Nhs Pension Scheme · CAS-29383-G2W0

CAS-29383-G2W0

Ombudsman’s Determination Applicant Mrs S

Scheme NHS Pension Scheme (the Scheme)

Respondent NHS Business Service Authority (NHS BSA)

Outcome

Complaint summary

Background information, including submissions from the parties

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In June 2016, the Employer held a sickness absence meeting with Mrs S. It confirmed Mrs S’ last day of employment would be 23 June 2016. 2 CAS-29383-G2W0 In March 2017, Mr G emailed Mrs S regarding a further appeal under IDRP stage two. He informed her that he had received advice from the RCN’s legal officer that did not recommend pursuing an appeal at this stage. He further referred to the legal officer who said:

“Please convey to her how sorry I am to have to say there is nothing further to be done at present with regard to her [IHRP] benefits. It is not unusual for medical examiners to put a 3 year time block on reassessment for tier 2. In part, this is likely because of the fact that Dr Vincenti refers to litigation being a ‘block’ on improvement. The 3 year period allows for litigation to be completed, along with any treatment options following which your member may be able to return to some form of work. As your member’s normal retirement age is 67, there is a period of 27 years until that is realised and in that 27 year period it has to be considered that there is scope for improvements for your member.” (Original emphasis)

Around April 2018, Mrs S’ PIC was settled out of Court. It was acknowledged by the Court that Mrs S had been left permanently injured as a result of her NHS employment and the Employer accepted liability for this.

In October 2018, Mrs S’ new RCN representative, Mr Y, contacted NHS BSA to request an appeal under stage two of the IDRP.

On 30 October 2018, NHS BSA sent a letter to Mr Y saying that Mrs S’ appeal was out of time because it had been submitted more than six months after the IDRP stage one decision. NHS BSA also said that, as its SMA recommended that it was not appropriate to offer Mrs S reassessment against the Tier 2 award within a period of three years from the date of the Tier 1 award, there were no other provisions within the 2015 Regulations to review Mrs S’ entitlement to Tier 2 benefits.

Mrs S’ position is:-

• At the time of the appeal process, she was too unwell to pursue the IDRP stage two appeal and had no support professionally to do it.

• The PIC award was insufficient, as she will never be able to return to any type of work.

• She has been left with severe PTSD, which impacts her daily life.

• She has been trying to claim State benefits as she has struggled financially. She has felt ashamed of this situation.

• As the Court found that she was permanently injured, NHS BSA should make the same finding and award her Tier 2 benefits.

3 CAS-29383-G2W0 NHS BSA’s position is:-

• Regulation 90 of the 2015 Regulations requires a member to be: “permanently incapable of both doing their NHS job AND permanently incapable of regular employment of like duration to their NHS job irrespective of whether such employment is actually available to them.”

• It took advice from a panel of professionally qualified and experienced SMAs who have access to specialist advice where necessary and carry out a forensic analysis of the available medical evidence.

• It has properly considered Mrs S’ application, taking into account and weighing all relevant evidence and nothing irrelevant. It has taken advice from its SMAs, considered and accepted that advice and, as a result, arrived at a decision that it believes is not perverse.

Adjudicator’s Opinion

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5 CAS-29383-G2W0 Mrs S did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. I note the further comments that Mrs S’ husband has provided on behalf of his wife, however, I agree with the Adjudicator’s Opinion.

Mr S says:-

• NHS BSA’s decisions are based on how long his wife has left until her NPA. He finds this “fallacious”.

• All decisions are based on the balance of probability, but clearly NHS BSA do not understand how probability works. There are two probabilities, his wife will get better or she will not. Everything that has happened indicates the latter. His wife has undertaken all possible treatments and is now “well past the three-year period required for reassessment”, but still she is not in a position to seek employment. The longer this continues the more probable it is that she will never be able to return to employment.

• The whole appeals process is confusing and discriminatory. This was deliberate to try to avoid ever awarding Tier 2 to someone with his wife’s diagnosis.

• If his wife had to wait three years before any appeal could be considered, then the appeal period should have been extended to six months after the three-year period had expired.

• His wife tried to persuade the RCN to lodge an IDRP stage two appeal, but it refused. If she had been well enough, she would have lodged the appeal herself.

• The Tier 1 award should be reviewed as the current evidence is that she has not recovered sufficiently to look for work.

• The Adjudicator has made continued reference to his wife’s PIC against the Employer. But the PIC has no bearing on her pension award and should be removed from the findings.

• The Adjudicator has missed the crux of the complaint. The evidence shows that PTSD is not a temporary illness but “a crippling, acute and pernicious illness that is life altering and affects [his wife] every day”.

