Scheme:



PENSION SCHEMES ACT 1993, PART X

DETERMINATION BY THE PENSIONS OMBUDSMAN

|Complainant |: |Mrs M E Grieve |

|Scheme |: |Unilever Superannuation Fund |

|Employer |: |Unilever PLC |

THE COMPLAINT (dated 14 March 2000)

Mrs Grieve’s complaint concerns her Employer’s refusal to grant her application for an ill-health early retirement pension. She alleged that the Employer’s failure to certify to the trustees of the Scheme that her employment was terminated on the grounds of Serious Ill-Health or Permanent Incapacity (as defined) constituted maladministration. She also complained about the manner in which her appeals were handled.

MATERIAL FACTS

Mrs Grieve was employed by the Employer from 1 February 1986 until 31 March 1994. Throughout that period she was a member of the Scheme.

On 6 May 1993 Mrs Grieve was involved in a car accident. She was stationary when her vehicle was hit from behind. She suffered a whiplash injury and was later diagnosed as suffering from Post Traumatic Stress Disorder (PTSD).

On 2 January 1994 the Employer wrote to Mrs Grieve advising that her position would become redundant with effect from 31 March 1994. On 24 February 1994 Mrs Grieve wrote to the Employer, pointing out that she had been on certified sick leave since her accident on 6 May 1993 and asking why consideration had not been given to retirement on the basis of permanent incapacity. Arrangements were then made for Mrs Grieve to see the Employer’s Medical Advisor, Dr Nash and a meeting was arranged for 28 March 1994. Dr Nash, with Mrs Grieve’s consent, wrote to Dr Muir, Mrs Grieve’s GP, on 18 March 1994. On the same date, Dr Nash also wrote to Mr Klugman, a Consultant Orthopaedic Surgeon who had been treating Mrs Grieve. Mr Klugman wrote to Dr Nash on 8 and 23 April and Dr Muir wrote on 16 May 1994. Mrs Grieve wrote to Dr Nash on 5 July 1994. Reference was made to Dr Nash being aware that Mrs Grieve had been seeing Dr Turnbull, a Consultant Psychiatrist, for some time. Mrs Grieve stated that Dr Turnbull was “fully aware of both the accident and problems at [the Employer]” and his contact details were given.

On 22 July 1994 Dr Nash, completed a medical certificate (the certificate) in respect of Mrs Grieve. The form listed three options as follows:

ILL HEALTH Unable to follow his/her normal occupation within the Company.

SERIOUS ILL HEALTH Unable to follow his/her normal occupation and capable only of very limited or restricted work.

PERMANENT INCAPACITY Clearly unfit for any work whatsoever and should normally be eligible for, or in receipt of, state invalidity benefit.

Dr Nash certified that, in his opinion, the first category (Ill Health) applied in Mrs Grieve’s case. He also indicated that her condition was likely to improve over the next three years. A copy of the certificate is annexed hereto. On 29 July 1994 the Employer wrote to Mrs Grieve advising that Dr Nash, having reviewed the medical evidence, had agreed that the reason for Mrs Grieve leaving should be Ill Health grounds (not Serious Ill Health or Permanent Incapacity). The only practical consequence was to change the reason for leaving from redundancy to Ill Health grounds.

Mrs Grieve wrote on 27 August 1994 giving notice of appeal. The Employer wrote to Mrs Grieve on 26 October 1994. The letter advised that Dr Nash had reviewed his original decision and the matter would be considered by the Employer’s Senior Medical Advisor, Dr Juniper, with whom an appointment had been made for Mrs Grieve on 14 November 1994 (later rearranged for 28 November 1994). Mrs Grieve attended that meeting with her husband. On 10 January 1995 the Employer wrote to Mrs Grieve formally confirming (as Mrs Grieve had been told by Dr Juniper at their meeting) that Dr Juniper’s view was that Mrs Grieve’s medical condition warranted her leaving on Ill Health grounds, and not Serious Ill health or Permanent Incapacity.

On 5 August 1995 Mrs Grieve wrote to Dr Juniper. She pointed out that a further eight months had elapsed and she was still unable to return to work. She said that she was under the impression that Dr Juniper’s decision was based on a perceived likelihood of her regaining her health and being able to take up new employment. She enclosed a copy of a report dated 14 July 1995 from Mr Klugman, who did not see any prospect of her returning to work in the foreseeable future. On that basis, Mrs Grieve requested that the matter be reconsidered. Dr Juniper replied on 31 August 1995. He said that, although strictly speaking the decision was final, he had put the new information to the medical appeal panel but no reason to change the assessment had been found.

On 9 May 1998 Mrs Grieve wrote again to Dr Juniper. She referred to her continuing inability to work and to the fact that she had been diagnosed as suffering from PTSS. She expressed concern that, despite providing details of her psychiatrist before the appeal, no contact was made with him. She pointed out that her disability had been recognised by the Benefits Agency and that, as her condition had stabilised, there was no indication as to whether she would ever be fit to return to work. She again requested that her eligibility for payment of a pension be reassessed. Mrs Grieve received a reply from Dr Cooper, the Employer’s new Senior Medical Advisor, Dr Juniper having retired in late 1995. Dr Cooper indicated that he was making some enquiries before deciding how to proceed. He wrote to Mrs Grieve on 21 August 1998 concluding that he agreed with the original recommendation and Dr Juniper’s later ruling on appeal. He stated in his letter that there were two key questions, being whether the original recommendation of Ill Health retirement was the correct one medically, in the light of subsequent developments and, secondly, whether there was any significant reduction in life expectancy.

On 22 September 1998 Mr Grieve, writing on his wife’s behalf and with her authority, wrote to the Employer raising a number of questions. In particular, Mr Grieve queried why no medical evidence had been sought from Dr Turnbull. He also asked for the grounds upon which the Employer continued to reject Mrs Grieve’s claim to be entitled to be paid a pension and he queried whether Dr Juniper and Dr Cooper were qualified psychiatrists. He claimed that the process of gathering medical evidence had been incomplete with the result that the original decision and subsequent appeal processes were fundamentally flawed and, in consequence, invalid. He alleged that his wife’s claim for payment of a pension on one or other of the more serious grounds (Serious Ill Health or Permanent Incapacity) was justified by virtue of her continuing incapacity and authoritative medical evidence in support. He remarked that, given the passage of time and Mrs Grieve’s continuing difficulties, it was difficult to see how her condition could be regarded as other than permanent.

The Employer wrote on 2 October 1998 advising that the matter had been referred to Dr Ferriday, now the Employer’s Senior Medical Advisor in the UK (following Dr Cooper’s recent move to a corporate role covering the Employer worldwide). Dr Ferriday wrote to Mrs Grieve on 22 October 1998 stating that she wished to review the psychiatric reports and requesting Mrs Grieve’s consent to copies of such reports being released by Mrs Grieve’s GP. After some correspondence concerning Mrs Grieve’s medical reports, copies of a report dated 14 July 1995 prepared by Mr Klugman, and reports dated 3 October 1995 and 11 February 1998 were forwarded to Dr Ferriday. Mrs Grieve’s new GP (Dr Muir having retired), Dr Powell, also forwarded Mrs Grieve’s medical records. On 14 May 1999 the Employer wrote to Mr Grieve stating that there had been a complete review of Mrs Grieve’s circumstances but the original decision, made in 1994, that Mrs Grieve fell within the definition of Ill Health was correct and she was therefore not entitled to payment of immediate retirement benefits.

Mrs Grieve remained dissatisfied. With her husband acting on her behalf, she contacted the Pensions Advisory Service (OPAS) and an OPAS advisor wrote to the Employer. After some months, the Employer wrote on 18 November 1999 to Mrs Grieve, enclosing a memorandum setting out the Employer’s response to the issues raised. Mrs Grieve commented on that memorandum under cover of a letter dated 18 December 1999 enclosing a consent form permitting the “Pensions Department legal team” access to her occupational health records. On 29 February 2000 the Employer wrote to Mr Grieve, following a meeting with its solicitors, Slaughter and May. The letter requested further medical information to ensure the Employer’s medical file was complete. It also set out the Employer’s position with regard to the Scheme Rules and, finally, it suggested that the Employer seek a report from an external medical expert, Dr Poole, a Consultant Occupational Physician. Mr Grieve replied on behalf of his wife by letter dated 12 March 2000. He particularly objected to a letter dated 19 November 1998 from Dr Ferriday to Dr Powell and to the suggestion that Serious Ill Health was usually accompanied by a “significant reduction in life expectancy”. He made a number of comments concerning the proposal to ask Dr Poole to provide an “independent” report. Mr Grieve indicated that he had instigated a complaint to my office. The Employer replied on 5 April 2000 providing further information concerning Dr Poole but, by then, Mrs Grieve’s complaint had been received by my office.

