Nhs Pension Scheme · CAS-63708-H5S0

CAS-63708-H5S0

Ombudsman’s Determination Applicant Mr T

Scheme NHS Pension Scheme (the Scheme)

Respondent NHS Business Services Authority (NHS BSA)

Outcome

Complaint summary Mr T has complained that NHS BSA incorrectly decided:

• in December 2017, to decline his application for ill health early retirement (IHER) benefits from the Scheme; and

• in October 2019, not to consider his application further under the Scheme’s Internal Dispute Resolution Procedure (IDRP) following his redeployment from a full-time band nine to a part-time band three NHS role in January 2018.

Background information, including submissions from the parties The relevant regulations are the National Health Service Pension Scheme Regulations 2015 (as amended) (the Scheme Regulations).

On retirement from active service, regulation 901, of the Scheme Regulations, provides for two tiers of pension depending upon the level of the member’s incapacity for employment. Briefly, these are:-

Tier 1: the member is permanently2 incapable of efficiently discharging the duties of his/her NHS employment; and

1 Relevant sections of this regulation have been set out in the Appendix below.

2 “permanently” means the period until Normal Pension Age. In Mr T’s case, his Normal Pension Age is 67

years.

1 CAS-63708-H5S0 Tier 2: in addition, the member is permanently incapable of engaging in regular employment of like duration3 .

If a member satisfies the Tier 1 condition, he/she is entitled to the retirement benefits that he/she has earned to date in the Scheme without actuarial reduction for early payment. If a member also meets the Tier 2 condition, then his/her accrued benefits are enhanced by 50% of his/her prospective membership up to Normal Pension Age (NPA).

Tier 2 benefits are payable only if a member is accepted as permanently incapable of both doing his/her NHS job and regular employment of like duration to his/her NHS job.

Mr T was originally employed by the Cambridge University Hospital NHS Foundation Trust (the Trust) as a full-time Director of Operations. This was a band nine NHS role.

Mr T went on long term sick leave following an unsuccessful attempt to return to work after a road traffic accident on 29 February 2016.

In February 2017, Mr T attended a meeting with the Trust that was arranged in accordance with its “Managing Long Term Sickness and Ongoing Health Conditions Procedure” (the Procedure).

During this meeting, the Trust discussed with Mr T the following options available to him:-

• The Trust would continue to follow the Procedure and refer his case for consideration at a Capability Hearing. A possible outcome of such a hearing would be his dismissal on grounds of incapability due to ill health.

• Mr T could apply voluntarily for a career break4 instead with the Trust’s consent. This would require him to resign from his role as Director of Operations. The Trust would explore the possibility of offering him an honorary unpaid contract to support his undertaking voluntary research in the Emergency Department (ED).

• Alternatively, Mr T could delay the consideration of his case at a Capability Hearing for a specific period with the Trust’s agreement in order to further explore his undertaking unpaid research in the ED.

• During this period, he would not receive any pay or contractual benefits although his employment with the Trust would continue. This would be on the basis that his

3 “like duration” means, in summary, a regular employment for similar hours to the member’s NHS job.

4 The Trust provided Mr T with a copy of its “Career Break Policy” during this meeting.

2 CAS-63708-H5S0 role as Director of Operations would cease at the end of the period and the Trust would recruit for that position.

• The Trust would explore with Mr T whether any opportunities for redeployment to a “substantive” paid role existed at the end of the period. If no agreement could be reached or if there were no such opportunities for redeployment within the Trust, Mr T’s case would be referred to a Capability Hearing.

Mr T chose to delay his Capability Hearing by exploring redeployment opportunities.

In its letter dated 4 October 2017, the Trust said that it had considered how it could “reasonably reconcile” Mr T’s wishes to be redeployed to his unpaid research role and remain in the Trust’s employment.

The Trust offered Mr T the following two options:-

Option One

• Mr T remained employed by the Trust and agreed to be redeployed to the research role in the ED which he was currently undertaking.

