Usdaw Staff Superannuation Fund · CAS-50031-V7H9

CAS-50031-V7H9

Ombudsman’s Determination Applicant Mr L

Scheme Usdaw Staff Superannuation Fund (the Fund)

Respondent The Trustees of the Usdaw Staff Superannuation Fund (the Trustees)

Complaint Summary

Summary of the Ombudsman’s Determination and reasons The complaint should not be upheld against the Trustees because there is no evidence to suggest that there was any error, or omission of fact, when Mr L’s IHER entitlement was reviewed in 2016.

Detailed Determination Material facts

The sequence of events is not in dispute, so I have only set out the salient points. I acknowledge there were other exchanges of information between all the parties.

Mr L is a member of the Fund, a defined benefit occupational pension scheme, which is administered in accordance with the Definitive Trust Deed and Rules (the Rules).

As relevant, rule 7(1)(b) states:

“7(1) Every Contributor shall become entitled to an immediate superannuation allowance from the Fund in the following circumstances:

…

b) if he shall have been a Contributor to the Fund for a period of not less than 5 years and shall retire from the service of the Union before attaining Normal Retirement Age by reason of his inability to perform his duties in consequence of total or permanent infirmity or ill health, such inability being

1 CAS-50031-V7H9 determined by a certificate to that effect given by the Executive Council and acceptable to the Committee.

If any Member of the Fund having been superannuated under the circumstances set out in this Sub-Rule recovers sufficiently to resume his duties he shall not be deemed eligible to continue receipt of any benefits under the Fund except at the discretion of the Committee who shall fully consider each case on its merits.

If the Member, in the view of the Executive Council and the Committee, is capable of or becomes capable of undertaking other employment then the Committee shall reduce the superannuation allowance at their discretion.”

From May 2009, Mr L was unable to continue in his role as an Area Organiser due to severe back pain. Consequently, Mr L applied for IHER in 2010. However, at the time his application was declined.

On 30 January 2012, the Trustees agreed to award Mr L an IHER pension. Based on the medical evidence, it was agreed that he was permanently incapable of carrying out the duties of his role as an Area Organiser.

On 1 February 2012, the Trustees wrote to Mr L and informed him that his IHER appeal was upheld and that he was eligible to receive an IHER pension backdated to 20 September 2010. The Trustees drew Mr L’s attention to the second paragraph of rule 7(1)(b) and said: “the Trustees will from time-to-time require continued evidence of the state of your health as required under this Rule”.

In 2014, Mr L’s continued entitlement to his IHER was reviewed by the Trustees. Overall, it was agreed that Mr L’s condition had not improved to allow him to return to his role. Mr L continued to receive his IHER pension and was informed that his next review would be in two years.

On 5 July 2016, the Trustees wrote to Mr L and said that it had been two years since his last IHER review. Consequently, it had made arrangements for him to attend an appointment with the Fund’s appointed occupational health provider, Medigold. If it was established that he was able to undertake his role or alternative employment, it held the necessary discretion to reduce or suspend his IHER pension.

On the same day, the Trustees wrote to Medigold and asked it to contact Mr L to arrange an appointment. The Trustees provided Medigold with a copy of the relevant Rules and Mr L’s former job description. Medigold was asked to give a clear view/response to the following questions:

“1) To what extent is the individual capable of performing the duties required by his former job role with the union?

2) To what extent is the individual capable of undertaking other employment or is the individual currently engaged in another employment?

2 CAS-50031-V7H9 3) Can the individual’s infirmity/ill health be classed as either ‘total’ or ‘permanent’?

4) What are the prospects of the individual recovering sufficiently to be able to resume his former role within the Union and within what timescales?

5) On the balance or probabilities, is the individual likely to recover sufficiently to be able to undertake some other form of employment between now and normal retirement age (age 65 under the Fund’s Rules) and within the timescales? Please note that Dr Roy’s [Medigold Consultant Occupational Physician] report dated 9 July 2014 stated that ‘given [Mr L’s] young age and the extent of his symptoms… it would be difficult to predict that he is permanently incapable of carrying out any work until his retirement age of 65’.

