Nhs Pension Scheme Scotland · CAS-82712-V0S5

CAS-82712-V0S5

Ombudsman’s Determination Applicant Mr B

Scheme NHS Pension Scheme (Scotland) (the Scheme)

Respondent Scottish Public Pensions Agency (SPPA)

Outcome

Complaint summary

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

On retirement from active service, regulation 891, of the Scheme Regulations, provides for two tiers of pension depending upon the level of the member’s capacity for employment. Briefly, these are:-

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

Upper Tier: in addition, the member is permanently incapable of engaging in regular employment of like duration3.

If a member satisfies the Lower Tier condition, he/she is entitled to the retirement benefits that he/she has earned to date in the Scheme without actuarial reduction for

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

2 “permanently” means the period until Normal Pension Age (NPA). In Mr B’s case, his NPA is 67 years.

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

1 CAS-82712-V0S5 early payment. If a member also meets the Upper Tier condition, then his/her accrued benefits are enhanced by 50% of his/her prospective membership up to Normal Pension Age (NPA).

Upper Tier 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 B was previously employed by the NHS as a post diagnostic support link nurse.

In 2020, Mr B applied for IHER from the Scheme using form AW8 prior to leaving NHS employment. At the time, he had been diagnosed by his Occupational Health (OH) doctor as suffering from: (a) depression; (b) significant cognitive impairment; and (c) a possible progressive neurodegenerative condition.

Decisions on applications for IHER are made by SPPA under delegated authority from the Scottish Ministers.

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 a letter on 6 November 2020, SPPA informed Mr B that his application for IHER benefits had been declined. Relevant paragraphs from this letter including the opinions expressed by the Scheme’s Medical Adviser (SMA) are set out in Appendix Two.

Mr B’s NHS employment ended on 27 November 2020.

Mr B was dissatisfied with the outcome of his IHER application and, in November 2020, made a complaint under the Scheme’s Internal Dispute Resolution Procedure (IDRP).

In its IDRP decision letter dated 29 October 2021, SPPA informed Mr B that his application for IHER benefits had been accepted because it agreed with the medical advice given by the SMA that he satisfied the Lower Tier condition at the time he left NHS employment.

The SMA, however, also said that:-

• It was more difficult to determine whether Mr B had a medical condition that permanently prevented him from engaging in regular employment of like duration up to his NPA of 67 in some 20 years’ time because of a lack of clarity in his definitive diagnosis.

• It seemed premature to conclude, on the balance of probabilities, that Mr B would be unable to carry out regular employment of like duration without confirmation of a degenerative condition.

2 CAS-82712-V0S5 • As there was currently insufficient medical evidence to determine whether Mr B met the Upper Tier condition, he should be given an opportunity to seek reassessment following any second opinion from “specialist services” for a more complete understanding of his diagnosis.

SPPA told Mr B that if he intended to provide such additional medical evidence, he should let it know by 29 November 2021.

Mr B did not give such notification by the specified deadline.

Relevant paragraphs from the Stage One IDRP letter including the opinions expressed by the SMA are set out in Appendix Three.

Mr B’s position

Mr B says that:

“I was completely taken back along with health professionals and my employer when my application was declined. We all felt that my application did meet the criteria for ill health retirement with clinical evidence provided at that time.

I was not fit to practice as a registered nurse and unfit to continue driving. My employer terminated my employment due to fitness to practice concerns and redeployment was not an option.”

He has experienced considerable financial difficulties after leaving NHS employment which has caused him extreme worry and anxiety.

One of his appointed attorneys has continued to help him with his financial affairs. He has never tried to revoke any part of his lasting power of attorney.

He has no “control” over obtaining a full assessment from a neurologist or neuropsychiatrist. NHS Tayside declined his requests for: (a) a second medical opinion; and (b) a MRI brain scan for comparison with the one carried out while he was an in-patient. He had to obtain a second MRI scan privately that was submitted as evidence of vascular disease.