• While Dr Vincenti said his wife may benefit from suitable alternative work when she has improved sufficiently, in a joint report, dated 27 September 2017, Dr Vincenti and Dr Mumford say the only work she would be capable of is: non- stressful, with predictable duties, no sudden surges of demand or pressure, involving no shift work or confrontational situations with members of the public. Exactly what job could she do that does not fall into one of these categories? But even if she could find such a job, it will not be the job she loved and will be nowhere near the pay she was receiving as a top Band 6 nurse.

6 CAS-29383-G2W0 • The insistence that his wife could return to work at some vague point in the future has been damaging to her mental health and should have been considered in the award of ill health benefits.

• The Court acknowledged that his wife had been left permanently injured as a result of her NHS employment and the Employer accepted liability for this. Clearly, this was not considered in the ill health award. If his wife has a permanent illness the chances of her recovering to a point where she could return to employment in any capacity is severely reduced. Again, this merits a Tier 2 award.

• How is NHS BSA able to refer to advice from SMAs who did not see his wife? He finds it highly suspect that NHS BSA has not mentioned that his wife was medically assessed by a doctor from her occupational health department who decided that she should be given ill health retirement.

Ombudsman’s decision I have put to one side the submitted joint report from Drs Vincenti and Mumford, as it was not available at the time NHS BSA made its decision to award Mrs S Tier 1 benefits.

In this matter, it is not for me to review the medical evidence and decide whether Mrs S is entitled to Tier 1 or Tier 2 benefits. I am primarily concerned with the decision- making process. It is not relevant whether I agree or disagree with the actual decision that was made.

Mr S suggests that there are two possible outcomes. His wife will get better or she will not. In fact, the 2015 Regulations recognise a spectrum of recovery and requires a member to be somewhere on that spectrum where they are not able to undertake regular employment of like duration to their NHS employment.

Mr S suggests that the SMAs should have carried-out a face to face assessment of his wife, rather than a paper based one. But there is no requirement under the 2015 Regulations for the SMA to do so.

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There seems to be some confusion on Mr S’ part regarding IDRP and the three-year review. These are separate matters. IDRP is the procedure which allows anyone who has dealings with the Scheme, such as actual and potential beneficiaries, to raise a complaint with NHS BSA about matters relating to the Scheme. The three-year review is granted by the NHS BSA if it considers, on the advice received from the SMA, that a review for a Tier 2 award is merited within three years of the decision to award Tier 1. In Mrs S’ case, the SMA at IDRP stage one did not recommend a review, as the evidence did not indicate the likelihood of a significant deterioration in her functional capacity in the three-year period.

Mr S has asked that all reference to his wife’s PIC be taken out. But I have left some reference to it, as Mr S argues that NHS BSA should have accepted the Court’s decision on permanent injury. As explained by the Adjudicator, the criteria set out in the 2015 Regulations would have been different to the criteria used by the Court. Permanent injury is not the same as permanent incapacity for alternative work of like duration.

I am satisfied that the relevant 2015 Regulations have been correctly applied and appropriate medical evidence was considered. I find no grounds for saying that NHS BSA erred in its decision.

I do not uphold Mrs S’ complaint.

Anthony Arter

Pensions Ombudsman 18 August 2020

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Appendix 1 Regulation 90 of the NHS Pension Scheme Regulations 2015

“(1) An active member (M) is entitled to immediate payment of—

(a) an ill-health pension at Tier 1 (a Tier 1 IHP) if the Tier 1 conditions are

satisfied in relation to M;

(b) an ill-health pension at Tier 2 (a Tier 2 IHP) if the Tier 2 conditions are

satisfied in relation to M.

(2) The Tier 1 conditions are that—

(a) M has not attained normal pension age;

(b) M has ceased to be employed in NHS employment;

(c) the scheme manager is satisfied that M suffers from a physical or mental

infirmity as a result of which M is permanently incapable of efficiently

discharging the duties of M’s employment;

(d) M’s employment is terminated because of the physical or mental infirmity;

and

(e) M has claims payment of the pension.

(3) The Tier 2 conditions are that—

(a) the Tier 1 conditions are satisfied in relation to M; and

(b) the scheme manager is also satisfied that M suffers from a physical or

mental infirmity as a result of which M is permanently incapable of engaging in

regular employment of like duration.”

