Nhs Pension Scheme · CAS-77785-Q5H0

CAS-77785-Q5H0

Ombudsman’s Determination Applicant Mrs S

Scheme NHS Pension Scheme (the Scheme)

Respondent NHS Business Services Authority (NHS BSA)

Complaint summary

Summary of the Ombudsman’s Determination and reasons The complaint is upheld against NHS BSA because Mrs S’ employment as a Theatre Team Leader since 1995 should properly be considered as “pensionable employment as a nurse” under Regulation R2. To put matters right, NHS BSA shall administer Mrs S’ benefits on the basis that she qualified for early unreduced retirement under SCS.

Background information, including submissions from the parties The sequence of events is not in dispute, so I have only set out the main points. I acknowledge there were other exchanges of information between the parties.

A Scheme member who meets the requirements set out in Regulation R2 of the NHS Pension Scheme Regulations 1995 (as amended) (SI1995/300) (the Regulations) (see Appendix One), has the option to retire at age 55 without a reduction to their pension for early retirement. This is known as SCS.

On 6 March 1995, the Scheme Regulations were amended and SCS was abolished for all members. However, an exception was made for members who already held SCS on or before this date and who did not have a break in membership of 5 years or more.

To be eligible for SCS, under Regulation R2 a member must:-

1 SCS allows certain members, primarily nurses, midwives, physiotherapists, and health visitors, to retire with full benefits from age 55, rather than the normal age 60. 1 CAS-77785-Q5H0

“Nurse” is not defined in the Regulations.

From November 1985 to present, Mrs S undertook various roles within the NHS. These are outlined below:-

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22. Mrs S shared her Curriculum Vitae which detailed her history within Nursing roles. She stated that her role as a Theatre Nurse was one that she had carried out in a “very Nurse specific way”, with a focus on nursing skills rather than the technical skills required in an operating theatre.

23. She also provided a statement from the Clinical Business Manager for Theatres at Aintree Hospital Trust. He said:-

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24. Nurses had to hold current registration with the NMC to practice as registered Nurses in the NHS, while ODPs were a separate allied health profession registered with the HCPC.

25. Professional titles for ODPs and other allied health professionals were protected by law, each with their own standards of profession as set by the HCPC. Aside from physiotherapists, allied health professions were not eligible for SCS under Regulation R2.

26. It acknowledged that Mrs S had maintained her NMC registration to the present day. The formal job description and person specification for the Team Leader role, as provided by her Employer, Aintree Hospitals NHS Trust, were key documents it had used when considering her eligibility. The Job Title was “Team Leader” and the post sat within the “Division of Support Services, Theatre Directorate”.

27. The role summary was to lead a Theatre Team in providing perioperative patient care. Principal accountabilities included: assessing, planning, implementing and evaluating perioperative patient care; managing a clinical area; staff development and line management; and contributing to service improvement and quality of care.

28. The Person Specification listed as essential criteria any of the following:-

28.1. RGN or ODP registration;

28.2. a Diploma; and

28.3. a post-registration qualification in a specialty or related field.

29. It had used the approach set out in NHS BSA v Williams2 as considered by the High Court of Justice in 2017. In the High Court judgment, it was upheld that members working in roles which permitted HCPC registration did not meet the conditions within Regulations R2 because:-

“employment as a nurse was intended by the draftsman of the 1995 Regulations to capture principally those members who were qualified nurses employed in a nursing job… but the reason they are included is not simply because of their job function, but also because of their job titles, job descriptions and more importantly, qualifications.” [Paragraph 137 of NHS BSA v Williams]

…

2 NHS BSA v Williams (2017) ICR 327 (EWHC)

6 CAS-77785-Q5H0 “A line has to be drawn between what does and does not qualify as nursing activity, sufficiently to result in employment as a Nurse. Clearly not every member of the Scheme who carries out some nursing activity qualifies as a Nurse … Practical Application of Regulation R2 suggests that NHSBSA ought to have easily applicable criteria in deciding whether a person qualifies for SCS. An approach based principally on qualification and job description / contractual duties provides such criteria.” [Paragraph 145 of NHS BSA v Williams]

…

“if a person cannot be described as a nurse in the first place, that person cannot be in pensionable employment as a nurse.” [Paragraph 149 of NHS BSA v Williams]

30. ODPs, while having clinical responsibilities and working alongside Nurses in the theatre environment, had their own specific professional registration and protected title. ODPs could not practice as registered Nurses in the NHS. Therefore, ODPs were excluded from SCS under the Regulations, regardless of their duties.