6) To what extent can the individual’s condition be expected to (or have been expected to) improve in response to the medication and treatments he has been prescribed so far?

7) Since his last review, would you reasonably expect the individual’s condition to have improved sufficiently by now to enable him to undertake some form of employment?

8) How long would you recommend that the Trustees wait until they request a further review of the individuals medical condition and continued eligibility for ill-health retirement?”

On 21 July 2016, Mr L failed to attend his appointment with Medigold. Consequently, Mr L’s appointment was rearranged to 15 September 2016.

On 15 September 2016, Mr L cancelled his rearranged appointment with Medigold as he was unwell.

On 12 October 2016, the Secretary to the Trustees (the Secretary) emailed Mr L and informed him that if he did not attend his next appointment with Medigold, the Trustees would need to reconsider his entitlement to his IHER pension.

On 10 November 2016, Mr L attended an appointment with Dr Hall, the medical adviser (the MA) appointed by Medigold to carry out the IHER review.

On 5 December 2016, Dr Hall provided the Trustees with his opinion on Mr L’s entitlement to an IHER pension, based on his current capacity for work (the MA’s Report). In drafting the MA’s Report, Dr Hall was provided with Mr L’s IHER application, the report for Mr L’s 2014 IHER review, and copies of medical evidence from 2009 to 2014.

In summary, Dr Hall said:-

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Dr Hall provided the following answers to the questions originally asked of him by the Trustees (see above paragraph 11):

4 CAS-50031-V7H9 “I believe there is no medical reason preventing [Mr L] from duties of his former role.

I believe [Mr L] is medically capable of undertaking other forms of employment. He claims not to be employed at present.

In my opinion, he does not have any permanent or total infirmity/ill health.

Yes, in my opinion, he is medically capable of undertaking such roles at present.

[Mr L], in my opinion, is medically capable of undertaking the duties of his former role although there is no reasonable prospect of him doing so.

Since his last review, would you reasonably expect [Mr L’s] condition to have improved sufficiently by now to enable him to undertake some form of employment?

Yes.”

On receipt of the MA’s Report, Mr L asked the Trustees to postpone making any decision regarding the continued payment of his IHER pension until he was able to provide a report from his GP. The Trustees agreed to postpone any decision.

On 30 January 2017, Dr Kearney, Mr L’s GP, provided a report which said that he was not in a position to question the MA’s Report as it was a specialist report based on answering questions that required a specialist assessment.

On 3 February 2017, Mr L wrote to the Secretary and raised a number of concerns and queries about the MA’s Report. Mr L said:-

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On 3 March 2017, the Secretary wrote to Mr L and explained that his comments on the MA’s Report were referred onto Dr Hall to respond to. Dr Hall’s response was as follows:-

On 20 March 2017, Mr L wrote to the Secretary and said:-

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On 21 March 2017, the Trustees convened for their monthly meeting and discussed Mr L’s IHER review. The minutes from the meeting evidenced that the following was discussed:-

On 23 March 2017, the Secretary wrote to Mr L and informed him that his IHER pension was to be suspended from 31 March 2017 and he could appeal the decision through the Fund’s Internal Dispute Resolution Procedure (IDRP) if he wished to.

On 15 September 2017, Mr L informed the Secretary that he wished to appeal the decision under stage one of the Fund’s IDRP.

On 2 April 2018, Mr L said in his appeal:-

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Mr L noted the following points from PO-11695 (Mr N):-

1John Lewis Partnership Pension Scheme (PO-11695) | The Pensions Ombudsman 2 Royal Bank of Scotland Staff Pension Scheme (L00761) | The Pensions Ombudsman

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Mr L noted the following points from L00761 (Mrs Y): -

On 13 June 2018, the Secretary provided the stage one IDRP response to Mr L’s appeal, on behalf of the Trustees, and did not uphold the complaint. The Secretary explained that:-

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On 2 September 2018, Mr L asked for his complaint to be considered under stage two of the IDRP and submitted that:-

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Between June and December 2020, Mr L corresponded with the Secretary. Mr L said that he had not received a response to his stage two IDRP appeal. The Secretary explained that Mr L’s complaint was now out of time, however he would refer the matter to the Trustees to consider whether they wanted to accept his appeal.

