service wholly or partly as a result of the condition that caused or contributed to the member's ill-health retirement.

(2) An IRMP from whom a certificate is obtained under paragraph (1) must not have previously advised, or given an opinion on, or otherwise been involved in the particular case for which the certificate has been requested.

(2A) For the purposes of paragraph (2) an IRMP is not to be treated as having advised, given an opinion on or otherwise been involved in a particular case merely because another practitioner from the same occupational health provider has advised, given an opinion on or otherwise been involved in that case.

(3) If the Scheme employer is not the member's appropriate administering authority, it must first obtain that authority's approval to its choice of IRMP.

(4) The Scheme employer and IRMP must have regard to guidance given by the Secretary of State when carrying out their functions under this regulation and regulations 37 (special provision in respect of members receiving Tier 3 benefits) and 38 (early payment of retirement pension on ill-health grounds: deferred and deferred pensioner members).”

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“(1) A deferred member who, because of ill-health or infirmity of mind or body -

(a) becomes permanently incapable of discharging efficiently the duties of the employment that member was engaged in at the date the member became a deferred member, and

(b) is unlikely to be capable of undertaking gainful employment before normal pension age, or for at least three years, whichever is the sooner,

may ask to receive payment of a retirement pension whatever the member's age.

(2) A request under paragraph (1) must be made in writing to the deferred member's former Scheme employer or appropriate administering authority where the member's former Scheme employer has ceased to be a Scheme employer.

(3) Before determining whether or not to agree to a request under paragraph (1), the deferred member's former Scheme employer, or administering authority, as the case may be, must obtain a certificate from an IRMP as to whether the member is suffering from a condition that renders the member -

(a) permanently incapable of discharging efficiently the duties of the employment the member was engaged in because of ill-health or infirmity of mind or body; and, if so,

(b) whether as a result of that condition the member is unlikely to be capable of undertaking gainful employment before reaching normal pension age, or for at least three years, whichever is the sooner.

…”

“Where a member is entitled to early payment of pension due to ill-health under regulation 38.., the first period for which retirement pension is payable begins on the date of the determination that the member is permanently incapable under that regulation.”

13 CAS-100315-L7P0 Appendix 2 Extract from Dr Bastock’s (IRMP) report, 7 January 2022

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