He made a separate complaint about the poor care and treatment which he had received from “Adult Psychiatry Services”. In its response, NHS Tayside apologised for some of the issues raised and referred to a new diagnosis of Functional Neurological Disorder for him. He considers that providing a new diagnosis in this way was unacceptable and no health professional has yet offered to investigate it.

He disputes some of the “deeply upsetting and judgemental” comments made by the SMA in its advice to SPPA at Stage One of the IDRP. The SMA unfairly judged him by failing to fully take into account the medical evidence submitted. 3 CAS-82712-V0S5 He would not have chosen to end his employment or decline redeployment, if offered. Moreover, it was the decision of his health professionals that he should stop driving.

He attended his appointments with mental health services. He did not receive any further appointments following his complaint about the care and treatment provided.

SPPA’s position

SPPA refutes any allegation of maladministration on its part.

It has correctly considered Mr B’s application for IHER benefits. 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 the SMA.

Adjudicator’s Opinion

4 CAS-82712-V0S5

The SMA said that:-

• Mr B had suffered from severe long-term depression that was now stabilised using medication.

• It appeared that he subsequently developed cognitive impairment and a possible form of dementia.

• Subsequent neuropsychological assessments showed evidence of poor function, but the results were not as poor as reported by Mr B. They also did not show any evidence of dementia.

• The MRI scan of Mr B’s brain did not show any significant abnormality.

• Mr B’s succinct and clear written communication was inconsistent with his reported low level of cognitive function.

5 CAS-82712-V0S5 • Mr B’s functional cognitive symptoms were, in its view, due to “his former mental health and the effects of multiple social and occupational stressors”. It was common for such symptoms during mental illness to be mistaken for signs of dementia. This then led to further health anxiety and subsequently to adoption of illness behaviours such as stopping work and driving.

• Mr B was now functioning well with a high level of independence and had family support managing his own finances.

• There was insufficient evidence, however, of his ongoing mental ill-health or cognitive impairment such that a return to work could not be undertaken.

• It appeared that Mr B was also no longer engaged with mental health treatment services.

• In his report dated 20 September 2021, Dr L McQuitty, consultant psychiatrist, said that, in his medical opinion: (a) Mr B’s cognition and general levels of function were worsening so he would be unable to engage with employment in the future; (b) there were no issues with Mr B's mental health that would impact upon his cognition; and (c) there were, however, diagnostic issues which might require a second opinion from specialist services.

• Mr B had been absent from work for about two years where there was a need to remain "competent" and where the work would by its very nature likely reinforce his health issues.

• It was, however, more difficult to determine whether Mr B had a medical condition which permanently prevented him from engaging in regular employment in the nearly 20 years to his NPA because of a lack of clarity in his definitive diagnosis.

• It was premature to conclude that Mr B would be unable to carry out regular employment of like duration when no degenerative condition had been identified yet.

So, in Mr B’s case, based on the evidence presented, the SMA concluded, on the balance of probabilities, that:-

• Mr B’s serious mental health issues in the past and the “possible/likely” complications of his previous treatments permanently prevented him from efficiently discharging the duties of his NHS employment up to age 67. The Lower Tier condition was met.

• There was insufficient medical evidence to determine whether he had a medical condition which permanently prevented him from engaging in regular employment of like duration up to his NPA of 67. The Upper Tier condition was not met

6 CAS-82712-V0S5 The SMA also recommended that Mr B be allowed the opportunity to obtain a second opinion from “specialist services” for a better or more complete understanding of his diagnosis in order determine whether he was eligible for Upper Tier IHER benefits.

SPPA accepted the SMA’s advice and informed Mr B in its IDRP decision letter that he should let it know by 29 November 2021 if he was intending to obtain a second opinion for consideration. Mr B did not take up this offer.

Mr B considered that more weight should have been given by SPPA to the medical views expressed by the health professionals who have treated him and supported his application.

