Local Government Pension Scheme Leicestershire County Council Pension · CAS-13268-Z7V8 — Pensions Ombudsman determination

PO-25970

Ombudsman’s Determination Applicant Mr Y

Scheme Local Government Pension Scheme (LGPS) - Leicestershire County Council Pension Fund (the Fund)

Respondent Leicester City Council (the Council)

Complaint Summary

Summary of the Ombudsman’s Determination and reasons

Detailed Determination Material facts

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““permanently incapable” means that the member will, more likely than not, be incapable until at the earliest, the member's normal pension age [NPA]”.

““gainful employment” means paid employment for not less than 30 hours in each week for a period of not less than 12 months”.

“the Scheme employer and IRMP must have regard to guidance given by the Secretary of State when carrying out their functions under this regulation and regulations 37 (special provision in respect of members receiving Tier 3 benefits ) and 38 (early payment of retirement pension on ill health grounds: deferred and deferred pensioner members)”.

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“Further, the independent registered medical practitioner may be asked to sign the certificate required under regulations 36(1), 37(6) and (10) or 38(3) and (6) and it is recommended that the independent registered medical practitioner complies with this request. The Scheme employer will need to understand the reasoning of the independent registered medical practitioner when making their decision. So it is, therefore, recommended that the independent registered medical practitioner provides a narrative report to accompany the certificate. Further, where the independent registered medical practitioner is of the opinion that the applicant could work in their current role with adjustments, or in an alternative role that is likely to be available with that employer, it is appropriate to include advice on this in the narrative report if such advice has not already been given to the Scheme employer previously.” [Emphasis added in bold].

“…consideration must, therefore, be given not to the immediate or foreseeable future, but to the date when the member attains their normal pension age. The independent registered medical practitioner should also consider whether the member would be capable following further treatment. Consideration should include whether that treatment is readily available and appropriate for the member and whether, with treatment, the member is likely to become capable before normal pension age. The fact that the member might choose not to accept such treatment should not be a relevant factor. Treatment can include lifestyle changes such as weight loss and stopping the use of harmful substances such as tobacco and alcohol. It would not be appropriate to consider the release of ill health retirement benefits for a reason other than when the member was genuinely medically incapacitated from undertaking their current employment or any other employment at the point of departure”.

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5 PO-25970 “[Mr Y’s] HAVS will remain permanent at level 3 and is not likely to get significantly better. It is not likely that it will get worse since he no longer uses vibrating tools. A slight improvement in symptoms can occur in some individuals upon cessation of exposure to hand arm vibration…I note that he has suffered with depression for a long time. He is likely to be vulnerable to feelings of stress and anxiety. If specific triggers exacerbate the depression, avoiding the triggers may help improve his symptoms.” (Emphasis added in bold).

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“[Mr Y] is experiencing very significant physical and psychological problems. His long term prognosis appears very uncertain at this stage. We are currently awaiting a report from Dr Lin [Consultant in Pain Management] with regards to [Mr Y’s] physical difficulties and pain. At this stage I do not recommend further occupational health reviews until we have all medical evidence available to enable us to advise accordingly.” (Emphasis added in bold).

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“For both conditions Mr Y is still under active treatment that “may allow sufficient improvement”…to allow him to return to his previous, adjusted, duties. It is therefore not possible to say that his conditions cause him, on the balance of probabilities, to be permanently incapable of discharging his Local Government employment as a result of ill health or infirmity of mind or body.” (Emphasis added in bold).

46. Dr Haseldine confirmed that he had reviewed the following documents:-

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50. Dr Haseldine explained his reasoning as follows:

“Mr [Y] has ongoing upper limb [pain] of uncertain cause causing him difficulty with many activities of daily living. He reports generalised upper limb weakness due to his symptoms and had a reduced range of movement of his arms but had a full range of movement in his wrist and hand with normal grip strength when recently examined. He has been extensively investigated and no cause has been found for his pain. He is under the care of a Pain Clinic and is taking Pregabalin. He is under review and is awaiting lidocaine infusion to manage his pain. Mr [Y] has a well documented history of mental health difficulties for which he is under the care of his GP and Psychiatrist. He is taking Venlafaxine and is awaiting further treatment in the form of Cognitive Behavioural Therapy [(CBT)] although he reports there is a long waiting list for therapy and that his Psychiatrist is awaiting treatment of his arm pain before considering altering any treatment for his psychological illness. For both conditions Mr [Y] is still under active treatment that may allow sufficient improvement for his health to allow him to return to his previous, adjusted, duties. It is therefore not possible to say that his conditions cause him, on the balance of probabilities, to be permanently incapable of discharging his Local Government employment as a result of ill health or infirmity of mind or body.” (Emphasis added in bold)

