Teachers Pension Scheme · CAS-50365-T9S1

CAS-50365-T9S1

Ombudsman’s Determination Applicant Mr N

Scheme Teachers' Pension Scheme (the Scheme)

Respondent Teachers’ Pension (TP)

Outcome

Complaint summary

Background information, including submissions from the parties 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.

By virtue of Mr N’s employment as a teacher, he is a member of the Scheme, a defined benefit occupational arrangement administered by TP on behalf of the Department of Education.

The Scheme is administered in accordance with the Teachers' Pension Scheme Regulations 2010 (SI2010/990) (the 2010 Regulations).

Schedule 7, paragraph 3, Case C: Ill-health retirement’, provides that an active or deferred member of the Scheme may apply for IHER at any time. To be eligible for IHER an applicant must satisfy conditions 1,2 and 3 listed under 3(2), (3) and (4), or condition four under 3(5). These are:

“(2) Condition 1 is that P is incapacitated and is likely to be incapacitated permanently.

(3) Condition 2 is that immediately before satisfying condition 1 –

(a) P was in pensionable employment,

1 CAS-50365-T9S1 (b) P was paying contributions under regulation C9 of TPR 1997, or

(c) P was, with the consent of P’s employer, on non-pensionable sick leave, on non-pensionable family leave or on a career break which, in every case, followed on immediately after a period of pensionable employment

(4) condition 3 – P’s application under regulation 107 –

(a) Is made within 6 months after the end of pensionable employment, within 6 months after the end of period in respect of which the contributions mentioned in sub-paragraph (3)(b) are paid or before the date on which, under arrangements made with P’s employer, the on- pensionable sick leave, non-pensionable family leave or career break ends, and

(b) Except where p satisfied Condition 2 because P falls within sub- paragraph (3)(b) is signed by P’s employer.

(5) Condition 4 is that P’s ability to carry out any work is impaired by more than 90% and is likely to be impaired by more than 90% permanently.”

If an applicant does not satisfy conditions 1,2 and 3, and only satisfies condition 4 they are only eligible for the payment of their accrued Scheme benefits without a reduction. Broadly, if condition 3 is not met the IHER application is treated as “out of service”. This is because it was not made within six months of leaving pensionable employment.

As relevant, regulation 107, ‘Payment of benefits on application to Secretary of State’, of the 2010 Regulations states:

“(5) An application for ill-health retirement benefits, or for a short-service serious ill-health grant, must be accompanied by all the medical evidence necessary for the Secretary of State to determine that the applicant is entitled to the benefit or benefits including, where applicable, evidence that the person's ability to carry out work is impaired by more than 90% and is likely permanently to be so.”

In 2008, Mr N witnessed, and intervened, in what he described as the attempted murder of a student. Thereafter, Mr N’s mental health deteriorated due to the incident.

On 3 March 2010, Mr N was suspended from teaching employment.

On 31 January 2011, Mr N was dismissed from his role as a teacher.

On 5 October 2011, Mr N applied for IHER following a severe breakdown in his mental health.

On receipt of Mr N’s IHER application, TP referred the matter onto the Scheme appointed medical adviser (MA) to review and provide an opinion on. TP advised the 2 CAS-50365-T9S1 MA that Mr N’s application was “out of service”. So, to be eligible for an IHER benefit, Mr N needed to satisfy the “total incapacity criteria” under schedule 7, paragraph 3(5) – condition 4.

On 25 October 2011, Dr McLean, the MA, provided his opinion on Mr N’s eligibility for IHER. Dr McLean said that Mr N was unfit for teaching work, or any other work, due to a breakdown in his mental health. However, there was scope for his condition to improve in the next 10 years to allow him to return to regular employment. Overall, Dr McLean’s view was that Mr N’s ability to carry out any work was not impaired by more than 90%. So, he did not meet the “total incapacity” criteria. See Appendix for extracts from the medical evidence considered by Dr McLean.

On 17 November 2011, TP wrote to Mr N and provided him with a copy of the MA’s report of 25 October 2011. It explained that he was not eligible to receive an IHER award.

