Local Government Pension Scheme · CAS-30163-T9G3

CAS-30163-T9G3

Ombudsman’s Determination Applicant Mrs I

Scheme Local Government Pension Scheme (LGPS)

Respondents Dorset Council (Dorset)

Outcome

Complaint summary

Background information, including submissions from the parties Background

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1 National Institute for Health and Care Excellence 2 CAS-30163-T9G3

2 Professor Thompson’s report is actually dated 25 November 2013 3 CAS-30163-T9G3

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Mrs I’s position

3 This was the report which led to Mrs I being awarded Tier 3 benefits. 8 CAS-30163-T9G3

Dorset’s position

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Adjudicator’s Opinion

Reconsideration of the original award

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4 Sampson v Hodgson [2008] All ER (D) 395 (Apr) 12 CAS-30163-T9G3

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• One of the specific obligations on decision-makers was to consider all relevant information which was available to them and ignore all irrelevant information. It was the Adjudicator’s view that Dorset should have taken steps to clarify the availability of this treatment to Mrs I. It should have obtained the date at which this treatment ceased to be available to Mrs I; that is, the date on which her local NHS trust had ceased to offer it to persons with her condition. As Dorset itself had noted, the statutory guidance issued by the DCLG in September 2014 referred to treatment which was “readily available and appropriate to the member” (emphasis added). In the Adjudicator’s view, this did not include treatment which was not available to the member via her/his local NHS trust.

The 18-month review

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Putting matters right

5 https://www.pensions-ombudsman.org.uk/wp-content/uploads/Updated-Non-financial-injustice-September- 2018-2.pdf 17 CAS-30163-T9G3

Dorset did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider.

Dorset’s further comments

6 Dorset has provided links to the relevant websites where the reports can be accessed. 18 CAS-30163-T9G3

“No. The regulations are quite clear that it is the initial condition resulting in an ill health Tier Three payment that should be considered when assessing a possible uplift to a Tier Two pension.”

“46. … There is no provision to make a determination for a Tier One payment at the review or a subsequent occasion. If at the Tier Three review or subsequently, the independent registered medical practitioner judges that the member is, because of the condition resulting in Tier Three benefits, now permanently incapable of their local authority employment and is unlikely to be capable of undertaking gainful employment before normal pension age or is unlikely to be capable of undertaking any gainful employment within 3 years of leaving employment but is likely to be able to undertake gainful employment before normal pension age, the employer only has powers to award a Tier Two pension.”7

7 This paragraph has been taken from the statutory guidance issued, in 2014, in respect of the Local Government Pension Scheme 2008. The relevant extract from the statutory guidance for the 2013 Scheme is provided in Appendix 1. 19 CAS-30163-T9G3

Mrs I’s further comments

Ombudsman’s decision

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8 Regulation 36(4) 22 CAS-30163-T9G3

Anthony Arter

Pensions Ombudsman 19 May 2020

23 CAS-30163-T9G3 Appendix 1 The Local Government Pension Scheme Regulations 2013 (SI2013/2356) (as amended)

“(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).”

“(1) A member in receipt of Tier 3 benefits who attains normal pension age continues to be entitled to receive retirement pension and ceases to be regarded as being in receipt of Tier 3 benefits from that date, and nothing in the remainder of this regulation applies to such a person. 25 CAS-30163-T9G3 (2) A member who receives Tier 3 benefits shall inform the former Scheme employer upon starting any employment while those benefits are in payment and shall answer any reasonable inquiries made by the authority about employment status including as to pay and hours worked.

(3) Payment of Tier 3 benefits shall cease if a member starts an employment which the Scheme employer determines to be gainful employment, or fails to answer inquiries made by the employer under paragraph (2), and the employer may recover any payment made in respect of any period before discontinuance during which the member was in an employment it has determined to be gainful employment.

(4) A Scheme employer may determine that an employee has started gainful employment for the purposes of paragraph (3) if it forms the reasonable view that the employment is likely to endure for at least 12 months and it is immaterial whether the employment does in fact endure for 12 months.

(5) A Scheme employer must review payment of Tier 3 benefits after they have been in payment for 18 months.

(6) A Scheme employer carrying out a review under paragraph (5) must make a decision under paragraph (7) about the member's entitlement after obtaining a further certificate from an IRMP as to whether, and if so when, the member will be likely to be capable of undertaking gainful employment.

(7) The decisions available to a Scheme employer reviewing payment of Tier 3 benefits to a member under paragraph (5) are as follows -

(a) to continue payment of Tier 3 benefits for any period up to the maximum permitted by regulation 35(7) (early payment of retirement pension on ill-health grounds: active members);

(b) to award Tier 2 benefits to the member from the date of the review decision if the authority is satisfied that the member -

(i) is permanently incapable of discharging efficiently the duties of the employment the member was engaged in, and either

(ii) is unlikely to be capable of undertaking gainful employment before normal pension age, or

(iii) is unlikely to be capable of undertaking any gainful employment within three years of leaving the employment, but is likely to be able to undertake gainful employment before reaching normal pension age; or 26 CAS-30163-T9G3 (c) to cease payment of benefits to the member.

(8) A member whose Tier 3 benefits are discontinued under paragraph (3) or (7)(c) is a deferred pensioner member from the date benefits are discontinued and shall not be entitled to any Tier 3 benefits in the future.

(9) A Scheme employer which determines that it is appropriate to discontinue payment of Tier 3 benefits for any reason shall notify the appropriate administering authority of the determination.