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“Dr Lin, in his letter to Dr Hunt dated 30 July 2015, confirms that although at the time of writing it was too early to assess the results of the lignocaine infusion he would be able to proceed with other interventions if it did not produce any significant benefits. Dr Lin further opines that your symptoms could well persist for a period of years rather than resolve over a course of months. Dr Lin states that whilst he recognises that his opinion would not assist in a decision regarding ill health retirement it is his experience that it is the likely course of events for your condition.” [Emphasis added in bold].

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“The decision that the Trustees had to make was whether Mr Williams' incapacity was sufficiently serious to permanently prevent him from undertaking any paid employment with any employer or self-employment. They had to reach a decision on the balance of probabilities – so whether it was more likely than not that Mr Williams incapacity met that test. As far as future treatment is concerned, the proper way of considering it would have been to decide whether Mr Williams’ incapacity would be permanent without future treatment and, if the answer was affirmative, to consider whether future treatment was likely to alter that”.

“In his report of 10 April 2007, Dr Sheard said that it would be premature to make a decision as to the permanence of Mr Williams’ incapacity since the outcome of the untried treatments was not known. That is to duck a question which had to be answered one way or the other as at the date Mr Williams left service. It could not be left in abeyance pending the outcome of future treatments”.

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Summary of Mr Y’s position

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Summary of the Council’s position

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Ill health cases generally

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The relevance of the Williams Case

Section 61 of the Equality Act 2010

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“age is relevant, but only to the extent that the shorter the time to retirement age the less likely it is that a serious condition will change. In that sense incapacity is more likely to be permanent (that is, to last at least until retirement age) for an older person than for a younger one”.

The interpretation of the LGPS ill health retirement provisions

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The decision making process

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“For both conditions Mr [Y] is still under active treatment that may allow sufficient improvement for his health to allow him to return to his previous, adjusted, duties. It is therefore not possible to say that his conditions cause him, on the balance of probabilities, to be permanently incapable of discharging his Local Government employment as a result of ill health or infirmity of mind or body.”

“…there are outstanding treatment options that could be tried if the most recent treatment [Mr Y] has had is unsuccessful”.

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Non-financial injustice

Directions

I. pay Mr Y a distress and inconvenience award of £500;

II. review Mr Y’s case, based on the IRMP reports available as at 8 September 2015, and make a new decision under Regulation 35 of the 2013 Regulations;

III.

and;

IV. if on review the Council decides that Mr Y is entitled to early payment of retirement pension on ill health grounds, arrange to pay him the pension backdated to 8 September 2015, the date of the original decision, plus interest.

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Anthony Arter CBE

Deputy Pensions Ombudsman

29 April 2024

29 PO-25970 Appendix A

A list of the documents considered by Dr Hunt

1. GP report, from Dr Davenport, dated 20 November 2014.

2. Reports from Dr Lin, Consultant in Pain Management, dated 9 April 2015 and 30 July 2015.

3. Letter from Dr Imam, Consultant Psychiatrist, dated 6 August 2015.

4. Occupational health physician reports from: Dr Ephraim dated 15 January 2013; Dr Yew dated 17 January 2013; Dr Phillips dated 10 April 2013; Dr Ephraim dated 23 September 2013; Dr Maimbolwa dated 5 November 2014. Dr Maimbolwa dated 15 January 2015; Dr Macheridis dated 31 March 2015; Dr Maimbolwa dated 22 April 2015; Dr Farmah dated 13 May 2015. Dr Haseldine dated 18 May 2015; and Dr Crofts dated 2 July 2015.