• This was a band three post that would be paid at point six of the pay scale for up to a maximum of 16 hours per week.

• The Trust had considered the points that Mr T made in his letter dated 15 September 2017 about the additional pressure a fixed-term contract would place him under. So it had decided to offer him redeployment to this post with “an undetermined duration” that would hopefully enable him to focus on his recovery.

• In employing him in this role going forward, the Trust would comply with its duty to make reasonable adjustments under the Equality Act 2010 and seek appropriate Occupational Health (OH) advice. In particular, it would review with him the number of hours of paid work that he actually carried out and this could gradually be built up over time without any pressure being placed on him.

Option Two

• He continued to perform the research duties voluntarily on an unpaid basis without any obligation on his part. The Trust would not be obliged to continue making such duties available to him.

• However, the Trust considered that it could not employ him on this basis because it was unlawful.

3 CAS-63708-H5S0 In November 20175, Mr T applied for IHER benefits from the Scheme using form AW33E. On page one of the form, under the heading “Guidance for Members”, it stated that:

“To qualify for ill health retirement benefits you must…:

• retire from pensionable employment because of illness or injury…

For the purpose of ill health retirement benefits the following expressions mean:

• Retires from pensionable employment: your employment must be terminated on grounds of ill health…”

At the time, Mr T had been diagnosed by Dr Martell, the OH doctor, as suffering from: (a) post-concussion syndrome; (b) chronic daily headache and fatigue; and (c) behavioural and cognitive changes including impact on executive function following his accident.

The OH doctor also said on form AW33E that:-

• Mr T remained unfit to return to his post as Director of Operations and his focus should currently be on rehabilitation activities.

• She had recommended that Mr T should apply for IHER from the Scheme.

• The Trust was supporting Mr T with redeployment in a part-time role carrying out some research activities under the supervision of an ED consultant at a reduced banding. He had been undertaking similar work voluntarily prior to funding being made available to support a part-time post at the Trust.

• It was expected that Mr T would: (a) return to some form of regular employment but it was unclear at what level; and (b) require an extended period of vocational rehabilitation and part-time working in order to gradually improve his skills and also adjust to his ongoing symptoms.

Decisions on applications for IHER are made by the Scheme’s Medical Adviser (SMA), Medigold Health (Medigold), in the first instance, and by NHS BSA on appeal, under delegated authority from the Secretary of State, “the Scheme manager”.

5 This was prior to Mr T’s redeployment to a part-time band three Research Assistant role at the Trust on 29

January 2018.

4 CAS-63708-H5S0 An application for IHER benefits is considered at the member’s date of leaving. However, if the Scheme member has not yet left NHS employment, the assessment is made as at the date of consideration.

In its letter dated 12 December 2017, Medigold informed Mr T that his application for IHER benefits had been declined. It quoted from its medical adviser (MA):

“This is an initial application for ill health retirement benefits under the Scheme…

Permanent Incapacity is assessed by reference to the normal benefit age of 67 years...

The medical evidence considered:

• The referral documents;

• AW33E completed by the applicant and OH physician along with a variety of reports from the OH provider from 2017;

• Report from a professor of neurosurgery dated 12 July 2017;

• Detailed rehabilitation assessment report dated 3 October 2017;

• Report from specialist registrar in neurosurgery dated 7 November 2017;

• Report from Professor Hutchinson, neurosurgeon, dated 8 November 20186;

• There are also older reports

Cases are considered on an individual basis and decisions are made on the balance of probabilities…

Having considered the application and evidence there is, in my opinion, reasonable medical evidence that the member has a physical or mental infirmity as a result of which the member is currently incapable of efficiently discharging the duties of their employment. The key issue in relation to the application is whether the member’s current incapacity is likely to be permanent.