On 2 December 2020, the Trustees agreed to accept Mr L’s stage two appeal and said they would review it during their next meeting on 17 March 2021.

On 17 March 2021, the Trustees convened for their quarterly meeting and discussed Mr L’s appeal. The Trustees decided not to uphold it. This was supported by advice from the Fund’s legal counsel. The Trustees said Mr L was misguided in saying that the decision to suspend his pension was made without any new evidence. Dr Hall was appointed to conduct the two-year review and provided the MA’s Report which represented new evidence. This evidence was appropriate for the Trustees to rely on when making their decision. Dr Hall was expressly asked about the prospects of Mr L recovering sufficiency to return to his role. Dr Hall’s opinion was that he had recovered sufficiently. No previous medical reports were omitted by Dr Hall in arriving at his opinion. Further, Dr Hall was a qualified occupation health physician with 30 years’ experience.

On 12 April 2021, the Secretary provided Mr L with the Trustees stage two response and said that:-

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Summary of L’s position

Dr Hall’s theory was that “rest and graded” exercise would help alleviate his symptoms to allow a return to work. This contradicted the view expressed by any specialist/doctor within any medical reports from 2010 onwards. Dr Hall appeared to base this assumption on the basis of the permanence of his condition and that the NICE guidance which said that MLBP was not permanent but variable. The permanence of his condition was supported by multiple specialists more qualified than Dr Hall.

Rest, graded exercise and medication were encouraged in the first 6-12 weeks of his diagnosis in 2009. However, in spite of this his pain remained and so was therefore classed as chronic pain. The NICE guidance does not override the diagnosis and prognosis of consultants Dr Hall’s comment that his “symptoms are disproportionate to [his] diagnosis” and that rest and exercise were required and that he should have recovered within 12 weeks of his diagnosis was counter intuitive. If he recovered sufficiently within six months he would have been back in his role as opposed to be dismissed after 14 months on sick leave.

He believed the Trustees only accepted the MA’s Report, and his own letter, when it made the decision to suspend his pension. He did not believe that any previously provided medical evidence was considered, as much of its contents contradicted Dr Hall’s view. It was clear that the Trustees blindly accepted Dr Hall’s opinion as neither Dr Hall, nor the Trustees, pointed to any treatments that he had undertaken between 2014 and 2016 that resulted in a recovery of his symptoms.

Summary of the Trustee’s position

The key question that the Trustees needed to consider and answer when reviewing Mr L’s continued entitlement to an IHER pension was if he had recovered sufficiently enough to return to his former role. Alternatively, they could consider if he was capable of any other work. If he was, they could reduce, instead of suspending, his pension. The Trustees concluded that Mr L had recovered sufficiently to return to his role, so they did not need to consider the second question.

12 CAS-50031-V7H9 Dr Hall’s assessment in 2016 was unequivocal in that he believed Mr L had recovered sufficiently to return to his former role. Specifically, Dr Hall was asked if, in his opinion, Mr L “had sufficiently improved in order to enable him to undertake some form of employment and he answered “yes””.

An improvement in Mr L’s condition was anticipated by Dr Coles and Dr Roy. In particular, Dr Coles’ report from December 2011 said that Mr L had not had the benefit of attending a pain management programme, so he was unable to conclude that Mr L was permanently unfit for employment and that a future review was required. In July 2014, Dr Roy commented that he hoped Mr L would recover sufficiently to undertake some form of employment before his normal retirement age. This was on the basis of his continued involvement with the pain management clinic. Dr Roy said that he could not realistically see Mr L returning to his former role within the next three to six months, therefore implying he could undertake that role in the future.

Dr Hall accepted the specialist diagnosis of Mr L’s condition, but his view was that the symptoms of that condition no longer prevented Mr L from working. It should be noted that improvement and recovery are not restricted to the underlying condition. Dr Hall’s opinion was clear, so the Trustees did not accept that there were differing medical opinions or that additional medical evidence should have been sought.

