Local Government Pension Scheme · CAS-99869-W7F5

CAS-99869-W7F5

Ombudsman’s Determination Applicant Ms L

Scheme Local Government Pension Scheme (the Scheme)

Respondent Laurus Trust (the Trust)

Outcome

Complaint summary

Background information, including submissions from the parties

On 25 February 2022, Ms L had a sickness absence hearing with the Trust, which was adjourned to explore the option of an IHRP.

On 28 February 2022, the Trust submitted a referral to Optima Health (Optima), its Occupational Health (OH) adviser regarding Ms L’s application for an IHRP.

On 11 March 2022, Optima requested further medical evidence from Ms L’s GP and treating doctors to assist in its consideration of Ms L’s IHRP application.

On 1 April 2022, Ms L’s GP provided a report to Optima. The GP confirmed Ms L had been diagnosed with chronic fatigue syndrome (CFS) in 2018 and osteoarthritis of the hip in October 2021. In terms of prognosis, the GP said that although Ms L may have some fluctuation in the severity of her symptoms and her hip pain may improve, her

1 CAS-99869-W7F5 CFS was a lifelong condition and despite current treatment still affected her on a daily basis.

An Independent Registered Medical Practitioner (IRMP) was appointed by Optima to assess Ms L’s suitability for an IHRP. In her report of 26 May 2022, the IRMP noted Ms L was waiting for help from the pain clinic for her CFS and fibromyalgia and it was expected that planned orthopaedic treatment should improve her conditions. The IRMP concluded that Ms L’s “symptomatic and functional status would improve sufficiently to resume [her] part time role, if necessary, with adjustments and modifications.” So, the IRMP concluded that Ms L did not meet the first condition of being permanently incapable of her employment, such that she did not satisfy the criteria for an IHRP.

On 20 July 2022, the Trust wrote to Ms L to notify her that her employment would be terminated on the grounds of ill health with effect from 31 August 2022. It also told Ms L that her application for an IHRP had been refused, saying that the outcome of the ill-health assessment was that the IRMP did not believe that Ms L currently met the medical criteria for entitlement to ill health retirement and that the Trust was therefore currently unable to release her pension benefits early. Ms L was advised of her right of appeal under the Scheme’s two-stage IDRP.

On 9 August 2022, following the Trust’s decision not to award her an IHRP, Ms L appealed invoking stage one of the IDRP. Ms L said in her submissions that the IRMP’s report was compiled with insufficient evidence and that she had suffered with CFS for over four years and fibromyalgia for over two years.

On 18 August 2022, the Trust sent Ms L its stage one IDRP decision that said in summary:-

• It appreciated since the IRMP’s report was produced that Ms L had received further treatments and investigations relating to her conditions. However, based on the IRMP’s report, it was unable to award Ms L an IHRP because she did not meet the relevant criteria.

• Ms L was entitled to either appeal further under stage two of the IDRP with the administering authority, the Greater Manchester Pension Fund (GMPF), or dispute the IRMP’s opinion via Optima’s own appeal procedure.

• As part of stage two of the IDRP, Ms L’s case would be assessed by another IRMP, not previously involved with her case.

On 22 August 2022, Ms L provided consent for the Trust to make a referral to Optima’s appeal procedure.

On 24 August 2022, the Trust submitted a referral to Optima.

On 1 September 2022, the second IRMP issued her report. In the report, the second IRMP concluded that Ms L’s medical assessments had not been fully completed and the possible treatments had not yet been exhausted. She said there was insufficient 2 CAS-99869-W7F5 evidence to conclude that Ms L was permanently unfit for her role, so Ms L did not qualify for an IHRP.

Between 12 September and 24 October 2022, the Trust and Ms L corresponded via email regarding her appeal of the Trust’s decision under stage two of the IDRP. Ms L also disputed the IRMP’s opinion via Optima.

On 7 November 2022, GMPF sent Ms L its stage two IDRP decision. In summary it said:-

• Its role was to review the stage one IDRP decision and whether the Trust correctly applied the relevant Scheme regulations. Its role was not to review Ms L’s medical evidence.

• The second IRMP indicated that Ms L satisfied the condition of being unlikely capable of taking on any other paid work before her normal pension age (NPA) of 67. However, it agreed that this was likely to be an administrative error as the narrative of the report did not suggest that she met the criteria.