On 31 March 2016, Mr N wrote to TP and requested the payment of his Scheme benefits from September 2016 onwards, when he would reach age 55. It was explained that his benefits would be actuarially reduced to account for them being taken before his normal pension age (NPA).

On 1 April 2016 Mr N returned to full-time teaching employment.

On 31 December 2016, Mr N left teaching employment.

On 9 September 2019, Mr N wrote to TP to appeal the decision to decline his IHER application in 2011. In response, TP advised that it accepted Mr N’s appeal and that he should provide any relevant evidence from 2011. On receipt of Mr N’s appeal, the matter would be referred onto the MA.

On 14 October 2019, Mr N submitted an appeal under stage one of the Scheme’s internal dispute resolution procedure (IDRP) about TP’s decision to decline his IHER application in 2011. He submitted a substantial number of medical reports from between 2011 to 2019 and explained that he was still unable to work due to the continued deterioration in his health.

On 20 November 2019, Dr Wladyslawska, the MA appointed to review Mr N’s stage one appeal, provided her opinion to TP saying that:-

• Mr N was permanently unfit for teaching work, but he was not permanently incapable of gainful employment. The evidence available in October 2011 said that he suffered from post-traumatic stress disorder (PTSD) with depressive and anxiety symptoms which were within the severe range.

• His medication and cognitive behavioural therapy (CBT) provided him with some benefit; however, he was unable to engaged with any meaningful therapy at the time.

3 CAS-50365-T9S1 • The evidence available indicated that once his symptoms improved, he would be offered psychological therapy and eye movement desensitization and reprocessing (EMDR) which was effective in treating PTSD. These treatments would likely allow for a return to some form of work.

• The extensive medical evidence that Mr N provided with his appeal was only available after October 2011. So, it could not be taken into account when reviewing the IHER process undertaken in 2011. The decision that Mr N did not meet the “total incapacity” criteria in 2011 was supported.

On 21 November 2019, TP informed Mr N that his appeal had been declined.

On 17 January 2020, Mr N asked for his appeal to be considered under stage two of the IDRP.

On 30 January 2020, Dr Allan (MA) provided her opinion on Mr N’s appeal and said that based on the evidence available in October 2011, she agreed that Mr N did not meet the “total incapacity criteria”. It was reasonable to conclude that, with the benefit of available treatments, such as EMDR, Mr N would be able to return to some form of employment before reached his NPA of 60. She was unable to consider any of the medical evidence that postdated his IHER application as the information was not available at the time in 2011.

On 5 February 2020, TP informed Mr N that his second stage appeal had been declined.

Adjudicator’s Opinion

In support of his appeal, Mr N provided a number of medical reports to highlight the deterioration in his condition. The complaint accepted for investigation related to the appeals that Mr N submitted about his IHER application in October 2011. So, the only medical evidence that could be considered was evidence that was available as at 5 October 2011. The majority of the medical evidence Mr N had provided posted dated 5 October 2011, so it could not be taken into consideration by TP or the MAs. Consequently, the Adjudicator was unable to take this information into account when reviewing the substance of Mr N’s complaint.

Schedule 7 of the 2010 Regulations outlined the criteria for the payment of an IHER benefit. This was dependent upon the severity of an applicant’s incapacity, and whether or not their application was considered as either “in service” or “out of service”. To qualify for an IHER pension an applicant needed to satisfy conditions 1, 2 4 CAS-50365-T9S1 and 3; however, if the applicant did not satisfy one or more of these conditions, they had to satisfy condition 4.

Mr N’s IHER application was considered on a “out of service” basis as it was not submitted within six months of him leaving pensionable service. So, for Mr N to be considered eligible for the payment of an IHER award, condition 4 needed to be met. His ability to carry out any work needed to be impaired by more than 90% and it was likely to be so permanently.

