Local Government Pension Scheme Lgps · CAS-38669-T5N6

CAS-38669-T5N6

Ombudsman’s Determination Applicant: Ms E

Scheme: Local Government Pension Scheme (LGPS)

Respondents: Her Majesty's Prison and Probation Service (HMPPS)

Greater Manchester Pension Fund (GMPF)

Outcome

Complaint summary

Background information, including submissions from the parties Background

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1 Statement of fitness for work

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Ms E’s position

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HMPPS’ position

GMPF’s position

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Ms E did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Ms E provided her further comments which do not change the outcome. I agree with the Adjudicator’s Opinion.

Ms E’s further comments

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Ombudsman’s decision

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In summary, I do not find HMPPS’ decision-making to be flawed and I do not uphold Ms E’s complaint.

Anthony Arter Pensions Ombudsman

10 August 2020

10 CAS-38669-T5N6 Appendix 1 The Local Government Pension Scheme Regulations 2013 (SI2013/2356) (as amended)

(1) An active member who has qualifying service for a period of two years and whose employment is terminated by a Scheme employer on the grounds of ill-health or infirmity of mind or body before that member reaches normal pension age, is entitled to, and must take, early payment of a retirement pension if that member satisfies the conditions in paragraphs (3) and (4) of this regulation.

(2) The amount of the retirement pension that a member who satisfies the conditions mentioned in paragraph (1) receives, is determined by which of the benefit tiers specified in paragraphs (5) to (7) that member qualifies for, calculated in accordance with regulation 39 (calculation of ill-health pension amounts).

(3) The first condition is that the member is, as a result of ill-health or infirmity of mind or body, permanently incapable of discharging efficiently the duties of the employment the member was engaged in.

(4) The second condition is that the member, as a result of ill-health or infirmity of mind or body, is not immediately capable of undertaking any gainful employment.

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

(6) A member is entitled to Tier 2 benefits if that member -

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

(b) is unlikely to be capable of undertaking any gainful employment within three years of leaving the employment; but

(c) is likely to be able to undertake gainful employment before reaching normal pension age.

(7) Subject to regulation 37 (special provision in respect of members receiving Tier 3 benefits), if the member is likely to be capable of undertaking gainful employment within three years of leaving the employment, or before normal pension age if earlier, that member is entitled to Tier 3 benefits for so long as the member is not in gainful employment, up to a maximum of three years from the date the member left the employment.”

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“(1) A decision as to whether a member is entitled under regulation 35 (early payment of retirement pension on ill-health grounds: active members) to early payment of retirement pension on grounds of ill- health or infirmity of mind or body, and if so which tier of benefits the member qualifies for, shall be made by the member's Scheme employer after that authority has obtained a certificate from an IRMP as to -

(a) whether the member satisfies the conditions in regulation 35(3) and (4); and if so,

(b) how long the member is unlikely to be capable of undertaking gainful employment; and

(c) where a member has been working reduced contractual hours and had reduced pay as a consequence of the reduction in contractual hours, whether that member was in part time service wholly or partly as a result of the condition that caused or contributed to the member's ill-health retirement.

(2) An IRMP from whom a certificate is obtained under paragraph (1) must not have previously advised, or given an opinion on, or otherwise been involved in the particular case for which the certificate has been requested.

(2A) For the purposes of paragraph (2) an IRMP is not to be treated as having advised, given an opinion on or otherwise been involved in a particular case merely because another practitioner from the same occupational health provider has advised, given an opinion on or otherwise been involved in that case.

(3) If the Scheme employer is not the member's appropriate administering authority, it must first obtain that authority's approval to its choice of IRMP.

(4) The Scheme employer and IRMP must have regard to guidance given by the Secretary of State when carrying out their functions under this regulation and regulations 37 (special provision in respect of members receiving Tier 3 benefits) and 38 (early payment of retirement pension on ill-health grounds: deferred and deferred pensioner members).”

12 CAS-38669-T5N6 Appendix 2 Medical evidence

“The prognosis for [Ms E’s] Fibromyalgia is difficult to predict. As you will know this is a condition that does not have a clear satisfactory cure but is managed with analgesia, exercise and lifestyle measures. She has no further treatments posed or available. Given the amount of time that she has needed to be off in

2 Pro-forma IRMP’s certificate published by GMPF

13 CAS-38669-T5N6 the past it is reasonable to predict that she will have on-going problems with her functional ability affecting her ability to do her job.”

• Ms E’s occupational health records, including a report dated 14 May 2018

• A report dated 10 September 2018 from Ms E’s GP (see paragraph 36 above)

• A letter from a specialist registrar in rheumatology, Dr Abraham, dated 29 February 2012 (see paragraph 34 above)

• Letters from physiotherapists dated 9 May 2012 and 13 January 2016

“She is on medication to reduce her pain related symptoms but has not had the benefit of attendance at a multidisciplinary rehabilitation programme where a holistic bio-psycho-social assessment and interventions are provided. Psychological therapy will help her cope better and lessen her perception of pain.

Fibromyalgia is a condition that tends to fluctuate in severity. [Ms E] has been working full time since the diagnosis. With continuing adjustments as advised by occupational health and further specialist treatment as described above it is reasonable to anticipate that she will recover sufficiently to be fit for her normal employment as a Case Administrator, before her 67th birthday.”

14 CAS-38669-T5N6 • A letter dated 30 September 2018 and a statement dated 3 December 2018 from Ms E

• A P60 form for the year ending April 20133

• MED 3 statement of fitness for work forms dating from April 2012 to October 2018

• Correspondence from HMPPS

3 Submitted by Ms E in response to Dr Chapman’s report to show that she had worked part-time from 2012

to 2015 15 CAS-38669-T5N6 “In my opinion there are still therapeutic options available, preferably provided by specialist services, including Pain Clinic, which have not been explored but should help her to manage her symptoms and increase functional capacity.

I expect that with better management of her condition and adequate workplace adjustments there is likelihood of resuming her employment of Case Administrator before her normal pension age of 67.”

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