• It noted that Ms L provided further evidence which was taken into account by the second IRMP. However, additional evidence should have been referred for consideration by the first IRMP by the stage one decision maker before making its determination. It did not believe it was appropriate for the decision maker simply to refer Ms L to Optima’s own IDRP.

• It would have been helpful if the first IRMP’s report had set out how the treatments were expected to improve Ms L’s symptoms sufficiently to enable her to return to work before her NPA. Although the second IRMP’s report did provide more information on the assessments and treatments that were still outstanding, it believed the stage one decision maker should have asked further questions of the first IRMP before making its determination.

• In conclusion, it was not satisfied that the stage one decision maker had carried out its own investigation into the points Ms L raised in her appeal and made its own decision regarding her entitlement to an IHRP. The stage one decision maker should have ensured that all the available medical evidence relating to her conditions at the time of her dismissal were considered by the first IRMP.

• It also believed that the decision maker should have sought further information from the first IRMP regarding requesting reports from the specialists involved in Ms L’s care before making its determination.

• Furthermore, Optima’s own appeals process was only appropriate for complaints that fell outside of the pension decision. Once the Trust had received a copy of the report from the second IRMP, it should have reviewed the report and made its own decision on Ms L’s entitlement to an IHRP.

3 CAS-99869-W7F5 • It was for these reasons that its opinion was to uphold Ms L’s appeal and refer her case back to the Trust for reconsideration, taking account of the second IRMP’s report. In doing so, it said the Trust should satisfy itself that the second IRMP had considered all the available evidence demonstrating her condition at the date her employment was terminated and that the report provide a full explanation of the reasons for its opinion.

• Ms L should be paid £500 by the Trust for the inconvenience caused to her.

On 22 November 2022, the Trust emailed Ms L to notify her that it was querying some of the information with the GMPF in its stage two IDRP decision.

On 6 December 2022, the Trust emailed Ms L to inform her that her case had been escalated to the Trustees for their review.

On 20 December 2022, the Trust emailed Ms L to ask if she wished her case to be referred to a third IRMP for review.

Between December 2022 and February 2023, the Trust and Ms L corresponded regarding the need for a third IRMP to review her case.

On 15 February 2023, Ms L emailed the Trust saying:

“…since the appointed referee’s decision letter was sent to you early November, I feel there has been ample time and medical evidence to fairly review my case…I do not feel a wait of two months for the Trustees to complete another review is a fair process, especially when their reasons for not upholding the appointed referee’s decision have not been made clear. I am currently awaiting urogynaecology and orthopaedic surgeries so the best option for me to reduce undue stress is to refer my case to The Pensions Ombudsman [TPO]…”

On 15 February 2023, the Trust emailed Ms L to update her. It said it believed that the Trustees would ask for the third IRMP’s report to complete a full review of Ms L’s case. It also said:

“We are sorry to hear that you are finding the process stressful and are doing everything we can to try to bring the matter to a conclusion as quickly as possible”.

On 22 March 2023, the Trust sent Ms L its decision letter following the Trustees’ review of Ms L’s case. It said in summary:-

• The Trustees had thoroughly reviewed the stage two decision maker’s comments and the process followed by the Trust.

• The Trustees were satisfied that the points raised by Ms L in her appeal were investigated by the Trust. While the Trustees did not dispute that the first IRMP’s report was compiled with insufficient medical evidence, they noted that the MRI and x-ray reports were both reviewed by the first IRMP.

4 CAS-99869-W7F5 • The Trustees had concluded that the Trust did make its own decision regarding Ms L’s entitlement to an IHRP. The Trust considered the first IRMP’s report and additional evidence such as her Universal Credit claim. As Ms L was awaiting further investigations and treatments, on balance, the Trust determined that it would not be appropriate to release an IHRP at that time.

• After the stage one IDRP appeal, the Trust contacted Optima for advice and was informed that Ms L’s case could be referred to another IRMP. The Trust was not a medical expert, however in its view, the first IRMP’s report was fair, balanced and took into account all of the available medical information at that time.

• The Trustees reviewed the second IRMP’s report and previous medical evidence submitted by Ms L. Their conclusion was that the report was a fair review of the case and medical evidence. It provided a detailed rationale for the opinion which in their view, was corroborated by the other medical evidence available.

• In conclusion, the Trustees had upheld the original decision not to release Ms L’s IHRP at that time.