MRS GRIEVE’S COMPLAINT

To deal first with one or two general matters: I acknowledge that Mr Grieve, as his wife’s representative, has taken considerable care and effort to present her case as comprehensively as possible. All that has been submitted has been considered and, whilst I am grateful to Mr Grieve for his thoroughness, it is not possible for me to recite each and every point made. I have therefore identified and dealt with what I regard as Mrs Grieve’s material concerns.

Mention has been made of legal proceedings in connection with the car accident sustained by Mrs Grieve. She received an out of court settlement of £100,000 which, she feels, demonstrates the seriousness of the injuries she suffered. She also said that, in connection with those proceedings, she was examined by a number of medical advisors for both sides whose unanimous conclusion was that her condition was genuine and merited substantial compensation.

In the documentation provided, there is some reference to sexual harassment allegedly suffered by Mrs Grieve at work. That is an employment matter and outside my jurisdiction and I have therefore ignored such references.

Turning now to Mrs Grieve’s complaint to me: central to that complaint is the certificate signed by Dr Nash on 22 July 1994. Essentially, Mrs Grieve alleged that, in giving that certificate, Dr Nash failed to obtain all relevant available medical evidence and the prognosis he reached (that Mrs Grieve’ condition was likely to improve over the next three years) was therefore unreliable and, in fact, wrong. Mrs Grieve contended that, as a result, she had been improperly denied an ill-health pension. Mrs Grieve’s principal concern is that Dr Nash failed to seek information from Dr Turnbull. It is not disputed that Dr Nash did not seek medical evidence from Dr Turnbull although, as evidenced by the certificate, Dr Nash knew that Mrs Grieve was under the care of a psychiatrist. Mrs Grieve said that, at the time Dr Nash completed the certificate (July 1994), no diagnosis that she was suffering from PTSD had been reached as, at that stage, it was too early in her treatment and it was not until 19 September 1994 that the diagnosis was first made. She said that Dr Nash’s lack of understanding as to the true nature of her psychiatric health is evident from the question marks on the certificate he completed. However, despite his uncertainty and lack of knowledge, he went ahead and certified that improvement over the next three years was likely.

Mrs Grieve is also concerned about the information Dr Nash had in relation to her physical condition. She said that, in his reply to Dr Nash, Mr Klugman said:

“It is much too early to offer a long-term prognosis as yet and I would advise you to take a further report in 12- 15 months time.”

Mrs Grieve pointed out that no further report from Mr Klugman was requested. She described Dr Nash’s decision as having been taken on a “superficial basis”. Mrs Grieve said that not only did Dr Nash fail to ask for Dr Turnbull’s views, he then also took a view contrary to that expressed by one of the doctors he did consult. In that context, Mrs Grieve referred to Mr Klugman’s report in which he said:

“I think it will be at least 18 to 24 months before there is any prospect of her recovering sufficiently to return to work”.

She pointed out that that was not a firm prognosis but an invitation to revert to him within the timeframe indicated when he anticipated that he might be able to advise with more certainty. Mrs Grieve maintained that it was difficult to see how, in relation to her physical condition, Dr Nash properly could have certified that her condition was likely to improve within the next three years. Further, even if it was reasonable to assume that there would be an improvement, the certificate given by Dr Nash provides no indication of the level of improvement required to justify indicating the Ill Health category in section D of the form. Mrs Grieve acknowledges that she has improved but maintains that she still remains permanently incapacitated from engaging in work of any kind.

Fifteen months later (on 14 July 1995) Mr Klugman provided a prognosis as follows:

“… it is now two years from the time of the accident and I think it probable that she will have some pain in her neck, right shoulder and in the interscapular muscles on a permanent basis as a result of the whiplash injury to her neck and damage to the right shoulder … I do not see any prospect of her returning to work in the foreseeable future.”

Mrs Grieve said that, had she been aware of what she perceives as shortcomings in the medical evidence before Dr Nash, she would have sought authoritative reports from both of her consultants (Mr Klugman and Dr Turnbull) asking them to address the specific question of whether she was likely to be permanently incapacitated. Mrs Grieve said that neither Dr Muir nor Mr Klugman was asked about the likelihood that she would not recover from her incapacity to the extent that she would be able to return to work, ie what Mrs Grieve describes as the “all important question of permanency” was never touched upon. She also said that it was unclear whether the prognosis given was in relation to one condition or all of the diagnoses mentioned (ie whiplash, knee injury or PTSS).

Mrs Grieve also pointed out that, at the time Dr Nash completed the certificate, she was in receipt of state invalidity benefit. That remains the position and during the intervening period she has attended three DSS medical boards and on each occasion it has been confirmed that she is unfit for work. She said that the Employer had been made aware of the position but had ignored it. She contended that in July 1994 she met the criteria and there was medical evidence in support.

The second major element of Mrs Grieve’s complaint is the conduct and outcome of the appeal process. As part of the stage 2 appeal process Mrs Grieve was “examined” by Dr Juniper on 28 November 1994. She pointed out that she was not in fact physically examined and, with reference to the Employer’s assertion that, as her condition was psychological rather than physiological, there was no need to carry out a physical examination, she said that it was only latterly that her condition has been acknowledged to be psychological rather than physical. She also queried the assertion that Dr Juniper’s examination took into consideration a number of factors including her mood and behaviour. She said that Dr Juniper’s questions related almost entirely to the accident and her physical conditions. He did not ask any significant questions relating to PTSD but was aware that Mrs Grieve was going into hospital on 4 December 1994 for residential treatment in relation thereto. Mrs Grieve attached some significance to a note made, she presumed by Dr Juniper, that he wanted to see her before (my emphasis) her hospital stay and she suggested that it would have been more logical for him to have awaited the outcome of hospital treatment before endorsing a decision as to the permanence or otherwise of her condition. Mrs Grieve did not accept that, as Dr Juniper claims, he took “all the relevant factors into consideration when assessing [Mrs Grieve’s] case.” She said that he followed the same route as Dr Nash and remained focussed on her physical injuries and ignored her psychological injury. In particular, he did not obtain reports which were then available and which made the diagnosis that she was suffering from PTSD.

In May 1998, when Mrs Grieve wrote again to Dr Juniper advising him of her ongoing inability to work and again requesting that her entitlement to a pension be reviewed, she received a reply from Dr Cooper, Dr Juniper having retired in late 1995, advising that Gill Russell (from the Pensions Department) would visit Mrs Grieve. Mrs Grieve said that Gill Russell turned up unannounced, asked a number of questions and then told Mrs Grieve that (although she would report back to Dr Cooper) Mrs Grieve was not entitled to a pension as she was not 50 years of age and had, in any event, received substantial financial compensation as a result of the civil proceedings in relation to the car accident earlier in the year. Mrs Grieve suggested that Gill Russell had already formed an opinion prior to her visit. With reference to the letter Mrs Grieve subsequently received, advising that her appeal had been rejected and that, in considering the matter, two key questions had been addressed, namely whether the original recommendation on ill-health retirement was the correct one in the light of subsequent developments and, secondly, whether there was any significant reduction in life expectancy, Mrs Grieve questioned Gill Russell’s competence, as a lay person, to form a view as to her medical condition. She further questioned the relevance of the second question and said that it had no relevance to Rule D5. She said that she has never suggested that her condition is life threatening or life shortening.

In September 1998, when Mrs Grieve wrote again, there was some (according to Mrs Grieve, unnecessary) delay in contacting Dr Turnbull, but he provided a report to the Employer on 26 February 1999 in which he concluded:

“Therefore I believe that Maria Grieve does fulfil the criteria for ongoing impairment of her ability to be able to work as a result of the medical condition of PTSD and that, in my opinion, she should be regarded as permanently incapacitated as a result of that condition”.

Despite that report, when Mrs Grieve’s application was again rejected. Mrs Grieve did not feel that a further rejection was consistent with Dr Turnbull’s expressed views.

Mrs Grieve did not accept the Employer’s assertion that the matter had been reviewed on a number of occasions thereby ensuring that Dr Nash had considered all the relevant medical evidence available at the time. She maintained that, despite an implied assurance from Dr Nash that he would seek Dr Turnbull’s views, he did not and it was only belatedly, over five years later, that a report from Dr Turnbull was obtained, only for that report to be rejected.

Mrs Grieve felt that there was an inference that the accident in which she was involved was a minor shunt and that she should have recovered from both the physiological and psychological illnesses consequent to the accident. She further felt that there was evidence of what she described as “early inappropriate subjectivity” and referred to a number of comments in support of which, in her view, indicated that she had been identified as a malingerer who was trying to benefit from an early pension. She said that there had been a failure to provide essential information on the procedure, that insufficient evidence had been gathered (ie no report initially obtained from Dr Turnbull) and Mr Klugman’s evidence had not been fully taken into account. She also pointed to a lack of impartial objectivity and said that the initial medical decision (ie the certificate given by Dr Nash) had been made with indecent haste before a firm prognosis was available. She said that the reviews failed to take into account evidence that the original decision maker had failed to obtain all the relevant medical information.