The applicant developed a post-concussional syndrome following a head injury sustained during a road traffic accident as a cyclist in February 2016. At that time he had a number of difficulties with his short term memory, dizziness, problems with processing information, headaches and fatigue. He was considered to have reduced executive functioning, unable to process

6 This was a typo. The year should be 2017.

5 CAS-63708-H5S0 information quickly and had difficulties with working memory and attention. He is unable to switch attention quickly or hold one idea in his head while focussing on another. Brain scans were reassuringly normal. He has not been considered suitable for medication but instead has been focussing on non- pharmacological treatment interventions with a neuro-psychological support service. He has only recently engaged with the service but it is anticipated he will require rehabilitative input over a number of months.

With the support of OH, the neurosurgery team and the neuropsychological team, he has returned to work in a different role on more reduced hours and flexible work tasks and deadlines. The Professor of Neurosurgery states that they are “fully supportive” of a phased return to paid employment. In the report of 8 May7, the consultant clinical psychologist reports that the likely prognosis is that he will improve to an extent to be able to carry out a senior role of some type but it is not possible to state how quickly that might happen. The detailed recent neuropsychological rehabilitation assessment concludes with a recommendation of intensive interdisciplinary neuropsychological rehabilitation to build on previous rehabilitation efforts, maximise abilities and maintain psychological wellbeing. This will explore vocational opportunities as part of its remit.

Whilst the applicant is not suitable for his normal role at the current time he has recently started additional intensive therapeutic interventions and the expectation is for further recovery that will enable him to return to a senior role in future. Therefore, on the balance of probability, I am not able to state at this time that he is permanently incapacitated in terms of the pension scheme. In my opinion, the member does have physical or mental infirmity as a result of which the member is currently incapable of efficiently discharging the duties of their employment. This incapacity is unlikely to be permanent. The Tier 1 condition is unlikely to be met for the reasons given above.”

• She considered that Mr T remained fit to undertake the redeployment as a Research Assistant in the ED at reduced hours.

• He did not currently need any further workplace adjustments other than those already in place.

28 January 2018 was Mr T’s last day as Director of Operations. However, immediately following that, on 29 January 2018, his contract for part-time research in the ED commenced. This was a paid role, albeit at a much lower salary than his

7The consultant clinical psychologist was Dr E Woodberry. A copy of her letter dated 8 May 2017 was enclosed with Mr T’s IHER application.

6 CAS-63708-H5S0 previous position. He had continuity of employment with his employer and no break in service.

A few months later, as Mr T was dissatisfied with the outcome of his IHER application, he made a complaint under Stage One of the Scheme’s IDRP in August 2019. He also submitted further medical evidence for consideration and confirmed to NHS BSA that he had been redeployed in a part-time Research Assistant role to assist with his rehabilitation.

In its Stage One IDRP decision letter dated 8 October 2019 to Mr T, NHS BSA said that:-

• In order for a member to be considered for entitlement to IHER benefits, his/her employment must be terminated solely on the grounds of ill health and followed by a break in NHS employment of at least 24 hours.

• As Mr T had been redeployed to his new role in January 2018 without such a break in his employment, it was unable to consider his IHER application further.

• If in the future his current NHS role ended on the grounds of ill health, he could make a new IHER application by completing and submitting a new form AW33E.

• Any such application could only be considered by NHS BSA against his part-time Research Assistant role.

7 CAS-63708-H5S0

was a legal requirement as part of his IHER application. There was no explicit reference in the Scheme Regulations to such a condition.

23.6 In his view, NHS BSA had misinterpreted the legal requirements and did not follow the statutory procedures properly when assessing his IHER application.

23.7 Following his accident, the Trust had to make reasonable adjustments at work for him including the provision of written information.

23.8 He had many discussions with the Trust about his role and the IHER application. At no time prior to his last day as Director of Operations on 28 January 2018 did the Trust explain to him in writing of the necessity for a 24- hour break in his employment in order to qualify for an IHER pension from the Scheme.

