Hogan Lovells

Key Dates

Speed v Teachers' Pensions and others, [2019] EWHC 3108 (Ch).

Judgment date: 29 October 2019.


Summary

The High Court has dismissed an appeal from a determination of the Pensions Ombudsman. Correspondence from the member did not constitute an application for an ill health early retirement pension.

Background

Mr Speed had been a teacher. He suffered from depression and in 2002 was granted an ill health early retirement pension from the Teachers' Pension Scheme, pursuant to the Teachers' Pensions Regulations 1997 (the "1997 Regulations"). "Incapacitated", for the purpose of the 1997 Regulations, was defined by reference to being "unfit by reason of illness or injury … to serve as [a teacher] … and … likely permanently to be so … ".

The 1997 Regulations also provided for an ill health pension to cease if the recipient ceases to be incapacitated. In such a case, the pension would become payable on the recipient's 60th birthday or "if earlier from the start of any renewed incapacity".

In 2005, Teachers' Pensions concluded that Mr Speed had ceased to be incapacitated and so ceased paying his pension.

From time to time over the following years Mr Speed corresponded with Teachers' Pensions, challenging the decision to cease his pensions in 2005.

In September 2010, the 1997 Regulations had been replaced by the Teachers' Pensions Regulations 2010 (the "2010 Regulations"). To be entitled to an ill health pension under the 2010 Regulations, it had to be demonstrated that the person's ability to carry out any work is impaired by more than 90% and is likely to be impaired by more than 90% permanently.

In August 2012 Mr Speed received a "lengthy and formal letter", which pointed out to him that he could make a new application for ill health retirement at any time before age 60. In September 2013, Mr Speed responded by email that "It seems I should reapply as well as appeal".

Complaint to Pensions Ombudsman

Mr Speed complained to the Pensions Ombudsman in 2014. The Ombudsman's office declined to consider whether the cessation of Mr Speed's pension in 2005 had been valid, as his complaint was made after the expiry of the Ombudsman's three year time limit.

The question also arose whether Mr Speed's email in September 2013 constituted an application for reinstatement of his pension. Teachers' Pensions argued that this statement was an acknowledgement that one course open to Mr Speed was to make an application for an ill health pension, but it was not itself an application. Under the 2010 Regulations, an application for an ill health pension had to be in writing and had to be accompanied by all the medical evidence necessary to enable the Secretary of State to determine whether the person's ability to carry out work was impaired by more than 90%.

The Ombudsman agreed that Mr Speed had not applied for his pension to be reinstated under the 2010 Regulations and that Teachers' Pensions had no case to answer.

Appeal to High Court

Mr Speed was given permission to appeal the Ombudsman's determination only on the question whether the Ombudsman had been entitled to reach the conclusion that Mr Speed had not made an application for his pension to be reinstated.

Nugee J found that there had been an "unfortunate ambiguity" in the use of the word "reinstate". It was clear that when Mr Speed asked for his pension to be reinstated, he was in reality challenging the decision in 2005 that he had ceased to be incapacitated. This was not a matter which the High Court could consider on this appeal, as the complaint on this ground had been dismissed by the Ombudsman as being out of time.

Nugee J commented that the Ombudsman had been using "reinstate" in the sense of regranting a pension which has ceased if the applicant shows that he has again become incapacitated. He agreed with the Ombudsman and Teachers' Pensions that any new application by Mr Speed for an ill health pension on grounds of his becoming incapacitated again should be determined under the 2010 Regulations.

Nugee J concluded that the Ombudsman had been correct, or at least entitled to take the view, that no application for Mr Speed's pension to start again had in fact been made.



Date Accessed: 28/05/2022