However, within the bounds of reasonableness, it was for SPPA to decide the weight to attach to any of the evidence, including whether to give some of it little or no weight. It was open to SPPA to prefer evidence from the SMA; provided, that is, there was no good reason why it should not do so. The kind of things the Adjudicator had in mind were errors or omissions of fact or a misunderstanding of the relevant regulations. The reason would have to be obvious to a lay person; SPPA was not expected to challenge medical opinion. It might, however, be expected to seek an explanation if the SMA’s opinion was at variance to that held by Mr B’s own doctors, if one had not already been provided.

SPPA listed the medical evidence which the SMA had considered in its IDRP decision letter. The medical evidence submitted by Mr B’s treating doctors were on these lists. So, the Adjudicator was satisfied that all the medical evidence which was available that pertained to Mr B’s conditions at the time his NHS employment ended was considered by SPPA.

Furthermore, the Adjudicator noted that in the medical advice which the SMA gave SPPA in order to consider Mr B’s IHER application and subsequently review its decision, the SMA acknowledged that their views differed to those expressed by some of Mr B’s treating doctors, and explained why this was.

It should also be noted that a difference of opinion between doctors, in and of itself, was not usually sufficient for the PO to find that by preferring the opinion of the SMA meant that SPPA’s decision was not properly made.

The onus was on Mr B to provide SPPA with sufficient medical evidence in order to determine whether he was eligible for Upper Tier IHER benefits from the Scheme. It was the SMA’s view that: (a) SPPA would not be in a position to do so without further evidence from a medical specialist suitably qualified to conclusively diagnosed Mr B’s condition such as a consultant neurologist or neuropsychiatrist; and (b) if Mr B was diagnosed with a neurodegenerative condition, then his IHER application should be reviewed with appropriate evidence provided “on diagnosis and prognosis”.

The Adjudicator noted that Mr B had said NHS Tayside declined his requests for a second medical opinion. The Adjudicator had, however, seen no clear documentary evidence to corroborate this statement or that Mr B tried to seek a consultation with a 7 CAS-82712-V0S5 neurologist or neuropsychiatrist through private healthcare in order to obtain a definitive diagnosis of his condition.

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

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

The fact that Mr B was still suffering from the same medical condition did not, in and of itself, invalidate SPPA’s decision. SPPA could only be expected to make its decision based on the medical opinions expressed at the time pertaining to Mr B’s health when his employment ended. SPPA chose to give more weight to the opinion of the SMA, who are occupational health experts.

It was consequently the Adjudicator’s opinion that SPPA took appropriate action at the IDRP after obtaining a further medical opinion from the SMA. The Adjudicator was also satisfied that SPPA: (a) gave proper consideration to Mr B’s application at the time by assessing all the relevant medical evidence available, and (b) acted in accordance with the Scheme Regulations and the principles outlined in paragraph 35 above.

In the Adjudicator’s view, its decision not to award Mr B Upper Tier IHER benefits from the Scheme was consequently supported by the available evidence and within the bounds of reasonableness.

Mr B did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mr B provided his further comments which do not change the outcome.

Mr B’s further comments

NHS Tayside declined his requests for: (a) a second medical opinion; and (b) an assessment by a neurologist or consultant neuropsychiatrist.

He provided SPPA with ample medical evidence including “comprehensive assessment reports from Neuropsychology” for it to have a very good understanding of his diagnosis.

He is not in a financial position “to go private for assessment and diagnosis clarity through a neurologist or neuropsychiatrist”.

SPPA has put him in a “difficult situation” by requesting that he only seek a second opinion from either a neurologist or a neuropsychiatrist for a better understanding of his diagnosis.

I note the additional points raised by Mr B but agree with the Adjudicator’s Opinion.

8 CAS-82712-V0S5 Ombudsman’s decision

• the appropriate evidence had been obtained and considered;

• the applicable scheme rules and regulations were correctly applied; and

• the decision was supported by the available relevant evidence.

