Local Government Pension Scheme · CAS-38542-S2W8

CAS-38542-S2W8

Ombudsman’s Determination Applicant Mrs S

Scheme Local Government Pension Scheme (the Scheme)

Respondent The Dean Trust (the Trust)

Outcome

Complaint summary

Background information, including submissions from the parties As relevant, regulation 35, ‘Early payment of retirement pension on ill-health grounds: active service’, of the Local Government Pension Scheme Regulations 2013 (the 2013 Regulations) provides:

“(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 [my emphasis] 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.

…

(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.”

1 CAS-38542-S2W8 Mrs S was employed as a Teaching Assistant with the Lord Derby Academy (the Academy), which is part of the Trust. Due to health problems, Mrs N was only capable of working reduced hours (three days a week, 6 hours each day).

In 2015, the Academy announced that it was downsizing due to a large budgetary deficit and financial difficulties. As part of the staffing restructure the number of teaching assistant positions were reduced, and existing teaching assistants (both part-time and full-time) had the option of applying for the new posts. The posts were classed as 0.9 Full Time Equivalent (FTE)1 (32 hours per week). Mrs S applied but was unsuccessful.

On 17 July 2015, Mrs S was seen by Occupational Health (OH). The OH medical report advised:

“[Mrs S] is currently unable to work full-time as she is suffering from three conditions that are all covered under the disability provision of the Equality Act. Any future post would likely need to be part-time.

Following the compulsory redundancy decision, [Mrs S] has become anxious and stressed and this has exacerbated her Crohns condition. She does feel suicidal and her GP is aware of this. Her confidence is diminished and she currently feels she cannot work in schools.

She is committed to accepting all assistance to help her become well and has happily agreed to Counselling and relaxation.

[Mrs S] has taken legal action in 2013 regarding her working hours and now feels very disappointed that she was not successful in securing a part-time post. [Mrs S] feels that she has recently felt well, but as a result of her unsuccessful attempt to secure a post, she has become unwell again. Her Crohns disease is not controlled currently and she is taking steroids to help the symptoms. All of her conditions are impacting negatively on her wellbeing and the exacerbation of her Crohns condition could be linked to her recent anxiety and stress symptoms.

I will review [Mrs S] week beginning 17th August 2015 to determine if she has improved. Currently, it is my opinion that she is unfit for welfare visits until her symptoms have been modified.”

Mrs S’ employment ended on 31 Augst 2015 on the grounds of redundancy.

Mrs S subsequently submitted an Employment Tribunal (ET) claim of unfair dismissal - discrimination on grounds of her disability and being treated less favourably due to her part-time worker status. The claim was subsequently compromised via a

1 FTE is specifically designed to measure and accommodate both part-time and full-time employees by

converting all work hours into a standardized full-time unit 2 CAS-38542-S2W8 settlement agreement between Mrs S and the Trust. The reason for Mrs S’ dismissal remained on the grounds of redundancy.

Mrs S accepted early retirement payable from 12 August 2017.

A letter from the Trust dated 31 October 2018 to Mrs S’ then legal representative commented that “at no time prior to [Mrs S’] employment…being terminated, were there any conversations concerning termination for reasons of ill health” and that Mrs S “applied for posts that were available in the new structure”. In a further letter to the Mrs S’ legal representative dated 13 November 2018, the Trust stated, “that there is no evidence to link this (Mrs S’ health) to her decisions taken at the time of the restructure”.

In its formal response to Mrs S’ complaint of 30 June 2022, the Trust submitted that:-

• It opposed Mrs S’ allegation that she was not informed at the time of the restructure that there would be a possibility of working part-time hours. During the consultation process for the proposed teaching assistant staff restructure, the posts were classed as FTE, and during her interview, when a question was raised about her disability and inability to work full time, a school Governor on the interview panel assured her that part-time hours would be considered in the restructure to secure the FTE target.

• Mrs S did not request ill health retirement at the time of the proposed restructure.

• As Mrs S’ employment was terminated on the grounds of redundancy, a termination on the grounds of ill health did not arise under the 2013 Regulations. Nonetheless, it was prepared to consider Mrs S for ill health early retirement from active service if she reimbursed the Trust for her redundancy payment (the Offer).

