Local Government Pension Scheme · CAS-38031-D5B4

CAS-38031-D5B4

Ombudsman’s Determination Applicant Mr D

Scheme Local Government Pension Scheme (Northern Ireland) (the Scheme)

Respondent Northern Ireland Local Government Officers' Superannuation Committee (the Committee)

Outcome

Complaint summary

Background information, including submissions from the parties The relevant rules and regulations are the Local Government Pension Scheme Regulations (Northern Ireland) 2014 (the 2014 Regulations).

Regulation 36 of the 2014 Regulations provides that an active member of the Scheme is entitled to a pension if her/his employment is terminated by the Scheme employer on the grounds of ill health and s/he satisfies the first and second conditions. The first condition is that the member is permanently (that is at least to normal pension age) incapable of discharging efficiently the duties of the employment s/he was engaged in. The second condition is that the member is not immediately capable of undertaking any “gainful employment”. Gainful employment means paid employment for not less than 30 hours in each week for a period of not less than 12 months.

If the member satisfied both conditions, they are entitled to either a Tier 1 or Tier 2 pension. Tier 1 benefits are payable if a member is incapable of any gainful employment; that is, until their normal retirement age (NRA). Tier 2 benefits are

1 CAS-38031-D5B4 payable if the member is likely to become capable of some gainful employment before their NRA.

A decision as to whether a member is entitled to a pension under Regulation 36, is for the Committee to make after it has obtained a certified opinion from an independent registered medical practitioner (IRMP).

Relevant extracts from the 2014 Regulations are provided in the Appendix.

Independent Occupational Health (Independent OH) was the Committee’s occupational health provider at the time.

Mr D was employed as a fulltime bus driver by Translink.

From 2015 onwards Mr D experienced discomfort in his hips and legs associated with varicose veins, he was also diagnosed with an umbilical hernia.

On 23 March 2016, Dr Courtney, an IRMP for Independent OH, provided his report (the OH Report) on Mr D’s ability to undertake his role as a bus driver. The OH Report said:-

• Mr D was suffering from pain in his legs caused by varicose veins and that he was awaiting surgery for this. He suffered from pain in his hips, particularly his left hip, and his right knee. At present, there was no formal diagnosis for this pain.

• The varicose ulcer, associated with the varicose veins, on his left ankle had healed, but it was still susceptible to injury or breakdown.

• The outcome of the pending surgery could not be predicted with any degree of certainty and the pain he felt in his hips and right knee only complicated matters further.

• At this time, Mr D remained unfit to return to his role as a bus driver, although his symptoms may improve after the surgery.

On 9 May 2016, Mr D and his employer submitted an application for IHER to the Committee. Enclosed with the application was Mr D’s job description and the OH Report.

On 7 June 2016, the Committee informed Mr D that he was required to attend an in- person assessment, on 17 June 2016, with an IRMP for an assessment on his ability to work.

After a meeting with Mr D on 17 June 2016, Dr Jenkinson, a specialist in OH medicine, gave his assessment on Mr D’s fitness to work. Dr Jenkinson concluded that Mr D was unfit to continue in his role as a bus driver and said:

• surgery for his varicose veins would be beneficial; however, it was unlikely to fully resolve his incapacity;

2 CAS-38031-D5B4 • he would likely continue to suffer from venous insufficiency (blood flow) in his legs, he also had slight symptoms of osteoarthritis in his right knee;

• Mr D was unfit for any role that required prolonged periods of sitting, standing and walking, this included his role as bus driver; however

• It was likely that Mr D would be capable of undertaking some form of gainful employment before reaching his NRA.

Dr Jenkinson sent the Committee a signed medical certificate and recommended that Mr D was entitled to receive Tier 2 IHER benefits.

On 20 July 2016, the Committee informed Mr D that his IHER application was accepted, and he was entitled to Tier 2 benefits. It believed that with surgery and pain medication, he was likely to be able to return to some form of gainful employment before his NRA.

On 7 August 2016, Mr D’s employment as a bus driver was terminated by way of incapacity due to ill health.