The Trustees refuted Mr L’s assertions regarding their reliance on the MA’s Report as opposed to the opinion of a specialist spinal consultant. Dr Hall had over 30 years of experience in the field and was in the best place to provide a view on a condition/symptoms and how they affect an individual’s ability to undertake their role based on its requirements. Dr Hall also considered and responded to the comments and additional questions raised by Mr L in response to the MA’s Report.

As recorded in the Trustee minutes from March 2017, the question of whether Mr L’s condition was permanent was not a relevant consideration nor did it have any bearing on the decision to suspend Mr L’s pension. However, this did not mean that it was not appropriate to pose the question to Dr Hall as it might have been that Dr Hall concluded that Mr L remained incapable of resuming his former role and so a further review might be required. If Dr Roy indicated, in 2014, under the first review that there was no possibility of improvement in Mr L’s symptoms, the Trustees’ might not have asked for a further review in two years-time. These questions would also be relevant in deciding to reduce Mr L’s pension if it was found that he was unable to return to his former role, but that he was able to undertake some work.

The Trustees did not blindly accept Dr Hall’s opinion. They asked themselves the correct questions and, based on Dr Hall’s unequivocal report, and response to follow up questions, it was reasonable for the Trustees to conclude that Mr L had recovered sufficiently to return to his former role. Mr L provided no contemporaneous evidence to suggest otherwise. The MA’s Report was so conclusive that a significant amount of weight was attached to it.

13 CAS-50031-V7H9 When the decision to suspend Mr L’s pension was reached, the Trustees could have decided that Mr L was not due any further benefits from the Scheme. The Scheme Actuary had advised that the sum of IHER pension payments Mr L received exceeded his benefit entitlement under the Scheme. As such, the Trustees were presented with a choice of deciding if Mr L’s entitlement was now extinguished, or award him a deferred pension which took into account the benefits already received by Mr L with a new deferment date of 31 March 2017. The Trustees elected to undertake the latter option to allow Mr L a deferred pension, but with no lump sum entitlement. Mr L was now over the age of 55 and eligible to claim his pension.

Mr L’s response to my Preliminary Decision

On its true interpretation, rule 7(1)(b) provides that once an IHER pension is in payment, it can only be suspended if the recipient has “enjoyed a recovery of health to such an extent that he or she would in principle be fit once again to perform the duties of the position from which he retired on IHER grounds”. Alternatively, the award can be reduced if the recipient is unable to undertake their role, but they have recovered sufficiently enough to undertake other employment.

The discretion available to the Trustees under rule 7(1)(b) to reduce or suspend an IHER award is contingent on there having been a change in the individual’s health. Essentially, there has to have been a recovery in their health to undertake the duties or their role, or other employment. Paragraphs two and three or rule 7(1)(b) do not allow the Trustees to reduce or suspend a pension if they believe that the criteria in paragraph one of rule 7(1)(b) is no longer met at the date of the review. The review is not an opportunity to “second guess the initial decision”.

The MA’s Report should not have been taken into consideration when reviewing his IHER entitlement. The report included irrelevant considerations such as Dr Hall commenting that he was not suffering from a permanent incapacitating condition. This was not the right question to ask under rule 7(1)(b) for the purpose of a review. During the face-to-face assessment Dr Hall told him that he would not have recommended that he receive the original IHER award.

Dr Hall said that MLBP was a variable condition and permanence could not be established. He also referenced NICE guidance when arriving at this view. Regardless of whether this was correct, it was accepted in 2012 that he was suffering from a permanent condition that gave rise to incapacity. So, the permanence of his condition was irrelevant. Consequently, Dr Hall’s comment that “there was no medical reason preventing [Mr L] from duties of his former role” appeared to be made on the assumption that he was never incapacitated. There was no mention of any improvement in his health that allowed his return to work.

