Local Government Pension Scheme · CAS-32219-X0J8

CAS-32219-X0J8

Ombudsman’s Determination Applicant: Mrs S

Scheme: Local Government Pension Scheme (LGPS)

Respondent: Redcar & Cleveland Borough Council (the Council)

Outcome

Complaint summary

Background information, including submissions from the parties Background

Mrs S had been on long-term sickness absence since December 2016. In February 2017, it was agreed that she would be considered for ill health retirement. The relevant provisions are set out in The Local Government Pension Scheme Regulations 2013 (SI2013/2356) (as amended) (the 2013 Regulations).

Briefly, the 2013 Regulations provide for three tiers of benefits for ill health retirement from active service. The appropriate tier depends upon the member’s capacity for future employment as follows:-

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Mrs S’ position

1 The occupational health provider responded to a complaint from Mrs S by explaining that it had taken her

surname from the consent form she had signed (not seen). It said the consultant orthopaedic surgeon had been listed with three other consultants based at the hospital in question. It had confirmed that he was a consultant at that hospital. 3 CAS-32219-X0J8 The Council’s position

Adjudicator’s Opinion

17.4 Under Regulation 36, one of the questions which was to be asked of the IRMP was how long the member was unlikely to be capable of undertaking gainful employment. This was in order that the employer might determine which tier of pension was appropriate. The appropriate tier

4 CAS-32219-X0J8 depended upon the member’s capacity for future employment as set out in paragraph 4 above. The Adjudicator noted Mrs S’ comment that her medical conditions were life-long. However, eligibility for a pension under Regulation 35 was related to the member’s expected future capacity for employment. It was possible that someone might have a long-term health condition but still be capable of some employment.

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Mrs S did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mrs S provided further comments which are summarised in paragraph 19 below. I have considered Mrs S’ comments but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

Mrs S’ further comments

Ombudsman’s decision

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I do not uphold Mrs S’ complaint.

Anthony Arter Pensions Ombudsman

18 July 2022

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Appendix 1 The Local Government Pension Scheme Regulations 2013 (SI2013/2356)

“Early payment of retirement pension on ill-health grounds: active members

(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

10 CAS-32219-X0J8 employment, up to a maximum of three years from the date the member left the employment.”

“Role of the IRMP

(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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“Special provision in respect of members receiving Tier 3 benefits

(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.

(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 -

12 CAS-32219-X0J8 (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

(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.”

13 CAS-32219-X0J8 Appendix 2 Medical evidence

“I have to consider whether [Mrs S’] medical conditions make her permanently – to normal retirement age – unfit for her own job or any gainful employment (as defined in the Regulations). The difficulty in a case such as this is that each of her medical conditions (on their own) would be unlikely – at the 51% level – to lead to permanent incapacity. There is scope for further medical management of all of her conditions, although her back pain is always likely to be present. Her gastroenterologist expresses optimism and her mental health

14 CAS-32219-X0J8 should be stable for long periods of time with appropriate medication and psychotherapeutic support.

However, the combination of conditions is clearly difficult for [Mrs S] to cope with at present. I am also mindful of the relatively recent history (September 2015) of an interpersonal issue at work leading to a stressful investigation process.

The history of referrals to occupational health and the reports from the occupational physicians indicate that [Mrs S’] ability to attend work reliably and efficiently has been increasingly impaired. The combination of the nature of her work and the nature of her medical conditions leads me to conclude that [Mrs S] is permanently unfit for her own job. However I take the view that with continued psychological input and treatment for her bladder and bowel problems, together with continued mobilisation and pain management, she would be fit to undertake alternative suitably adjusted semi-sedentary gainful employment within three years.”

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“I have not changed my opinion. My view is that [Mrs S] is permanently unfit for her previous job (because of the cumulative effect of her physical problems and her underlying mental health problems) and that she was not immediately – in June 2017 – fit for other gainful employment. However I still take the view that with continued medical treatment and a period of physical and emotional ‘re-conditioning’ after leaving her job, she would be fit to undertake alternative gainful employment. I would have expected that to be within three years of her leaving her employment with [the Council].”

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“I conclude that the cumulative effect of her physical and mental health problems mean that she is unlikely to be able to take up gainful employment within three years of her date of leaving.”

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