30 PO-25970 Appendix B A list of the documents reviewed by the decision-maker as part of the appeal process

1. Occupational Health Report provided by Dr Maimbolwa, dated 5 November 2014 (amended 7 November 2014).

2. Occupational Health Report provided by Dr Maimbolwa, dated 20 November 2014.

3. Occupational Health Report provided by Dr Maimbolwa, dated 15 January 2015 (amended 20, 27 and 28 January 2015).

4. Occupational Health Report provided by Dr Macheridis, dated 31 March 2015.

5. Occupational Health Report provided by Dr Maimbolwa, dated 22 April 2015.

6. Occupational Health Report provided by Dr Haseldine, dated 18 May 2015 (amended 28 May and 1 June 2015).

7. Letter to Council from Dr Crofts, dated 3 July 2015.

8. Letter to Council from Dr Hunt, dated 17 July 2015.

9. Letter to Dr Hunt from Dr Lin, dated 30th July 2015.

10. Letter to Dr Crofts from Dr Imam, dated 6th August 2015.

11. Occupational Health report provided by Dr Hunt, dated 17 August 2015.

12. Letter to Mr Y from Council, dated 8th September 2015.

13. DWP decision letter dated 4th December 2015, notifying him that he had been awarded PIP.

14. Mr Y’s letter of appeal dated 14 February 2016.

31 PO-25970 Appendix C Local Government Pension Scheme Regulations 2013 (SI2013/2356) (as amended)

“(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 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.

(2) The amount of the retirement pension that a member who satisfies the conditions mentioned in paragraph (1) receives, is determined by which of the benefit tiers specified in paragraphs (5) to (7) that member qualifies for, calculated in accordance with regulation 39 (calculation of ill health pension amounts).

(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.

(5) A member is entitled to Tier 1 benefits if that member is unlikely to be capable of undertaking gainful employment before normal pension age.

(6) A member is entitled to Tier 2 benefits if that member—

(a) is not entitled to Tier 1 benefits; and

(b) is unlikely to be capable of undertaking any gainful employment within three years of leaving the employment; but

(7) Subject to regulation 37 (special provision in respect of members receiving Tier 3 benefits), if the member is likely to be capable of undertaking gainful employment within three years of leaving the employment, or before normal pension age if earlier, that member is entitled to Tier 3 benefits for so long as the member is not in gainful employment, up to a maximum of three years from the date the member left the employment”.

“(1) A decision as to whether a member is entitled under regulation 35 (early payment of retirement pension on ill health grounds: active 32 PO-25970 members) to early payment of retirement pension on grounds of ill health or infirmity of mind or body, and if so which tier of benefits the member qualifies for, shall be made by the member's Scheme employer after that authority has obtained a certificate from an IRMP as to -

(a) whether the member satisfies the conditions in regulation 35(3) and (4); and if so,

(b) how long the member is unlikely to be capable of undertaking gainful employment; and

(c) where a member has been working reduced contractual hours and had reduced pay as a consequence of the reduction in contractual hours, whether that member was in part time service wholly or partly as a result of the condition that caused or contributed to the member's ill health retirement.

(2) An IRMP from whom a certificate is obtained under paragraph (1) must not have previously advised, or given an opinion on, or otherwise been involved in the particular case for which the certificate has been requested.

(2A) For the purposes of paragraph (2) an IRMP is not to be treated as having advised, given an opinion on or otherwise been involved in a particular case merely because another practitioner from the same occupational health provider has advised, given an opinion on or otherwise been involved in that case.

(3) If the Scheme employer is not the member's appropriate administering authority, it must first obtain that authority's approval to its choice of IRMP.

(4) The Scheme employer and IRMP must have regard to guidance given by the Secretary of State when carrying out their functions under this regulation and regulations 37 (special provision in respect of members receiving Tier 3 benefits) and 38 (early payment of retirement pension on ill health grounds: deferred and deferred pensioner members).”

134. Schedule 1 states:

“permanently incapable” means “that the member will, more likely than not, be incapable until at the earliest, the member's [NPA]”.

“IRMP” means an independent registered medical practitioner who is registered with the General Medical Council and holds one of the qualifications specified in that

33 PO-25970 Schedule. Alternatively, an “Associate, a Member, or a Fellow of the Faculty of Occupational Medicine or an equivalent institution of an EEA state”.

Full determination