Principal Civil Service Pension Scheme Northern Ireland · CAS-40056-J1Q6

CAS-40056-J1Q6

Ombudsman’s Determination Applicant Mrs T

Scheme The Principal Civil Service Pension Scheme (Northern Ireland) (the Scheme)

Respondent The Department of Finance for Northern Ireland (the DOF)

Outcome

Complaint summary

Background information, including submissions from the parties

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2 CAS-40056-J1Q6 “I have received the requested information from [Mrs T’s] hospital specialist. This report indicates that [Mrs T’s] prognosis for recovery is good.”

“… she has been left with a significant disability …. Her disability appears to be fixed and may be permanent. Hence, I would support her application for retirement on medical grounds.”

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• Dr McMonagle had examined Mrs T numerous times over a two-year period. His report was not available until after her dismissal. His opinion was the most important.

• Dr Craig only spoke to Mrs T for approximately 20 minutes and only examined her eyes.

• Mrs T had seen the OHS six times and it did not report her fit to return to work. Her GP shared this opinion. 4 CAS-40056-J1Q6 Adjudicator’s Opinion

• The Adjudicator said that the Scheme Regulations specify the criteria that must be met for a member to be able to take early retirement due to ill health. He noted that, in order for Mrs T to have been eligible to take ill health early retirement, she must have met the test of being permanently incapable, that is until reaching pension age, of undertaking her own, or a comparable job. Extracts from the Scheme Regulations can be found at Appendix 2 and 3.

• The Adjudicator noted that the granting of early retirement on the grounds of ill health was a matter of discretion for the DOF, provided that, in the opinion of the Scheme medical adviser, the member satisfied the test. The Scheme medical adviser was the OHS and, in the case of Mrs T, it did not consider that she met the test.

• The Adjudicator was satisfied that the original decision was considered by the correct decision-makers.

• Mr T said that the decision-maker did not fully consider all of the evidence. The Adjudicator was of the opinion that the strongest evidence in support of Mrs T’s request was provided by Dr McMonagle in his reports of 7 April 2016 and 12 August 2016. The Adjudicator noted that these reports post-dated when Mrs T was notified that she was not eligible for ill health retirement. The Adjudicator took the view that, for this reason, OHS was not required to consider them.

• A letter from Mrs T’s GP in May 2015 was less optimistic about the chances of her recovery than the evidence available from Dr McMonagle at that time. The Adjudicator noted this fact and said that, in his opinion, it would not have been unreasonable for the decision-makers to add greater weight to Dr McMonagle’s evidence. The Adjudicator noted that Dr McMonagle was a consultant who would be likely to have greater experience than a GP in the relevant area of medicine.

• The Adjudicator said that it was not unusual for medical opinions to change over time as medical conditions develop and further examinations and treatments take place. In the case of Mrs T, Dr McMonagle acknowledged that he had needed two years to be able to fully assess her condition.

• The Adjudicator said that it was known that Mrs T was due to have another assessment with Dr McMonagle at the point when a decision on her ill health retirement was being made. However, the Adjudicator was of the view that there was no obligation on the DOF for it to wait until this delayed assessment had been completed.

5 CAS-40056-J1Q6 • In the Adjudicator’s opinion, there was some optimism when Mrs T’s application for ill health retirement was being considered, that her condition would improve. Dr McMonagle’s letter of 2 March 2015 stated that her prognosis for recovery was good but not guaranteed.

• The Adjudicator noted Mr T’s concern that Mrs T’s appointment with Dr Craig on 22 July 2015 was a quick, one-off consultation. However, the Adjudicator was satisfied that Dr Craig had access to Dr McMonagle’s reports and the notes from Mrs T’s OHS assessments. In the Adjudicator’s opinion, this would have given him adequate information to make his recommendation.

• Mr T said that Mrs T had seen the OHS six times and it did not once report her fit to return to work. The Adjudicator was of the opinion that the assessments that the OHS made in relation to Mrs T’s ability to return to work were based on the near future. Typically, it was looking eight weeks into the future. The Adjudicator said that, when considering eligibility for ill health retirement, it was the period to pension age that needed to be considered.

• In summary, the Adjudicator said that, in his opinion, there was nothing irrational in the decision not to grant Mrs T early retirement on the grounds of ill health. He was of the view that the correct process was followed, the correct parties were involved, the correct evidence was considered, and the decision was not perverse based on the evidence available.

Mrs T did not accept the Adjudicator’s Opinion and Mr T made further submissions on her behalf. He said:-

• The DOF knew that Mrs T was waiting on an appointment with Dr McMonagle. It proceeded to dismiss her before this appointment. Ill health retirement would have been awarded if Dr McMonagle’s report from this appointment had been available for consideration by the DOF.

