Local Government Pension Scheme · CAS-44294-Y8Z0

CAS-44294-Y8Z0

Ombudsman’s Determination Applicant Mr F

Scheme Local Government Pension Scheme (the Scheme)

Respondent Manchester City Council (the Council)

Outcome

Complaint summary

Background information, including submissions from the parties Mr F is currently a deferred member of the Greater Manchester Pension Fund (the Fund), which is part of the Scheme.

Mr F was employed as a full-time Customer Services Officer.

In 2016, concerns were identified about Mr F’s problem solving, decision making and analytical skills. In January 2017, he was placed on other duties as an alternative to suspension, pending investigation and hearing. Mr F commenced sickness absence on 3 May 2017. A sick note cited a stress related problem. The hearing was held on 16 May 2017 and Mr F was offered an alternative role, Customer Service Advisor, which he accepted. He remained on sickness absence and his GP prescribed anti- depressants. Mr F advised that he was experiencing chest pains and his GP was arranging tests. Mr F was referred to the Council’s Occupational Health provider (Healthworks) who deemed him temporarily unfit for work. Counselling sessions were arranged to support Mr F with his anxiety. Mr F saw a cardiologist in September 2017. An ECG evidenced an extra beat which the cardiologist advised might be stress related. Further tests were arranged. Mr F attended Healthworks in October 2017, who concluded that Mr F remained unfit for work and recommended a further review should be arranged once the results of the cardiac investigations were known. Mr F remained on sickness absence.

1 CAS-44294-Y8Z0 On 2 February 2018, the Council wrote to Mr F confirming its decision to dismiss him on the grounds of medical capability due to ill health. The letter also confirmed the Council’s decision to assess Mr F for ill health retirement from active status.

Mr F was referred for assessment to Healthwork. Dr Kisnah, an independent registered medical practitioner (IRMP) gave his opinion that, while Mr F was currently unfit for his duties as a Customer Service Advisor, he was not, on the balance of probabilities, permanently incapable of discharging his duties. Extracts from Dr Kisnah’s report are provided in Appendix 2.

The Council accepted Dr Kisnah’s opinion. On 2 April 2018, the Council wrote to Mr F with its decision (the first instance decision) that he did not meet the criteria for ill health retirement from active status and detailed his right of appeal using the Scheme’s internal dispute resolution procedure (IDRP).

Mr F’s employment with the Council formally ended on 27 April 2018.

On 8 May 2018, Mr F wrote to the City Treasurer applying for the early release of his deferred pension on compassionate and financial grounds. Mr F said:-

• Once he had new medical reports, he would either appeal the first instance decision or request a fresh ill health retirement application. In the meantime, his personal circumstances and hardship had compelled him to seek help.

• His only source of income was Employment and Support Allowance (ESA). The DWP would not help him with paying mortgage interest, council tax, service charge and ground rent on his flat, as he still shared joint ownership of the family home with his ex-wife. He had moved out of the family home 12 years ago following the complete breakdown in their marriage. The family home had been adapted to meet the physical difficulties of their son. 2 CAS-44294-Y8Z0 • He would be 56 on 3 June 2018 and had around 31 years unbroken service. He wanted to request the early release of his pension under the rule of 851. If this discretion could not be agreed quickly then he risked going further into debt and ultimately losing his flat. While the family home could be sold it would take time and the local authority would have to rehouse his ex-wife and son which would be very time consuming and distressful.

• His anxiety and depression had reached a peak.

1 Age plus membership must add up to 85 years. The LGPS employer can choose to allow the rule of 85 to apply. This is a discretion. If a member chooses to voluntarily draw their pension on or after age 55 and before age 60 and their employer does not choose to allow the rule of 85 to apply, their benefits are reduced.

2 The April 2018 first instance decision. This is confirmed by the City Treasurer in her subsequent Stage One

decision (see paragraph 25).