On her complaints form Mrs Grieve complained that the Employer had “consistently refused to certify in writing to the Trustees that [her] pensionable service was terminated on grounds of serious ill-health or permanent incapacity despite there being irrefutable and authoritative medical evidence that [she] fully [met] the required criteria.” Mrs Grieve accused the Employer of “systematic maladministration” and cited twelve examples of alleged maladministration. Mrs Grieve said that since 1 April 1994 she had been denied her right to the immediate payment of a pension despite meeting the requirements of pensionable service and medical incapacity as defined within the Scheme Rules. She said that, as a direct and inevitable consequence of her dispute with the Employer (which, at the time she submitted her complaints form, had been going on for almost six years), she had been subjected to unnecessary stress and trauma, which added to the prolonged and severe psychological damage she had sustained as a result of the road traffic accident. She contended that the Employer should be required to pay the lump sum that should have been payable to her on 1 April 1994 (less her redundancy pay) plus immediate payment of a pension backdated to 1 April 1994 with interest in respect of both the lump sum and pension. She further asked for consideration to be given to the payment of compensation for the additional damage to her health and recovery resulting from additional stress and trauma.

THE EMPLOYER’S RESPONSE

The Employer’s response to Mrs Grieve’s complaint to my office is set out under cover of Slaughter and May’s letter of 1 September 2000. I should first of all mention that on behalf of the Employer it was contended that I should not have exercised my discretion to consider a complaint which is out of time. The matter of time limits is considered below.

Dr Nash, upon whom Mrs Grieve’s complaint centres, qualified as a doctor in 1969. He was a GP principal from 1972 and 1999 and since 1988 assisted the Employer, on a part time basis, as an occupational health doctor. Whilst it is accepted that Dr Nash did not obtain a medical report from Dr Turnbull, the Employer suggested that, in any event, Mrs Grieve was aware that medical evidence from Dr Turnbull in 1994 would not have supported her application. The Employer said that, at the time, Mrs Grieve was considered to be improving and any report from Dr Turnbull would have indicated that he was hopeful that she would recover. The Employer referred to a report dated 3 October 1995 prepared by Dr Turnbull in connection with Mrs Grieve’s litigation against the driver of the other car. Attention was also drawn to a letter from Dr Turnbull to Dr Ferriday dated 25 October 1999 in which Dr Turnbull, with reference to Mrs Grieve’s condition in July 1994, said:

“At the time that I treated Maria Grieves [sic] in the group (at Ticehurst), I was hoping that she would make sufficient recovery to return to normal functioning.”

The Employer contended that, at the time Dr Nash provided the certificate, the information available to him at the time was sufficient for him to conclude that Mrs Grieve did not satisfy the criteria for Serious Ill Health or Permanent Incapacity which was supported by the fact that Dr Turnbull did not diagnose PTSD until September 1994, two months after Dr Nash made his decision.

The Employer relied on the certificate signed by Dr Nash in deciding whether to certify to the Scheme trustees that the Complainant’s employment had been terminated on the grounds of Serious Ill Health or Permanent Incapacity. The Employer referred to and relied upon the case Miller v Stapleton [1996] 2 All ER 449 and said that the Scheme trustees relied upon advice and such reliance, even if that advice later proved to be wrong, cannot amount to maladministration. In so far as the fact that Mrs Grieve was not represented during the appeal process is concerned, the Employer said that Mrs Grieve had no right to representation and this was explained to her.

The Employer said that any contention on Mrs Grieve’s part that as she has not yet recovered means that she is entitled to a pension is incorrect. The Employer referred to a Determination by me on 12 April 2000 (case reference number J00189) where I said (at paragraph 18 of my Determination):

“I am assisted in this case by an unreported judgment of the Court of Appeal in September 1998. In Re McClorry Auld LJ upheld two earlier findings by Jowitt J: that to qualify for an ill-health retirement pension under the Scheme the relevant incapacity must be present on the date of cessation of employment, and that this is the date at which the test of incapacity must be applied”.

The Employer denied that it had been guilty of maladministration. The Employer also denied that it had been inaccurate or inconsistent in its application of the Scheme Rules. The Employer further denied that it had used a medical discharge to overcome problems arising from having made Mrs Grieve redundant from a post that was continuing and said that, in any event, such a matter was outside my jurisdiction. The Employer did not accept that it made decisions on Mrs Grieve’s long term medical prognosis at a time when it was too early to do so. The Employer denied that it failed to provide essential and requested information to Mrs Grieve initially and throughout the appeal processes. The Employer further denied that it had supplied inaccurate and misleading information to those treating Mrs Grieve or that it had used closed and misleading questions to those treating her, or that there was a perverse interpretation of the medical evidence provided at the time by the consultant surgeon (Mr Klugman). Further, the Employer did not accept that Dr Nash’s decision could be impeached or that it was a decision which no reasonable doctor could have reached. The Employer further said that, as, at the time, Dr Turnbull was optimistic of Mrs Grieve recovering, the outcome and conclusion would have been the same, even if Dr Nash had obtained a report from him.

MRS GRIEVE’S COMMENTS ON THE EMPLOYER’S RESPONSE

Mrs Grieve, through her husband and representative, commented in considerable detail on the Employer’s response to the complaint. In fact, two sets of comments were provided. The first was prepared on the basis that the definitions in the Scheme in effect stood alone and the second on the basis that ‘Permanent Incapacity’ must mean incapacity to normal retirement age. In view of what I go on to say below, I have considered the arguments put forward in the second set of representations, ie on the basis that ‘permanent incapacity’ means incapacity which is likely to last until normal retirement date. Again, it is not possible for me here to set out each and every comment made, particularly as, to some extent, Mrs Grieve’s further comments serve to develop and redefine her original arguments, but what follows is a summary of the main points made on Mrs Grieve’s behalf.

In so far as the relevant Scheme Rules are concerned, Mrs Grieve argued that the Employer had a duty to act in good faith and that those responsible for administering the Scheme were required to ensure that members meeting the criteria were paid the appropriate benefits. Far from doing all that it could to ensure Mrs Grieve received her benefits, the Employer, according to Mrs Grieve, avoided securing available and essential evidence (ie from Dr Turnbull). She said that Dr Nash was under a duty to act impartially as was Dr Juniper and his successors whom she accused of omitting to secure and consider available evidence.

An undated letter from Dr Turnbull addressed to me was produced, setting out the evidence he would have given (to Dr Nash), had such evidence been requested. In that letter, Dr Turnbull confirmed that he had only two meetings with Mrs Grieve before 22 July 1994 which would have been insufficient to have enabled him to have provided an authoritative diagnosis or prognosis. However, he said that, had he been made aware by Dr Nash of the need to provide such information, he would have brought forward Mrs Grieve’s next appointment. Dr Turnbull said that, in all probability, he would have used the same psychological questionnaires before 22 July 1994 as he did on 19 September 1994 as they are standard instruments in the field to measure the intensity and frequency of the symptoms of post traumatic reactions. Dr Turnbull expressed confidence that, if he had conducted the same assessment prior to 22 July 1994, he would have come to the same conclusion. He said that the PTSD had developed within a few weeks of the road traffic accident. He went on to say that, if Dr Nash had provided the Scheme definitions of Serious Ill Health and Permanent Incapacity, he would have said that the extent of Mrs Grieve’s emotional and psychological damage was such that she “was clearly unfit for any work whatsoever.” Dr Turnbull said that, on the balance of probabilities, his response to the question as to whether Mrs Grieve would ever be able to return to work would have been that it was unlikely. Again, on the balance of probabilities, he considered that she was already permanently incapacitated by then. His final comment was:

“In the general sense, the complexity of her symptoms provided a negative prognostic factor and the fact that the harassment had actually occurred at her place of work was a specific, negative prognostic indicator. Both provided real obstacles to her successful return to work.”

Mrs Grieve suggested that it would be unsustainable for any doctor, receiving information of such nature from a highly acclaimed expert in PTSD, to deny that she was permanently incapacitated at the time.

In so far as the evidence Dr Nash did obtain is concerned, Mrs Grieve said that he did not ask Dr Muir and Mr Klugman the questions that would have provided the information he was required to obtain in advising the Employer whether Mrs Grieve satisfied the definition of Serious Ill Health or Permanent Incapacity. Dr Nash asked Dr Muir for an updated report on Mrs Grieve’s progress and whether any psychiatric opinion had been sought. He asked Mr Klugman for a prognosis relating to her whiplash injury and knee problems. No prognosis relating to psychiatric health was sought, even though Dr Nash indicated (in his letter to Dr Muir) that he had an interest in that aspect of the matter. Although Dr Muir advised Dr Nash that Mrs Grieve was receiving psychiatric treatment, Dr Nash failed to seek a prognosis from Dr Turnbull.