Regulation 107 stated that decisions regarding an applicant’s eligibility for IHER were for TP to make, on behalf of the DfE, subject to the provision of medical evidence. Consequently, whether or not Mr N met the IHER criteria was a finding of fact. He either satisfied the IHER criteria, or he did not. The Adjudicator commented that Mr N’s IHER application was considered by the appropriate decision maker, that being TP, with his IHER application having been referred to the MA. So, the decision to decline Mr N’s IHER application could not be challenged on this basis, nor would it be successful if it was.

In October 2011, Dr McLean concluded that, based on the evidence available, Mr N was likely to be able to return to some form of employment before his NPA of 60. However, it was accepted that he was unable to return to teaching employment. Mr N did not meet the “total incapacity” criteria under condition 4 of the 2010 Regulations. So, he was not, in Dr McLean’s view, eligible for an IHER Award. TP accepted this view and informed Mr N of the same.

The Adjudicator took the view that the MA and TP both understood and acted in accordance with the relevant 2010 Regulations. Mr N’s application was treated as out of service as it was made more than six months after he left pensionable service. So, the bar for IHER was higher as he needed to meet condition 4

There was still scope, in 2011, for Mr N to undergo treatment with a psychiatrist, which he had been referred to but was yet to see. So, it was felt that he would be able to undertake some form of work. It was clear that Dr McLean understood and acted in accordance with the relevant regulations. However, Dr Mclean was required to consider any of the treatments that Mrs N was undergoing, or due to undergo, and their likely efficacy. Specifically, whether they were likely to improve Mrs N’s conditions to an extent that he could undertake alternative employment before his NPA.

The Adjudicator did not agree that Dr McLean’s opinion went into sufficient detail as to the efficacy of the treatments Mrs N was then, or due to, undergo. Consequently, on receipt of Dr McLean’s report, TP should have sought clarification about the efficacy of the treatments. If this information had been sought, and included within TP’s decision, and Dr McLean’s report, it would likely have helped Mr N to better understand the reason as to why he was not eligible for IHER.

On appeal, Dr Wladyslawska and Dr Allan were tasked with reviewing Mr N’s application based on the evidence available as at 5 October 2011. So, they were both 5 CAS-50365-T9S1 required to disregard any evidence Mr N provided that postdated his application. Each of the MAs supported the original decision from 2011. Dr Wladyslawska explained that based on the evidence, when Mr N was able to meaningfully engage with psychological therapy, he could also be referred for EMDR. Dr Wladyslawska and Dr Allan both believed that this would have, at the time, led to a sufficient improvement in Mr N’s symptoms to allow him to return to some form of employment before his NPA.

There were some deficiencies in the decision-making process in 2011 on the part of the MA and TP. However, on appeal, the MAs sufficiently explained why Mr N did not meet the total incapacity criteria, they also provided an overview on the efficacy of the treatments that were available to Mr N in 2011. The views of Dr Wladyslawska and Dr Allan were supported by the evidence that was available in 2011. Any deficiencies in the decision-making process were, in the Adjudicator’s view, remedied at IDRP.

Overall, the MAs and TP were in receipt of sufficient information about Mr N’s conditions/treatments to reach a reasonable decision. This was also in conjunction with the MAs being qualified specialists in occupational health. Mr N’s conditions/symptoms did improve to the extent that the MAs believed they would have, based on the available treatments. However, at the time the MAs could only make a forward-looking assessment based on the evidence available. To view the matter as Mr N did, was only possible with the benefit of hindsight. Irrespective of the substance of the medical reports Mr N submitted on appeal, these postdated the IHER application and could not be considered during the appeals process.

Mr N did not meet the condition 4 criteria under paragraph 3 of Schedule 7 of the 2010 Regulations. So, he was not eligible for an IHER award. While there were deficiencies in the information provided within TP’s decision, in 2011, there was no basis for which the decision should be remitted back to TP to reconsider.

Mr N did not accept the Adjudicator’s Opinion, and the complaint was passed to me to consider. Mr N provided his further comments which do not change the outcome. I agree with the Adjudicator’s Opinion and note the additional points raised on Mr N’s behalf by his son, which are summarised below in paragraphs 41 to 47.