Appendix 2 9 CAS-29383-G2W0

“Mrs S suffers from [PTSD]. This mental disorder seems to have manifested as a protracted response to a series of stressful events which dates back to her time in the clinical team supporting the veterans. She described a series of stressful situations in this job, the latter of which was to deal with a colleague who was suicidal. Mrs S reportedly suffers with intrusive memories or flashbacks of her difficult time in this role. She also reports having nightmares and described herself as ‘emotionally numb and detached’. She described several scenarios which indicated a high level of arousal and perception of threat. She displayed high levels of anxiety and low mood which seems to have been exacerbated over the past few months. These features, although present to a form of depression or anxiety disorder [sic]. There is also a level of avoidance of situations that either directly or indirectly link to these stressful work situations. These include not been [sic] able to drive past the roads that led to patients’ homes when she was working in this job.

It appears that the events in her early childhood might have sensitised her to such a mental disorder, but there is a significant period of stable work and relationship history before the onset of the psychological trauma (PTSD) which seems to coincide with the reported series of work related stressful events.

Treatment to date:

Mrs S has had about 60 sessions of psychotherapy with Julie Stewart, a Psychotherapist working for Team Prevent. The report forwarded to me by Julie Stewart suggests that Mrs S suffered a range of anxiety and trauma related symptoms in recent months. There were significant challenges to focus on in the therapy, as her high levels of anxiety interrupted her ability to engage in therapy. They have attempted a number of stabilisation techniques to facilitate working through EMDR (Eye Movement Desensitization and Reprocessing; a recognised method of treatment for PTSD) but Mrs S’ reactions to here and now issues such as management, union, legal process and family health issues all seem to have affected her ability to be attentive and engaged in the therapy.

…

Future management plan:

I have discussed with Mrs S that she will need a focused treatment including a combination of pharmacological and psychological treatment to deal with her current difficulties. Mrs S would require further stabilisation of her anxiety, arousal, possible dissociation, fear and avoidance behaviour before she can engage in trauma focused therapy such as EMDR. For the stabilisation process, she would require a balanced use of pharmacological options; an SSRI such as Sertraline in the first instance. Also there should be limited use of medications such as diazepam that can interfere with trauma focused 10 CAS-29383-G2W0 therapy. But limiting diazepam should go in parallel with offering alternative medications that interfere less with therapy or other psychological techniques.

At the Psychological Trauma Team at the Tuke Centre, we successfully use a comprehensive approach to psychological techniques that are based on Dialectical Behavioural Therapy (DBT). Mrs S may require a few weeks of stabilisation work with a clinician before EMDR can be used. Her future psychological treatment must be carefully orchestrated with pharmacological therapy.

Prognosis:

Mrs S is clearly stating that her return to the Trust in any capacity would undermine her mental stability and would make her more suicidal. It appears that she has lost all trust and hope in her current situation and that any move to return to work is highly likely to exacerbate her mental disorder. As the ongoing legal and management issues have clearly interfered with her ability to engage in therapy and thereby impinged her progress, it is necessary that a resolution is found in these matters at the earliest opportunity. It would be possible to ascertain her progress and prognosis, once the above matters are conclusively settled.”

11 CAS-29383-G2W0 Appendix 3 In his report dated 28 October 2015, Consultant Psychiatrist Dr Vincenti said:

“In my opinion, Mrs S would meet the diagnostic criteria for PTSD. I agree therefore with the primary diagnosis of Dr Elanjithara of PTSD… Given the persistence of Mrs S’ PTSD symptoms in spite of a lot of treatment, and their disabling nature, I would rate her PTSD at the severe end of the clinical spectrum.

…

I would allocate a second diagnosis to Mrs S of moderate depression as defined by ICD10, and coded F32.1.

Prognosis

Turning to avoidance symptoms the most striking example in this case is Mrs S’ inability to cope again with a clinical work setting.

…

As Mrs S has been unwell for 2 years or more, the prognosis for her PTSD and depression is now less promising than would normally be the case for most patients suffering these diagnoses separately. Whenever patients suffer from two or more co-morbid diagnoses, the prognosis does fall off appreciably.

Mrs S may be in a position to attempt some voluntary work and that it would by necessity have to be in a non-pressurised environment, where her duties are well defined and predictable, and which do not include sudden surges of demand or pressure.

On the balance of probabilities, I think it unlikely that Mrs S will now be able to cope again with working as a mental health nurse. She is currently unfit for any work at all.

Her mental health problems are likely to place her at some disadvantage in future employment. In my view she is unlikely to cope with work of a particularly demanding or stressful nature.

…

the duration of the above conditions makes a complete cure less likely however…treatments likely to be of benefit…response to treatment will improve when litigation is finalised…she will benefit from working in suitable alternative work when she has improved sufficiently.”

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