The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
Although the decision relates to an application under the NHS Pension Scheme, it has wider implications for decision makers making similar decisions under other schemes, including the Local Government Pension Scheme (LGPS).
Background and decision
The Deputy Ombudsman’s decision concerned an application for ill-health early retirement by an NHS Estates Support Worker, Mr Hayes. Mr Hayes had been on long-term sick leave with several conditions including neuralgic pain since July 2008 and his employment was terminated on the grounds of capability in March 2009. NHS Pensions denied the application on the basis that Mr Hayes’s treatment was on-going and it was premature to conclude that his incapacity would be permanent, quoting at length from the medical adviser. Mr Hayes’s subsequent appeals were unsuccessful, despite the argument made on his behalf by his wife that he did not want to have further surgery due to the potential risks. The final appeal decision did not consider this argument.
The Deputy Ombudsman held that NHS Pensions misinterpreted the rules of the scheme which required it to take into account Mr Hayes’ view of whether it was reasonable to refuse the proposed treatment options (not just the medical view as to their likely risks). NHS Pensions had not done so. The Deputy Ombudsman therefore returned the decision to NHS Pensions for reconsideration and directed that they pay Mr Hayes £250 for the additional stress caused by their failure to determine his eligibility in the proper manner.
The Deputy Ombudsman also commented on the level of detail that decisions should contain. He noted that there has been a trend towards increased recognition of the duty on decision makers to give reasons, particularly in cases where some or all of the following apply:
- there is a right of appeal;
- the decision maker is acting in a judicial manner;
- the decision is of a particular significance to the individual; and
- there is no specific reason not to give reasons.
He commented that bearing these factors in mind, the level of reasoning that NHS Pensions would be required to provide in these sorts of circumstances would be “towards the upper end of the spectrum”. He went on to say that he hoped they would now provide their “full reasons in plain and simple language”.
The Deputy Ombudsman’s decision means that when giving decisions on ill health retirement, decision makers should take care to give full reasons using simple language if they refuse an application for ill-health early retirement. They should also ensure that they pay close attention to the relevant rules of their scheme and ensure these are followed.
For more information
For more advice on decisions to grant ill health retirement pensions, or in relation to appeals under the internal dispute resolution procedure, please contact Doug Mullen on 0121 212 7432 or firstname.lastname@example.org.
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