31. In its view, if a role could be occupied by a health professional such as an ODP, who could not be described as a Nurse, the role could not be regarded as “employment as a nurse” for the purposes of Regulation R2.

32. While Mrs S’ registration, experience and background were solely that of a Nurse, and she had maintained NMC registration, the Team Leader role was not exclusive to Nurses.

33. The Team Leader post required relevant clinical experience and both NMC and HCPC registration was permitted. If an ODP had been appointed to the Team Leader role, the requirement would be to maintain HCPC registration. So, the role was not inherently a nursing role, but one that can be performed by professionals from more than one registration background.

34. Any overlap of duties between Nurses and ODPs in theatre settings was recognised, but the roles were separated by their respective skills and registrations.

35. It maintained that the Team Leader role did not satisfy the requirement of “employment as a nurse” for the purposes of Regulation R2, as the role specification allowed it to be filled by ODPs, who were not registered Nurses.

Conclusions – Preliminary Decision 36. I considered the available evidence and I upheld Mrs S’ complaint.

37. Mrs S complained that her Employer removed her SCS, and this was subsequently agreed and confirmed by NHS BSA thereby removing her ability to retire without

7 CAS-77785-Q5H0 actuarial reduction at age 55. She contended that NHS BSA did not take full account of her role’s nursing responsibilities.

38. I considered whether NHS BSA acted in accordance with the Regulations, and whether it appropriately considered all relevant information before reaching its decision to refuse the reinstatement of Mrs S’ SCS. While the Regulations did not define the term “Nurse”, Regulation R2 was clear that eligibility for SCS required the member to spend the whole of the final five years of pensionable employment as a nurse, physiotherapist, midwife, or health visitor.

39. The sequence of events was not in dispute. Therefore, I focused on whether the Team Leader role occupied by Mrs S could be considered “employment as a nurse” for the purpose of the Regulations.

40. It was accepted that Mrs S had maintained continuous registration with the NMC and had a long and distinguished history of nursing practice. Her role as Theatre Team Leader at Aintree Hospital Trust was one that, based on her account and that of the Clinical Business Manager, demanded a high level of clinical and leadership expertise, and increasingly, a holistic and wide-ranging approach to patient care. The evidence submitted by Mrs S, including her statement and that of her manager, highlighted the expanding requirements and responsibilities associated with nursing roles in the modern NHS. Nurses were expected to deliver care across a broad spectrum of theatre practice, engage in education and research, and uphold rigorous professional standards developed over an extensive period of time.

41. Regulation R2 required, amongst other matters, that the member had spent the whole of the last 5 years of her pensionable employment as a nurse (or physiotherapist, midwife or health visitor which however are not relevant in this case) in order to qualify for SCS. The sole issue in this case was therefore whether having maintained continuous registration with the NMC as a nurse, her role as Theatre Team Leader was one that constituted “employment as a nurse”.

42. Mrs S’ Clinical Business Manager described how the responsibilities of NMC registered Nurses have expanded, and that the holistic, patient-centred nature of nursing was underpinned by long-standing educational and research developments. The manager’s comments reinforced the argument that the scope and demand of nursing are distinct and, in many respects, exceed those of the ODP profession, which had only more recently developed its own standards and protected registration. It was not in dispute that the intensity and breadth of responsibility held by Nurses was a significant factor in the rationale for granting SCS.