• The Trustees wanted to offer Ms L a further review of the case subject to obtaining the opinion of a third IRMP. The Trustees understood that Ms L was currently waiting for surgeries and that it may therefore be beneficial to submit further evidence after these had taken place.

On 12 May 2023, following treatments, Ms L signed a form that gave her consent for a third IRMP to review her application for an IHRP. The Trust submitted a referral to Optima.

On 9 June 2023, Optima requested further medical evidence from Ms L’s GP and treating doctors.

On 21 July 2023, Ms L’s GP said her fibromyalgia and chronic pain were long-term conditions. The GP said that although different treatments may be tried, Ms L was likely to continue to suffer with flare ups of her symptoms that required intervention. The GP also said that as she got older a deterioration in Ms L’s joints would also affect her experience of pain.

On 11 August 2023, the third IRMP produced his report, which was shared with the Trust on 18 August 2023, after Ms L had viewed it. It concluded that Ms L met the criteria for an IHRP.

In September 2023, the Trust decided to award Ms L an IHRP, backdated to 1 September 2022.

On the same day, Ms L contacted TPO to query the outcome of the review with regard to not paying her compensation for the inconvenience caused.

In November 2023, following communication between TPO and the Trust regarding the £500 offered by the stage two IDRP decision maker, and not addressed by the 5 CAS-99869-W7F5 Trust in its letter of 22 March 2023, the Trust said the Trustees had considered this matter and supported the decision not to pay the compensation. The Trustees felt the Trust acted reasonably and adhered to appropriate timeframes.

Ms L told TPO that although she was relieved by the Trust’s decision to award her an IHRP, she was upset that there was no acknowledgement for the length of time it had taken and the impact on her. Furthermore, she was unhappy the Trust disagreed with the stage two decision maker to pay her £500.

Adjudicator’s Opinion

6 CAS-99869-W7F5

Ms L did not agree with the Adjudicator’s Opinion and the complaint was passed to me to consider.

Ms L provided her further comments in response to the Opinion. In summary she said:-

• Her medical status was constant; the opinion of Optima’s IRMPs changed:-

o Her GP confirmed on 1 April 2022 that her CFS was lifelong and affected her daily.

o The first IRMP said that she would likely improve and therefore did not meet the criteria.

o The second IRMP again said there was insufficient evidence of permanent incapacity.

o After further evidence requests, her GP reiterated on 21 July 2023 that her fibromyalgia and chronic pain were long-term with continuing flare-ups.

o The third IRMP concluded that she met the IHRP criteria, and the Trust awarded an IHRP backdated to 1 September 2022.

• Her conditions did not improve; the Trust’s view changed. The backdating strengthened that conclusion. Her conditions were still impacting on her daily life.

• Key evidence was not properly considered during the process:-

o Before joining the Trust, at her pre-employment OH interview, she disclosed that she had already reduced from full-time to part-time work due to ME and CFS.

7 CAS-99869-W7F5 o She also held a PIP award for ME and CFS, evidencing disability recognition and long-term impact under the Equality Act.

o These facts were material to whether she was permanently incapable of her role and should have been taken into account from the outset.

• Maladministration identified at stage two of the IDRP. The stage two IDRP decision found the stage one decision maker failed to ensure all available medical evidence at dismissal was considered by the first IRMP. It was also found that it was not appropriate merely to refer her to Optima’s own appeals process. It upheld her appeal and recommended £500 for distress and inconvenience.

• Because of these failures and shifting IRMP opinions, she endured prolonged uncertainty and distress until the third IRMP accepted the same underlying picture of chronic, long-term illness.

• Compensation is within the Ombudsman’s realm. The Adjudicator suggested the GMPF referee lacked authority to direct compensation under the LGPS Regulations. Even if that is technically correct, the Pension Ombudsman’s own policy allows redress for non-financial injustice. The Adjudicator’s Opinion referenced TPO’s “redress for non-financial injustice” guidance, which recognised such awards.

• Remedy sought:-

o A finding that the handling of her case involved maladministration and that this caused distress and inconvenience.

o A direction that the Trust pay £500, or such other sum considered just to reflect the injustice, consistent with stage two of the IDRP’s recommendation.

I have considered the additional points raised by Ms L, and I have decided to uphold her complaint.

Ombudsman’s decision

8 CAS-99869-W7F5

9 CAS-99869-W7F5

I uphold Ms L’s complaint.