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3 It appears that Mr F first spoke with the Council’s technical pensions team who were unaware that he had unsuccessfully applied for ill health retirement from active status. Mr F then spoke with HR. Mr F says HR told him that he could appeal.

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4 See paragraph 17.

5 CAS-44294-Y8Z0 “Normal brain. IAMs within normal limits. No signs to suspect retrocochlear pathology. Several scattered small foci with signal abnormality in the bilateral subcortical and periventricular white matter [Fazekas 1].

The white matter lesions mentioned in the report are probably of ischaemic origin due to small vessel disease. Please evaluate if there are any vascular risk factors which explain this.”

5 Relevant extracts from the 2013 Regulations on ‘Decisions’ are provided in Appendix 1.

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Mr F’s position

6 On 8 January 2019.

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The Council’s position

On Mr F’s complaint that it provided conflicting advice about the appeals process.

• It disagrees that it provided conflicting advice about the appeals process.

• It acknowledges that its letter of 7 June 2018 did not mention that it had not received an appeal of its first instance decision8. But Mr F was given information about the appeals process, including the informal and formal stages, the appeal

7 In support of this Mr F has submitted: a capability meeting note dated 16 January 2017, the Councils

‘Capability Policy’ and a Healthworks Occupational Health Report dated 5 June 2017 – the initial referral after his demotion.

9 CAS-44294-Y8Z0 form from the pension fund’s website, and the link to the fund’s website to find out more information about the appeals process. So, on more than one occasion, he was informed of the six months deadline to appeal the April 2018 decision and the Stage One Referee’s discretion to extend this in special circumstances.

• On 8 May 2018, Mr F emailed Human Resources requesting the early release of his pension benefits on compassionate grounds. In an attached letter he said that his health was worsening and “once I have new medical reports, I will either appeal or request a fresh IHR application. However, rather in the meantime my personal circumstances and hardship has compelled me to seek help promptly.” This demonstrates Mr F’s awareness of the appeals process.

• During the period between issuing the first instance decision in April 2018 and Mr F submitting his appeal of that Determination in May 2019, he was in regular contact with its pensions team.

• In September 2018, still within the six months deadline to appeal the first instance decision, Mr F asked how he could complain about the City Treasurer’s decision not to allow the early release of his deferred pension on compassionate grounds. Within a week Mr F submitted an informal complaint demonstrating his understanding of the appeals process.

• While the first new medical report is dated 9 October 2018, Mr F did not submit it in the form of an appeal until May 2019. The second new medical report submitted with his appeal is dated 30 April 2019. Neither were available at the date of the first instance decision.

• Mr F says he has been supported by friends and family and the Citizens Advice Bureau throughout. He says during a conversation with a friend it was noted that he had 11 days remaining to appeal the first instance decision. But he did not appeal or nominate a representative to appeal on his behalf.

• It has followed the relevant processes and policies and kept Mr F informed at each stage. The Scheme criteria used to make the first instance decision and the IDRP were detailed in its 20 April 2018 letter sent to Mr F.

• Any dispute about the Council’s Management of Attendance Policy and process is outside the scope of the pension appeal.

On Mr F’s point that its pension team was not aware of his ill health retirement application when he contacted it on 8 January 2019.

• The Council's ill health retirement process sits with the Hearing Manager, supported by Human Resources officers, and the technical pensions team would not have been aware that he had been refused ill health retirement in April 2018.

10 CAS-44294-Y8Z0 After speaking to the pensions team, Mr F contacted Human Resources who should have explained that the pension rules state that the appeal should be submitted within six months of the first instance decision, and that it would be at the Stage One referee’s discretion to extend this deadline. However, this was explained in the IDRP process sent to Mr F on several occasions.

On Mr F’s statement that he was demoted and that his long-term ill health and poor performance was not shared with Occupational Health.

• In its referral to Healthworks of 2 October 2017, management referred to the attendance management process, Mr F’s redeployment and provided the role profile (job description) for his new job.

