Civil Service Injury Benefit Scheme · CAS-46946-X4K3

CAS-46946-X4K3

Ombudsman’s Determination Applicant: Mr E

Scheme: Civil Service Injury Benefit Scheme

Respondent: Cabinet Office

Outcome

Complaint summary

Background information, including submissions from the parties Background

1 PO-8837

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“… benefits in accordance with the provisions of this section may be paid to any person to whom the section applies and

(i) who suffers an injury in the course of official duty, provided that such injury is directly attributable to the nature of the duty or arises from an activity reasonably incidental to the duty; or

(ii) who suffers an injury as a result of an attack or similar act which is directly attributable to his being employed, or holding office, as a person to whom this section applies …”

2 As a prison officer, Mr E’s reckonable service counts as double after 20 years. 3 Now Rule 1.10 in the Civil Service Injury Benefit Scheme Rules.

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• Mr E’s current complaint was that he believed that his injury award should be uplifted to Total Impairment with effect from January 1997.

• This had been the subject of Mr E’s previous application to TPO. TPO had stated that, because Mr E’s complaint had already been determined, it could not be re- opened.

• It considered that Mr E’s complaint was now outside the Pensions Ombudsman’s jurisdiction.

• It had reviewed Mr E’s case and the earlier decisions.

• Following the Pensions Ombudsman’s 2016 Determination, the SMA had been asked to consider the level of impairment to his earning capacity and whether it should be backdated to 2003.

• Based upon the SMA’s report of 3 July 2018, the level of impairment was increased to Total Impairment and backdated to May 2015. It agreed that natural justice meant the award should be backdated to the date Mr E had raised a dispute with TPO. As this decision was based upon a consideration of fresh medical evidence, it could not be determined that the Total Impairment should be backdated to 1997.

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Mr E’s position

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The Cabinet Office’s position

Adjudicator’s Opinion

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The Cabinet Office accepted the Adjudicator’s Opinion. However, Mr E submitted further comments and the complaint was passed to me to consider. Mr E’s further comments are summarised below. I have considered Mr E’s comments, but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

Mr E’s further comments

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Ombudsman’s decision

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• The SMA failed to review the previous decision to reduce Mr E’s award from Total to Material Impairment. This had been based on an assessment that the contribution by pre-morbid and post-employment factors amounted to 25% of his impairment of earnings capacity.

• The Cabinet Office did not, therefore, have sufficient, appropriate evidence to consider the date from which the revised award of Total Impairment should be paid.

• The Cabinet Office also failed to consider whether the 2009 award should, in any event, have been backdated to 2003.

Therefore, I uphold Mr E’s complaint.

Directions

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Anthony Arter Pensions Ombudsman

8 June 2022

11 CAS-46946-X4K3 Appendix Medical evidence

“In summary, [Mr E] has for many years suffered from chronic PTSD. This is entirely attributable to his former service in HM Prisons. There are no other relevant factors in its aetiology. He will not work again. The personality change, which is part of his PTSD syndrome, has rendered him too volatile and impulsive, and his mood too labile, to cope with an ordinary work environment. In my opinion he merits the highest award it is possible to acquire for pension purposes in relation to an Injury Award.

With regard to future treatment, [Mr E] has exhausted all evidence-based psychological treatments for PTSD, and it is psychological treatment that forms the mainstay for the management of the condition. There is evidence 12 CAS-46946-X4K3 that pharmacological measures can assist. [Mr E] has clearly tried the bulk of these already. He is currently taking … which is a useful agent, and I would advise that he perseveres with this treatment. [Mr E] needs to keep his alcohol consumption to a minimum, which he is doing currently. Moderate exercise can help. If anxiety levels mount, … can assist, as long as this does not cause any problems with his cardiology function.

[Mr E] will require long-term maintenance treatment with antidepressants. It is unlikely that he would be able to cope without such treatment.”

“I reviewed all the medical evidence that was available and as listed above together with new medical evidence that has been provided by Dr Vincenti, Consultant Psychiatrist … It is my opinion that the new medical evidence provided by Dr Vincenti is sufficient to demonstrate that on the balance of probabilities [Mr E’s] current incapacity is solely attributable to the effect of his qualifying injury so the estimate of the degree to which the general earning capacity has been impaired only by the effect of the injuries sustained to the causal incident is likely to be over 75% (total incapacity).

As noted above it is my understanding that should the Scheme Medical Advisor provide an opinion that the level of impairment is to be total impairment then the Scheme Medical Advisor should give an indication as from what date the revised award should be paid. As noted above my advice, following new medical evidence is to increase [Mr E’s] impairment from material impairment to total impairment. This opinion is based on the medical report produced by Dr Vincenti on 22/06/2018. This new medical evidence was available to me at the time of today’s assessment. However as per previous instructions from the Scheme Medical Advisor (a letter from [Dr] Stuckey dated 01/02/2010) natural justice would suggest that [Mr E’s] impairment to earnings assessment is revised from the date he requested to the Pensions Ombudsman’s appeals against the previous decision and that date was 18/05/2015. However I would like to point out that it is for the delegated authority to form that opinion.”

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