Armed Forces Pension Scheme 2005 · CAS-45783-Z1K0 — Pensions Ombudsman determination

CAS-45783-Z1K0

Ombudsman’s Determination Applicant: Mr M

Scheme: Armed Forces Pension Scheme 2005 (AFPS 05)

Respondent: Veterans UK

Outcome

Complaint summary

Background information, including submissions from the parties Background

Mr M was medically discharged from the Army in 2014. He was awarded Tier 1 ill health retirement benefits; that is, a preserved pension for payment at his normal retirement age and an immediate lump sum.

1 The EDPS 05 Order has since been replaced by The Armed Forces Early Departure Payments Scheme

Regulations 2014 (SI2014/2328) which came into force with effect from 1 April 2015. 1 CAS-45783-Z1K0

• He was not able to work in the driving trade because of his condition.

• He suffered flare-ups which lasted months. As a result, employers would not take him on full time or part time. He had been told that companies would not be able to employ someone with his condition because of insurance concerns. He was required to declare his condition when applying for work.

• Driving and being seated in one position for more than a couple of hours caused him to seize up. This made it impossible for him to climb in and out of the driver’s cab or to load and offload goods. This was the case even when he was not suffering from a flare-up. During a flare-up, he was unable to get out of bed.

• He was constantly fatigued because of lack of sleep.

• He had contacted The Poppy Factory 2 to seek help with retraining. They had helped him obtain a coach driver’s licence when he had found a company which would employ him as a part-time driver doing small local tours. He had not wanted another driving job but he was getting further into debt and this was the quickest way for him to get back to work.

2 The Poppy Factory is a charity which supports veterans in seeking employment.

2 CAS-45783-Z1K0 • He had been medically discharged from the Army because he could no longer continue his trade as a driver. He had been led to believe that he would be awarded Tier 2 benefits and had intended to retrain as a physiotherapist.

• His condition was not getting any better. During a recent check-up, it was discovered that the toes on his right foot were dislocated, which caused his foot to swell up. He also found it difficult to turn his head. He was only able to work for short periods of the day.

“You have stated that you have found work in the coach driving trade, it is not clear as to whether you continue to be employed in this employment.

It is the long-term permanent outcome that determines whether this case meets the medical criteria for a tier two award and to date there is no evidence that suggests you [sic] condition is permanent.

It is disappointing that you were led to believe that your discharge would lead to a tier 2 award allowing you to retrain in your second-choice career as a physiotherapist, however the tier awarded is [the] role of the MOD Authority and is based on your ability to achieve gainful employment.”

3 CAS-45783-Z1K0 “[Mr M] … does suffer from Ankylosing Spondylitis, but the symptoms of this condition are treatable with medication and therapy. In his appeal he claims his capacity for work has been drastically reduced and he is only able to work part-time as a result of his condition and associated pain. Since his discharge in 2014 he has had periods of employment as a lorry driver.

A Tier 2 award is made when the evidence supports that the member is likely to have significant functional limitations for working in a civilian role up until normal scheme retirement age, in his case this would be age 65.

The evidence does not support that he would have significant limitations for the next 27 years that prevent him from engaging in a range of employment roles. He has previously responded well to treatment and medication was controlling the symptoms, but his condition flared up again when he stopped taking his medication. His condition is lifelong, but it is a condition that can be managed with both medication and exercise. I am not disputing that he has a condition that does cause him pain and restriction when it flares up but this is a manageable condition and I do not consider it to limit his work capability to reduced hours only. When it flares up appropriate medication and pain relief can be used to get the symptoms under control and medication and regular exercise can keep the symptoms at bay. In his Hospital report it states that the medication … has improved his symptoms considerably and that he was doing well with this and is not having any side effects. Although this condition is permanent, I do not accept that it will significantly affect his functional capacity continuously for the next 27 years.”

Mr M’s position

3 The former site of the Defence Medical Rehabilitation Centre.

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Adjudicator’s Opinion

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Mr M did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mr M provided some further comments which are summarised below. I have considered Mr M’s comments but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

Mr M’s further comments

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Ombudsman’s decision

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Anthony Arter Pensions Ombudsman

9 June 2022

10 CAS-45783-Z1K0 Appendix 1 Medical evidence

“At the time of discharge, [Mr M’s] underlying medical condition was well- controlled with appropriate medication. He remained in employment as a lorry driver until Mar 2017 when he experienced a flare up of his symptoms on withdrawal of medication. This resulted in a prolonged period of incapacity until medication could be restarted. Treatment with … and regular specialist consultations are now taking place and [Mr M] is reported as ‘doing extremely well’.