23.9 So, if this break was a legal requirement, there had been maladministration on the Trust’s part in dealing with his redeployment and the IHER application.

23.10 Furthermore, both the Trust’s Human Resources and OH said that he simply had to complete Part B of form AW33E and they would handle the rest. So, he did not think it was necessary for him to read the whole form.

23.11 It was unreasonable for NHS BSA to assume that he would have inferred from the statement made on page one of form AW33E that he must retire from pensionable employment because of illness or injury in order to qualify for IHER benefits to mean that that there had to be a 24-hour break in his NHS employment.

23.12 He probably did read the two pages of “legal requirements” shown in Part B of form AW33E but these did not include the proviso that IHER benefits could only be paid to him if he had retired on the grounds of illness or injury.

23.13 Both NHS BSA and the Trust failed to comply with the Pensions Regulator’s guidance on public service schemes and scheme management setting out that members must receive information to help them understand their pension benefits and to make informed decisions.

23.14 He has suffered considerable distress and inconvenience dealing with this matter.

In its Stage Two IDRP decision letter dated 22 June 2020, NHS BSA replied that it did not uphold his complaint. It also said that:-

8 CAS-63708-H5S0 24.1 Regulation 90 of the Scheme Regulations stipulated that a member must have ceased NHS employment in addition to meeting other conditions in order to qualify for IHER benefits from the Scheme.

24.2 Its records showed that Mr T had remained in continuous NHS employment, albeit redeployed to a different lower paid role from 29 January 2018.

24.3 The 24-hour break in service followed a member’s last day of NHS employment and could include a weekend or bank holiday.

24.4 A break was required to clearly signify retirement had taken place in order for a member to claim his/her benefits from the Scheme.

24.6 The AW33E form clearly stated that one of the conditions to qualify for IHER benefits was that a member must retire from pensionable employment because of illness or injury.

24.7 In accordance with the “NHS Pensions – Employer Charter”, the Trust was required to provide members with basic information about the Scheme.

24.8 If the Trust had failed to inform Mr T of the 24-hour retirement rule before he was redeployed to his part-time role, he should complain to the Trust.

24.9 As Mr T had continued in NHS employment following redeployment without a break in his service, it could not consider his IHER application further under the IDRP.

24.10 The SMA considered all the available medical evidence before reaching its decision to decline Mr T’s application for IHER benefits from the Scheme in December 2017.

24.11 The Scheme Regulations govern payment of benefits from the Scheme. It must act in accordance with these regulations and within the framework of the law.

24.12 It had no powers of discretion in this matter.

Following the complaint being referred to The Pensions Ombudsman, Mr T and NHS BSA made further submissions that have been summarised in paragraphs 27 to 47 below.

9 CAS-63708-H5S0 Mr T’s position

NHS BSA failed to consider the medical evidence correctly when dealing with his IHER application.

Characterisation of his condition as post-concussion syndrome downplayed the seriousness and significant impact it has had on him.

He suffered a permanent brain injury as a consequence of the accident. He has not been able to return to a full-time band nine role even though he would like to do so.

He currently works in his part-time role for four hours per week. It is likely that he will be able to perform this role at reduced hours until he attains NPA of 67 and so can no longer retire early on the grounds of ill health.

He accepted medical advice and agreed to redeployment in the hope that this would lead to an improvement in his condition. The “sad reality” was that, on the balance of probabilities, this move would not improve his medical prognosis. NHS BSA should have picked up on this, rather than his “desperate hope” that he would get better by working minimal hours in a part-time role.

There was no reason why he could not have ceased employment with the Trust for 24 hours. He was unaware of this requirement because the Trust and NHS BSA failed to bring it to his attention.

It was exceptionally difficult for him to “navigate” all the requirements for IHER under the Scheme Regulations while suffering from a serious brain injury.

He qualified for Tier 2 IHER benefits based on his band nine post in accordance with the Scheme Regulations at the time of redeployment.