During the assessment Dr Hall noted that he could sit, stand and walk, albeit while “grimacing frequently”. There was no consideration as to whether he could make the movement necessary to undertake his former role without an intolerable level of pain. Dr Hall also demonstrated a level of bias against him. This was demonstrated when

14 CAS-50031-V7H9 Dr Hall commented on the texture and roughness of his hands suggesting manual work. This indicated that Dr Hall did not trust or believe that he was not working, and so this hindered Dr Hall’s ability to offer an impartial opinion for the purpose of the review.

He submits that the Trustees’ meeting of 21 March 2017, when the review of his entitlement was undertaken, was flawed. During this meeting the Trustees agreed that he was capable of undertaking the duties of his former role. So, the review was undertaken against the second paragraph of rule 7(1)(b), and not the third paragraph. The MA’s Report, which the Trustees based their decision on, said that he was able to undertake his former role, not that he had recovered to a sufficient extent to do so. However, the report was not supported by any relevant medical evidence that supported a decision to be made under paragraph two or rule 7(1)(b).

When answering a question of whether he was suffering from “total” or “permanent” incapacity, Dr Hall said that he was not permanently incapacitated. This was an irrelevant consideration for the purpose of a review under paragraph two of rule 7(1)(b). Consequently, as the Trustees accepted and relied on the MA’s Report when it made the decision to suspend his pension, they had relied on an irrelevant consideration. On this basis, the decision was flawed. Given the bias in Dr Hall’s report, the Trustees should have requested a fresh report from a new MA.

Conclusions

Provided the Trustees have acted in accordance with the above principles, and within its powers under the Rules, I have no grounds to submit the matter back to the Trustees to consider again.

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The second limb is not in issue as the Trustees proceeded under the first limb. The second limb would only become a necessary consideration if, under the first limb, it was agreed that there had not been a recovery in Mr L’s health to allow him to return to his role as an Area Organiser. For the purpose of the 2016 review, the second limb was an irrelevant consideration.

The first limb does not specify who is to determine whether the member has sufficiently recovered. I find that, in the context of the Rules, it is a determination to be made by the Trustees objectively. It is not a matter of discretion although if the provision applies, they have discretion to maintain the pension. I agree with the Trustees that the key question that they needed to consider and answer when reviewing Mr L’s continued entitlement to an IHER pension was whether he had recovered sufficiently to return to his former role. In making that determination, it was for the Trustees to determine what evidence they required, including medical evidence. My role is not to determine what evidence they should have considered but to consider whether the evidence the Trustees obtained and considered was appropriate and whether it reasonably supported the conclusion they reached. Essentially, I need to consider whether their decision was a rational decision based on relevant evidence but no more.

I should add that I find that the words “recovers sufficiently to resume his duties” requires the Trustees to determine whether the member is in sufficient health that he would be able to carry out his former role. On the assumption that he was not able to carry out his role at the time the pension was originally granted, the provision assumes there must have been some recovery. However, the matter to be determined is not the extent of or the reasons for any change or improvement but to determine, at the review date, whether or not the member is in sufficient health that he could resume the duties of his previous role. The reasons for the original decision 16 CAS-50031-V7H9 are not key except as part of the medical background that may inform the current medical assessment at the review date.

The Trustees’ decision was primarily based on the MA’s Report. I find reliance on the MA’s Report was reasonable in all the circumstances. Dr Hall MFOM, Chief Medical Adviser at Medigold, was the medical adviser appointed by Medigold, an occupational health provider, and had over 30 years of experience in the field. It was reasonable for the Trustees to consider that Dr Hall was qualified to provide an expert opinion on an individual’s condition or symptoms and how they might affect their ability to undertake their role based on its requirements. Dr Hall

I appreciate Mr L’s comments that Dr Hall’s opinion, that he (Mr L) has recovered sufficiently to undertake his former role, was not in his view, supported by any newly obtained medical evidence. The relevant rule does not provide that such a determination is based on any particular level of medical evidence but in any event Dr Hall’s opinion itself constituted medical evidence.

In preparing the MA’s Report, Dr Hall had access to Mr L’s IHER application, the report for Mr L’s 2014 IHER review, and copies of medical evidence from 2009 to 2014 which he referenced. He carried out a physical examination in person and an interview with Mr L. He also considered and responded to the comments and additional questions raised by Mr L in response to the MA’s Report.

