Key Dates

Mrs T, PO-21354, 30 May 2019

Summary

The Deputy Pensions Ombudsman (DPO) has found that the member's employer had reached a flawed decision in relation to her application for ill health early retirement (IHER), in that it had not asked all the relevant questions before reaching its decision.

Mrs T suffered from chronic back pain and was dismissed by her employer, a primary school, following an extended period of sick leave.  She applied for IHER under her pension scheme (the Local Government Pension Scheme (LGPS)).  Under the Scheme, a member is entitled to Tier 1 benefits if that member is "unlikely to be capable of undertaking gainful employment before normal pension age".  A member is entitled to (lower) Tier 2 benefits if the member is "unlikely to be capable of undertaking any gainful employment within three years of leaving the employment; and …is likely to be able to undertake gainful employment before reaching normal pension age".

The Scheme's independent registered medical practitioner (IRMP) reported that:

"…I consider that permanence has been established, in terms of [Mrs T's] ongoing symptoms…There is, however, the potential in my opinion for [Mrs T] to manage her symptoms more successfully in due course.  Therefore, in my opinion, the evidence would support a Tier 2 recommendation…".

Mrs T appealed through the Scheme's internal dispute resolution procedure and then to the Pensions Ombudsman.  The DPO upheld her appeal and held the following:

• The weight attached to any of the evidence received is for the employer to decide (including giving some of it little or no weight).
• The employer may prefer evidence from its own advisers, unless there is a cogent reason why it should not do so without seeking clarification.  However, the employer must ensure that any medical advice upon which it places weight has addressed the right questions under the Scheme rules.
• The DPO accepted that the employer is not medically qualified and the questions it might be expected to ask its medical advisers are only those which a reasonably informed lay person might ask. 
  
  
• To reach a reasonable decision, the employer must satisfy itself whether or not, on the balance of probabilities, Mrs T was likely to be able to return to work before normal pensionable age and must be able to provide reasons for that conclusion.
  
  
• The IRMP's report did not expressly address the requirements of the rules and contained no reasoning setting out why he considered Tier 2 conditions were met but not Tier 1.  His opinion about the potential for Mrs T to manage her symptoms more successfully in due course did not provide a view about the likely prognosis and did not give the employer the evidence it needed to make its decision.
  
  
• The employer should therefore have asked the IRMP further questions with regard to the long term prognosis and the likelihood of Mrs T recovering sufficiently to be able to return to gainful employment.  It should then have considered, on the balance of probabilities, the extent to which Mrs T was likely to be capable of returning to work before pension age.

The employer was directed to refer Mrs T's case to a new IRMP who had not previously advised on Mrs T, and then to make a fresh decision whether to award her a Tier 1 pension.  Mrs T was also awarded £1,000 for the serious distress and inconvenience caused.

Date Accessed: 28/05/2022