There was a duty of care imposed on both the Trust and NHS BSA to help him in the IHER application process so that he could retire early with Tier 2 benefits from the Scheme. Both parties breached this duty of care to him.

The Trust and NHS BSA also breached the Equality Act 2010 by failing to make reasonable adjustments in order to assist him with the IHER application.

There had been direct discrimination against him on the grounds of disability by both parties because of the adverse effect that redeployment has had on his ability to claim his IHER pension from the Scheme.

The failures on the part of NHS BSA and the Trust have: (a) caused him significant financial hardship and stress; (b) distracted him from his very limited part-time NHS work; and (c) risked his recovery.

NHS BSA improperly refused to consider the additional medical evidence which he submitted at Stage One of the IDRP to show that redeployment did not have a beneficial impact on his condition.

10 CAS-63708-H5S0 NHS BSA’s position

It correctly considered Mr T’s application for IHER benefits in December 2017 based on his pensionable employment as Director of Operations. At the time, Mr T was still employed in this post.

It took into account all the available evidence that was relevant and weighed it appropriately. In making its decision, it followed a proper process and considered the advice of its MAs.

Whilst its MAs are not experts in all the various medical conditions, they are all specially trained OH physicians expert in carrying out a forensic analysis of the available medical evidence provided in each case and considering that against the tightly prescribed requirements of the Scheme Regulations. Its MAs also have access to specialist advice, if necessary.

In medical matters, decisions are seldom “black or white”. A range of opinions may be given from various sources, all of which must be considered and weighed appropriately. The fact that Mr T does not agree with the conclusions drawn in this case, and the weight attached to individual pieces of evidence, does not mean that the conclusion NHS BSA reached is flawed.

Mr T’s application was declined on the ground that he was not permanently incapable of efficiently discharging the duties of his NHS employment until his NPA of 67.

Notwithstanding that the criteria for Tier 1 benefits had not been met, a condition for entitlement to benefits is that Mr T had ceased to be employed in NHS employment.

Mr T did not leave NHS employment. He remained in continuous pensionable NHS employment, albeit in a different part-time role from 29 January 2018.

Adjudicator’s Opinion

11 CAS-63708-H5S0

When Medigold considered Mr T’s IHER application in December 2017, he was still employed as Director of Operations by the Trust.

At that time, under regulation 90 of the Scheme Regulations, Tier 1 IHER benefits were available to Mr T if NHS BSA, acting on medical advice, decided that his medical conditions would prevent him from permanently discharging the duties of his employment in his role of Director of Operations efficiently. Its decision was made on the balance of probabilities.

So, for Mr T to have met the criteria for Tier 1 IHER benefits at that time, he must be considered by NHS BSA to be permanently incapable of undertaking efficiently the duties of this role until his NPA of 67.

At the time of consideration, Mr T suffered from: (a) post-concussion syndrome; (b) chronic daily headache and fatigue; and (c) behavioural and cognitive changes including impact on executive function following his road accident. The MA was required to consider whether Mr T’s incapacity for his NHS role was at that time likely to be permanent; that is, whether it was likely to last until his NPA of 67 years.

In Mr T’s case, it was the MA’s medical opinion that:-

12 CAS-63708-H5S0 • Mr T was incapable of carrying out his normal role as Director of Operations at the current time.

• He had, however, recently started additional intensive therapeutic interventions, the expectation of which was for further recovery to enable him to return to his senior NHS role at some point before his NPA of 67.

Based on the evidence presented, the MA concluded, on the balance of probabilities, that:

• Mr T’s conditions did not permanently prevent him from efficiently discharging the duties of his NHS employment up to his NPA of 67 years; and so

• the Tier 1 condition for IHER had not been met.

As Mr T did not meet the Tier 1 condition the Tier 2 condition was also not met.

The Adjudicator was also satisfied that NHS BSA addressed the issue of untried treatments properly by asking its MAs to give a view as to their likely efficacy and whether, on the balance of probabilities, Mr T’s conditions rendered him permanently incapable of undertaking regular employment of like duration up to his NPA of 67 years.

