Nhs Injury Benefit Scheme · CAS-29903-V2J1

CAS-29903-V2J1

Ombudsman’s Determination Applicant Dr A

Scheme NHS Injury Benefit Scheme (the Scheme)

Respondent NHS Business Services Authority (NHS BSA)

Outcome

Complaint summary

Background information, including submissions from the parties

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Adjudicator’s Opinion

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Ombudsman’s decision

Regulation 3(1) deals with the scope of the Regulations. Dr A falls within the scope of Regulation 3(1) because he sustained a psychiatric illness during the course of his role as a practitioner. I understand that there is no dispute on this point.

Regulation 4(9) provides that a lump sum can be paid to a person mentioned under Regulation 4(2), 4(3), or under Regulation 4(4) where the person subsequently ceases to be employed by reason of the injury or disease.

Considering these Regulations and the circumstances outlined in the background above, it would appear that Regulation 4(2) is most applicable to Dr A in the circumstances. There are two requirements set out in Regulation 4(2). Firstly, the person must fall under Regulation 3(1) and the employment must cease before 31 March 2018 by reason of injury or disease. Dr A satisfies these criteria because he falls under Regulation 3(1) and the second job termination occurred before 31 March 2018.

The second requirement is that no allowance or lump sum (other than under Regulations 5 or 5A) has been paid to the person under the Regulations in consequence of that injury or disease. Dr A was not paid a lump sum or allowance under Regulations 5 or 5A, but is in receipt of a lump sum and allowance under

6 CAS-29903-V2J1 Regulation 4(4), in respect of the same illness, awarded on the first job termination. Hence, he is not entitled under Regulation 4(2) to a lump sum now following the second job termination.

For completeness, I will add that Regulation 4(3) does not apply to Dr A because it applies to a person who ceases employment other than by reason of injury or disease. This is not what Dr A is claiming. In any case, if Regulation 4(3) were to apply to him, it contains the same provision excluding any person already in receipt of a lump sum or allowance in respect of the same injury. This would mean that he would not satisfy the criteria in this paragraph for a lump sum anyway.

Lastly, I also do not consider that Dr A is entitled to a lump sum under Regulation 4(4); Regulation 4(9) provides that Dr A will need to both fall under Regulation 4(4) and have subsequently ceased to be employed due to ill health. However, Dr A left the second employment and did not return to that employment, so there was no reduction in emoluments as required by Regulation 4(4) subsequent to which his employment then ceased. Accordingly, Dr A does not satisfy Regulation 4(4) when considering his entitlement to a lump sum following the termination of his second job.

I do not uphold Dr A’s complaint.

Anthony Arter

Pensions Ombudsman 25 November 2019

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Appendix The National Health Service (Injury Benefits) Regulations 1995

Regulation 4 – Scale of Benefits

(2) Where a person to whom regulation 3(1) applies ceases to be employed before 31st March 2018 as such a person by reason of the injury or disease and no allowance or lump sum, other than an allowance under paragraph (5) or (5A), has been paid under these Regulations in consequence of the injury or disease, there shall be payable, from the date of cessation of employment, an annual allowance of the amount, if any, which when added to the value, expressed as an annual amount, of any of the pensions and benefits specified in paragraph (6) will provide an income of the percentage of his average remuneration shown in whichever column of the table hereunder is appropriate to his service in relation to the degree by which his earning ability is permanently reduced at the date that person ceases that employment.

…

(3) This paragraph applies to a person to whom regulation 3(1) applies who—

(a) ceases to be employed before 31st March 2018 other than by reason of the injury or disease,

(b) at the date of ceasing that employment has not attained normal benefit age,

(c) having ceased that employment, suffers a permanent reduction in earning ability by reason of that injury or disease, and

(d) has not been paid, other than under paragraph (5) or (5A), any allowance or lump sum under these Regulations in consequence of that injury or disease.

…

(4) Where a person to whom regulation 3(1) applies suffers a reduction in the emoluments of an employment mentioned in that regulation before 31st March 2018 by reason of the injury or disease, there shall be payable, from the date of that reduction, an annual allowance—

(a) of the amount, if any, which when added to the value, expressed as an annual amount, of any of the pensions and benefits specified in paragraph (6), will provide an income of the percentage of his average remuneration shown in whichever column of the table in

8 CAS-29903-V2J1 paragraph (2) is appropriate to his service in relation to the degree by which his earning ability is reduced at the date that his emoluments were reduced; or

(b) of the amount, if any, which, when added to the value, expressed as an annual amount, of any pension specified in paragraph (6)(a), will provide an income at the annual rate at which a pension would have been payable to the person under his relevant pension scheme if, on the day before such reduction, he had ceased to be employed and was incapable of discharging efficiently the duties of his employment by reason of permanent ill-health or infirmity of mind or body;

whichever is the greater:

Provided that regulation 13(4) shall apply to that allowance as if the person had ceased to be employed on the day before his emoluments were reduced and had been re-employed on the following day with the reduced emoluments.

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(9) A person mentioned in paragraph (2) or (3), or a person mentioned in paragraph (4) who subsequently ceases to be employed as such a person by reason of the injury or disease, shall be entitled to receive a lump sum of the proportion of average remuneration shown in column (2) of the table hereunder in relation to the degree by which his earning ability is reduced.

Table

Degree of reduction of earning ability Proportion of average remuneration (1) (2) More than 10% but not more than 25% One-eighth More than 25% but not more than 50% One-quarter More than 50% but not more than 75% Three-eighths More than 75% One-half

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