On 19 December 2016, Mr D made an appeal under stage one of the Scheme’s Internal Dispute Resolution Procedure (IDRP). He said that the symptoms associated with his varicose veins were still “relentless”, despite having surgery to treat it in October 2016. The symptoms of the osteoarthritis in his right knee had also increased. He was unable to provide any medical evidence in support of his appeal as he was awaiting a post-surgery assessment.

On 20 December 2016, the Committee acknowledged receipt of Mr D’s IDRP appeal and said that it would provide a response within two months.

The Committee forwarded Mr D’s appeal onto Dr Jenkinson and asked him to confirm whether his opinion had changed, or remained the same, based on the comments made by Mr D.

On 5 January 2017, Dr Jenkinson wrote to the Committee and said that his opinion remained unchanged. It was likely that Mr D would experience some improvement in his symptoms within the next three to six months post-surgery. No further treatment or therapies were required. In lieu of any substantive medical evidence that suggested otherwise, Tier 2 IHER benefits remained the most appropriate award for Mr D.

On 25 January 2017, the Committee provided its stage one IDRP response. It noted that Mr D was still in the recovery period for the surgery to treat his varicose veins and that his pain medication was being modified. The decision to award him Tier 2 benefits remained unchanged as it was likely that post recovery, he would be able to undertake some gainful employment.

On 5 July 2017, Mr D submitted an appeal under stage two of the Scheme’s IDRP. He explained that he had an x-ray on both knees on 4 January 2017, the results of 3 CAS-38031-D5B4 which showed degeneration in his right knee with swelling in the left knee. He was prescribed stronger pain medication and creams; it was also suggested that he should consider physiotherapy and steroid injections in his right knee. His post- surgery assessment recommended that he might consider sclerotherapy on his left ankle to prevent any recurrent varicose vein associated venous ulcers.

In support of his appeal, Mr D provided a medical report from his GP, Dr A Leitch, dated 4 July 2017, which said:

• Mr D suffered from an umbilical hernia and left sapheno-femoral incompetence with subsequent venous ulceration on his left ankle;

• he continued to experience pain in his legs despite bilateral surgery in October 2016;

• this meant that he was unable to bear weight on his left leg, or keep it in any one position for long periods of time, so he was unable to undertake any work;

• he recently complained of bilateral knee pain, which required a referral to occupational therapy for walking aids;

• his mortgage lender should consider the possibility of freezing his mortgage until his post-operative recovery was complete; and

• he remained unfit for work, or work of a sedentary nature.

The Committee referred Mr D’s stage two appeal, and the supporting evidence, onto Dr Turner and Dr Maguire, two OH consultants, neither of which had previously been involved in Mr D’s IHER application.

On 19 October 2017, Dr Turner and Dr Maquire, through a joint report, explained that Mr D attended an in-person assessment on 6 October 2017, in relation to his stage two appeal. The report is summarised below:-

• Since his surgery in October 2016, Mr D had not suffered any further venous ulcers and he continued to wear his support stockings on a daily basis.

• The surgery was helpful, but it did not fully resolve the issues that he suffered from. In particular, he still complained of symptoms and discomfort in his left ankle, the location of a previous ulcerations.

• He was still unsuitable for his former role as a bus driver, as he would be unable to stop the bus and freely move about.

• There were many different forms of employment that offered adaptable settings for Mr D to work in that would allow him to get up and move about. This would ensure that his legs were not kept in the same position for too long.

• His umbilical hernia had not presented any symptoms or discomfort. It was noted that he now also presented a small inguinal hernia, albeit with little to no 4 CAS-38031-D5B4 symptoms. There was no surgical treatment scheduled or planned for either of the hernias.

• He was still awaiting a referral for physiotherapy, and steroid injections, for the osteoarthritis in his right knee. It was likely that, with treatment, these symptoms would improve, although, in the long-term, surgical intervention may be required.