Mrs Grieve also questioned the reasonableness and correctness of applying the test for incapacity on 22 July 1994. She said that there appeared to be no compelling reason for the certificate to have been completed on that date and she is particularly concerned at the lapse of time between the medical evidence having been obtained and 22 July 1994. Mrs Grieve said that the medical evidence was too dated and should not have been relied upon by Dr Nash. Mrs Grieve suggested that Dr Nash should have obtained updated information, he should have re-interviewed Mrs Grieve to satisfy himself as to the extent of her incapacity and he should have prepared notes providing the reasons for his decisions. Further, he was required to ensure that he had all the relevant information available to him. Mrs Grieve reiterated that Dr Nash did not have all the relevant information and what he did have was dated and no longer safe to rely upon.

In so far as the definitions of Serious Ill Health and Permanent Incapacity are concerned, Mrs Grieve pointed out that neither refers to any reduction in the member’s life expectancy or incapacity to retirement age. Mrs Grieve said it is arguable that the definitions as set out should be applied as written with no additional terms implied. If that is the case, all that has to be proven is that Mrs Grieve satisfied either test (a) or (b) on the date of the test. Mrs Grieve said that the evidence of Dr Muir and Mr Klugman demonstrates that she satisfied both tests. Mrs Grieve referred to Rule D5(c)(iii), the test of forseeability, which only fell to be applied once a member had been admitted to one of the immediate payment of pension categories. Mrs Grieve cited two of my previous Determinations (Case References G00112 and J00189) in support. Mrs Grieve accepted that the evidence considered by Dr Nash was insufficient to satisfy the test of permanent incapacity to retirement age. She suggested that the earliest evidence that that definition was met was Mr Klugman’s report of 14 July 1995 (provided for the purposes of the litigation). Mrs Grieve said that the evidence that Dr Turnbull would have provided at the time (if so requested) shows that she fully satisfied the test of permanent incapacity to retirement age. She said Dr Nash failed to meet the ordinary duty which the law imposes on a person entrusted with the exercise of a discretionary power, namely to exercise the power for its proper purpose, giving proper consideration to relevant matters and excluding from consideration irrelevant matters. Mrs Grieve said that similar criticisms can be made of Dr Juniper and Dr Cooper. She said that Dr Ferriday belatedly sought the evidence but did not ask the right question and instead asked a narrow and exclusionary one.

In so far as the appeal process is concerned, Mrs Grieve said that Dr Juniper was required to scrutinise the evidence to ensure its sufficiency and that it could sustain the decision made by Dr Nash. Mrs Grieve said that there was nothing in Dr Nash’s medical notes of 28 March 1994, on which he relied to complete his certificate four months later, that would support his not placing her in the Serious Ill Health or Permanent Incapacity categories. Dr Juniper ought to have noticed that the diagnosis and section headed “additional information” on the certificate revealed that Dr Nash was uncertain as to Mrs Grieve’s condition at the time. He ought further to have noticed that Mr Klugman’s evidence was provided some three months before the date of the test of incapacity. He ought to have realised that there must be some reason why the whiplash injury remained and, seeing Dr Muir’s suggestion that it had its root cause in Mrs Grieve’s psychiatric condition, ought to have recognised the need to obtain a report from the Consultant Psychiatrist treating Mrs Grieve. On examination he should have noted how tearful, tense and anxious she was and, in the knowledge that she was to be admitted for treatment for PTSD, he should have realised the significance of Dr Nash’s failure to obtain psychiatric evidence.

As to further reviews, although Mrs Grieve acknowledged that there was no requirement for them to be carried out (as the process allows for only one appeal), to the extent that the Employer waived that and permitted further reviews, such reviews ought to have been properly carried out. Mrs Grieve expressed concern about the questions asked by Dr Ferriday which, she suggested, were confused and introduced new definitions not within the Scheme Rules. It is suggested that Dr Ferriday lacked objectivity and asked closed questions aimed at supporting the Employer’s entrenched position.

THE EMPLOYER’S FURTHER COMMENTS

The Employer commented on Mrs Grieve’s comments under cover of a letter dated 12 March 2001. The Employer first dealt with the assertion that the definition of Serious Ill-Health or Permanent Incapacity did not denote a degree of permanence (ie likely to subsist until Normal Retirement Age (NRD)) and, secondly, with the medical evidence obtained by Dr Nash and Dr Juniper from which, it was said, there were no grounds to suspect that the decision made by Dr Nash and upheld by Dr Juniper was perverse or unreasonable and, consequently, the Employer was entitled to rely on Dr Nash’s decision in deciding not to award a pension to Mrs Grieve. The Employer went on to assert that there was no requirement to give reasons. The Employer argued that it was only in limited circumstances that the exercise of a discretion could be challenged.

As to whether any degree of permanence was required, the Employer cited and relied upon Harris v Lord Shuttleworth [1995] OPLR 79 and Derby Daily Telegraph Limited v The Pensions Ombudsman [1999] ICR 105. The Employer suggests that an absence of an implication of permanency would lead to absurd results, for example an ill-health pension being paid to a member with a condition such as a broken leg.

The Employer maintained that it was entitled to rely upon Dr Nash’s opinion and did not accept that his decision was tainted by incompetence. The Employer maintained that he reached his decision on the evidence obtained and properly considered in the light of the circumstances prevailing at the time. Mrs Grieve’s medical notes held by the Employer were produced to show that, following her accident and the date of the certification, Dr Nash made ten entries in Mrs Grieve’s medical notes and it is suggested that at least five were written pursuant to a meeting or telephone conversation with Mrs Grieve. The Employer said that it was clear that Dr Nash had discussed the possibility of Mrs Grieve taking early retirement on the grounds of Ill Health prior to the application on 24 February 1994. The Employer said that the reason she was not retired on Ill Health grounds before her redundancy on 31 March 1994 is that Dr Nash did not consider her condition sufficiently serious. When she did apply, it is clear that her condition was at the time considered to be primarily physical rather than psychological. The last time Dr Nash saw Mrs Grieve was on 28 March 1994. There is no evidence from the notes that Dr Nash (as claimed) personally promised to obtain evidence from Dr Turnbull and Dr Nash says that he has no recollection of making such a promise. The Employer also queried why, if such a promise was made on 28 March 1994, it was not until 5 July 1994 that Mrs Grieve wrote to Dr Nash with Dr Turnbull’s contact details. The Employer further suggested that the tone of the letter of 5 July implied that the matter of obtaining evidence from Dr Nash was a fresh suggestion by Mrs Grieve. In addition, the consent form signed on 10 March 1994 to allow Dr Nash to obtain medical evidence refers only to Dr Muir and Mr Klugman and the only consent form which refers to Dr Turnbull was that dated 28 October 1998.

Turning now to the medical evidence considered by Dr Nash: Dr Muir, in response to a request for a medical report with “some indication of [Mrs Grieve’s] progress as seen by [Mrs Grieve’s] medical advisers, together with a prognosis for returning her to work on the above conditions [very part time and totally sedentary]”, reported:

“She certainly feels unable to cope with her work at the moment but I would imagine, given time, things will slowly come back to normal. Judging by the present progress it may well be several weeks before she is fit to return to work.”

The Employer suggested that, in Dr Nash’s further letter to Dr Muir dated 18 March 1994, Dr Muir was asked to summarise the information which was available to him from other doctors involved in Mrs Grieve’s treatment and Dr Muir’s response, dated 16 May 1994, refers to both Mr Klugman and Dr Turnbull. The Employer said that Dr Muir gave no suggestion that Mrs Grieve’s condition was permanent, as a result of either the physical or psychological injuries. The Employer said that Dr Nash could reasonably have expected Dr Muir to have passed on any information which would have been relevant to a prognosis for Mrs Grieve’s. Further, Dr Nash wrote to Mr Klugman on 28 March 1994, asking for a report and prognosis. Dr Klugman, in his reply dated 8 April 1994, stated:

“Because of her continued problems I arranged for an MRI scan which showed no obvious disc or nerve entrapment problems … At the present time, she is certainly unable to work because of medical reasons.”

Dr Nash then asked Mr Klugman for his opinion as to

“whether it is surprising that there has been no improvement from the original whiplash injury, and how long it might be before her symptoms are likely to resolve.”

Mr Klugman, in his reply dated 23 April 1994, said that he had seen Mrs Grieve again on 23 April and there was some

“... objective improvement although she was continuing to complain of symptoms and subjectively felt that she had not improved at all.

It is surprising that there has been no improvement following the original whiplash injury and in view of her very slow response I think it will be at least eighteen to twenty four months before there is any prospect of her recovering sufficiently to return to work.”

According to the Employer, that letter supported Dr Nash’s view that Mrs Grieve’s condition was not permanent and that, at the time, Mr Klugman considered that she would recover in time. The Employer submitted that the Employer cannot be guilty of maladministration as there are no grounds for suspecting that Dr Nash’s conclusions were either perverse or biased.

The Employer also commented on Dr Turnbull’s (undated) letter to me. The Employer drew attention to Dr Turnbull’s letter of 21 April 1994 in which he said:

“In my opinion, from today’s assessment, she does not appear to be suffering from a full blown post traumatic stress disorder because she has no flashbacks or nightmares which relate to this incident … I am hoping that, in this first instance, an explanation in depth of the biological dimension of a traumatic stress reaction will help her to understand what is happening because I think that this doubt about her future and the continuing physical symptoms have significantly affected her and have developed into a vicious circle of stress.”