• Mr F’s health issues were well documented in all the referrals made to Healthworks from May 2017 onwards. In the referral made in November 2017, there was reference made to his conditions including, but not limited to, his anxiety/depression, chest pains and fatigue.

• Mr F would have had the opportunity to explore any relevant issues or concerns with Healthworks.

• The detail included within its referral, dated 4 January 2018, to Dr Kisnah confirms all the information known to it at that time.

• At the time of the assessment, Dr Kisnah had full knowledge of all Mr F’s known medical conditions, past and present.

• The diagnosis of cerebral small vessel disease was made after Mr F’s dismissal and its first instance decision. Given that, at the time of its first instance decision, Mr F’s GP and Counsellor believed his symptoms were related to a psychological condition, neither Dr Kisnah nor the Council could have known that he had this underlying condition.

• After carefully consideration of all the information made available and Dr Kisnah’s opinion, the Council determined that Mr F did not meet the Scheme’s criteria for ill health retirement from active membership.

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Adjudicator’s Opinion

12 CAS-44294-Y8Z0 o permanently incapable of discharging efficiently the duties of the employment that he was engaged in, and

o immediately incapable of undertaking gainful employment.

9 Mr F accepted the new role prior to his referral to Dr Kisnah, albeit he appears to have remained off sick

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Mr F did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. On behalf of his father, Mr F’s son says:-

until his dismissal. Prior to Mr F commencing sickness absence his title was Customer Services Officer. This appears to have been a more senior role. Nonetheless, Dr Kisnah’s opinion was likely to have been the same based on the medical evidence available at the time of the ill health retirement assessment. 14 CAS-44294-Y8Z0

“…For the purpose of this policy statement, dismissal on ground of ill health should be imminent. The IHR needs to take place prior to the last meeting of the MOA10 process…”

10 Management of Attendance.

11 The Fund’s Guide says: “Once the approved doctor has formed an opinion, they will write to your employer

with a medical certificate. It is your employer who must then decide whether or not to release your pension benefits early - and normally they will go along with the approved doctor’s findings, as long as they are satisfied the approved doctor has applied the criteria for retiring on ill health correctly. Please note, your employer can give more weight to some pieces of evidence than others - for example preferring the approved doctor’s opinion to that of your own GP/consultant. They should also take note of the Statutory Guidance issued by the Department for Communities and Local Government (DCLG) and any non- medical factors that will affect your ability to carry out gainful employment.” (my emphasis) 15 CAS-44294-Y8Z0

I have noted Mr F’s further comments, but they do not change the outcome, I agree with the Adjudicator’s Opinion.

Ombudsman’s decision Mr F’s son says the Council appear to show contempt for the idea that Mr F was trying to apply for pension benefits on compassionate grounds. As the Council’s decision on Mr F’s application for the early release of his deferred benefits on compassionate grounds is not part of the complaint that my Office accepted for 16 CAS-44294-Y8Z0 investigation, I have set the comment aside. Mr F may submit a separate complaint to my Office if he considers the Council’s decision in this regard was not properly made.

Mr F’s view that the Council contravened its Capability Policy is an employment matter and not within my remit.

Mr F’s son says that Dr Kisnah failed to obtain up to date medical evidence from Mr F’s GP. But it was for Dr Kisnah to decide whether he had sufficient medical evidence to give his recommendation to the Council. Clearly, Dr Kisnah considered that he had sufficient medical evidence. The GP records covered the period up to January 2018 and the cardiologist’s report was dated February 2018. I do not find that this evidence can be said to be significantly out of date at the time of Dr Kisnah’s assessment.

Dr Kisnah’s opinion and the Council’s decision was based on Mr F’s known medical condition at the time of his dismissal. The diagnosis of cerebral small vessel disease was made several months after Dr Kisnah gave his opinion and the Council issued its first instance decision.

