The Deputy Pensions Ombudsman has upheld a complaint relating to an ill-health early retirement application in relation to the Local Government Pension Scheme.  The complaint raised a number of issues, but two key points were: (a) the employer's approach where it believed the member had not yet exhausted all available treatments; and (b) the employer's approach to conflicting medical evidence.

The member suffered from spinal problems which caused her significant pain, resulting in her being persistently absent from work. The member received medical advice from a consultant neurosurgeon which was that surgery was an option, but that he did have concerns that surgery might not allay her symptoms.  He also acknowledged that there were risks associated with surgery.  The member decided not to have surgery.  Shortly after this, following a period of sick leave, the member's employment was terminated on grounds of medical incapacity.

Two months later the member requested ill health early retirement.  Her employer's response was that it had been advised by its occupational health advisers that the member did not meet the criteria for ill health retirement because her condition could improve with surgery.   The member and subsequently the member's GP wrote to the employer saying that at no time had either the member's consultant neurosurgeon or consultant pain management specialist said that surgery would be a solution for the member.  In response to both the employer simply repeated what it had previously said about its reasons for refusal.

The Deputy Ombudsman was critical of the employer's approach of "blindly" following its own medical evidence.  She said the employer should have weighed up the conflicting medical evidence.  Whilst the employer was entitled to attach little or no weight to some of the medical evidence, it should have had reasons for doing so and been able to explain these to the member.  This was particularly so when the employer had decided to accept advice from its own doctors that was contrary to the advice received from the member's own doctors.

The Deputy Ombudsman also held that the employer had taken an incorrect approach in taking the view that no decision could be reached on ill-health early retirement while the member was still receiving treatment.  There was no requirement under the scheme rules for the member to have completed treatment before being considered for ill health early retirement.  The employer's medical adviser should have been asked to give an opinion, on the balance of probabilities, as to the likely efficacy of any continuing or potential treatment.

The Deputy Ombudsman ordered the employer to obtain a new medical opinion as to whether the member met the incapacity criteria for ill health early retirement at the time of her dismissal.  She directed that if the medical practitioner's opinion was that the member did not meet the criteria, the medical adviser should be asked to give reasons as to why he would, at that time, have considered it more likely than not that the member's condition could have been expected to improve before age 65 such that she could not be considered permanently incapacitated.  The Ombudsman also awarded the member £1000 for distress and inconvenience.

Comment

A noteworthy aspect of this determination is that the doctor providing the new medical opinion must, if applicable, be required to give reasons why he would have considered it more likely than not that the member's condition would improve sufficiently before age 65 that she could not be considered permanently incapacitated.  Whilst the Ombudsman has long supported the view that a decision-maker faced with conflicting medical evidence is entitled attach more weight to one piece of evidence than another, this does not give a decision-maker carte blanche to simply ignore medical evidence which differs from that of its own medical advisers. The Ombudsman is also clear that it is not necessary for all possible medical treatments to have been exhausted before reaching a decision on whether a member satisfies the incapacity criteria for an ill-health early retirement pension. The determination here reflects that principle.