Welcome to our new Pensions Ombudsman Update. These updates are designed to help you get to grips with the Ombudsman’s thinking, to keep track of decisions on matters concerning police and fire service injury awards and non police related injury benefit schemes and to identify underlying trends.
Published in our “news” section, we will try to summarise the interesting decisions of the past three months or so.
Mr N has complained that the Trustee did not take the decision to cease his ill health retirement pension in a proper manner. In particular, he considers it placed too great a reliance on the advice from its own occupational health physician and did not give reasons for preferring her advice.
In PO-11695 Mr N (17 May 2017) the JOHN LEWIS PARTNERSHIP scheme trustees decided (having used the Trustee’s occupational health physician, Dr Eraneva, to consider medical evidence) that the member’s ill-health pension should be suspended as his condition was not permanent, despite the trustee having decided in 2009 and 2012 that it was. The Ombudsman’s Adjudicator was unable to find evidence of any change in the member’s condition or proposed treatments since those assessments.
The decision made it clear that there is an underlying principle that a pension, once in payment, was payable for life. A natural reading of the John Lewis scheme rule provided discretion to vary, suspend or reinstate pension was one that looked for a rational basis for change. The trustee did not apply its mind to the specific question of whether it should remove the existing entitlement, but took an approach akin to requiring the member to make a fresh application for an incapacity pension. This was maladministration and the trustee was directed to re-consider the decision to suspend the pension.
The Deputy Ombudsman accepted that the John Lewis scheme did not have to continue to pay an incapacity pension if this was no longer justified, but the trustee had to be able to point to a change in the member’s circumstances. The discretion to suspend was not an opportunity for the trustee to change its mind or interfere in its predecessors’ decisions.
Mr N stated that the Trustees placed too great a reliance on the advice from its own occupational health physician (Dr Eraneva) and did not give reasons for preferring her advice.
Whilst saying that it is not the role of the Ombudsman to review the medical evidence, the Deputy Ombudsman said;
but I also have reservations about the standard of proof applied by Dr Eraneva
The John Lewis scheme is a discretionary scheme whereas the police injury benefit Regulations are a statutory scheme. This is not the first time that the Pension Ombudsman has been guided by a purposive view of scheme rules dealing with ill-health. In PO-9309 Mrs R (10 June 2016) the Ombudsman opined that the starting position, where an employer had a discretion to pay a discretionary ill-health enhancement, should be to pay it.
All too often, because of the influence of NWEF , the selected medical practitioners used by police forces consider themselves as quasi-judicial and supposed “judges of fact”.
In fully upholding Mr N’s complaint, the Pension Ombudsman is showing a pattern that the views of the scheme’s own occupational health doctor do not trump the person’s own clinicians. This is inline with previous decisions, such as the ill-health early retirement of Mr Y (PO-13059) when it was found that the employer’s flawed decision over-relied on its own medical advisers’ opinions.