I am therefore of the opinion that the original Tier 1 recommendation was appropriate in respect of the PC and there is no medical evidence to support an increase in the award. [Mr M] has demonstrated that, on medication, he was fit for his chosen career as a lorry driver and that this was only compromised by his inability to access medication. With appropriate continuing specialist advice, medication and specialist physiotherapy, it is reasonable to expect that his employment opportunities will not be significantly impaired on the balance of probabilities standard of proof. In the long term he may need to avoid heavy manual work although reasonable workplace adjustments should allow any joint symptoms to be accommodated.”

“He is doing well on the above medications. Blood tests have been fine, there have been no side effects to the medication and BASDAI … is good. [BASDAI is a scoring system for judging the activity of the ankylosing spondylitis.] He

11 CAS-45783-Z1K0 does have some ongoing neck stiffness, but he is still using the gym and swimming on a regular basis. He was seen by our Specialist AS Physiotherapist who felt that his symptoms were more mechanical than inflammatory.”

“The evidence would therefore suggest that the biological therapy is very effective in controlling his condition. He should therefore be able to undertake many occupations including driving. I would therefore advise that a Tier 1 award remains appropriate. Ankylosing Spondylitis can deteriorate over time and there is the possibility of developing additional autoimmune conditions in the future. Therefore, if there is evidence of deterioration, [Mr M] can appeal this decision in the future.”

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“The evidence confirms that [Mr M] is receiving appropriate treatment for his underlying medical condition and that this is proving to be effective with minimal side effects. Compliance has been an issue in the past, resulting in significant flares, but these should be kept to a minimum with regular medication and exercise.”

“At the time of discharge and with the reintroduction of medication [Mr M] had minimal functional limitation and was able to be employed as a lorry driver on his discharge.”

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“Clinical remission should be maintained while medication is regular, and this is accompanied by appropriate exercise. Although flares (relapses) may still occur they should be able to be accommodated with minor workplace adjustments.”

14 CAS-45783-Z1K0 Appendix 2 The Armed Forces Pension Scheme Order 2005 (as amended)

D.5. Early payment of benefits: active members with permanent serious ill- health

(1) An active member who ceases to be in service by virtue of which he is eligible to be an active member of the Scheme is entitled to immediate payment of a pension and a lump sum before reaching pension age if -

(a) in the opinion of the Secretary of State the member has suffered a permanent breakdown in health involving incapacity for any full-time employment,

(aa) the Secretary of State has received evidence from a registered medical practitioner that the member is (and will continue to be) incapable of carrying on his occupation because of physical or mental impairment, and”.

(b) the member either -

(i) has at least two years' qualifying service, or

(ii) is entitled to short service benefit by virtue of section 71 of the Pension Schemes Act 1993 (basic principles as to short service benefit) because of a transfer value payment having been accepted.

(2) For the purposes of this Rule and Rule D.8 a member’s breakdown in health is “permanent” if, in the opinion of the Secretary of State, it will continue at least until the member reaches pension age.

(3) For the purpose of these Rules a member’s breakdown in health involves incapacity for any full-time employment if, in the opinion of the Secretary of State, as a result of the breakdown the member is incapable of any gainful full-time employment …”

“D.6. Early payment of benefits: active members with significant impairment of capacity for gainful employment

15 CAS-45783-Z1K0 (a) in the opinion of the Secretary of State the member has suffered a breakdown in health as a result of which his capacity for gainful employment is significantly impaired,

(b) the member either -

(i) has at least two years' qualifying service, or

“D.8. Member’s requests for review of ill-health awards

(1) this rule applies if a member -

(a) is entitled to a pension under rule D.6, or

(b) has received a lump sum under article 16 of the Armed Forces Early Departure Payments Scheme Order 2005(25) (lump sum awards: incapacity for armed forces service) (“article 16”).

(2) The member may request a review of his condition under this rule -

(a) at any time before the fifth anniversary of the day on which the member became entitled to the pension or lump sum, or

(b) after that time if in the opinion of the Secretary of State the circumstances are exceptional.