Further submissions on behalf of Mr N

There were deficiencies in the information provided in TP’s decision to decline Mr N’s IHER application. TP’s decision was based on insufficient reasoning and conclusions by the MAs. The incident that gave rise to his condition was not portrayed accurately. This was unfair and detrimental to how Mr N’s application was reviewed. Mr N intervened when four individuals armed with a “12-inch butcher’s knife” attempted to murder two 12-year-old children. After he was dismissed from his teaching role, he went on to receive a substantial award following an employment tribunal.

TP’s decision from 2011 was so perverse that it either breached the Disability Discrimination Act 1995 or the Equalities Act 2010, whichever took precedence. The diagnosis and prognosis of a mental illness/injury were “simply impossible”. 6 CAS-50365-T9S1 Treatments took months, or in most cases years. It was appalling that until treatments were tried and tested an application for IHER was declined. Dr Bennett, Mr N’s clinical psychologist, said that he was incapacitated to such an extent that therapy to treat his PTSD would be extremely dangerous to his wellbeing. Specifically, Dr Bennett said:

“He is not in a position to engage in therapy at present due to the risk posed to him if he were to participate. His symptoms are currently too severe, and he remains actively suicidal at present therefore engagement in any form of psychological or psychotherapy-based interventions could potentially cause significant harm and have potentially serious consequences. Although options for future treatment include Eye Movement Desensitization and Reprocessing (EMDR). EMDR is effective in treating individuals who have experienced psychological difficulties arising from traumatic experiences, such as assault, road traffic accidents, war trauma, torture, natural or man-made disasters, sexual abuse and childhood neglect. Due to the nature of [Mr N’s] illness, it is “not possible” to identify a recovery time or to offer an accurate opinion regarding likelihood of improvement in functional abilities. This is due to the severity of the symptoms which [Mr N]”.

The views reached by Dr Wladyslawska and Dr Allen, on appeal, differed significantly to the view offered by Dr Bennett. The MAs either failed to take Dr Bennett’s view into consideration, or they believed “they [were] better qualified to override the views of Dr Bennett”. The failure to recognise the deficiencies of the MAs was discriminatory.

In October 2011, Dr McClean’s view of Mr N’s capacity for work differed significantly to that of the community psychiatric nurse’s report of 27 September 2011 (see Appendix). This was just two weeks before Dr McClean provided his opinion that Mr N would likely be able to return to work before his NPA. The community nurse made clear that Mr N was unable to engage in any meaningful therapy due to the severity of his condition/symptoms, which were in the severe range.

The evidence available to Dr McClean indicated that, in October 2011, Mr N was: suicidal; unfit for any type of therapy; and that he “may” be able to return to some form of work in the future. Based on the available evidence, it was unclear how Dr McClean managed to establish that Mr N would likely be able to return to some form of work within 10 years. None of the evidence said that he would be fit to return to teaching or any form of employment.

Mr N’s symptoms were so severe that he was unable to undertake any form of treatment. This was a finding of fact supported by the medical evidence. Dr McClean did not provide a view on the efficacy of the treatments Mr N was recommended, if he had it would have been clear that these treatments would have a severe impact on Mr N’s mental health. Dr McClean had mentioned the use of EMDR; however, there was no mention as to how this would aid Mr N’s recovery. No reasonable professional could review the medical evidence available and arrive at a conclusion that all three of the MAs arrived at. None of the MAs, or TP, wanted to ask, “hard questions of the 7 CAS-50365-T9S1 medical expects who knew [Mr N] and his conditions best”. Furthermore, none of the MAs ever met Mr N for a face-to-face assessment, nor did they speak with him directly.

Mr N’s IHER application, from October 2011, should be referred back to TP to reconsider. Any outcome arrived at should make clear reference to available medical evidence.

Ombudsman’s decision

Providing that TP has acted in accordance with the above principles and within the powers given to it under the 2010 Regulations, I cannot overturn its decision merely because I might have acted differently.