The Employer contended that the tone of that letter is very different to that of the later letter to me and, in particular, the earlier letter did not indicate that Mrs Grieve’s condition was likely to be permanent. Attention was also drawn to Dr Turnbull’s letter of 25 October 1999 to Dr Ferriday in which Dr Turnbull said:

“I hoped that the treatment in the group at Ticehurst would cover all of the traumatic material. At the time that I treated Maria Grieves [sic] in the group I was hoping that she would make sufficient recovery to return to normal functioning.”

In so far as Dr Juniper is concerned, the Employer said that, in response to a request from Mrs Grieve for full details of the appeals procedure and rights to representation, Mr Sands provided a clear explanation of the appeals procedure in his letter of 26 October 1994. The Employer rejected the suggestion that Dr Juniper failed to carry out the appeal properly. The Employer said that simply because Dr Juniper came to the same conclusions as Dr Nash is not evidence of the fact that he did not conduct a proper appeal. The Employer did not accept as significant the fact that evidence from Dr Turnbull was not obtained. The Employer pointed out that, at the time, no consent form had ever been signed by Mrs Grieve which would allow Dr Juniper to obtain evidence from Dr Turnbull. The Employer regarded it as surprising that during ongoing consultations with Dr Turnbull no specific or in-passing enquiry was made as to whether Dr Turnbull had been contacted by the Employer. The Employer said that it is clear from Dr Juniper’s notes that Mrs Grieve’s incapacity was still considered primarily to stem from her physical rather than psychological condition. The Employer submitted that, in the absence of evidence to prove that Dr Juniper’s decision was perverse or one which no reasonable doctor, in the light of the information available at the time, would have reached, I should not interfere.

The Employer did not agree that Mrs Grieve was entitled to have been provided with reasons for the decisions taken by Dr Nash and Dr Juniper. The Employer argued that Mrs Grieve would need to demonstrate that she had the legal right to challenge a refusal by the Employer to grant her a pension. The Employer submitted that the way in which the benefit has been conferred (by Rule D5(b)(i)) is not so as to confer any such legal entitlement. The Employer suggested that the legal status of the right conferred is comparable with that on a contract stated to be binding in honour only and not enforceable through the courts. The Employer further argued that, even if a legal right to challenge the refusal to grant a pension did exist, the Employer was under no duty to give reasons for what was a discretionary decision (being a discretion which is really a duty to form a judgment as to the existence or otherwise of particular circumstances giving rise to particular consequences). The Employer submitted that it was not acting in a fiduciary capacity and that Rule D5(b)(iii) is specifically drafted so as to exclude any fiduciary duty and the duty of mutual trust and confidence. The Employer, in support of its contention that there was no duty to give reasons, cited a number of cases. Although the Employer did not accept that the case of Edge v the Pensions Ombudsman [2000] 3 WLR 79 was relevant, the Employer argued that, if it was, the Employer was entitled to rely on Dr Nash’s certificate and there was no evidence to suggest that Dr Nash’s or Dr Juniper’s decisions were perverse or ones which no reasonable doctor, in the light of the information pertaining at the time, could reasonably have reached. The Employer reiterated that the date at which the test of incapacity must be applied must be the date of cessation of employment which was, in Mrs Grieve’s case, 31 March 1994. The Employer further said that, although Mrs Grieve’s condition may now be due to her psychiatric condition, this was not suggested at the time the decision was made, nor had she been diagnosed as suffering from PTSD which did not happen until September 1994, two months after the certificate was signed.

MRS GRIEVE’S FURTHER COMMENTS

A reply on behalf of Mrs Grieve was lodged under cover of a letter dated 4 April 2001. Part of that reply constituted a point by point comment on the Respondents’ earlier submission. It is not possible for me to set out here each and every admission, rebuttal or comment.

Mrs Grieve submitted that as at 6 May 1993 (the date of the her accident) she was permanently incapacitated and that she would remain so until and beyond her NRD. She said that the Employer’s position appeared to be that it did not know that at the time of the certification and it was therefore not obliged to certify to the Scheme trustees that Mrs Grieve met the necessary criteria for an immediate pension. She further submitted that the Employer was now aware that the decision it made at the time was wrong and that she should not be penalised for the Employer’s failure to obtain evidence it knew to be available.

Mrs Grieve reiterated that the Employer’s standard occupation health procedures for dealing with such matters were not followed. She stressed that her complaint did not rest on the merits of the decision but on the allegation that the Employer negligently and/or perversely and/or incompetently avoided obtaining relevant information it knew to be available. The Employer did not therefore place itself in the position to make a valid, informed and sustainable decision and thus did not discharge its obligations Mrs Grieve accepted that, had the matter been dealt with properly, the decision would probably not have been open to challenge, except from the basis that it was perverse and not one which a reasonable doctor might have reached.

Mrs Grieve further argued that the two-stage appeal process had not been conducted in accordance with the written procedure. She submitted that she had a legal right to an appeal carried in accordance with the internal appeals procedure and that failure to follow the procedure was an act of maladministration in itself. She described as “astonishing” legal arguments suggesting that the Rules of the Scheme were written so that the Employer could do “what it wants, when it wants and how it wants and is not accountable to anyone”.

Dealing with the medical evidence considered by Dr Nash: whilst Mrs Grieve accepted that she had seen and spoken over the telephone to Dr Nash on a number of occasions, she said that, although Dr Nash had mentioned depression and delayed expected recovery, no attempt had been made by him to pursue the matter. Mrs Grieve argued that, in consequence, his knowledge of her medical condition was partial and incomplete (as evidenced by his use of question marks on the certificate he gave). Mrs Grieve also suggested that the possibility that her condition was psychological ought to have been apparent from the fact that she was emotional, distressed and tearful when they met. Mrs Grieve said that Dr Nash was aware that she had a depressive condition as early as 2 August 1993 but, almost a year later, when he signed the certificate, he had done virtually nothing to establish the extent of that illness or its implications for her long term health and ability to return to work. She said that when she met with Dr Nash on 28 March 1994 she was tearful and explained how she felt helpless, bewildered and depressed. Dr Nash noted that she had an appointment with Dr Turnbull on 13 April and according to Mrs Grieve indicated that he would write to Dr Turnbull before making his final decision. Whilst accepting that Dr Nash’s notes do not record any such promise, she said that Dr Nash did not deny that he made any promise, merely that he could not recall making it. As to the suggestion that Mrs Grieve did not forward Dr Turnbull’s contact details until 5 July 1994, Mrs Grieve claims that she did provide a consent form. Although that form has not been produced, and its existence appears to be denied, Mrs Grieve did not regard its non production as evidence that it did not exist and said that, on other occasions, documentation has gone missing. She refuted any suggestion that Dr Nash, in the absence of a contact address for Dr Turnbull, would have been unable to locate him. Mrs Grieve did not accept that the tone of her letter of 5 July 1994 was such as to imply that obtaining evidence from Dr Turnbull was a new suggestion from Mrs Grieve. Mrs Grieve suggested that Dr Nash, in seeking information from Mrs Grieve’s GP, Dr Muir, did not ask the correct questions. She said that the key question of permanence was never put to Dr Muir. She rejected any suggestion that, as Dr Muir, not having been asked about permanence or otherwise, did not suggest her condition was permanent, that is evidence that her condition was not permanent.

Turning to the report from Mr Klugman, again Mrs Grieve pointed out that the question of permanence was never specifically put. She did not accept that Mr Klugman’s opinion that “it would be at least 18 to 24 months before there is any prospect [Mrs Grieve’s emphasis] of her recovering sufficiently” can be interpreted as meaning that Mrs Grieve would recover in time. Mrs Grieve pointed out that Dr Nash wrote directly to Mr Klugman on two occasions but was apparently not prepared to do the same in relation to Dr Turnbull despite the fact that Dr Nash knew Dr Turnbull was treating Mrs Grieve for an interrelated condition arising out of the same accident. Dr Nash failed to ask relevant and essential questions, disregarded evidence of psychological illness and failed to obtain evidence from one of the two consultants treating Mrs Grieve for different but interrelated conditions arising out of the same subject accident. He then completed a medical certificate which, on the face of the document itself, evidenced his uncertainty as to the diagnosis and prognosis for Mrs Grieve. Mrs Grieve did not accept that there was any inconsistency between the evidence given by Dr Turnbull in his letter of 21 April 1994 to Dr Muir and the letter addressed to me. She later suggested that Dr Nash (and Dr Juniper and Dr Cooper when they reviewed Dr Nash’s decision) may not have seen Dr Turnbull’s letter of 21 April 1994 at the relevant time (and not before early 1999).