In conclusion, Dr Turner and Dr Maguire said:

“Taking into account all of the medical evidence available, [Mr D] remains permanently incapable [of] returning to his job as a bus driver due to the very prolonged sitting required, and has a reduced likelihood of being capable of undertaking gainful employment. He is likely to become capable of undertaking gainful employment as defined by the LGPS Regulations before reaching [NRA] which does not involve prolonged sitting or standing.”

On 21 November 2017, the Committee wrote to Dr Turner for clarification on several points before it provided its stage two IDRP response.

In response to the Committee’s request for clarification, Dr Turner explained that:-

• The options of physiotherapy and steroid injections were available for Mr D, if required. It was likely that these treatments would lead to an improvement in the symptoms associated with the osteoarthritis in his right knee.

• Surgery on his right knee was possible/available, but this was dependent upon the progression of his osteoarthritis. Although, at present, it was likely that Mr D was too young to be referred for surgery on his right knee.

• There were no further treatments planned for his legs other than the continued use of the support stockings.

• The new inguinal hernia occurred after his surgery in October 2016; however, it was small and did not require any treatment at present. There was no requirement for abdominal surgery unless either hernia presented discomfort for Mr D.

• She was not in receipt of the x-rays that Mr D had said were undertaken on his knees. Although, any problems he experienced were mainly in his right knee as he did not mention any discomfort in his left knee during the assessment.

• It was for Mr D’s consultant to decide whether it was appropriate, or necessary, to proceed with sclerotherapy on his left ankle.

• Mr D was permanently incapable of returning to his role as a bus driver, and his ability to undertake all forms of gainful employment was reduced. However, he was still able to fulfil some forms of employment, so Tier 2 benefits were recommended.

5 CAS-38031-D5B4 • It was possible that Mr D’s GP had signed him off sick from work for symptoms/conditions unrelated to his IHER application. GPs do not generally understand the criteria under the 2014 Regulations for IHER.

The Committee made the decision to refer the matter onto its legal counsel (the Counsel) before responding to Mr D’s stage two appeal. It provided the Counsel with the OH Report, copies of each IRMP’s opinions, and any medical evidence submitted in support of the IHER application and subsequent appeals.

On 11 December 2017, the Counsel provided a summary of the conditions that Mr D suffered from that instigated his IHER application. It also provided a detailed summary of all the medical evidence submitted, and of each of the opinions made by each IRMP.

In summary, the Counsel said:-

• All the IRMP’s were in agreement that Mr D was no longer able to fulfil his role as a bus driver. That is, he was unable to sit in one position for any length of time. There was also no medical evidence that contradicted the view of any of the IRMPs.

• The IRMPs agreed that Mr D would see some improvement in the symptoms related to his varicose veins and venous ulcers/insufficiency following an appropriate recovery period post-surgery.

• Dr Leitch only provided a view on Mr D’s capacity to work as at the time of his IHER application. Dr Leitch had not expressed a view on the expected future course of Mr D’s conditions. So, his opinion was not made in accordance with the test for IHER under the 2014 Regulations.

• Dr Jenkinson indicated that, with the benefit of time, there may be improvements to Mr D’s legs following the surgery in October 2016. There were no further treatments planned that could improve his venous problems. However, he was expected to be able to undertake some forms of employment that did not require him to sit, or stand, in one position for any prolonged periods of time.

• Dr Turner and Dr Maguire agreed with Dr Jenkinson’s opinion. Dr Turner believed that a difference of opinion between herself and Dr Leitch was down to Dr Leitch being unfamiliar with the 2014 Regulations and the IHER test criteria.

• While Mr D was unable to undertake some forms of sedentary employment, this did not mean that he was completely incapable of all forms of gainful employment. There were likely many roles available that would allow him to regularly move about when required.

• Mr D had not provided any additional medical evidence to support his comments under either stage one or two of the Scheme’s IDRP, other than the report from Dr Leitch.

6 CAS-38031-D5B4 • The IRMPs had taken into account Mr D’s current prognosis and the expected course of his conditions in relation to his ability to undertake gainful employment. Overall, the overriding opinion was that Tier 2 benefits remained appropriate as Mr D would likely be able to return to some form of employment before his NRA.