(10) A Scheme employer may, following a request for a review from a member in receipt of Tier 3 benefits or within 3 years after payment of Tier 3 benefits to a member are discontinued, make a determination to award Tier 2 benefits to that member from the date of the determination, if the employer is satisfied after obtaining a further certificate from an IRMP, that the member is permanently incapable of discharging efficiently the duties of the employment the member was engaged in, and either -

(a) is unlikely to be capable of undertaking gainful employment before normal pension age; or

(b) is unlikely to be capable of undertaking any gainful employment within three years of leaving the employment, but is likely to be able to undertake gainful employment before reaching normal pension age.

(11) The IRMP who provides a further certificate under paragraphs (6) or (10) may be the same IRMP who provided the first certificate under regulation 36(1) (role of the IRMP).

(12) Where the member's former employer has ceased to be a Scheme employer, the references in paragraphs (5) to (7), (9) and (10) are to be read as references to the member's appropriate administering authority.”

Statutory Ill Health Retirement Guidance relating to the 2013 Regulations

“51. There is no provision to make a determination for a Tier One payment at the review or a subsequent occasion. If at the Tier Three review or subsequently, the independent registered medical practitioner judges that the member is, because of the condition resulting in Tier Three benefits, now permanently incapable of their local authority employment and is unlikely to be capable of undertaking gainful employment before normal pension age or is unlikely to be capable of undertaking any gainful employment within 3 years of leaving employment but is likely to be able to undertake gainful employment 27 CAS-30163-T9G3 before normal pension age, the employer only has powers to award a Tier Two pension.”

28 CAS-30163-T9G3 Appendix 2 Medical evidence

“… you have said [Mrs I] has a history of arthritis in her hands, neck and shoulders. I understand from [Mrs I] that the diagnosis of arthritis has only been for her left wrist. [Mrs I] reports that she saw a rheumatology consultant yesterday who informed her that the MRI scan had shown a small bone protrusion in her neck which was likely to be causing her neck pain and headaches.”

Professor Thompson, consultant rheumatologist

“… the MRI scan shows some age related disc wear mainly at C5/6 and C6/7 causing some foraminal narrowing which may well have caught a nerve root causing her symptoms. Fortunately her symptoms are improving as they usually do in this situation and she simply going to give it some more time. If things get stuck however she will come back and we can talk about some local injections but hopefully this won’t be necessary.”

Dr Milne, consultant occupational physician

29 CAS-30163-T9G3 Mrs I’s GP

“Therefore in summary [Mrs I] has long standing persistent and deteriorating neck pain probably due to wear and tear noted on the MRI scan which is unlikely to improve with time and if anything deteriorate. It is affecting her from a pain point of view causing restriction to her activities, and many activities she does in her job and can actually aggravate her neck pain. Unfortunately as a result of the neck pain she also has more regular migraines than she might do otherwise, which are adding to the intermittent disablement.

I cannot foresee any great improvement over the next few years in [Mrs I’s] symptoms with the possibility of deterioration. Therefore a strong consideration for ill health retirement at this stage seems the sensible way ahead. She has been battling with various painkillers and medications together with physiotherapy but this simply helps her to cope with it but has not in fact resolved the problem.”

Dr Chapman, IRMP

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Dr Marks, consultant rheumatologist

Dr Shaw, IRMP

The role of an occupational physician is quite different from the role of a general practitioner as the latter’s role is to act as the patent’s advocate whereas the role of the occupational physician is to provide an independent report to management on an employee’s fitness for work. Dr Milne almost certainly considered [Mrs I’s] age, medical condition, her preference to avoid injections and the nature of her role in making his assessment of her fitness 31 CAS-30163-T9G3 for work. Taking these factors into account plus the fact he stated she could not see herself returning to work in the future even if she were not granted medical retirement it is likely he felt it preferable to recommend ill health retirement rather than for management action to dismiss her on the grounds of medical incapability for work. He would however have been aware that the independent OH Assist doctor might not be supportive of this request.

It is accepted by occupational physicians that in order to qualify for a pension under the Local Government Pension Scheme the applicant must have exhausted all reasonable and available treatments and from my own experience as both a general practitioner and an occupational physician it is not unreasonable to have expected [Mrs I] to have agreed to undergo neck injections; this was a common procedure at the time and indeed I have seen it benefit several patients such that they have been able to make not only a successful return to work but also to return to sporting activities such as tennis and golf. The injections are normally carried out under x-ray control by an anaesthetic consultant who specialises in pain management. If injections are however unsuccessful then consideration could be given to surgery and indeed although obviously a more invasive procedure, I have witnessed this give very beneficial results in providing excellent relief of symptoms.

At the time of her application, [Mrs I] was almost 61 years of age; had I been her occupational physician at the time I would have advised her to see a Pain Consultant who specialised in neck injections in order that she could make a fully informed decision as to whether or not to proceed with the proposed treatment. I would also have informed her that to refuse the injections might mean her application for an ill health retirement pension would be refused by the independent OH Assist doctor acting as Medical Adviser to the LGPS scheme as the treatment first suggested by Professor Thompson was both available and reasonable. The role of this independent adviser is to review the medical evidence and to safeguard the pension scheme by ensuring that all ill health retirements are medically appropriate i.e. that all reasonable treatments have been exhausted.

If however surgery rather than injections had been recommended to [Mrs I] at that time, then in view of her age and the more invasive nature of surgery and risk of serious potential side-effects, I would have supported ill health retirement in the knowledge that the LGPS Medical Adviser would probably have granted it.

In conclusion therefore, I support the decision of Dr Mary Blatchford to refuse [Mrs I’s] application for ill health retirement under the terms of the LGPS as all reasonable treatment options at the time were not explored. I have not considered it necessary to undertake a face to face appointment as in reaching my opinion I have carefully considered all the relevant information at the time of her application in 2016.

32 CAS-30163-T9G3 I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct.”

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