43. Nevertheless, the crux of the matter lay in the specification for the Theatre Team Leader role itself. The Person Specification listed either RGN or ODP registration as essential. The role was therefore open to applicants from both professions. The mere fact that the role was also open to a different healthcare profession and was not exclusive to nurses did not mean that a person who qualified for the role by being a nurse was not “employed as a nurse”. A person who was employed as a Theatre

8 CAS-77785-Q5H0 Team Leader and qualified for the role by being an ODP would be employed as an ODP and a person who was employed in the role and qualified for it by being a RGN would be employed as an RGN, i.e. a nurse. If a role could only be filled by either a nurse or a health visitor, it would be incoherent to find that a health visitor fulfilling such role was not employed as a health visitor; or that a nurse fulfilling the role was not employed as a nurse. Likewise, as the person description for Theatre Team Leader provided that the role could only be filled by a RGN or an ODP, it was incoherent to find that a person filling the role by being a RGN was not employed as a RGN.

44. The fact that ODPs who did not qualify for SCS under Regulation R2 could fill the role did not mean that a nurse filling the role should be deemed not to be employed as a nurse and not to qualify for SCS. There was nothing in Regulation R2 that required a person to be employed in a role exclusively open to nurses and I saw no reason for interpreting “employed as a nurse” as meaning “employed in a role that can only be filled by a nurse”.

45. The High Court’s decision in NHS BSA v Williams was clear in stating that SCS was intended for those who were “qualified nurses employed in a nursing job” and that eligibility had to be determined by reference not only to job function, but to job title, job description, and, critically, essential qualifications. That case concerned a person employed as a nursery nurse. The role did not require a nursing qualification and, while in caring for sick children there might have been some overlap in job functions with nurses, the court held that overlap in job function was not sufficient. The judge reached that conclusion in part because nursing may involve a wide range of job functions and reliance on job function alone would make it difficult to determine when a person was “employed as a nurse”.

46. Mrs S was qualified as a nurse (a RGN) and maintained her NMC registration. Such registration was required for the role of Theatre Team Leader under the job description. She was a “qualified nurse employed in a nursing job”. The fact that the alternative healthcare qualification of ODP was also acceptable for her role (or became so after she commenced the role) did not alter the fact that she met the job description by being a RGN and was presumably required to maintain such status to continue in the role.

47. The fact that an ODP could fill the role does not mean it was not a nursing job, i.e. within the wide range of roles for which one may qualify by having RGN status, since ODP is another healthcare qualification. This was in contrast to a nurse filling the role of a secretary as referred to in NHS BSA v Williams. Theatre Team Leader was not a role that could be fulfilled by a person not having a healthcare qualification and the job description (“person description”) specifically required either RGN or ODP status: it was a nursing job or a job requiring a nursing or equivalent healthcare qualification and any person who secured that role by being a RGN was “employed as a nurse”.

48. That there was some overlap between her role and that of a Theatre Nurse, i.e. some overlap in job function with a role for which only a nursing qualification was 9 CAS-77785-Q5H0 acceptable, provided further support to the conclusion that she was “employed as a nurse”. But, on the basis of NHS BSA v Williams, the principal reasons for concluding that she was “employed as a nurse” were that she had a nursing qualification and was required to have that nursing qualification to fill her role and meet the job description. The nature of the role was such as to require a nursing qualification, notwithstanding that the ODP qualification as an alternative healthcare qualification was also considered adequate.

49. With her NMC registration, Mrs S could have changed role to one which only NMC registered Nurses could occupy. I acknowledged that had Mrs S done so, she would have satisfied Regulation R2 and been eligible for SCS. However, as I had found that her role as Theatre Team Leader did qualify for SCS under Regulation R2, I did not need to consider what obligations (if any) NHS BSA or her Employer may have had to draw to her attention that her role was not being treated as qualifying for SCS so as to give her an opportunity to change role.

50. Having considered all the evidence, the applicable Regulations and NHS BSA v Williams, I found that Mrs S’ employment as a Theatre Team Leader qualified as “employment as a nurse” for the purpose of Regulation R2 and therefore qualified for SCS.

Conclusions

Directions

10 CAS-77785-Q5H0 57.1. Administer Mrs S’ benefits on the basis that her employment as Theatre Team Leader since 1995 qualifies for SCS as “pensionable employment as a nurse” under Regulation R2.

57.2. Arrange to pay any shortfall in pension instalments with interest at the base rate of the Bank of England.

Camilla Barry

Deputy Pensions Ombudsman 16 February 2026

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