Mrs Grieve made a number of points regarding the memorandum dated 6 April 1994 setting out the internal appeals procedure for a member wishing to appeal against a decision not to grant retirement on health grounds. Mrs Grieve said that she had not previously been given a copy of that document and she says that the information she received in connection with her request for full details of the appeal procedures was limited and, in particular, did not state that the appeal procedure was two-stage.

In relation to the first stage decision, to be conducted by Dr Nash, Mrs Grieve pointed out that there was a requirement, where “a significant period of time has elapsed since the medical consultation, the Medical Adviser will meet again with the Member to consider any changes to the medical condition. The Medical Adviser will review the original decision following this consultation.” Mrs Grieve pointed out that there was a gap of almost four months between the time Dr Nash last saw Mrs Grieve and when he made his original decision. A further month elapsed before Mrs Grieve gave written notice of appeal and it was two months later before she received a reply to that notice. Mrs Grieve was advised by letter dated 26 October 1994 that Dr Nash had carried out a review of his original decision. Mrs Grieve said that no further meeting to consider changes to Mrs Grieve’s medical condition took place. She said that Dr Turnbull carried out tests which identified that she was suffering from PTSD on 19 September 1994. Mrs Grieve suggested that Dr Nash ought to have written to Dr Turnbull in connection with his stage 1 decision. Mrs Grieve said that there was no evidence to demonstrate that Dr Nash did carry out a review. Mrs Grieve would have expected some written document setting out when Dr Nash carried out the review, his justification for not meeting again with Mrs Grieve, etc. Mrs Grieve considered that Dr Nash’s shortcomings in the appeal procedure should have been noted by Dr Juniper.

As to stage two, undertaken by Dr Juniper, Mrs Grieve suggested that Dr Juniper made an “on the spot decision without referring to any notes, or indicating that he had considered any other notes, purely on a question and answer session with [Mrs Grieve]” and further that he “had made his mind up before he even set eyes on [Mrs Grieve]”. She said her allegation was reinforced by the correspondence between Claire Thompson, the Group Personnel Manager, and Dr Juniper which made it clear that Mrs Grieve “was viewed as a nuisance with all that implies for impartiality and genuine review.” Mrs Grieve considered that, aside from an assertion that Dr Juniper did carry out a proper appeal, no evidence to show what was considered, what was rejected and what formed the grounds for Dr Juniper’s decision has been produced. Mrs Grieve said that Dr Juniper was aware of her psychological injury but chose, even though he knew that she was to be admitted for two weeks hospital treatment, to ignore it.

TIME LIMITS

On behalf of the Respondents it is contended that the complaint was out of time and that there were no grounds upon which I can properly exercise my discretion under Regulation 5(3) to consider the complaint out of time.

My office initially wrote to Mrs Grieve on 15 March 2000, referring to Regulation 5 of the Personal and Occupational Pension Schemes (Pensions Ombudsman) Regulations 1996 and indicating that as the act or omission complained of (being the failure to certify that Mrs Grieve’s employment had been terminated on the grounds of Serious Ill Health or Permanent Incapacity (as defined)) had occurred more than three years before the date on which the complaint was made, in writing, to my office, it was out of time. Mrs Grieve, in reply, said that it was not until early 1998 that she became aware that there may have been maladministration on the Employer’s part in its handling of the matter and that there had been further maladministration since then. Whilst there was no argument that Mrs Grieve had been aware, since 1994, of the Employer’s failure to certify her eligibility for an incapacity pension, it was accepted by my office that she was unaware that she had any reason to complain until 1998. On the basis that once she did become aware she progressed her complaint promptly, Mrs Grieve’s complaint was accepted for investigation pursuant to Regulation 5(3) of the earlier mentioned Regulations which permits me to investigate and determine a complaint if it is received in writing within such further period (ie in excess of those periods stipulated in subparagraphs (1) and (2) of Regulation 5) as I consider reasonable.

However, in its formal response to Mrs Grieve’s complaint, the Employer contended that the only reason put forward by Mrs Grieve for not making her complaint at an earlier stage was that until 1998 she believed that Dr Turnbull’s evidence had been taken into account in the decision making process. The Employer argued that Mrs Grieve knew that Dr Nash had not obtained a report from Dr Turnbull and referred to her letter dated 27 August 1994, initiating the appeal procedure, in which she said:

“I would point out that I continue to remain sick (now some 15 months after the accident) and to receive treatment from two consultants – one of whom was not even approached for a medical opinion [Mrs Grieve’s emphasis], despite Dr Nash being provided with full details.”

The Employer said that the two consultants referred to were Mr Klugman and Dr Turnbull and that the letter is conclusive evidence that Mrs Grieve was aware in 1994 that Dr Nash had not obtained a report from Dr Turnbull. In the circumstances, the Employer argued that there was no further evidence which came to light in 1998 of which Mrs Grieve was not aware in 1994 or 1995, that it was reasonable for her to have referred her complaint to me at a much earlier date and that there were no grounds upon which I may exercise my discretion to consider the complaint out of time.

In response, Mrs Grieve said that in 1994 and 1995 she had “no knowledge of the superficiality of the evidence relied on, of the fact that Dr Turnbull’s evidence had been avoided or of the extent to which her case had been systematically mismanaged throughout the period in question.” Mrs Grieve said that that information had only come to light on the release of her medical and personal files on the order of Canterbury County Court (in proceedings in relation to the road traffic accident) in early 1998. She therefore reiterated that it was not until early 1998 that she became aware that she had reason to complain.

I do not consider the Employer’s assertion, that the only reason put forward by Mrs Grieve for not making her complaint at an earlier stage was that she was unaware that Dr Turnbull’s view had not been sought, is correct. Whilst that is one matter raised, it is clear that concerns regarding the handling of the matter and, in particular, the appeal procedure were voiced. In the circumstances, it seems to me that even if Mrs Grieve was aware as early as August 1994 (which certainly seems to be the case) that Dr Turnbull’s opinion had not been sought, it is still possible for her to argue successfully that it was not until 1998 that she became aware of precisely what medical evidence had been obtained and of what she perceived as other shortcomings in the procedure adopted by the Employer. I am therefore still minded to exercise my discretion to investigate and determine her complaint pursuant to Regulation 5(3).

RELEVANT PROVISIONS

The Scheme is governed by a Definitive Trust Deed and Rules dated 28 November 1972. That Deed was amended by Supplemental Trust Deeds dated 11 May 1973, 3 February 1976, 3 February 1978 and 11 May 1984.

Rule D5 of the Scheme in force in 1994 read as follows:

“RETIREMENT ON GROUNDS OF SERIOUS ILL-HEALTH OR PERMANENT INCAPACITY

(a) Entitlement

Where a Contributor has completed 5 years’ Pensionable Service and the Principal Company certifies in writing to the Trustees that the Contributor’s Pensionable Service has terminated on the grounds of Serious Ill-Health or Permanent Incapacity, the Contributor shall be entitled, subject to Rule D5(d) below, to:

(i) and immediate retirement pension calculated and payable as in Rule D5(c), and

(ii) a lump sum calculated and payable as in Rule D5(d).

(b) Legal rights

i) The [Employer]in agreeing to introduce this benefit does not intend to confer any legal entitlement on the Member which the Member may seek to enforce through a court of law or by reference to the Pensions Ombudsman.

ii) A Member may appeal against any decision by the [Employer] to refuse to give any certificate under Rule D5(a) above in accordance with the internal appeals procedure from time to time laid down by the [Employer].

(iii) Any implied term that the [Employer] should act reasonably and any other implied term (whether of mutual trust and confidence or, without being limited by the preceding words, otherwise) is excluded. The [Employer] is not acting as trustee or in any other fiduciary capacity under the Trust Deed or the Rules …”

“Serious Ill-Health or Permanent Incapacity” is defined in Section O of the Rules as follows:

“Serious Ill-Health or Permanent Incapacity” means that, in the opinion of the [Employer], a [member’s Employer] has terminated his Service because:

a) The [member] cannot undertake his normal work being capable of only very limited or very restricted work, or

b) The [member] is clearly unfit for any work whatsoever and should normally be eligible for, or in receipt of, State Invalidity Benefit.

In forming its opinion for this purpose the [Employer] may rely on a medical advisor appointed by the [Employer] for this purpose.”

CONCLUSIONS

In order to be eligible for retirement on the grounds of Serious Ill Health or Permanent Incapacity, a member must have completed five years’ Pensionable Service and the Employer must certify (to the Scheme trustees) that the member’s Pensionable Service has terminated on the grounds of Serious Ill Health or Permanent Incapacity. There is no dispute that Mrs Grieve had the requisite length of service. However, she was not eligible for the payment of an immediate retirement pension in accordance with Rule D5(c) and (d) as the Employer was not prepared to certify that her service had ceased on the grounds of Serious Ill Health or Permanent Incapacity. Mrs Grieve considers that she comes within the definition of Serious Ill Health or Permanent Incapacity and her complaint therefore centres upon the Employer’s failure or refusal so to certify.

