Nhs Pension Scheme · CAS-31676-N1P3 — Pensions Ombudsman determination

CAS-31676-N1P3

Ombudsman’s Determination Applicant Mrs Y

Scheme NHS Pension Scheme (the Scheme)

Respondent NHS Business Service Authority (NHS BSA)

Outcome

Complaint summary

Background information, including submissions from the parties

1 CAS-31676-N1P3 Summary of Mrs Y’s position:-

• She believes she was discriminated against by NHS BSA on the grounds of “the length of service and hours worked versus time just spent in pensionable 2 CAS-31676-N1P3 employment.” She referred to equality legislation. If the Pensions Ombudsman’s Office (TPO’s Office) is unable to deal with this issue, she will raise it with the Department of Health and Social Care.

Summary of NHS BSA’s position:-

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• Page 8 of the Choice Statement said:

“The two most important issues to consider are the age at which you are going to retire and whether you are likely to leave the NHS Pension Scheme before retirement… If you leave NHS employment before retirement and do not return, your retirement benefits will be lower…”

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Adjudicator’s Opinion

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Mrs Y did not accept the Adjudicator’s Opinion and in response made the following points:-

• She did not resign because of ill health, she resigned because part-time hours were refused and had she stayed she would have become ill.

• She had no reason to contact NHS BSA when she had all the evidence stating she could retire at age 55.

• She did not see any note in the information provided by NHS BSA that she would lose SCS if she left the Scheme before age 55.

• She did not receive the Factsheet.

• She was discriminated against by NHS BSA on the grounds that it removed SCS because whether she was “employed or not” at age 55, she has lost out financially even though she had “served more in hours worked.”

• She has been misled and misinformed by NHS BSA.

The complaint was passed to me to consider. I note Mrs Y’s further comments but they do not change the outcome, I agree with the Adjudicator’s Opinion.

7 CAS-31676-N1P3 Ombudsman’s decision

I do not uphold Mrs Y’s complaint.

Anthony Arter

Pensions Ombudsman 3 February 2021

8 CAS-31676-N1P3 Appendix 1 Extract from NHS Pension Scheme Regulations 1995 (as amended) (SI 1995/300)

“Nurses, physiotherapists, midwives and health visitors

R2.—(1) Subject to paragraph (2), this regulation applies to a member—

(a) who, at the coming into force of these Regulations—

(i) is in pensionable employment as a nurse, physiotherapist, midwife or health visitor, or

(ii) has accrued rights to benefits under the scheme arising out of a previous period in which she was engaged in such employment and at no time since the last occasion on which she was so engaged has she had a break in pensionable employment for any one period of 5 years or more,

and

(b) who spends the whole of the last 5 years of her pensionable employment as a nurse, physiotherapist, midwife or health visitor.

(2) This regulation shall cease to apply if the member has a break in pensionable employment for any one period of 5 years or more ending after the coming into force of these Regulations.

(3) Where this regulation applies—

(a) regulation E1 (normal retirement pension) will apply to the member as if the reference, in paragraph (1) of that regulation, to age 60, were a reference to age 55;”

Part E Benefits for Members

E1 Normal retirement pension

“(1) A member who retires from pensionable employment on or after attaining age 60 shall be entitled to a pension under this regulation.

(2) The pension under this regulation shall be at a yearly rate of 1/80th of final year's pensionable pay for each complete year of pensionable service, plus the relevant daily proportion of that rate for each additional day of such service.”

9 CAS-31676-N1P3 Part L Early Leavers

L1 Preserved pension

“(1) Subject to paragraphs (3) and (4), a member who leaves pensionable employment before age 60 without becoming entitled to a pension under any of regulations E1 to E5 shall be entitled to receive a pension and retirement lump sum under this regulation from age 60 if—

(a) the member leaves with at least 2 years' qualifying service, or

(b) a transfer payment has been made to this Section of the scheme in respect of the member's rights under a personal pension scheme.

(2) The pension under this regulation will be calculated—

(a) where it becomes payable by virtue of paragraph (3)(d) below, in accordance with paragraphs (2) to (4) of regulation E5, as if it were a pension under that regulation; and

(b) in any other case, as described in regulation E1 as if it were a pension under that regulation;

and the retirement lump sum will be calculated as described in regulation E6.

(3) The member shall be entitled to receive the pension and retirement lump sum before age 60 if—

(a) the member is in NHS employment and the Secretary of State is satisfied that the member is suffering from mental or physical infirmity that makes him permanently incapable of efficiently discharging the duties of that employment;

(b) the Secretary of State is satisfied that the member is suffering from mental or physical infirmity that makes him permanently incapable of engaging in regular employment of like duration; or

the member—

(i) left pensionable employment after 30th March 2000,

(ii) has reached the normal minimum pension age or, where relevant, protected pension age, and

(iii) has applied to the Secretary of State for payment of the pension and retirement lump sum under this regulation.”

10 CAS-31676-N1P3 Appendix 2 The Factsheet stated:

“Criteria to retire at age 55

In order to retire at age 55 a member must have spent the whole of the last five years pensionable employment in a health service scheme as a Special Class member. Breaks in employment will be ignored when assessing this period but the last five years of pensionable membership must be as a Special Class member to retire from age 55.

A member must be in a special class post immediately prior to retirement. When a member leaves pensionable employment before age 55 benefits become deferred and do not become payable until the Normal Pension Age of 60.

Redundancy - An exception to this is a special class member who is made redundant and is not in receipt of a redundancy pension. In these circumstances a member with deferred benefits may claim these benefits at age 55 if the last five years of pensionable employment was as a member of the special classes.”

The Guide stated:

“Preserved pension rights are normally payable on reaching age 60 (including members of the special class.

If an employee with preserved benefits RE-JOINS the scheme BEFORE age 60, benefits earned in the new service will be linked with the preserved benefits AND PAID:-

ON RETIREMENT

ON LEAVING THE SCHEME

OR AT AGE 70

AT OR AFTER AGE 60 (55 for members of the special class eligible for early retirement) if membership is continuous to that age.

ILL-HEALTH If a member leaves NHS employment with preserved benefits and then becomes permanently incapable of ANY regular employment by reason of physical or mental infirmity, they may claim early payment of the benefits. These benefits will NOT be increased. The claim must be 11 CAS-31676-N1P3 accompanied by suitable medical evidence. The scheme will be advise if necessary. Employees WHO CHOOSE TO LEAVE the scheme, but continue working in the NHS, may also claim early payment of any preserved benefits IF they become incapable of performing their NHS duties because of ill-health. However, they will NOT be allowed to rejoin the scheme in any future NHS employment.”

Full determination