“But how will I eat cake if my head is over there, and my hands are over here?”
― Marie Antoinette
An interesting decision has just been published on the Pension Ombudsman website. It concerns Mr E versus British Telecommunications PLC and involves ill-health and medical retirement.
The paradox here is that BT wanted it’s cake and to eat it. It wanted to dismiss someone due to ill-health but it didn’t want to pay that person the injury benefit that person was entitled to.
Mr E complained that BT, his former employer, refused to award him BT’s medical retirement benefits. The Pensions Ombudsman found in favour of Mr E and told BT to do it properly.
Displaying the arrogance mostly seen by police pension authorities, BT didn’t like the fact the PO was making a decision in the case. With unabashed chutzpah, BT submitted that the employee benefit is not within jurisdiction of the PO because it is neither an “occupational pension scheme” nor a “personal pension scheme”.
Dismissing BT’s argument with savagery, the PO clearly stated that such matters are within it’s remit:
The right to bring a complaint to the Ombudsman, is a statutory right to complain to a body established by the Pension Schemes Act 1993, which seems to me to fall squarely within that exclusion.
Play for the ball BT! … never go for the man – or indeed the referee! Meaning: assess the point of law but don’t go making a proclamation that the referee shouldn’t be on the pitch. This desperation shows their argument is lost already and shows them up as idiots.
Anyway, back to Mr E.
BT refused his ill-health retirement on the basis that their Occupation Health Service (OHS) “deemed Mr E was not suffering from ill health and that he was not permanently incapacitated as other treatments were not exhausted”.
This is exactly the issue facing those injured on duty and on long term sick from police duties. Not having exhausted all treatment options is an often repeated mantra to deny permanency.
The trouble with BT’s claim (that Mr E had not already exhausted all treatment options) was that he had already been dismissed on grounds of capability due to ill health. Before the PO got involved, he had taken BT to the Employment Tribunal for unfair dismissal, disability discrimination and unlawful deductions of wages. The matter was settled with an agreement and BT paid him £106,750.
But BT obviously had the hump and decided to prolong the misery for longer.
So what did the PO say about BT’s duplicity? The skulduggery of, on the one hand dismissing someone for ill-health, and on the other saying his ill-health wasn’t sufficient to pay a medical benefit?
The PO adjudicator said although BT through their OHS had stated that alternative treatments were available, the OHS did not state what outcome, on the balance of probabilities, these treatments would produce for Mr E.
BT did not ask their OHS this simple question. In other words just saying there’s treatments available isn’t enough.
The OHS used a doctor named Dr Lichfield. This occupational health doctor made a general statement that he thought improved medical management would not suggest that Mr E remains incapacitated. Dr Lichfield said:
Mr [E] appeared not to have undergone the full range of treatments for his condition and, in particular, that he had not seen a mental health specialist
Again, back to injury awards, this is a common statement found in SMP reports that refuse applications for ill-health retirements.
The PO considered the medical opinion of Dr Lichfield as not sufficient as it wasn’t good enough. OHS and BT needed to establish what Mr E’s prognosis would be if he completed the entire course of available treatments. And they hadn’t done that so the complaint was upheld.
This decision has overlap into the world of injury awards. It shows the PO isn’t frightened off when an organisation challenges his jurisdiction. It also shows that a medical opinion is not good enough when that decision is based on the wrong question, or the reasoning behind the decision was either absent or poorly explained.
Well done Pension Ombudsman.