In this case, as a part of Mr B’s IDRP appeal against the initial decision not to award him an ill health pension, SPPA considered whether Mr B met the requirements contained in Regulation 89 for either (i) an Upper Tier IHER pension or (ii) a Lower Tier IHER pension. The key issue turned on the level of infirmity: whether Mr B suffered from infirmity that would mean he was “permanently incapable of efficiently discharging the duties of M's employment”, in which case he would only be entitled to the Lower Tier IHER pension. Or, whether in fact SPPA were satisfied that his infirmity was such that he was “permanently incapable of engaging in regular employment of like duration”, in which case the more beneficial Upper Tier IHER pension would be available.

SPPA was required to assess his IHER application in accordance with the Scheme Regulations, and to do so in consultation with its SMA. Whilst its SMA 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.

Mr B initially provided evidence from two doctors (Dr Smith and Dr Rooke) and, a little later, from Dr McQuitty. These were considered by the SMA – and excerpts of the report subsequently prepared are contained in Appendix Three. Notably, having considered the medical evidence, including that of Dr McQuitty, the report concluded that “…that that the scheme definitions as outlined above are, on the balance of

9 CAS-82712-V0S5 probabilities, met at the Lower Tier but that the criteria for Upper Tier and HMRC (HM Revenue and Customs) Severe Ill Health Test would not been met.”

However, as a part of his considerations, the SMA also identified that it was “… more difficult to determine that [Mr B] has a medical condition which permanently prevents him from engaging in regular employment.” This stemmed from a “lack of clarity in his definitive diagnosis”.

I note that Dr McQuitty’s letter, considered by the SMA, reflected this – pointing to the fact that Mr B had “recently had specialist assessment from the Neuropsychology Department … [and] … they feel his cognitive profile, …whilst impaired has remained generally static over the last year or so”. The letter went on to say that nonetheless “the patient and his family …plan to seek a second opinion in regard to this”.

As a result of that ‘difficulty’, and with the grant of the Lower Tier having been supported, the suggestion was that Mr B was allowed to obtain “…any second opinion from specialist services”. However, without that (and depending on its outcome), it was clear that the SMA was of the opinion that only the conditions necessary to trigger the Lower Tier were met.

The decision was then made and communicated to Mr B – with an opportunity to provide that additional evidence:

“On the basis of all the evidence available to me, I have determined, on behalf of the Scottish Ministers, that you are eligible to receive lower tier ill health benefits in accordance with the provisions of the scheme regulations. It is my opinion that the HMRC (HM Revenue and Customs) Severe Ill Health Test is not yet met.

However, our medical adviser has noted that they have not been provided with sufficient medical evidence to determine that you are eligible for upper tier ill health benefits. If you were able to provide further evidence or a better or more complete understanding of your diagnosis following any second opinion from specialist services your application would be considered further against the upper tier criteria. If you intend to submit further medical evidence please notify me by 29 November 2021.”

SPPA therefore left it open to Mr B to provide any further evidence that may assist in determining that he met the Upper Tier threshold – but, in the absence of that, the evidence was only sufficient to meet the Lower Tier.

Mr B was given a month to say whether he intended to submit that information (importantly not a month to provide it, but simply to provide notice that he was looking to obtain that second opinion).

However, Mr B did not avail himself of that opportunity. In the absence of that, as set out in the SMA’s report, the evidence only supported a Lower Tier IHER pension award. SPPA’s decision reflected that.

10 CAS-82712-V0S5 From what I have seen, SPPA considered the SMA’s advice carefully and saw no reason to disagree with the conclusion and endorse the view that Mr B was entitled only to Lower Tier IHER benefits from the Scheme.

Therefore, for the reasons given above, I am satisfied that SPPA did give proper consideration to Mr B’s application at the time and the evidence he had provided. I consequently find its decision not to award Mr B Upper Tier IHER benefits from the Scheme was supported by the available evidence and it was within the bounds of reasonableness.