(3) The request must be made by notice in writing in such form as the Secretary of State requires.

(4) If a member within paragraph (1)(a) requests a review of his condition under this rule, the Secretary of State must …

(8) If a member within paragraph (1)(b) requests a review of his condition under this rule, the Secretary of State must -

16 CAS-45783-Z1K0 (a) review the question whether the member has suffered a breakdown in health as a result of which his capacity for gainful employment is significantly impaired, and

(b) if, after consultation with the Scheme medical adviser, he is of the opinion that the member has suffered such a breakdown, determine whether -

(i) the member had suffered such a breakdown at the time when he became entitled to payment of the lump sum under article 16, or

(ii) the condition by virtue of which he became so entitled has deteriorated so that he suffered such a breakdown later.

(9) If -

(a) on any review under paragraph (8), after consultation with the Scheme medical adviser, the Secretary of State is of the opinion that the member -

(i) has suffered such a breakdown as is mentioned in paragraph (8)(a), and

(ii) had done so at the time when he became entitled to payment of the lump sum under article 16, and

(b) the conditions in rule D.6(1)(aa) and (b) are met,

then rule D.6 applies from the time when the ill-health condition (as defined in paragraph 1 of Schedule 28 to the Finance Act 2004) is first met, and accordingly the member is entitled to a lump sum under that rule and to a pension under that rule payable from that time (subject to paragraph (12)).

(10) If -

(a) on any review under paragraph (8), after consultation with the Scheme medical adviser, the Secretary of State is of the opinion that -

(i) the member has suffered such a breakdown as is mentioned in paragraph (8)(a), but

(ii) the condition by virtue of which he became entitled to payment of the lump sum under article 16 has deteriorated so that he suffered such a breakdown later, and

(b) the conditions in rule D.6(1)(aa) and (b) are met,

17 CAS-45783-Z1K0 then rule D.6 applies from the date when the ill-health condition (as defined in paragraph 1 of Schedule 28 to the Finance Act 2004) is first met, and accordingly the member is entitled to a lump sum under that rule and to a pension under that rule payable from that date (subject to paragraph (12)).

(11) If paragraph (9) or (10) applies and the lump sum paid to the member under article 16 was less than the lump sum to which he is entitled under rule D.6, the lump sum to which the member is so entitled is a lump sum equal to the difference.

(12) If paragraph (9) or (10) applies and the lump sum paid to the member under article 16 exceeded the lump sum to which he is entitled under rule D.6, then the member is not entitled to a lump sum under D.6 and the excess must be repaid.”

The Armed Forces Early Departure Payments Scheme Order 2005 (as amended)

“Lump sum awards: incapacity for armed forces service

(1) A person who ceases to be in service as a member of the armed forces is entitled to immediate payment of a lump sum if -

(a) in the opinion of the Secretary of State the person is unfit for service as a member of the armed forces because of physical or mental impairment,

(aa) the Secretary of State has received evidence from a registered medical practitioner of that unfitness,

(b) the person has at least two years' relevant service,

(d) the person is not entitled to payments under article 9 of the Scheme or the immediate payment of a pension or lump sum under -

(i) rule D.1 of the AFPS 2005 (retirement after reaching pension age),

(ii) rule D.5 of that Scheme (early payment of benefits: active members with permanent serious ill-health),

(iii) rule D.6 of that Scheme (early payment of benefits: active members with significant impairment of capacity for gainful employment), or

18 CAS-45783-Z1K0 (iv) rule D.11 of that Scheme (option for members in serious ill-health to exchange whole pension for lump sum).

(2) The amount of the lump sum payable under this article is calculated by multiplying one eighth of the person’s final relevant earnings by his calculation service (expressed in years and fractions of a year), except where paragraph (3) or (4) applies.

(3) If the amount calculated under paragraph (2) would be less than one- half of the person’s final relevant earnings, that amount is payable instead.

(4) If the amount calculated under paragraph (2) would be more than twice the person’s final relevant earnings, that amount is payable instead.

(5) This article is subject to rule D.8 of the AFPS 2005 (under which a person may ask for a review of his entitlement under rule D.6 of that Scheme and in some circumstances some of the amount paid under this article must be repaid).”

Full determination