At the time Medigold considered Mr T’s IHER application in December 2017, he was around 23 years from his NPA of 67. The MA’s opinion was that the additional treatments would, more likely than not, restore Mr T’s fitness for his normal NHS role and for alternative work of like duration before he reached his NPA.

The Adjudicator had not identified any obvious error or omission of fact, irrelevant matters or misunderstanding of the Scheme Regulations in the MA’s advice which NHS BSA should have queried.

So, it was the Adjudicator’s view that there was no reason why NHS BSA should not have accepted the advice it received from its MA in reaching its decision in Mr T’s case.

The fact that Mr T was still suffering from the same medical conditions did not, in and of itself, invalidate NHS BSA’s decision. NHS BSA could only be expected to make its decision based on the medical opinions expressed at the time pertaining to Mr T’s health at the date of consideration. NHS BSA chose to give more weight to the opinion of its MAs, who are occupational health experts.

It was consequently the Adjudicator’s opinion that NHS BSA: (a) gave proper consideration to Mr T’s application by assessing all the relevant medical evidence available at the time, and (b) acted in accordance with the Scheme Regulations and the principles outlined in paragraph 50 above.

13 CAS-63708-H5S0

Regulation 90 of the Scheme Regulations stipulates that one of the criteria which an active member of the Scheme must meet to qualify for Tier 1 IHER benefits is that he/she must have “ceased to be employed in NHS employment” because of physical or mental infirmity.

The Adjudicator could not overlook that this criterion was displayed prominently under the heading “Guidance for Members” on page one of form AW33E which Mr T completed in November 2017. In the Adjudicator’s view, it was reasonable to expect that Mr T would have read the information carefully on the front page despite his medical condition before completing Part B of the form. Mr T would then have been alerted to the fact that in order to qualify for IHER benefits, he had to retire which required the termination of his pensionable employment.

It had consequently been open to Mr T to find out what termination of his pensionable employment meant if he was unclear by contacting NHS BSA’s Customer Contact Centre or through its website. If Mr T had done so, he would have discovered much earlier that this involved taking a break of at least 24 hours in his NHS employment between leaving his old role and starting his new one.

Regrettably, Mr T did not take such a break and his pensionable NHS employment remained continuous. So, in accordance with the Scheme Regulations, Mr T could not be regarded as having retired from active service in his role of Director of Operations. As such, NHS BSA could not consider this IHER application further under the IDRP.

The Adjudicator did not agree with Mr T’s view that NHS BSA had breached the Equality Act 2010 in any way. In particular, redeployment would not have affected Mr T’s application for IHER pension from the Scheme had he taken an employment break of at least 24 hours to clearly signify his NHS employment had ceased and retirement taken place. 14 CAS-63708-H5S0 If Mr T had done so, NHS BSA would then have reconsidered his IHER application under the IDRP and taken into account the additional medical evidence which he supplied before reaching its new decision.

So, having carefully examined all the available evidence, it was the Adjudicator’s opinion that NHS BSA had properly considered Mr T’s IHER application and acted in accordance with the Scheme Regulations and there had been no maladministration on its part.

The serious allegations which Mr T had made against the Trust in dealing with his redeployment and the IHER application were matters of pure employment law and it was not in the jurisdiction of the PO to investigate them.

Moreover, the Adjudicator noted that NHS BSA had informed Mr T if he believed that the Trust had failed to provide him with basic information about the Scheme such as the 24-hour retirement rule, he should make a separate complaint to the Trust.