17 CAS-44294-Y8Z0 Mr F’s son says the Council failed to follow the correct process. He says the Council failed to follow its Policy Statement and commence the ill health process before Mr F was dismissed and, referring to the Fund’s Guide, it did not consider any non-medical factors. Mr F’s son says the Council failed to consult with Dr Kisnah and its decision amounted to no more than rubber-stamping Dr Kisnah’s opinion.

The processing of Mr F’s ill health application may have been less than ideal. However, for me to uphold a complaint, it is not simply the case that I must identify maladministration; I must also be satisfied that the individual has, as a result, sustained injustice. The outcome of Mr F’s case has not been adversely affected by the sometimes less than perfect approach taken by the Council and consequently he has not sustained injustice.

Mr F appealed the Council’s first instance decision seven months after the six months deadline had expired. After considering all the circumstances of Mr F’s appeal, the City Treasurer decided not to exercise discretion and allow the appeal. I agree that the decision was one that the City Treasurer could reasonably make.

I do not uphold Mr F’s complaint.

Mr F may apply for ill health retirement from deferred status.

Anthony Arter

Pensions Ombudsman 29 April 2021

18 CAS-44294-Y8Z0 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.”

19 CAS-44294-Y8Z0 Regulation 36 provided:

(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).”

20 CAS-44294-Y8Z0 On decisions:

• As relevant regulation 73, ‘Notification of first instance decisions’, provides:

“(1) Every person whose rights or liabilities are affected by a decision under regulation 72 (first instance decisions) must be notified of it in writing by the body which made it as soon as is reasonably practicable after the decision is made.

(2) A notification of a decision that the person is not entitled to a benefit must contain the grounds for the decision.

…

(4) Every notification must contain a conspicuous statement giving the address from which further information about the decision may be obtained.

(5) Every notification must also—

(a) specify the rights available under regulations 74 (applications for adjudication of disagreements) and 76 (references of adjudications to administering authority);

(b) specify the time limits within which the rights under those regulations may be exercised; and

(c) specify the job title and the address of the person appointed under regulation 74(1) to whom an application may be made.”

On appealing first instance decisions, Regulation 74 ‘Applications for adjudication of disagreements’, provides:

“(1) Each Scheme employer and administering authority must appoint a person ( “the adjudicator” ) to consider applications from any person whose rights or liabilities under the Scheme are affected by—

(a) a decision under regulation 72 (first instance decisions);

…

and to make a decision on such applications.

(2) An applicant under paragraph (1)(a) may apply to the adjudicator appointed by the body making the decision, within six months of the date notification of the decision is given under regulation 73 (notification of first instance decisions).

…

(4) The adjudicator may extend the time for making an application under paragraph (2)…”

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“It is clear that [Mr F] is currently quite disabled because of his psychological symptoms. He is very concerned that he may experience severe ill health in the future and this makes him very anxious and unwilling to increase his physical activity. He spends most of his time indoors and only goes out for short periods of time with his girlfriend. 22 CAS-44294-Y8Z0 It is clear from the medical records that his diabetes and high blood pressure is under good control and recent investigations have not identified any significant abnormality in his heart. Hence in my opinion, the main cause of his current functional disability is his psychological ill health.

[Mr F] has been referred for psychological therapy and at this stage he has not been able to avail himself of this therapy. He intends to start this treatment as soon as possible. In my opinion, psychological therapy is likely to improve his general health and hence improve his functional capacity in the long term.

I note [Mr F’s] duties as a Customer Services Advisor and in my opinion the main barrier to his return to work is his inability to motivate himself to travel to work because of his perception of his physical symptoms. Evidence based psychological treatment in the form of cognitive behavioural therapy will help him overcome this perception and enable him to go out more, socialise and eventually travel to work. He will need treatment for the next three to six months and there is every likelihood that he could undertake a phased return to work at that stage.

Having carefully considered all the evidence available to me, it is my opinion that whilst [Mr F] is currently unfit for his duties as a Customer Service Advisor he is not, on the balance of probabilities, permanently incapable of discharging these duties.”

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