On 29 December 2017, the Committee provided its stage two IDRP response and did not uphold Mr D’s appeal, saying:-

• Since his surgery there was no evidence of any additional venous ulcers and that he continued to wear his support stockings. He was on appropriate pain relief medication for the osteoarthritis in his right knee with the possibility of a referral for physiotherapy and steroid injections. He was not experiencing any symptoms from either of his hernias and there was no requirement, at the time, for surgical intervention.

• It considered the opinion of each of the IRMPs and Dr Leitch’s, all of which agreed that he was unable to undertake his role as a bus driver. There was also an agreement that his capacity for undertaking all forms of employment had diminished; however, he was still able to undertake some forms of employment.

• It was accepted that he was unable to bear weight on his legs nor stand, or sit, in any one position for extended periods of time. This reduced his capacity for gainful employment; however, in a number of sedentary roles, he would be able to get up and freely move around as and when he needed to.

• It took into consideration whether Dr Leitch’s opinion conflicted with the opinions of the IRMPs. Overall, it was concluded that Dr Leitch was only looking at Mr D’s present situation and had not considered the future progress of Mr D’s conditions up to his NRA. This was likely because Dr Leitch was unfamiliar with the 2014 Regulations.

• As he was likely capable of some forms of gainful employment, before his NRA, the original decision to award him Tier 2 benefits remained appropriate.

Adjudicator’s Opinion

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• In the Adjudicator’s view, there was no basis on which he could recommend that the decision be remitted back to the Committee to reconsider.

8 CAS-38031-D5B4 Mr D did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mr D provided his further comments, which are summarised below:-

• The opinions of the IRMP’s did not fully reflect his long-term health and wellbeing. Before the surgery in October 2016, he had been absent from work for almost two years.

• The OH Report said that the outcome of the surgery for the varicose veins could not be “predicted with any degree of certainty”. It also made clear that the symptoms of the pain in his hips and right knee would also further complicate the outcome and benefits of the surgery.

• Dr Jenkinson’s report of 5 January 2017 said that post-surgery, there had not been an improvement in his symptoms. It was expected that there would be improvements in his symptoms in four-to-six-month post-surgery. However, one year after the surgery, Dr Turner and Dr Maquire said that the surgery he underwent can be “helpful although it may not fully resolve the condition”. This contradicted the view of Dr Leitch who believed he was unsuitable for any work, including sedentary work.

• The Counsel explained to Dr Turner that part of the reason he was awarded a Tier 2 IHER pension, was because it was expected that between four-to-six-month post-surgery, there should be an improvement in his symptoms. It asked Dr Turner to confirm if there had been an improvement since the surgery. Dr Turner, in his view, had not answered this question.

• He was now 60 years old and had not worked since 2014. He had now been referred to a surgeon for the inguinal hernia and he was on the waiting list for a knee replacement. At present, he walked with the aid of a walking stick and managed his other symptoms with pain relief medication. He was now registered as disabled and held a blue badge.

Ombudsman’s decision

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I do not uphold Mr D’s complaint.

Anthony Arter CBE

Deputy Pensions Ombudsman

12 December 2023

12 CAS-38031-D5B4 Appendix Local Government Pension Scheme Regulations (Northern Ireland) 2014

As at the date Mr D’s employment ceased, Regulation 36 provided:

“36.—(1) Where an active member who has qualifying service for a period of two years or more ceases local government employment on the grounds that—

(a) the member’s ill-health or infirmity of mind or body renders the member permanently incapable of discharging efficiently the duties of the employment the member was engaged in; and

(b) the member, as a result of ill-health or infirmity of mind or body, has a reduced likelihood of being capable of undertaking any gainful employment before reaching normal pension age,

the Committee may, at the request of the employing authority, determine that the member’s retirement pension comes into payment before the member’s normal pension age in accordance with this regulation.