As Mr N’s IHER application was submitted more than six months after he left pensionable service, it was treated on an “out of service” basis. Consequently, for Mr N to be entitled to an IHER pension, the criteria under Schedule 7, paragraph 3(5) needed to be met. That is, his ability to carry out any work was impaired by more than 90% and was likely to be impaired by more than 90% permanently. If this criteria was met, Mr N would be due an unreduced IHER pension. The decision maker under the 2010 Regulations is TP, on behalf of the DfE, subject to the provision of medical evidence. Overall, I am satisfied that TP was the appropriate decision maker.

I have considered the relevant evidence, including medical evidence pertaining to Mr N’s condition at the time of the 2011 IHER application, and the subsequent appeals in 2019 and 2020. Dr McClean’s report, in effect, concluded that Mr N was unable to return to his teaching role, and that he was significantly incapacitated at the time. However, he was of the view that it was likely that he would be able to return to some form of work before his NPA in the next 10 years. I agree with the Adjudicator’s view that TP’s decision, in 2011, was based on insufficient information obtained from Dr McClean’s report. While the decision was reached on the basis of an apparently competent MA, there was insufficient information on the likely efficacy of treatments Mr N was to undergo.

8 CAS-50365-T9S1 However, I find that Dr McClean’s report did address the right issues. Dr McClean had considered the available medical evidence including Mr McGinvey’s report of 27 September 2011 which stated that “[Mr N] had engaged in cognitive behavioural therapy previously which has been of some help in managing his symptoms” and “…options for future treatment include Eye Movement Desensitization and Reprocessing (EMDR). EMDR is effective in treating individuals who have experienced psychological difficulties arising from traumatic experiences…”. Mr McGinvey also said that, at the time, Mr N’s symptoms were too severe to meaningfully “engage in therapy at present due to the risk posed to him if he were to participate”.

I also agree with the Adjudicator’s view that Dr McClean did not provide sufficient reasoning with regard to the efficacy of any of the treatments Mr N was due to undergo. So, by accepting Dr McClean’s opinion, without first clarifying the matter with Dr McClean, TP’s initial decision was not properly made.

However, that decision was then appealed and I find that these deficiencies were remedied when Dr Wladyslawska and Dr Allen commented on the likely efficacy of Mr N undertaking EMDR before his NPA. Dr Wladyslawska commented that “it was appropriate to expect that planned PTSD therapeutic interventions e.g. EMDR [Mr N’s] condition should improve allowing him to resume fitness for employment. This view was also supported by Dr Allen.

Consequently, I find that, on appeal, the MAs and TP considered the appropriate evidence, the 2010 Regulations were correctly applied, and TP’s decision was supported by the relevant evidence.

I note that Mr N has commented that the views reached by the MAs, particularly on appeal, are in direct contradiction to information provided in the report of 27 September 2011. In particular, that his symptoms were so severe that he was unable to engage in therapy.

None of the MAs doubted the severity of Mr N’s condition at the time of his IHER application. However, in reviewing an IHER application an MA is required to make a forward-looking assessment on the permanence of an applicant’s incapacity, and whether that incapacity is likely to remain the same until their NPA. They are also required, on the balance or probabilities, to give their opinion on whether any treatments are likely to improve a member’s condition to a sufficient extent to mean that they will be capable of work before their NPA. The MAs were of the opinion that, with the benefit of EMDR, Mr N would be able to return to some form work. A difference of opinion between Mr N’s own specialists and the MAs is not sufficient for me to remit the decision back to TP.

It has been submitted that none of the MAs, or TP, were prepared to ask Mr N’s specialists relevant questions about his capacity for renumerated employment. Further, that none of the MAs asked Mr N to attend an in-person appointment. But it was for the MAs to decide whether they had sufficient medical evidence or needed to

9 CAS-50365-T9S1 see/examine Mr N to enable them to provide their opinion on Mr T’s capacity for work before his NPA. The MAs, being specialists in occupational health considered they held sufficient information to arrive at their respective opinions. There is no requirement in the 2010 Regulations that required the MA to undertake a face-to-face assessment for the purpose of IHER.