While I sympathise with Mr B’s circumstances, the evidence does not support a finding of maladministration by SPPA in coming to the decision it did.

Therefore I do not uphold Mr B’s complaint

Dominic Harris

Pensions Ombudsman 27 March 2026

11 CAS-82712-V0S5 Appendix One The National Health Service Pension Scheme (Scotland) Regulations 2015

Regulation 89 titled “Entitlement to ill-health pension” stipulates that:

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

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

(2) The Lower Tier conditions are that-

a) M has not attained NPA; b) M has ceased to be employed in NHS employment; c) the Scheme Manager is satisfied that M suffers from 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 Upper Tier conditions are that-

a) the Lower Tier conditions are satisfied in relation to M; and b) the scheme manager is also satisfied that M suffers from physical or mental infirmity as a result of which M is permanently incapable of engaging in regular employment of like duration.

(4) …

(5) In paragraph (3)(b), “regular employment of like duration” means-

a) in the case of a practitioner or non-GP provider, such employment as the scheme manager considers would involve a similar level of engagement to M’s current pensionable service as a practitioner or non-GP provider; b) in any other case, where prior to ceasing NHS employment M was employed- (i) on a whole-time basis, regular employment on a whole time basis; (ii) on a part-time basis, regular employment on a part time basis regard being had to the number of hours, half days and sessions the M worked in the employment.

(6) …

Regulation 90 titled “Member’s capacity” states that:

(1) For the purpose of determining whether a member (M) is permanently incapable of discharging the duties of M’s employment efficiently, the scheme manager must-

(a) have regard to the factors in paragraph (2), no one of which is to be decisive; and (b) disregard M’s personal preference for or against engaging in the employment.

12 CAS-82712-V0S5 (2) The factors mentioned in paragraph (1)(a) are—

(a )whether M has received appropriate medical treatment in respect of the infirmity; (b) M’s mental capacity; (c) M’s physical capacity; (d) the type and period of rehabilitation it would be reasonable for M to undergo in respect of the infirmity, regardless of whether M has undergone the rehabilitation; and (e) any other matter the scheme manager thinks appropriate.

(3) For the purpose of determining whether M is permanently incapable of engaging in regular employment of like duration as mentioned in paragraph (3)(b) of regulation 89, the scheme manager must—

(a) have regard to the factors in paragraph (4), no one of which is to be decisive; and (b) disregard the factors in paragraph (5).

(4) The factors mentioned in paragraph (3)(a) are—

(a) whether M has received appropriate medical treatment in respect of the infirmity; (b) such reasonable employment as M would be capable of engaging in if due regard is given to— (i) M’s mental capacity; (ii) M’s physical capacity; (iii) M’s previous training; and (iv) M’s previous practical, professional and vocational experience, irrespective of whether or not such employment is available to M. (c) the type and period of rehabilitation it would be reasonable for M to undergo in respect of the infirmity, regardless of whether M has undergone the rehabilitation, having regard to— (i) M’s mental capacity; and (ii) M’s physical capacity. (d) the type and period of training it would be reasonable for M to undergo in respect of the infirmity, regardless of whether M has undergone the training, having regard to— (i) M’s mental capacity; (ii) M’s physical capacity; (iii) M’s previous training; and (iv) M’s previous practical, professional and vocational experience; and (e) any other matter the scheme manager considers appropriate.

(5) The factors mentioned in paragraph (3)(b) are—

(a) M’s personal preference for or against engaging in any particular employment; and (b) the geographical location of M.

(6) In this regulation—

“appropriate medical treatment” means such medical treatment as it would be normal to receive in respect of the infirmity, but does not include any treatment that the scheme manager considers— (a) that it would be reasonable for M to refuse; (b) would provide no benefit to restoring M’s capacity for—

13 CAS-82712-V0S5 (i) discharging the duties of M’s employment efficiently for the purposes of paragraph (2)(c) of regulation 89; or (ii) engaging in regular employment of like duration for the purposes of paragraph (3)(b) of that regulation; (c) that through no fault on the part of M, it is not possible for M to receive before M reaches NPA.

