Local Government Pension Scheme Scotland · CAS-33073-G0B5

CAS-33073-G0B5

Ombudsman’s Determination Applicant Mr H

Scheme Local Government Pension Scheme (Scotland) (the Scheme)

Respondents Scottish Public Pensions Agency (SPPA)

Glasgow City Council (the Council)

Outcome

Complaint summary

Background information, including submissions from the parties Mr H was employed by the Council as a Land and Environment driver. He stopped working due to ill health on 29 January 2015 and his employment was terminated due to ill health on 31 August 2016.

The relevant Regulations in this case are the Local Government Pension (Scotland) Regulations 2014 (the 2014 Regulations) which state:

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

34(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 or 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 condition in paragraph (3) of this regulation.

(2) The amount of the retirement pension that a member who satisfies the conditions mentioned in (1) receives is determined by which of the benefit tiers

1 CAS-33073-G0B5 specified in paragraphs (4) and (5) that member qualifies for, calculated in accordance with regulation 37 (calculation of ill-health pension amounts).

(3) The 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) A member is entitled to Tier 1 benefits if that member is unlikely to be capable of undertaking gainful employment before normal pension age.

(5) A member is entitled to Tier 2 benefits if that member –

(a) is not entitled to Tier 1 benefits but,

(b) is likely to be able to undertake gainful employment before reaching normal pension age.

35. Role of IRMP

Regulation 35(1) A decision as to whether a member is entitled under regulation 34 (early payment of retirement pension on ill health grounds: active members) to early payment or retirement on grounds of ill-health or infirmity of mind or body and if so which tier the member qualifies, 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 condition in regulation 34(3); and if so

(b) Whether the member is unlikely to be capable of undertaking gainful employment.”

The Council did not refer Mr H’s application for ill health early retirement (IHER) to an Independent Registered Medical Practitioner (IRMP). The Council accepted, based on the Occupational Health (OH) assessments, that Mr H was incapable of discharging efficiently the duties of his former employment. He was awarded IHER under Tier 2.

Mr H appealed the Council’s decision and said that he was undergoing a number of medical investigations for a number of underlying health conditions. He also said that he had been prescribed medication while the investigations were ongoing.

On 12 September 2017, the Council dismissed Mr H’s appeal under Stage One of the Internal Dispute Resolution Procedure (IDRP). It said that Dr Stewart Russell, (the OH practitioner), who had previously reviewed the case, had confirmed his decision remained the same. The Council said all the relevant facts had been taken into account and the case had been processed correctly by the Council.

Mr H appealed against the Council’s decision and invoked Stage Two of the IDRP. This meant that his appeal would be considered by SPPA, acting on behalf of the 2 CAS-33073-G0B5 Scottish Minsters. Mr H said that he met all the Tier 1 criteria; there were letters from his GP and Consultant Psychiatrist that confirmed he would not be able to work again. He provided further medical evidence to support his case.

On 9 July 2018, as part of the appeals process, the SPPA referred Mr H’s case to an IRMP, Dr Sheard. It provided copies of Mr H’s job description, sickness records and both the previous and new medical reports for review.

On 12 July 2018, the IRMP issued his report. He acknowledged that SPPA were seeking to understand whether, on the balance of probabilities, Mr H was:-

Incapable of discharging the duties of his former employment by reason of permanent (i.e. until normal pension age) ill-health or infirmity of mind and body.

Unlikely to be capable of obtaining employment before his normal pension age.

Likely to be capable of obtaining gainful employment before his normal pension age.

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“In my opinion given all his physical health complaints alone, he would not be able to work again. He continues to remain under psychiatric care.”

“It is clear to me that as of 31/08/2016 Mr [H] was unfit to work due to his reduced mental well-being and investigations into his TIA [Stroke] and other symptoms. The occupational health service report by Dr Russell predates the TIA but notes that given the length of his absence and his predictable future absence he is aware that his contract could be terminated on grounds of capability. It is noted he requires further psychological support and Dr Russell anticipates he will benefit from the same. It is noted that his emotional state may take some months to resolve fully even with psychological support.

It appears unlikely that there is new medical evidence to consider at this stage although a better understanding of the evidence available at 31/8/16 would be useful.

In the absence of any new medical treatments likely to substantially improve his physical and mental well-being and given the chronic nature of his symptoms I cannot anticipate an improvement in his health sufficient to allow him to return to driving/safety critical work on the highway/roadways. I think it is unlikely that he would develop sufficient confidence/concentration to allow him to drive on a Group 2 in a safe manner some years after he has last done this sort of work even if/when DVLA were to return his licence.

In the circumstances and on the balance of probabilities I suggest that as a result of ill-health of infirmity of mind or body Mr [H] is permanently (i.e. to normal pension age) incapable of discharging efficiently the duties of his former employment.

4 CAS-33073-G0B5 In my opinion it is more probable than not that the condition existed on 31 August 2016 and that at that time Mr [H] was permanently incapable of carrying out efficiently the duties in question and would not improve sufficiently before reaching normal pension age (67) for his to be considered capable of carrying out those duties efficiently.

However as of 31 August 2016 I believe it would have been too early to suggest that Mr [H] unlikely to be capable of undertaking gainful employment before his normal pension age. This is because at that time he was awaiting treatment and other conditions had not been diagnosed/become apparent….I would support Tier 2 on this evidence.”

“On reviewing the case I would concur, that whilst Mr [H]’s fitness was assessed by three different Physicians at Occupational Health, the last being Dr Russell and his subsequent review of the case, this would not constitute Dr Russell as being an IRMP. I offer my apologies for this oversight. The Stage 2 Determination to award Tier 2 IHER Benefits was actioned and payment backdated to 31 August 2016 by Glasgow City Council.”

Adjudicator’s Opinion

5 CAS-33073-G0B5 • There were procedural errors made by the Council during its handling of Mr H’s case. The Council should have obtained a report and a certificate from an IRMP to allow it to consider Mr H’s IHER application, however, the case was only referred to an OH practitioner. Also, the IRMP did not refer to the test for gainful employment throughout his report, but rather the test for regular employment of like duration.

• The procedural failings amounted to maladministration but even if the correct procedure had been followed, the Adjudicator considered that the same decision would more than likely have been reached given the available medical evidence at the time.

Mr H did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mr H’s representative provided the following comments:-

The Council acted with “haste” in August 2016 when they “paid him off” on the grounds of capability, rather than on the grounds of ill health, which would have resulted in him receiving a full pension. 6 CAS-33073-G0B5 There was important medical evidence which came to light just weeks after his employment ceased which would have supported the position that Mr H was in ill health. This has had “major consequences” ever since.

SPPA refused Mr H the full ill health pension as it believed he could still gain employment before retirement age, but all the medical evidence suggests otherwise.

Mr H is not ever likely to be either physically or mentally able to hold down any sort of paid employment again.

Mr H considers the medical evidence supports his claim that he meets the criteria for Tier 1, and he has been unable to work since 2016.

I note the additional points raised by Mr H’s representative, but I agree with the Adjudicator’s Opinion.

Ombudsman’s decision

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I do not uphold Mr H’s complaint.

Anthony Arter

Pensions Ombudsman 12 January 2022

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