On 12 July 2022, a copy of the Trust’s formal response was sent to Mrs S’ legal representative by The Pensions Ombudsman (TPO). No comments on it were subsequently received by TPO from Mrs S’ legal representative.

In April 2024, TPO was notified that Mrs S was no longer legally represented.

On 5 November 2025, the Adjudicator appointed to consider Mrs S’ complaint spoke with Mr S. Mr S said Mrs S was interested in the Offer and would confirm this in writing with comments on the Trust’s formal response (see above paragraph 8). The Adjudicator notified Mr S that he had emailed the Trust requesting its confirmation on whether the Offer remained open.

Later the same month, the Trust notified the Adjudicator that the Offer was no longer available. There is no evidence that Mrs S accepted the Offer before it was withdrawn.

3 CAS-38542-S2W8 In December 2025, Mr S wrote to the Adjudicator requesting whether it would be possible for the Adjudicator to obtain from the Trust ill health retirement figures for Mrs S. At that time Mr S was not aware that the Trust had withdrawn the Offer.

Adjudicator’s Opinion

• Mrs S said that she was made redundant because of her disability, and this appeared to be the grounds on which she pursued an ET claim against the Trust.

• The ET did not make a finding on the matter as Mrs S reached a settlement agreement with the Trust.

• Regulation 35 of the 2013 Regulations permitted ill health early retirement from active service where the member’s employment was terminated by the employer on the grounds of ill health or infirmity of mind or body.

• As Mrs S’ employment ended on the grounds of redundancy, she was not eligible to be considered for ill health early retirement under the 2013 Regulations.

• In its emailed letter to TPO of 30 June 2022, the Trust offered a compromise with the suggestion that it would consider Mrs S for ill health retirement from active service if Mrs S reimbursed the Trust for her redundancy payment. While the Adjudicator considered the Offer slightly unusual, it did not appear to have been pursued by Mrs S.

• Irrespective of whether Mrs S saw the Offer, three years had since passed and as with all contractual offers one party could withdraw an offer at any time if it had not been accepted.

Mrs S did not accept the Adjudicator’s Opinion, and the complaint was passed to me to consider. Mr S, representing Mrs S, has provided their further comments which do not change the outcome. I agree with the Adjudicator’s Opinion and note the additional points raised by Mr S.

Mr S’ further comments on behalf of Mrs S

Mr S submits:-

• They believe the Trust withdrew the Offer because they had asked for a breakdown of the figures Mrs S would get on ill health retirement.

4 CAS-38542-S2W8 • Prior to Mrs S’ employment ending, Occupational Health had stated that she was unfit for work. Mrs S was not informed about ill health retirement at that time.

• Before then, Mrs S was discriminated against due to her disability. Mrs S had breast cancer at this time and suffered a breakdown due to her illness and the way she was unfairly treated.

Ombudsman’s decision

Mrs S’ employment ended on grounds of redundancy shortly after she had unsuccessfully applied for one of the new teaching assistant posts. So, she is not eligible to be considered for ill health retirement under regulation 35.

The fact that Mrs S applied for one of the new posts indicates that she considered herself at that time capable of discharging the role.

Following the compulsory redundancy decision, Mrs S was seen by OH as she had become anxious and stressed and this had exacerbated her Crohns condition. While OH advice was that Mrs S was currently unable to work full-time and any future post would likely need to be part-time, it was not advised that Mrs S was likely to be at that time permanently incapable of discharging the role that she was engaged in (the first condition for ill health retirement from active service).

Nonetheless, in June 2022, the Trust offered to consider Mrs S for retrospective ill health retirement. However, the Offer was not accepted at that time.

In November 2025, the Trust notified TPO that the Offer was rescinded. This was prior to Mr S writing to the Adjudicator asking if ill health retirement figures could be obtained for Mrs S.

As the Adjudicator explained in their Opinion, irrespective of whether Mrs S saw the Offer, the Trust could withdraw the Offer at any time if it had not been accepted.

5 CAS-38542-S2W8 For these reasons, I do not uphold Mrs S’ complaint.

Dominic Harris

Pensions Ombudsman 18 February 2026

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