“permanently” means until M attains M’s prospective NPA; and “regular employment of like duration” has the same meaning as in regulation 89.

14 CAS-82712-V0S5 Appendix Two Relevant excerpts from the initial decision letter dated 6 November 2020

“On the medical evidence available and taking into account the opinion of the Scheme’s Medical Adviser (MA), I am not satisfied that you are permanently incapable of engaging in regular employment of like duration/permanently incapable of efficiently discharging the duties of your employment. I am therefore unable to grant you ill health benefits. In reaching this view, the MA has commented as follows:-

The evidence shows that [Mr B] has a history of psychiatric admission following a suicide attempt in 2018, during which time he received treatment with electroconvulsive therapy as well as medication. Following a relapse in May 2019 he was admitted for a period of a few weeks for further psychiatric care. Since 2018 he has been assessed for cognitive decline. The AW8/Med suggests a suspected neurodegenerative condition, but notes that formal diagnosis has not yet been made. Ms Blann suggest that due to [Mr B]’s poor cognitive function he would be clinically unfit to practice his NHS role and suggest also that he is unfit regular employment of like duration.

A report from Dr McQuitty, consultant psychiatrist, notes that he has seen [Mr B] twice but that there have been concerns about his cognition for some time. He knows these appear to be persistent and worsening over time, and are of sufficient significance that he would be unable to work. Dr McQuitty opines that there is no longer a significant component of depression or anxiety in his presentation. Dr McQuitty notes that he is not qualified as a general adult psychiatrist to make a reliable diagnosis of early onset dementia and plans referred to his specialist neuropsychology colleagues. However, from the cc note on his report this would appear to be Dr Smith (see below) who does not appear to fulfilling a diagnostic role.

The reports from Dr Smith, clinical psychologist in the neuropsychology department, noted assessments made in 2018 and again in 2020 due to concerns of subjective memory impairment. On the latter occasion Dr Smith notes that there appears to have been a decline in cognitive function since the earlier assessment. He4 reports a pattern of results in neuropsychological testing that fall below the range expected of [Mr B] in comparison his age, estimated premorbid intellectual ability and educational/employment history. He also notes changes reported in personality and behaviour. Dr Smith notes that he had liaised with Dr Rooke in the cognitive neuroscience clinic, who had advised repeating neuropsychological assessments in 12 months’ time.

The report from Ms Funai, occupational therapist, notes that she has worked with [Mr B] over a period of 18 months when he first presented to the service

4 This was a mistake. Dr Smith was female.

15 CAS-82712-V0S5 with depression following a suicide attempt. She states that his depression and anxiety have been successfully treated and he continues on antidepressant medication at high dose. She advises that during the time she has known [Mr B] he has consistently complained of cognitive impairment. She advises that he has become more disinhibited and outspoken than previously noted and from June 19 reported difficulty in day-to-day activities due to poor memory. Ms Funai advises she has been working with [Mr B] to implement memory strategies within the home. She notes that a formal diagnosis is awaited but suggests this is academic as he has come to terms with what is presenting as a progressive condition.

In summary there is evidence that [Mr B] has previously been treated as an in- patient for a severe episode of depression, but that his consultant psychiatrist feels this has been successfully treated. The reported incapacity relates to cognitive decline, the cause of which appears to be thought to be a form of neurodegenerative dementia. However, no formal diagnosis has yet been made by a medical specialist qualified to do so. Noting that such a diagnosis in someone of [Mr B]’s age is very rare, I do not think one can reliably ascribe permanence of incapacity until he has been fully assessed by an appropriate clinician - I suggest this would either be a consultant neurologist or neuropsychiatrist. If the diagnosis of a neurodegenerative condition is indeed made by an appropriate specialist, then I suggest the case should be reviewed with appropriate evidence provided on diagnosis and prognosis.