• Appointment delays were common at the time and there was nothing that Mrs T could have done to get an earlier appointment. The DOF’s decision not to allow additional time for Dr McMonagle’s assessment before it made its decision to dismiss Mrs T was irrational and perverse.

• The facts back up Dr McMonagle’s opinion that it had taken two years to properly diagnose Mrs T’s condition and that her condition was permanent.

• The improvements in Mrs T’s condition noted in the medical evidence were from a very low starting point. While her condition did improve, it never reached the point where she could ever return to work.

• The medical notes that Dr Craig had access to were inconclusive and not a full diagnosis.

6 CAS-40056-J1Q6 • The point about the OHS looking eight weeks ahead was confusing. It never said that Mrs T was fit to return to work.

Mrs T’s complaint was passed to me to consider. Mr T’s comments do not change the outcome. I agree with the Adjudicator’s Opinion and note the additional points raised by Mr T.

Ombudsman’s decision

• the correct questions have been asked;

• the applicable Scheme Regulations have been correctly interpreted;

• all relevant but no irrelevant factors have been taken into account; and

• the decision arrived at was one that a reasonable body would make.

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I do not uphold Mrs T’s complaint.

Anthony Arter

Pensions Ombudsman 21 May 2021

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Appendix 1 – Medical evidence

“One would have to wonder about midline cerebellar or brainstem pathology, perhaps vascular or inflammatory in nature. The possibility of functional neurological disease exists as well given the context and the apparent disparity between bed-side findings and gait. She needs an MRI of brain to look at things further …”

“There is no significant abnormality identified within the brain parenchyma on this study.”

“… I went over the results of her recent MRI of brain and cervical spine with her and reassured her that it showed no significant abnormality… I reassured her that in general people recover on their own, spontaneously though this can take a few months.”

“… She had been feeling unwell with flu like symptoms for some months when she suddenly developed a sharp in her head and became unsteady with nausea and vomiting. Her condition worsened leaving her unfit for work.

[Mrs T] was seen by a Consultant Neurologist and is under review. Her symptoms have eased … A phased return to work could be expected in four weeks if her condition continues to improve.”

“She has improved dramatically since I saw her last but still is a bit disappointed that she is not back to fully normal. She still has spells were (sic) she feels unsteady and light in the head and needed the aid of her partner …”

“She has been investigated by a specialist and the diagnosis remains uncertain. Although there has been some improvement her symptoms remain debilitating and her mobility is impaired…

A gradual recovery is expected but I am unable to predict how quick her recovery will be, or when a return to work may be possible.”

9 CAS-40056-J1Q6 “Her symptoms of imbalance have settled to some extent but she remains quite unsteady at times and I do not think she would manage a return at present.

She is due to engage with physiotherapy which will hopefully help to improve her walking and balance.”

“Her balance when walking and standing remains a problem and she still has regular episodes of increased symptoms each day. I would think a return would not be managed at this stage due to her symptoms. There is perhaps a slight improvement …

She awaits a review by her neurologist to see if further investigation is required. She is engaged in physiotherapy at present on a weekly basis …”

“She notes some improvement in her symptoms … but continues to experience balance difficulties which affect her walking.

[Mrs T] is incapacitated as a result of her health complaint. She reports some improvement but this is not sustained. In my opinion she is unfit for work.”

“1) Her diagnosis is of functional neurological symptoms – i.e. no structural neurological disease. 2) No further investigations are planned and 3) Her prognosis for recovery is good but not guaranteed to be complete.”

“While there has been some improvement in her symptoms she still suffers from symptoms which have a significant impact on her daily activities and would prevent a return to work at present. She hopes to be reviewed by her neurologist again soon. She is unfit to return to work and given the slow progress is unlikely to be fit to return for at least a further 8 weeks…

She does not satisfy the ill health retirement criteria…

[Mrs T] is still in the early stages of treatment. The response to treatment has yet to be determined, and the prognosis is not clear at this time.”

“The patient started her neurophysiotherapy with Siobhan McAuley October 2014 at BCH with some further slight improvement. She however remained debilitated with her symptoms.

10 CAS-40056-J1Q6 [Mrs T] continues to struggle with balance and dizziness associated with profound fatigue and intermittent nausea and headaches. This limits her ability to walk and function normally…

At present there is no further planned recognised treatment and she is awaiting review from Dr McMonagle at RVH whose clinics are running several months behind.

In summary [Mrs T] has been diagnosed with functional gait disturbance and is awaiting further follow up. The prognosis of this condition is very variable and hard to predict especially now with her long duration of symptoms. As stated earlier her neurologist was disappointed that she had not recovered. I feel that now, over one year later from the onset of her symptoms that her prognosis for complete recovery is poor and at present I feel she is permanently unfit for her duties at work.”