To clear up one preliminary point, it would ordinarily be necessary for Mrs Grieve, subject to what I say below, to show that she came within the definition of Serious Ill Health or Permanent Incapacity as at the date her request for retirement on such grounds was considered, ie 22 July 1994, being the date upon which Dr Nash’s certificate was completed. However, in fact, Mrs Grieve’s employment was terminated by redundancy with effect from 31 March 1994 and that is therefore the operative date.

The definition of Serious Ill Health or Permanent Incapacity as set out above provides for the Employer to form an opinion as to whether the member’s Pensionable Service has been terminated on the grounds set out therein. It is therefore for the Employer to come to a view as to whether the member’s Pensionable Service has been terminated for the reasons set out in either paragraph (a) or (b) of the definition. In such circumstances, where the decision is, in essence, that of the Employer, it is only in limited circumstances that I am permitted to interfere. Generally, I follow the principles set out in the case of Edge v The Pensions Ombudsman (mentioned above). The Employer has argued that that case does not apply on the basis that any discretion which is really a duty to form a judgment as to the existence or otherwise of particular circumstances giving rise to particular consequences is a fiduciary power and Rule D5(b)(iii) provides that the Employer is not acting in a fiduciary capacity and purports to exclude a duty of mutual trust and confidence. I do not accept what the Employer says. Whilst I agree that a distinction can and should be drawn between the exercise of a discretion and the power to make a finding of fact or come to an opinion, in my view similar considerations to those set out in Edge should apply when reviewing a finding of fact.

Following Edge, generally I may only interfere where it can be shown that the power (to come to a finding) was not exercised for the purpose for which it was given, or proper consideration was not given to relevant matters with irrelevant matters excluded. Thus I can only interfere if:

i) the wrong question has been asked

ii) the decision maker has misdirected itself in law, or

iii) the decision was perverse (ie a decision at which no reasonable decision maker would arrive).

In such cases, whilst I may not, as a rule, substitute my own decision, I do have the option to remit the decision for reconsideration.

In the present case, Serious Ill Health or Permanent Incapacity is defined as set out above. The definition has two limbs but they are in the alternative and it is only necessary for the Employer to form the view that either subparagraph (a) or (b) applies. The first limb of the definition refers to the member being unable to undertake his or her normal work but appears to envisage that the member could undertake other “limited or very restricted work” whereas, under the second limb, the member is unfit for any work whatsoever. The Serious Ill Health and Permanent Incapacity definitions are set out on the certificate. Also set out is a further category, Ill Health, defined (on the certificate but not in the Rules) as an inability to follow normal occupation. There is therefore very little difference between the wordings of the Ill Health and Serious Ill Health categories on the certificate. Both refer to an inability to follow normal occupation but Serious Ill Health additionally refers to a capability only of “very limited or restricted work”. The precise distinction between the two categories therefore falls on the meaning and interpretation of that added requirement.

The issues in the present case have centred upon what Dr Nash was not prepared to certify, ie he did not certify that Mrs Grieve was in the Serious Ill Health or Permanent Incapacity categories. However, Dr Nash did certify that the Ill Health category applied. Dr Nash therefore accepted that, at the time he completed the certificate, Mrs Grieve was unable to follow her normal occupation. Having reached that fairly fundamental conclusion, it seems to me that two further issues might be pertinent. One of these is whether Mrs Grieve was not only unable to follow her normal occupation but whether she was capable only of very limited or restricted work.

A similar issue, being the difficulty of reaching a decision as to whether an employee, who is unable to follow his or her current employment, might be capable of earning an income in some other way, was considered in the Derby Daily Telegraph v Pensions Ombudsman case (mentioned above). Rimer J upheld my Determination requiring the trustees of a scheme to reconsider an application for an ill-health pension on the basis that the trustees had failed to apply the proper test. In essence, the trustees had considered whether the member was unable, by reason of ill-health, to follow any employment. My view, upheld by the Court, was that the correct test was whether she was unable to follow her normal (my emphasis) employment. In that case, it was argued that, not only must it be impractical or impossible for the member to continue his current employment but he must also, by reason of his “serious ill-health” be unable to earn any income at all. Rimer J (at paragraphs 28 and 29 of his judgment) said that argument would involve a further inquiry as to whether the member was capable of earning an income, however modest, in some other way. He said:

“An inquiry of that sort appears to me to be potentially rather more difficult. It would involve an investigation into the employee’s talents, skills and abilities – an, in particular, as to whether or not they could or might be capable of being turned to income earning advantages.

In cases of very extreme ill health, there might well be no particular difficulty about this further inquiry. It would be relatively easy to conclude that the seriousness of the member’s state of health was such as not only to prevent him from continuing in service; but also from being able to earn any income at all by any other means. In practice, however, most cases will be unlikely to fall at such an extreme. In the less extreme cases, it will still not be difficult for [the Employer] to arrive at a judgment as to whether or not the member’s degree of ill-health is such as to prevent him from continuing in service. But [the Employer’s] further assessment of whether the member either already has – or, despite his state of health, has the ability to develop –talents, skills and abilities which will enable him to earn an alternative income is one which will be likely in many cases to involve a material element of speculative guesswork, being guesswork which may well prove to be wrong.”

It seems to me that, in seeking to distinguish between the Ill Health and Serious Ill Health categories in the present case, similar considerations and difficulties would arise. Those issues, however, were not addressed. Attention was focused on the category into which Mrs Grieve fell and, once a decision had been reached that she did not come within the Serious Ill Health or Permanent Incapacity categories, the potential significance of certifying that she was unable to follow her normal occupation was not appreciated. It has not been argued that the reason why that issue was not addressed was that it was irrelevant in the light of Dr Nash’s view that Mrs Grieve’s condition would improve, thereby permitting her to resume her normal occupation. However, that is the practical consequence, and the likelihood or otherwise of Mrs Grieve’s condition persisting was the other pertinent matter to which Dr Nash ought to have directed his attention. The situation would be different if Dr Nash, having certified that Mrs Grieve was unable to follow her normal occupation, had then gone on to indicate that Mrs Grieve’s condition was not likely to improve. In those circumstances, the difficult issue as to whether Mrs Grieve was capable of other, limited or restricted work would need to be resolved.

The Respondents argue that the member’s condition must be sufficiently serious to satisfy the criteria laid down until normal pension age (ie age 65 years). In the case of Harris v Shuttleworth (mentioned above) the relevant rule referred to “retirement from the service of a member by reason of incapacity”. The rules contained no definition of “incapacity” and the question therefore arose as to whether incapacity meant permanent incapacity. It was held that the correct approach was to construe the phrase “retirement from the service by reason of incapacity” as a whole. Glidewell LJ commented (at paragraph 70) as follows:

“If an employee has the misfortune to suffer from some condition which renders him incapable of working in his job … for a temporary period, longer than the time for which they are willing to pay his salary, but is likely to be able to work again in that or a similar job at some time in the future, it would in my view be straining language to describe the termination of his employment as “retirement from the service….by reason of incapacity”. In its context in the whole body of the rules, it is to my mind clear that Rule 19 is intended to relate to incapacity which is a condition which is likely to endure at least until the normal date of retirement … Thus in order to be entitled to a pension under Rule 19, the employee must show that, on the balance of probability, his incapacity is likely to last at least until that date.”

Glidewell LJ went on to say that he could discern no practical difference between incapacity which is likely to last until normal pension age and incapacity which is described as “permanent”. He concluded that the proper construction of “retirement from the service by reason of incapacity” was that the member had left service “at some date before reaching normal pension age by reason of some physical or mental disability or ill health so serious that, at the time she leaves the service, it is probable that she will be unable by reason of the disability to follow her present or similar employment with [her employer] or any other employer, during any part of the period until she reaches normal pension age”.

In the present case, whilst the term “Permanent Incapacity” is used, the definition itself does not specifically refer to the permanency or otherwise of the member’s condition. However, given the inclusion of the word “permanent” and in the light of the above, I have no hesitation in saying that it is my view that the definition should be construed on the basis that the member’s condition (as a result of which his or her service was terminated) must be likely to endure at least until the normal date of retirement, which is 65 years of age for both men and women.

The definition of Serious Ill Health or Permanent Incapacity provides for the Employer to rely on its own medical advisor and I accept that, in reaching a view as to whether a member satisfies that definition and whether that member’s condition is likely to persist until normal retirement age, the Employer is prima facie entitled to rely on a medical advisor appointed by itself. The Employer contends that there is no evidence to suggest either Dr Nash’s decision or Dr Juniper’s decision on appeal was perverse or one which no reasonable doctor, in the light of the information pertaining at the time, could reasonably reach. Implicit in what the Employer says is the recognition that it is open to me to review the reasonableness or otherwise of Dr Nash’s decision and the reviews of that decision.