In the circumstances while it is my opinion there is reasonable medical evidence that [Mr B]’s health problems currently prevent him from discharging the duties of his employment and/or engaging in regular employment of like duration I do not, yet, have medical evidence that his medical condition will continue to prevent a return to the duties of the employment before he reaches age 67 years.

I conclude that on the balance of probabilities [Mr B] is not, yet, permanently incapable of discharging the duties of his employment and it is therefore my opinion that the scheme definitions as outlined above are, on the balance of probabilities, not met.”

16 CAS-82712-V0S5 Appendix Three Relevant excerpts from the Stage One IDRP decision letter dated 29 October 2021

“I have reviewed all previously submitted evidence along with:-

• IDRP application form and a letter from [Mr B] dated 10/11/2020 and e-mail correspondence with SPPA dated 17/05/2021; • Letter from Dr V Smith, clinical psychologist dated 03/08/2021, • Letter from Dr D Rooke, consultant psychiatrist dated 03/09/2021; • Report from Dr McQuitty locum consultant psychiatrist dated 20/09/2021…

I have also considered the advice provided by an independent Medical Adviser (IMA). This advice is provided in Annex A for your information

On the basis of all the evidence available to me, I have determined, on behalf of the Scottish Ministers, that you are eligible to receive lower tier ill health benefits in accordance with the provisions of the scheme regulations. It is my opinion that the HMRC (HM Revenue and Customs) Severe Ill Health Test is not yet met.

However, our medical adviser has noted that they have not been provided with sufficient medical evidence to determine that you are eligible for upper tier ill health benefits. If you were able to provide further evidence or a better or more complete understanding of your diagnosis following any second opinion from specialist services your application would be considered further against the upper tier criteria. If you intend to submit further medical evidence please notify me by 29 November 2021.

An extract of the regulations is attached…

Please note, the SPPA’s Customer Services Branch will contact you in due course regarding the calculation of your ill health benefits.

Annex A

Rationale

[Mr B] suffers from a severe long-term mental health disorder…His condition is now stable on medication. It appears that whilst he was unwell with depression, he developed cognitive impairment and a possible form of dementia was considered as an additional diagnosis.

Subsequent neuropsychological assessments have not shown any evidence of dementia and the brain scan is not considered to show any significant abnormality. Written evidence provided by [Mr B] to both neuropsychology and to SPPA is not consistent with the reported low level of cognitive function.

It is considered that [Mr B]’s cognitive symptoms are due to his former mental health and the effects of multiple social and occupational stressors. 17 CAS-82712-V0S5 I can understand that this is a difficult formulation, or diagnosis, for [Mr B] to accept especially in view of the protracted nature of the investigation into his symptoms and because a different diagnosis had been suggested to him initially, following which he adopted a different lifestyle.

It is not uncommon, especially in professional people, for functional cognitive symptoms during mental illness to be mistaken for signs of dementia. This then leads to further health anxiety and subsequently to adoption of illness behaviours such as stopping work and driving, which are reinforced by supportive family members.

It is now reported that [Mr B] is now functioning well with a high level of independence though with some family support. For instance, he now manages his own finances and feels he has full capacity to act in this regard.

It is now 2 years since he last worked, and he appears settled in his present situation with an established routine. However there does not appear to be sufficient evidence of ongoing mental ill-health or cognitive impairment such that a return to work could not be undertaken, although it is clear that [Mr B]’s preference would be not to do so. It also appears that he is no longer engaged with mental health treatment services.

There is reference to workplace stressors but no documentation as to their origin or of attempts to mitigate these. It is possible that performance issues arose at work as a result of his lack of concentration and memory whilst he was suffering from severe depression.

In my opinion it appears unlikely that there is significant further medical evidence to consider.