“… In preparing this report I have had access to previous occupational health service clinical notes and records and medical records from Dr P McMonagle, Consultant Neurologist.

… I have no reason to counter the working diagnosis that this woman’s symptoms are non-structural or functional in origin. While she has persistent symptoms which undoubtedly are debilitating with a working diagnosis of a functional neurological problem, she should at this stage be assessed by a clinical neuropsychologist. … it is probably also worthwhile her being seen by a consultant psychiatrist. Certainly until both of these assessments have taken place, I think it would be inappropriate to state that she is likely to be permanently incapacitated until the age of 65 years due to medical condition.”

“This lady has been attending my Neurology Clinic for the last 2 years with significant balance problems. After an initial improvement her level has reached a plateau, and she has been left with a significant disability. Whether her symptoms are due to a functional cause, or vestibular dysfunction, which may be a post viral phenomenon is unclear but, after this duration, her disability appears to be fixed and maybe permanent. Hence, I would support her application for retirement on medical grounds.”

“… she remains significantly disabled, feels constantly off balance and describes a sensation of continuing to move after she has stopped walking. There were quite a lot of inconsistent findings when she was first seen … However with time I have become more convinced of an underlying

11 CAS-40056-J1Q6 neurological cause (post viral vestibular dysfunction) revealed as the functional component to her presentation has settled.

… Now over two years on from her initial presentation I feel her disability is likely to remain permanent with ongoing symptoms the likeliest outcome …”

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Appendix 2 – The Public Service (Civil Servants and Others) Pensions Regulations (Northern Ireland) 2014 This Appendix covers the Alpha Section of the Scheme

“Meaning of “permanent breakdown in health”

70. For the purpose of these Regulations, a member’s breakdown in health is “permanent” if the scheme medical adviser is of the opinion that the breakdown will continue until the member reaches prospective normal pension age.

Meaning of “incapacity for employment” and “total incapacity for employment”

71. For the purpose of these Regulations -

(a) a member’s breakdown in health involves “incapacity for employment” if the scheme medical adviser is of the opinion that, as a result of the breakdown, the member is incapable of doing the member’s own or comparable job; and

(b) a member’s breakdown in health involves “total incapacity for employment” if the scheme medical adviser is of the opinion that, as a result of the breakdown -

(i) the member is incapable of doing the member’s own or comparable job; and

(ii) the member is incapable of gainful employment. …

Entitlement to ill-health pension

74.(1) An active member of this scheme who has not reached normal pension age under this scheme is entitled to the immediate payment of an ill- health pension under this scheme, in accordance with the provisions of this Chapter, if the conditions in paragraph (2) are met.

(2) The conditions are –

(a) the member or the member’s employer has claimed payment of an ill-health pension;

(b) the scheme medical adviser –

13 CAS-40056-J1Q6 (i) is of the opinion that the member has suffered a permanent breakdown in health involving incapacity for employment or total incapacity for employment; and

(ii) gives the scheme manager and the employer a certificate stating that opinion (“ill-health retirement certificate”);

(c) the member has at least 2 years’ qualifying service; and

(d) the employer agrees that the member is entitled to retire on ill health grounds.”

“scheme medical adviser” means the medical adviser appointed by the scheme manager for the time being to provide a consulting service on medical matters relevant to this scheme;

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Appendix 3 – Section I of the Principal Civil Service Pension Scheme (Northern Ireland) 2019 This Appendix covers the Classic Plus Section of the Scheme

“(1) An active member is entitled to immediate payment of a pension before reaching pension age if -

(a) in the opinion of the Scheme medical adviser the member has suffered a permanent breakdown in health involving incapacity for employment, and

(b) the member has at least two years’ qualifying service, and

(c) the DOF has agreed to the member becoming so entitled.

(2) For the purpose of these rules a member’s breakdown in health is “permanent” if, in the opinion of the Scheme medical adviser, it will continue until the member reaches pension age.

(3) For the purpose of these rules a member’s breakdown in health involves incapacity for employment if, in the opinion of the Scheme medical adviser, as a result of the breakdown the member –

(a) is incapable of gainful employment, or

(b) is incapable of doing his own or a comparable job.

A member within sub-paragraph (b) will be entitled to a lower tier pension and a member within sub-paragraph (a) will be entitled to a lower tier pension and an upper tier top up pension.

This is subject to paragraph (3A).”

“the Scheme medical adviser means -

(a) the medical adviser appointed by the DOF for the time being to provide a consulting service on medical matters relevant to this Section of the Scheme, or

(b) in a case where a function normally exercisable by that adviser is being exercised by another person on an appeal from that adviser’s decision in accordance with procedures that are acceptable to the DOF, that other person;” 15