Nhs Pension Scheme · CAS-53198-W8C5

CAS-53198-W8C5

Ombudsman’s Determination Applicant Miss R

Scheme NHS Pension Scheme (the Scheme)

Respondent NHS Business Services Authority (NHS BSA)

Outcome

Complaint summary

Background information, including submissions from the parties

“U3 Accounts and actuarial reports

…

(1) In respect of a member, an employing authority must keep a record of all-

(a) contributions paid under regulations D1, Q6 and Q8;

(b) contributions due under regulations D1, Q6 and Q8 but unpaid;

(c) contributions paid under regulation D2;

(d) contributions due under regulation D2 but unpaid;

(e) hours, half days or sessions constituting part-time pensionable employment for the purposes of regulation R5;

(f) pensionable pay…” CAS-53198-W8C5

“Please be aware this is an estimate and shown for guidance only. You should check the amount of Pensionable Pay quoted is consistent with your current pay or what would be the full-time equivalent pay if you currently work part- time. If the figure is significantly different you should contact your employer.”

On 12 July 2019, Malling Health wrote to Miss R confirming that there was a risk she could be made redundant. It advised that a final decision would be made on any employment changes following a consultation process which was due to end on 31 July 2019.

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“called regarding what happens to her pension if shes [sic] made redundant.”

“adv cons still not been updated and to contact ea again. Given pension contact”.

“member was advised has been giving [sic] the wrong the [sic] forecast. Advised conts haven’t been updated and an email was sent on 12th August.”

“wanted to see if conts had been updated – advised not yet – email sent to ea on 12/08 – sent info about pension in email.”

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She decided to take voluntary redundancy based on the June 2019 Statement which set out figures including a lump sum of £11,090.59 plus an annual pension of £3,696.86. Had this misinformation not been received, she would have remained in her existing role, which was not at risk of being made compulsorily redundant. At the time of her voluntary redundancy, she had been contracted to work 34.5 hours per week for pay of £8.67 per hour.

Before accepting voluntary redundancy, Malling Health had advised her to obtain a redundancy estimate from NHS BSA. NHS BSA was incorrect in stating that redundancy estimates are only ever sent to an employer, since she had received one.

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Redundancy is an employment issue not linked to a member’s pension. So, NHS BSA is unable to determine whether a member can take redundancy. The employer must ensure that if redundancy is offered, it is able to finance the agreement. To do so, the employer may approach NHS BSA for a redundancy estimate by submitting form AW295, which also sets out the member’s pensionable pay details for this purpose.

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Adjudicator’s Opinion

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NHS BSA accepted the Adjudicator’s Opinion, Miss R did not, and the complaint was passed to me to consider. Miss R provided her further comments which do not change the outcome. I have considered the additional points raised by Miss R (summarised in paragraph 54 to 58 below), but I agree with the Adjudicator’s Opinion. 9 CAS-53198-W8C5

She assumed that ‘Pensionable Pay’ was “an accumulation of some part of my salary accumulated over some period of time during which I paid contributions…” and not an annual figure.

It was reasonable to assume that the initial figures NHS BSA provided in the June 2019 would be approximately correct. At the time she would not have believed that the quoted benefits could be as inaccurate as they turned out to be. She was also not aware of any potential redundancies. So, in June 2019 those figures were less significant than in July 2019 when she took voluntary redundancy.

“There was no time for letters” to be sent to or received from NHS BSA when she telephoned NHS BSA on 23 July 2019. She had to decide whether to accept voluntary redundancy before the consultation meeting with Malling Health on 26 July 2019.

She did not decide to take voluntary redundancy before receiving the overstated benefit details. Her financial situation was such that it would have been ‘impossible’ to do so without the confidence that she would have sufficient income. This is why she telephoned NHS BSA and trusted it to provide correct information.

NHS BSA’s letter of 3 November 2020, stated that the benefit details quoted in the June 2019 Statement were confirmed during the telephone call on 23 July 2019. NHS BSA also said that at the time of the call it was unaware her member record contained errors.

Ombudsman’s decision

Having reviewed the June 2019 Statement, I note that page 1 states “Pay £67,173.90” and “Updated to 31 March 2017”. Page 4 of the statement then explains that ‘Pay’ is “The full-time equivalent pay (at last update) used to calculate your officer benefits...”.

I find that this information was sufficiently clear to make Miss R aware of what pensionable pay was. The disclaimer in the June 2019 Statement confirmed that Miss R should check that the amount of pensionable pay quoted was consistent with her 10 CAS-53198-W8C5 current pay, or what would be the full-time equivalent pay if she worked part-time. It also stated that Miss R should contact her employer if the ‘Pensionable Pay’ figure was significantly different.

Despite the fact that her full-time equivalent pay was, in fact, £21,990.35 a year, Miss R has provided no evidence that she contacted her employer or NHS BSA to query the pensionable pay figure quoted on the June 2019 Statement.

I consider that, had Miss R contacted NHS BSA or Malling Health to query why her pensionable pay was quoted as £67,173.90, at that time, on the balance of probabilities, it would have highlighted that there had been an error in the calculation of her benefits in the June 2019 Statement.

I find that NHS BSA cannot be held responsible for Miss R’s failure to make sufficient enquiries in order to clarify these points, or for any implications of her failure to make such enquiries.

Miss R says she was not aware of any potential redundancies at the time she obtained the June 2019 Statement. So, the figures on that statement were less significant in June 2019 than they were in July 2019, when she took voluntary redundancy.

I note that Malling Health told Miss R that she should ask NHS BSA for a redundancy estimate when she was considering voluntary redundancy in July 2019. Benefit quotations such as the June 2019 Statement are not intended to convey any automatic entitlements and they include clear warning caveats. Miss R has provided no evidence that she received definitive confirmation of the benefits she would get if she accepted voluntary redundancy from her employer. So, I find that it was not reasonable for Miss R to assume that the figures quoted in the June 2019 Statement would be approximately correct and take voluntary redundancy.

Miss R not being aware of any potential redundancies from Malling Health at the time of downloading the June 2019 Statement is irrelevant, as this statement was obtained prior to Miss R being offered voluntary redundancy. I find that it was a personal choice of Miss R’s to claim voluntary redundancy in July 2019, without having received valid confirmation of her benefit entitlements. NHS BSA cannot be held responsible for Miss R making that decision.

Miss R contends that there was no time for letters to be sent to or received from NHS BSA when she telephoned NHS BSA on 23 July 2019. This is because she had to decide whether to accept voluntary redundancy before the consultation meeting on 26 July 2019. Miss R has also said, that during the telephone call with NHS BSA on 23 July 2019, NHS BSA confirmed that her retirement benefits would be in accordance with the June 2019 Statement.

Miss R has referred to NHS BSA’s letter of 3 November 2020, in which NHS BSA stated that the figures on the June 2019 Statement were confirmed to her during the telephone call of 23 July 2019. However, the 3 November 2020 letter also stated that 11 CAS-53198-W8C5 NHS BSA had informed Miss R, during the telephone call of 23 July 2019, that her pension record had not been updated since March 2017. So, her redundancy benefits could change, and she should contact Malling Health directly to rectify this issue.

I do not consider that the conversation Miss R had with NHS BSA on 23 July 2019, confirmed that she would be entitled to the benefits set out on the June 2019 Statement, should she accept voluntary redundancy. So, it was not reasonable for her to have relied on this information to accept voluntary redundancy.

I do not uphold Miss R’s complaint.

Anthony Arter CBE

Deputy Pensions Ombudsman 16 October 2023

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