I understand that this outcome will not be one that Mr N was hoping for. While there were some insufficient aspects to the way in which his IHER application was handled, in 2011, these were corrected at IDRP. I find no reason to remit the decision back to TP.

I do not uphold Mr N’s complaint.

Dominic Harris Pensions Ombudsman

21 November 2025

10 CAS-50365-T9S1 Appendix Relevant extracts of the medical evidence submitted with Mr N’s IHER application

Dr Fox‘s (Consultant Occupational Physician) report dated 29 July 2010

“…

Symptoms were persisting in mid-May, and his antidepressant medication was changed. He noted a marked benefit to the new medication. He has also been having psychological therapy. He is still noted to be having flashbacks and violent dreams.

…”

R Jordan’s (Senior CBT Therapist/chartered psychologist) report dated 15 October 2010

“Progress in treatment: Some improvement has been noted in symptoms of depression from severe to moderate levels, namely reduction of avoidance of formerly anxiety provoking situations such as leaving the house, opening the mail, answer the telephone, improvement in sleep, concentration and engagement in daily activities. Interventions for PTSD are ongoing. Overall, according to measures of anxiety and depression, phobic avoidance and general functioning routinely used in this service, [Mr N’s] conditions has improved from a severe level as yet.

Views on long term prognosis: It is difficult to comment on the long-term prognosis, as the complicated situation of the ongoing disciplinary, matters with his employer. Disputes about who was responsible for the situation, the restrictions to his contact with the school, all trigger symptoms which are difficult to work on therapeutically, whilst the disciplinary situation is unresolved. Once this employment matter is resolved,. However, treatment is more likely to be beneficial.”

Mr McGivney’s (Community Psychiatric Nurse) report of 27 September 2011

“[Mr N] completed a depression, anxiety and stress assessment scale (DASS) with me during our initial assessment. This scale is used to identify the severity of his current symptoms. By use of this assessment scale, [Mr N]’s current symptoms of depression, anxiety and stress are all within the extremely severe range.

[Mr N] is currently on medication to help reduce the symptoms of his illness. Although these do help to some degree, he continues to experience intense symptoms, particularly when faced with stressful situations. I see [Mr N] on a regular basis for the purposes of assessing and monitoring his mental state and mood and I also offer ongoing support and advice in dealing with his illness. 11 CAS-50365-T9S1 …[Mr N] has also been referred to our clinical psychologist however she felt that [Mr N] was currently too unwell and the risks to him are too great, to engage in meaningful therapy at this point. She has advised that once he improves she will re-assess and offer him psychological therapy, providing he is able to manage the emotional rollercoaster which often comes with this form of treatment. [Mr N] has engaged in cognitive behavioural therapy previously which has been of some help in managing his symptoms however, it is not an exploratory therapy and has limits for its effectiveness.

Although options for future treatment include Eye Movement Desensitization and Reprocessing (EMDR). EMDR is effective in treating individuals who have experienced psychological difficulties arising from traumatic experiences, such as assault, road traffic accidents, war trauma, torture, natural or man-made disasters, sexual abuse and childhood neglect.

Due to the nature of [Mr N’s] illness, it is not possible to identify a recovery time or to offer an accurate opinion regarding likelihood of improvement in functional abilities. This is due to the severity of the symptoms which [Mr N] experiences. An illness of this type is extremely relative to the individual, and it does follow a particular/exact pathway for recovery. Each recovery is dependent upon the person’s own ability to process the event/trauma and then work with clinicians in order to move forward.

As identified by Dr Bennett following her detailed assessment with [Mr N], he is not in a position to engage in therapy at present due to the risk posed to him if he were to participate. His symptoms are currently too severe, and he remains actively suicidal at present therefore engagement in any form of psychological or psychotherapy-based interventions could potentially cause significant harm and have potentially serious consequences.

[Mr N] has an overwhelming desire to return to employment as a teacher and may be able to return to some form of employment in the future…”

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