10 CAS-99869-W7F5 Directions

To put matters right, within 21 days of the date of this Determination, the Trust shall pay £500 to Ms L, in respect of the significant distress and inconvenience that she has suffered.

Dominic Harris

Pensions Ombudsman 21 October 2025

11 CAS-99869-W7F5 Appendix 1 Extract from the LGPS Regulations 2013

“73. Notification of first instance decisions

(1) Every person whose rights or liabilities are affected by a decision under regulation 72 (first instance decisions) must be notified of it in writing by the body which made it as soon as is reasonably practicable after the decision is made.

(2) A notification of a decision that the person is not entitled to a benefit must contain the grounds for the decision.

(3) A notification of a decision about the amount of a benefit must contain a statement showing how it is calculated.

(4) Every notification must contain a conspicuous statement giving the address from which further information about the decision may be obtained.

(5) Every notification must also—

(a) specify the rights available under regulations 74 (applications for adjudication of disagreements) and 76 (references of adjudications to administering authority);

(b) specify the time limits within which the rights under those regulations may be exercised; and

(c) specify the job title and the address of the person appointed under regulation 74(1) to whom an application may be made.

75. Decisions of the Adjudicator

(1) The adjudicator must give written notice of a decision under regulation 74 (applications for adjudication of disagreements) to—

(a) the applicant;

(b) the Scheme employer; and

(c) if the Scheme employer is not an administering authority, to the appropriate administering authority before the expiry of two months beginning with the date on which the application was received.

(2) But if no such notice is given before the expiry of that period, an interim reply must immediately be sent to the persons mentioned in paragraph (1)(a) to (c) setting out—

(a) the reasons for the delay; and

(b) an expected date for giving the decision (“the expected decision date”).

12 CAS-99869-W7F5 (3) A notice under paragraph (1) must include—

(a) a statement of the decision;

(b) a reference to any legislation on which the adjudicator relied;

(c) in a case where the disagreement relates to the exercise of a discretion, a reference to the provisions of these Regulations conferring the discretion;

(d) a reference to the right of the applicant to refer the disagreement for reconsideration by the appropriate administering authority under regulation 76 (reference of adjudications to administering authority) and to the time within which the applicant may do so; and

(e) a statement that the [F1Money and Pensions Service] is available to give assistance in connection with any difficulty with the Scheme that remains unresolved including the address at which it may be contacted.

(4) A decision under paragraph (1) takes effect as a decision of the Scheme employer or administering authority, as the case may be, except where the matter concerns the exercise of a discretion, in which case, if the adjudicator does not uphold the decision, the matter must be referred back to the body which made the decision under adjudication for reconsideration or, where that body would have been the Scheme employer but that body is no longer a Scheme employer, to the appropriate administering authority.

77. Decisions of the administering authority on reconsideration

(1) An administering authority must give written notice of its decision after reconsideration under regulation 76 (reference of adjudications to administering authority) to—

(a) the applicant; and

(b) where the administering authority is not the Scheme employer, to the Scheme employer, before the expiry of the period of two months beginning with the date the application is received.

(2) But if no such notice is given before the expiry of that period, an interim reply must be sent as soon as is reasonably practicable to the persons mentioned in paragraph (1) (a) and (b) setting out—

(a) the reasons for the delay; and

(b) an expected date for giving the decision (“the expected decision date”)

(3) A notice under paragraph (1) must include—

(a) a statement of the decision;

13 CAS-99869-W7F5 (b) a reference to any legislation on which the administering authority relied;

(c) in a case where the disagreement relates to the exercise of a discretion, a reference to the provisions of these Regulations conferring the discretion;

(d) a statement that the Money and Pensions Service is available to give assistance in connection with any difficulty with the Scheme that remains unresolved;

(e) a statement that the Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the Scheme made or referred in accordance with the Pension Schemes Act 1993; and

(f) the addresses at which the Money and Pensions Service and the Pensions Ombudsman may be contacted.

(4) A decision under paragraph (1) takes effect as a decision of the Scheme employer or administering authority, as the case may be, except where the matter concerns the exercise of a discretion, in which case, if the adjudicator does not uphold the decision, the matter must be referred back to the body which made the decision under adjudication for reconsideration or, where that body would have been the Scheme employer but that body is no longer a Scheme employer, to the appropriate administering authority.”

14