Local Government Pension Scheme · CAS-36185-H2Z7

CAS-36185-H2Z7

Ombudsman’s Determination Applicant Mr L

Scheme Local Government Pension Scheme (LGPS)

Respondent Hampshire County Council (Hampshire)

Outcome

Complaint summary

Background information, including submissions from the parties Background

“(1) Subject to paragraph (2), if a member who has left his employment before he is entitled to the immediate payment of retirement benefits (apart from this regulation) becomes permanently incapable of discharging efficiently the duties of that employment because of ill- 1 CAS-36185-H2Z7 health or infirmity of mind or body he may ask to receive payment of his retirement benefits immediately, whatever his age.

(2) Before determining whether to agree to a request under paragraph (1), an authority must obtain a certificate from an independent registered medical practitioner qualified in occupational health medicine as to whether in his opinion the member is permanently incapable of discharging efficiently the duties of the relevant employment because of ill-health or infirmity of mind or body and, if so, whether that condition is likely to prevent the member from obtaining gainful employment (whether in local government or otherwise) before reaching his normal retirement age, or for at least three years, whichever is the sooner.

(3) In this regulation, “gainful employment”, “permanently incapable” and “qualified in occupational health medicine” have the same meaning as in regulation 20.”

“The first period for which any retirement pension under regulation 31 (early payment of pension: ill-health) of the Benefits Regulations is payable begins on the date when the member became permanently incapable as determined under regulation 31 of those Regulations.”

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“Although he has clearly performed the role in the past, despite his Autistic Spectrum Disorder, he appears to have struggled in this role and taking into account compounding factors including depressive disorder, I do not envisage his being [in] a position to return to this role.”

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Mr L’s position

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Hampshire’s position

1 The Local Government Pension Scheme Regulations 2013 (SI2013/2356) 7 CAS-36185-H2Z7

Adjudicator’s Opinion

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Mr L did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mr L provided his further comments which do not change the outcome. I agree with the Adjudicator’s Opinion and I will therefore only respond to the main points made by Mr L for completeness.

Mr L’s further comments

“… so that membership accrued in the Earlier Schemes in respect of service before 1st April 2014, the pension rights accrued at that date, and any rights and obligations imposed on any person under those Schemes in relation to service before 1st April 2014, are preserved …”

“so that benefits are payable in accordance with these Regulations.”

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Ombudsman’s decision

2 Section 146, Pension Schemes Act 1993 12 CAS-36185-H2Z7

“The first period for which any retirement pension under regulation 31 (early payment of pension: ill-health) of the Benefits Regulations is payable begins on the date when the member became permanently incapable as determined under regulation 31 of those Regulations.”

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Therefore, there has been no maladministration on Hampshire’s part in paying Mr L’s pension with effect from April 2017 and I do not uphold his complaint.

Mr L has provided me with copies of recent correspondence he has had with Hampshire concerning an award of additional pensionable service. This did not form part of Mr L’s original complaint to me and I will not comment on it further; other than to confirm that the payment of his pension early under Regulation 31 does not qualify Mr L for any additional pensionable service.

Anthony Arter

Pensions Ombudsman 20 March 2020

14 CAS-36185-H2Z7 Appendix 1 Medical evidence

Dr Tan, GP, 3 September 2015

Dr Thornton, 1 October 2015

“[Mr L] has suffered depression for several years. More recently it has been aggravated due to events in his personal life. He has been treated appropriately by his GP with an antidepressant. He has also been referred for counselling but has declined the option. He has not required specialist care.

I have no evidence that his diabetes affects his fitness for work.

He was diagnosed with Barratt’s oesophagus in 2015. It has been confirmed by gastroscopy and treated conservatively with medication. He has been discharged from specialist care …

15 CAS-36185-H2Z7 The Local Government Pension Scheme defines two conditions for the early award of pensions on medical grounds …

In order to satisfy the first condition, all appropriate treatment for the illness which could, on the balance of probabilities, be expected to improve the condition such that a return to work would be reasonable, must have been completed. None of the evidence I have been provided with leads me to conclude that he is currently unfit for his former employment. If his depression is severe enough to prevent him from working at present, then I would expect him to be moved onto the next level of treatment, for example changing to an alternative antidepressant, counselling or specialist referral. On balance of probability, this more intense treatment of his symptoms would result in sufficient recovery to return to his former employment. The first condition for ill health retirement is therefore not satisfied.”

Dr Ezan, 28 January 2016

Dr Vivian, 30 June 2017

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“This isn’t straightforward, as once an individual has been off sick for more than one year, the average duration of sickness is 9 years. An individual is more likely to retire than return to work. Thus, an argument can be built that he is permanently disabled. But my view is that active management of his depression is required, and that an average duration of 9 years would still allow him to return to work for over 10 years before his retirement.

I do not view his diabetes, Barratt’s oesophagus or steatohepatitis as disabling him from his normal work. The easiest way to understand this is to reverse the question and ask whether any of these diagnoses would inevitably lead to him being viewed as permanently disabled, if he was desperate to return to work? My view is that I would be happy to support him working despite him having these conditions …

There is some evidence of ongoing disability, but the evidence is very limited, and the most recent GP report confirms that his conditions are stable. In my opinion, there continues to be insufficient evidence to state that any of his conditions are permanently disabling …”

Dr Vivian, 2 October 2017

Dr Shand, 17 November 2017

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“On balance, I believe it is reasonable to conclude that [Mr L] is permanently incapacitated from performing the role of … due to the requirement for significant independent travel in the role and the level of communication and interaction inherent in the role. Although he has clearly performed the role in the past, despite his Autistic Spectrum Disorder, he appears to have struggled in this role and taking into account compounding factors including depressive disorder, I do not envisage his being [in] a position to return to this role.

However, I believe [Mr L] remains capable of performing other gainful employment at some point prior to him attaining normal retirement age although, due to his combination of various medical issues he remains incapacitated for work, at the present time.”

18 CAS-36185-H2Z7 Appendix 2 The Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007 (SI2007/1166) (as amended)

“(1) If an employing authority determine, in the case of a member who satisfies one of the qualifying conditions in regulation 5 -

(a) to terminate his employment on the grounds that his ill-health or infirmity of mind or body renders him permanently incapable of discharging efficiently the duties of his current employment; and

(b) that he has a reduced likelihood of obtaining any gainful employment before his normal retirement age,

they shall agree to his retirement pension coming into payment before his normal retirement age in accordance with this regulation in the circumstances set out in paragraph (2), (3) or (4), as the case may be.

(2) If the authority determine that there is no reasonable prospect of his obtaining any gainful employment before his normal retirement age, his benefits are increased -

(a) as if the date on which he leaves his employment were his normal retirement age; and

(b) by adding to his total membership at that date the whole of the period between that date and the date on which he would have retired at normal retirement age.

(3) If the authority determine that, although he cannot obtain gainful employment within three years of leaving his employment, it is likely that he will be able to obtain any gainful employment before his normal retirement age, his benefits are increased -

(a) as if the date on which he leaves his employment were his normal retirement age; and

(b) by adding to his total membership at that date 25% of the period between that date and the date on which he would have retired at normal retirement age.

(4) If the authority determine that it is likely that he will be able to obtain any gainful employment within three years of leaving his employment, his benefits -

19 CAS-36185-H2Z7 (a) are those that he would have received if the date on which he left his employment were the date on which he would have retired at normal retirement age; and

(b) unless discontinued under paragraph (8), are payable for so long as he is not in gainful employment …”

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