8 Mr T, however, also says, that the term “employment must be terminated” on page two of form AW33E is shown after the heading “Guidance for members who have opted out of the NHS Pension Scheme” which did not apply to him. 15 CAS-63708-H5S0

“I think it most likely that Mr T’s symptoms will improve to such an extent that he will be able to carry out a senior role of some type. However, it is very difficult to judge how quickly this might happen without him having returned to some form of work, as is currently the case. While I hope the his [sic]

16 CAS-63708-H5S0 symptoms will improve with time, the level at which he can work again is yet to be determined…”

• acknowledge that there are nine competitive promotion steps of increasing seniority between Mr T’s post injury job and his pre injury job described by the NHS Terms and Conditions of service;

• consider how senior and how rare a band nine role is described by the workforce data of the Trust; and

• reference Dr Woodberry’s earlier and later letters which clarified what she meant by “a senior role”.

“I would prefer for him to have a prolonged phased return, over many months to a year. In light of his current symptoms, I don’t think it will be possible for him to come back to a role with the Chief Operating Officer’s (COO) senior team….” 17 CAS-63708-H5S0

“...In terms of clarifying ill health retirement, it is our opinion that he is still capable of employment albeit at a lower level in terms of his activities and hours prior to his accident…”

• axiom 1: the need for redeployment for ill health;

• axiom 2: NHS BSA’s requirement for a break in employment; and

• axiom 3: the requirement that selection be a competitive process.

Redeployment cannot occur with a break in employment. That would be dismissal and re-employment.

• Option A - just dismiss them for ill health, don’t redeploy, at least they qualify for ill health retirement consideration.

• Option B - redeploy for ill health, which means continuous employment, which means they don’t qualify for ill health retirement.

• Option C - dismiss them for ill health, but call it redeployment even though it isn’t. Then after 24 hours of them being a member of the public, even over a bank holiday, re-employ them without advert or any competitive process into their new role. Change the meaning of the word ‘redeployment’, ‘member of the public’. Go against law, national policy and ethics to recruit a member of the public without competition.

Presumably also place the contract-less ill ‘re-deployed’ (actually dismissed) member of the public in some jeopardy in case the employer decides to stop their external recruitment.” 18 CAS-63708-H5S0

“Selection should always be a competitive process, except where a member of staff is being redeployed to accommodate their disability, health needs, maternity, training or other similar situation…”

There is no explicit reference to the “24-hours employment break rule” in the Scheme Regulations. It is only set out in NHS BSA guidance “for the purpose of guidance”. As the rule is not a statutory requirement, NHS BSA is not justified in requiring that it applied in “cases of incapacity” like his.

Ombudsman’s decision

• the appropriate evidence had been obtained and considered;

• the applicable scheme rules or regulations have been correctly applied; and

• the decision was supported by the available relevant evidence.

19 CAS-63708-H5S0 Providing Medigold / NHS BSA acted in accordance with the above principles and within the powers given to it by the Scheme Regulations, I cannot overturn the decision merely because I might have acted differently. It is not my role to review the medical evidence and come to a decision of my own as to Mr T’s eligibility for IHER benefits from the Scheme.

20 CAS-63708-H5S0

So, I concur with the Adjudicator’s view that there was no reason why Medigold should not have accepted the advice it received from its MA.

Mr T has also complained that NHS BSA incorrectly decided in October 2019 not to consider further his IHER application relating to his employment as Director of Operations under the IDRP.

Regulation 90 of the Scheme Regulations stipulates that to be eligible to be considered for IHER from active service a member must have “ceased to be employed in NHS employment” because of physical or mental infirmity. I consider that the correct interpretation of this phrase is that a break in service is required in order for retirement to take place so that a member can claim his/her benefits from the Scheme. That the minimum duration for such a break of 24 hours is not explicitly specified in the Scheme Regulations does not mean it is unlawful for NHS BSA to apply such a break to signify that retirement has occurred. To qualify for the benefit under the Regulations there has to be some break in employment.

I have carefully considered the points which Mr T has made about the complexity of the “process, layout and terminology used in form AW33E”.