In my opinion therefore there is insufficient medical evidence to state that [Mr B] is permanently unfit to carry out his duties of employment nor is he permanently incapable of engaging in regular employment of like duration.

We have been asked to provide further advice in the light of new medical information:

• Report from Dr L McQuitty locum consultant psychiatrist dated 20/09/2021.

Like my colleagues I have reviewed the complete medical bundle.

With regard to previous evidence I note that [Mr B]'s part-time working appears to have been part of "aids and adjustments" to facilitate a return to work after his serious ill-health.

I note that in the medical evidence there is reference to [Mr B] having a family history of neurological or degenerative brain conditions but no further detail is provided.

18 CAS-82712-V0S5 The medical evidence in the bundle provided requires careful reading and interpretation and it is clear that [Mr B] has had serious mental health issues, requiring substantial medical interventions (ECT is not routine medical treatment) and there is evidence in the bundle of his dissatisfaction with his medical treatments (at his second admission in particular).

[Mr B] has my sympathy for his situation. As the previous SPPA MAs have noted there is a reported and clear problem with his definitive diagnosis here. In addition, while neuropsychological assessments show evidence of poor function the results are not so poor as reported by [Mr B] and his family. Again, there is some inconsistency in the level of reported function and evidence submitted by [Mr B] (his succinct and clear communication, advice that his power of attorney arrangements have been discontinued etc).

In the circumstances I feel that the advice provided to date is not unreasonable and understandable and find no reason to differ from the previous MAs conclusions.

The new medical evidence serves only to increase the dichotomy of evidence and opinions. The consultant psychiatrist indicates that [Mr B] has now had a very poor score on a cognitive assessment tool.

The consultant psychiatrist is of the opinion that his cognition and general levels of function are worsening and so believes he is unable to work and Dr McQuitty does not believe he will be able to "engage with employment in the future". He again advises it appears there are no issues with [Mr B]'s mental health that would impact upon his cognition.

The consultant psychiatrist notes that there are further issues to be worked out with diagnostics which may require a second opinion from specialist services but suggests that irrespective of the diagnostic label it is hoped that the information in this latest letter is useful in deciding on matters such as access to [Mr B]'s pension.

Having considered the evidence in its entirety once more and having discussed the case with senior colleagues I have formed the opinion that, on the balance of probabilities, [Mr B] is now permanently unlikely to be able to work in a regular and effective manner in his duties of employment.

This opinion is reached based upon [Mr B]'s serious mental health issues in the past, possible/likely complications of his treatments in the past, given that he has been absent from work (where there is a need to remain "competent") for many months now and where the work will by its very nature likely reinforce [Mr B]'s health issues (working in a mental health service when you have mental health issues/cognition issues may not be a positive experience).

I am therefore able, again on the balance of probabilities, to now support ill- health retirement at the Lower Tier. 19 CAS-82712-V0S5 It is, however, more difficult to determine that [Mr B] has a medical condition which permanently prevents him from engaging in regular employment (low pressure, part time work, perhaps in a light manual handling role, outdoors or indoors in an ergonomically sound workstation without the need for significant time on the feet, without the need for difficult or emotive working activity, no shiftwork etc) in the nearly 20 years to his NPA.

This difficulty is the result of a lack of clarity in his definitive diagnosis. However I note that if a degenerative condition is confirmed then on the balance of probabilities he will not be able to carry out regular employment of like duration where as if no definitive deterioration is confirmed/identified then it would appear premature to suggest we have reached this situation.

In the circumstances my suggestion is that, as interim advice, we support Lower Tier ill-health retirement pending a better or more complete understanding of [Mr B]'s diagnosis following any second opinion from specialist services.

In summary, I conclude on the balance of probabilities that that the scheme definitions as outlined above are, on the balance of probabilities, met at the Lower Tier but that the criteria for Upper Tier and HMRC (HM Revenue and Customs) Severe Ill Health Test would not be met.”

20