(2) If a member satisfies the conditions in paragraphs (1)(a) and (1)(b) then the member shall take early payment of a retirement pension.

(3) The amount of the retirement pension that a member who satisfies the conditions mentioned in paragraphs (1)(a) and (1)(b) receives is determined by which of the benefit tiers specified in paragraphs (4) and (5) that member qualifies for, calculated in accordance with regulation 39 (calculation of ill- health pension amounts).

(4) A member is entitled to Tier 1 benefits if that member is unlikely to be capable of undertaking any gainful employment before normal pension age.

(5) A member is entitled to Tier 2 benefits if that member—

(a) is not entitled to Tier 1 benefits; and

(b) is likely to become capable of undertaking any gainful employment before reaching normal pension age.

(6) Before determining whether a member who has ceased to hold a local government employment is entitled to a benefit under this regulation, the Committee shall obtain a certificate, in accordance with regulation 38 (role of the IRMP), from an IRMP qualified in occupational health medicine who is appointed by the Committee.”

Regulation 38 provided:

“38.—(1) A decision as to whether a member is entitled to early payment of retirement pension under regulation 36 (early payment of retirement pension 13 CAS-38031-D5B4 on ill-health grounds: active members) or 37 (early payment of retirement pension on ill-health grounds: deferred members), shall be made by the Committee after it has obtained a certificate from an IRMP as to—

(a) whether or not the member is suffering from a condition that renders the member permanently incapable of discharging efficiently the duties of the employment the member was engaged in, because of ill-health or infirmity of mind or body;

(b) whether as a result of that condition the member has a reduced likelihood of being capable of undertaking any gainful employment before reaching normal pension age, and how long the member is unlikely to be capable of undertaking gainful employment; and

(c) where a member had reduced working hours and had reduced pay as a consequence, whether that reduction in working hours was wholly or partly as a consequence of the ill-health or infirmity of mind or body.

(2) Where the IRMP is considering an application under regulation 36 (early payment of retirement pension on ill-health grounds: active members), the IRMP shall further determine whether, as a result of that condition, the member—

(a) is unlikely to be capable of undertaking any gainful employment before reaching normal pension age; or

(b) is likely to become capable of undertaking any gainful employment before reaching normal pension age.

(3) A certificate from an IRMP, obtained under paragraphs (1) and (2), shall include a statement that—

(a) that IRMP has not previously advised, or given an opinion on or otherwise been involved in the particular case for which the certificate has been requested; and

(b) that IRMP is not acting, and has not at any time acted, as the representative of the member, the employing authority or any other party in relation to the same case.

(4) The Committee and the IRMP shall have regard to guidance given by the Department when carrying out their function under this regulation, when making an ill-health determination.”

Regulation 81 provided:

“First instance determinations: ill-health

81.—(1) Where the Committee is considering whether a person who has ceased to hold a local government employment is entitled to a benefit under 14 CAS-38031-D5B4 regulation 36 (early payment of retirement pension on ill-health grounds: active members) or regulation 37 (early payment of retirement pension on ill- health grounds: deferred members), it shall refer for decision to the IRMP, who is qualified in occupational health medicine and who has been appointed by the Committee under regulation 36(6) and 37(2).

(2) The IRMP, in accordance with regulation 38 (role of the IRMP), shall supply to the Committee, when requested by the Committee, a certificate regarding its ill-health determination.”

Schedule 1 states:

“gainful employment” means paid employment for not less than thirty hours in each week for a period of not less than twelve months”

“permanently incapable” means that the member will, more likely than not, be incapable until at the earliest, the member’s normal pension age”

“IRMP” means an independent registered medical practitioner who is registered with the General Medical Council and—

(a) holds a diploma in occupational health medicine (D Occ Med) or an equivalent qualification issued by a competent authority in an EEA state; and for the purposes of this definition, “competent authority” has the meaning given by section 55(1) of the Medical Act 1983(25); or

(b) is an Associate, a Member or a Fellow of the Faculty of Occupational Medicine or an equivalent institution of an EEA state”

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