Dr Hall’s report stated clearly that in his opinion:

Additional questions were asked and answered which may have been directed to the need to carry out future reviews, as explained by the Trustees, or to issues relevant to their discretions, rather than to the immediate issue of determining whether Mr L had recovered sufficiently to return to his previous role or undertake other roles. I do not consider that inclusion of such questions and Dr Hall’s answers and other comments make it unreasonable for the Trustees to have relied on the relevant parts of his evidence.

Dr Hall was required to give his opinion on whether the symptoms of Mr L’s condition meant he was now capable of his former duties (or other employment) and provide sufficient explanation to enable the Trustees to reach their own conclusion.

Dr Hall commented that he did not believe that Mr L’s condition was permanent and said: “Mechanical Back Pain is a variable condition, and permanence cannot be established” and referred to guidance prepared by NICE, the Faculty of Occupational Medicine and the Royal College of General Practitioners.

17 CAS-50031-V7H9 Dr Hall noted the condition of Mr L’s hands and said it was suggestive of manual work, albeit not confirmed. Later in the report, Dr Hall said: “There may be some suspicion that he is undertaking manual work, but this cannot be confirmed”, and “he claims not to be in employment”. Dr Hall commented that Mr L was able to sit, stand and walk and undertake activities at home and said he would “encourage Mr L to return to the work environment”.

I do not find that there is anything in these comments that should have led the Trustees to disregard his evidence or made it unsafe for them to reach their determination on the basis of the MA’s Report. I agree that the question of whether Mr L was, at the time of the review in 2016 suffering from permanent incapacity, was an irrelevant question and consideration. It was accepted in 2012 that Mr L did suffer from a permanent condition giving rise to an IHER award entitlement. However, this was noted during the Trustees meeting of 21 March 2017 where it was agreed that the permanency of Mr L’s condition did not need to be taken into consideration. Irrespective of Dr Hall’s comments, the Trustees noted, and did not take an irrelevant consideration into account for the purpose of the review.

Dr Hall’s opinion was that Mr L could undertake his former role. To the specific question “to what extent is Mr L capable of performing the duties required by his former job role with the union?”, Dr Hall responded “I believe there is no medical reason preventing Mr L from [performing the] duties of his former role”. The report did provide some explanation including the comments mentioned above, and I do not consider it unreasonable for the Trustees to have relied on Dr Hall’s clear conclusion given that it was based on an examination and interview with Mr L and a review of the earlier medical reports. The Trustees’ were entitled to place significant reliance on Dr Hall’s expertise as a specialist in the field of occupational health.

For these reasons, by placing significant weight on Dr Hall’s opinion and responses to follow up questions, directing themselves to the correct questions, I find it was reasonable for the Trustees to conclude that Mr L had recovered sufficiently to return to his former role and therefore I find that the Trustees’ decision to suspend Mr L’s pension was properly made. I also confirm that there was no need to consider what had changed on the basis that the medical opinion of Dr Hall was clear that he was now sufficiently able and that it also explained, consistently with some of the previous medical reports, that his symptoms might vary over time.

Finally, Mr L has expressed concern that Dr Hall held a biased view towards him and that the Trustees should have sought to obtain a fresh opinion from a new MA. The basis for Mr L’s comments centre on Dr Hall allegedly saying that he would not have agreed that Mr L was eligible for an IHER award in 2012, and that he believed he may have undertaken manual work due to the roughness of Mr L’s hands.

The Trustees sought further clarification regarding these comments from Dr Hall, for which answers were provided. While I understand Mr L’s comments, there is no evidence of any bias towards Mr L from Dr Hall. In any event, the comments regarding the permanence of his condition and the condition of his hands was not 18 CAS-50031-V7H9 taken into consideration by the Trustees, and so it did not prejudice the Trustees’ decision to suspend his IHER pension.

I do not agree that the Trustees should consider again the 2016 review of the continuation of Mr L’s pension.

I do not uphold Mr L’s complaint.

Camilla Barry Deputy Pensions Ombudsman 16 January 2026

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