However, I agree with the Adjudicator that:-

• One of the conditions for IHER from active service, that the member of the Scheme must have ceased to be employed in NHS employment was clearly

21 CAS-63708-H5S0 shown under the heading “Guidance for Members” on page one of form AW33E.

• Mr T ought reasonably to have read the information on the front page before completing Part B of the form.

• By doing so, his attention would then have been drawn to the fact that in order to qualify to be considered for IHER benefits required the termination of his pensionable employment as Director of Operations.

• It had been open to Mr T to find out what termination of his pensionable employment meant by contacting NHS BSA directly or through its website.

Moreover, the trustees of a trust based occupational pension scheme and managers of a public sector scheme are under no general duty of care in negligence (unless they assume such a duty) to advise members about how best to exercise their pension rights or to warn them not to take a course of action which is not in their best interests. It is well established that (absent an assumption of a duty of care) there is no duty to advise a member on the advantages or disadvantages of a particular cause of action and any failure cannot found a claim of maladministration – see for example, Hamar v Pensions Ombudsman [1996] PLR 1 at [46], Miller v Stapleton [1996] 2 All ER 449, NHS v Beechinor [1997] PLR 95 at [11]-[14] and Wirral Borough Council v Evans [2000] 63 PBLR at [37]

As a matter of fact, there was no break in NHS employment between Mr T’s full-time band nine and part-time band three NHS roles in January 2018: (a) he could not be regarded as having ceased to be employed in NHS employment; and (b) NHS BSA could not consider his IHER application under the IDRP in accordance with the Scheme Regulations.

Mr T considers that NHS BSA failed to process form AW33E properly because it did not inform the Trust that there was no likely date of termination of his contract specified on the form. NHS BSA, however, can consider an IHER application without this date. Its decision would then be made as at the date of consideration rather than the date of leaving NHS employment. Moreover, as NHS BSA had no knowledge of how the Trust would offer Mr T a new lower band part-time role in January 2018 rather than dismissing him on grounds of ill health, it could not have asked the Trust to provide this information. I do not find that there was maladministration on NHS BSA’s part by not doing so.

I find the arguments which Mr T has presented on why the Scheme Regulations hinder NHS employers from properly offering redeployment in accordance with their recruitment policy to members considering IHER to be well-reasoned and convincing.

However, the Trust is not a party to this complaint and my role is limited to assessing whether NHS BSA applied the Scheme Regulations correctly. It is not my role to comment on matters of Government policy or to amend the Scheme Regulations.

22 CAS-63708-H5S0 Furthermore, I have set aside the serious allegations which Mr T has made against the Trust in dealing with his redeployment and the IHER application, as these are matters of pure employment law and so are not within my jurisdiction to investigate.

While I sympathise with Mr T’s circumstances, I do not uphold his complaint.

Dominic Harris

Pensions Ombudsman 19 March 2026

23 CAS-63708-H5S0 Appendix The National Health Service Pension Scheme Regulations 2015

At the time Mr T’s NHS employment ended, Regulation 90 provided:

“Entitlement to ill-health pension

(1) An active member (M) is entitled to immediate payment of -

(a) an ill-health pension at Tier 1 (a Tier 1 IHP) if the Tier 1 conditions are satisfied in relation to M;

(b) an ill-health pension at Tier 2 (a Tier 2 IHP) if the Tier 2 conditions are satisfied in relation to M.

(2) The Tier 1 conditions are that—

(a) M is qualified for retirement benefits and has not attained NPA;

(b) M has ceased to be employed in NHS employment;

(c) the scheme manager is satisfied that M suffers from a physical or mental infirmity as a result of which M is permanently incapable of efficiently discharging the duties of M’s employment;

(d) M’s employment is terminated because of the physical or mental infirmity;

and

(e) M claims payment of the pension.

(3) The Tier 2 conditions are that—

(a) the Tier 1 conditions are satisfied in relation to M; and

(b) the scheme manager is also satisfied that M suffers from a physical or mental infirmity as a result of which M is permanently incapable of engaging in regular employment of like duration.”

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