I consider first Dr Nash’s decision and the certificate he gave. As Dr Nash was able to certify that Mrs Grieve was unable to follow her normal occupation, it is really only the prognosis with which I need be concerned. Mrs Grieve alleged (and the Employer has admitted) that, at the time the decision was taken (ie when Dr Nash completed his certificate), Mrs Grieve’s condition was considered to be physical rather than psychological. To deal first with the physical symptoms, Dr Nash sought opinions from Dr Muir and Mr Klugman. Dr Nash told Dr Muir that Mrs Grieve had written to the Employer saying that she believed that “she should be eligible for “retirement on the grounds of ill health”. He further said:

“I would be grateful of [sic] an update report as to how you and [Mr Klugman]view her progress, and to whether any psychiatric opinion was sought. I understand that she is continuing with her physiotherapy.”

To Mr Klugman, after referring to Mrs Grieve’s accident and absence from work, Dr Nash said:

“Her condition remains unchanged and I feel that perhaps her symptoms should have resolved. She is being made redundant by the [Employer] but she feels that this is unreasonable and that there are grounds for ill-health retirement.

[Mrs Grieve] tells me that she has seen you regularly and therefore I would be grateful for a report on her together with an opinion regarding prognosis.”

In his letter of 16 May 1994 in reply Dr Muir referred to Mrs Grieve’s accident having created

“surprising very long-standing physical problems from which she has not yet recovered. He went on to say that she had more recently been referred to Dr Turnball [sic] who felt that “her physical problems have been aggravated by the stress that she has received and in particular the difficulties she has had at work … it would not seem unreasonable that retirement on the grounds of ill-health should be considered.”

Mr Klugman in his letter dated 8 April 1994 dealt with her neck and shoulder problems and concluded

“[a]t the present time she is certainly unable to work because of medical reasons.”

Dr Nash wrote to Mr Klugman again on 15 April 1994 requesting his opinion

“as to whether it is surprising that there has been no improvement from the original whiplash injury, and how long it might be before her symptoms are likely to resolve”.

In reply, Mr Klugman said:

“It is surprising that there has been no improvement following the original whiplash injury and in view of her very slow response I think it will be at least eighteen to twenty four months before there is any prospect of her recovering sufficiently to return to work.”

The reason why Dr Nash sought opinions from Dr Muir and Mr Klugman was to assist him in advising the Employer whether Mrs Grieve satisfied the definition of Serious Ill Health or Permanent Incapacity and to enable him to reach a view as to the likely duration of any incapacity. However, his letters to Dr Muir and Mr Klugman are couched in very general terms without specific reference to the criteria that apply to those terms. Unsurprisingly, Dr Muir and Mr Klugman’s initial responses are in fairly general terms and in neither case is any firm prognosis given as to the important issue of whether or when Mrs Grieve might be fit to return to work. Whilst Dr Nash did write in more specific terms to Mr Klugman, the latter’s response is not unequivocal and, if anything, can be interpreted (as Mrs Grieve has suggested) as concluding that there was a possibility that Mrs Grieve would never recover sufficiently to return to work. Further, Dr Muir seemed to support, in general terms, Mrs Grieve’s application for early retirement on health grounds. All in all, and in relation to Mrs Grieve’s physical condition, it seems to me that Dr Nash failed to ask his medical colleagues the right questions; namely, whether Mrs Grieve was unable to follow her normal occupation, whether she was unfit for any work whatsoever and, if either of those categories applied, what the prognosis was and, in particular, whether she was likely to recover and to what extent before she reached normal retirement age.

In summary, in so far as Mrs Grieve’s physical symptoms are concerned, it seems to me that the way in which Dr Nash reached his decision (ie that Mrs Grieve fell into the Ill Health category rather than Serious Ill Health or Permanent Incapacity) was flawed. In saying that, I accept that, as a qualified medical practitioner, it was open to Dr Nash to have relied entirely upon his own observations and judgment in completing the certificate. However, given that he did apparently consider that it was necessary or advisable for him to consult with colleagues, it seems to me incumbent upon him to have given those whose opinions were sought sufficient information to have enabled them to give informed and relevant views. Further, given that the Dr Muir apparently supported Mrs Grieve’s early retirement on health grounds and Mr Klugman’s view was that recovery was still some way off, if at all, it could be regarded as perverse on Dr Nash’s part to have formed the view that Mrs Grieve’s condition was likely to improve over the next three years.

Turning now to Mrs Grieve’s psychological condition, it is clear from the certificate dated 22 July 1994 that Dr Nash was aware of possible and potentially serious psychological problems. In particular, he knew that there was a possibility that Mrs Grieve was suffering from PTSD and that she was under the care of a psychiatrist. In those circumstances, I have to say that I find it surprising that Dr Nash apparently chose not to investigate further her psychological symptoms. It seems to me that, in addressing the question of into what category (Ill Health, Serious Ill Health or Permanent Incapacity) Mrs Grieve fell, given that Dr Nash was aware that her health might be compromised on psychological grounds, consideration should have been given by him as to whether her psychological condition was such as to merit a different category from that applied to her physical condition. It seems to me that, in order to give an accurate diagnosis and opinion as to the likelihood of improvement, an assessment of Mrs Grieve’s psychological condition should have been sought. In short, it seems to me that, by confining himself to Mrs Grieve‘s physical condition, Dr Nash asked himself the wrong and an incomplete question.

In the light of the above, I agree with Mrs Grieve that Dr Nash should have consulted Dr Turnbull. I do not regard as fatal any suggestion that Dr Nash could not have done so because he did not have Dr Turnbull’s contact details or Mrs Grieve’s consent. Dr Muir (Mrs Grieve’s GP) in his letter of 16 May 1994 to Dr Nash gave Dr Turnbull’s name (albeit inaccurately as Dr Turnball) and the name of the hospital at which he worked. Whilst the consent form apparently completed and signed by Mrs Grieve on 10 March 1994 only names Dr Muir and Mr Klugman, there is no evidence to suggest (and in fact evidence to the contrary in the form of Mrs Grieve’s letter to Dr Nash dated 5 July 1994) that, had her consent (in relation to Dr Turnbull) been requested, it would not have been forthcoming. All in all, there was no reason why Dr Nash could not have contacted Dr Turnbull and, in my view, he ought to have done. Arguments as to whether, as alleged by Mrs Grieve, Dr Nash said or promised that he would contact Dr Turnbull are not in my view relevant and I do not propose to deal with the matter as, regardless of whether Dr Nash did or did not indicate that he would contact Dr Turnbull, I have found that he ought to have done so.

In summary, I find that Dr Nash’s decision making process, upon which the Employer relied, was flawed. In particular, I am not convinced that Dr Nash was aware of the significance and consequences of certifying that Mrs Grieve fell into the Ill Health category (and thereby accepting that she was unable to follow her normal occupation). I am not satisfied that he was justified in reaching the view that her (physical) condition was likely to improve over the next three years. Further, Dr Nash failed to consider psychological prognosis for Mrs Grieve. I find that he did not necessarily ask himself (and his medical colleagues) the right questions and I consider that there are grounds for concluding that the decision he reached could be regarded as perverse. In the circumstances, I consider, subject to what I say below, that it would be appropriate for me to remit the decision to the Employer and direct it to reconsider properly the matter.

To clear up one other matter, it has been argued that, even if Dr Turnbull had been consulted at the relevant time, his evidence would not necessarily have assisted Mrs Grieve’s case. In particular, Dr Turnbull accepted, in his letter addressed to me, that, had he received a letter from Dr Nash prior to 22 July 1994 requesting an opinion as to diagnosis and prognosis as, at that stage, he had only seen Mrs Grieve twice, he would not have been able to provide, on the basis of those early meetings alone, what he describes as an authoritative diagnosis or prognosis. However, he said that, had he been made aware by Dr Nash of the necessity of providing a diagnosis and prognosis prior to 22 July 1994, he would have brought forward Mrs Grieve’s next appointment and, in all probability, submitted her to the same psychological questionnaires that he used on 19 September 1994. He also went on to say that, had he been provided with the definitions of Serious Ill Health and Permanent Incapacity and asked whether Mrs Grieve met either criterion, he would have said that the extent of her emotional and psychological damage was such the she “was clearly unfit for any work whatsoever.” The Employer has suggested that that more recently expressed view of Dr Turnbull is inconsistent with that expressed in a letter to Dr Muir dated 21 April 1994 in which Dr Turnbull states that, in his opinion, it does not appear that Mrs Grieve is suffering from what he describes as “a full blown post traumatic stress disorder”. Further, in a letter to Dr Ferriday dated 25 October 1999, Dr Turnbull stated that, at the relevant time, he was hoping that Mrs Grieve would “make sufficient recovery to return to normal functioning.” There is therefore some conflict as to Dr Turnbull’s evidence. In the circumstances, given that I have formed the view that the Employer ought to reconsider the matter and in the light of the directions I make below, I do not consider that there is much to be gained from pursuing this aspect of the matter further. As I have already indicated, it is not for me to substitute my decision for that of the Employer and, although I have indicated that the Employer and/or its medical advisor ought to have taken into account evidence from Dr Turnbull, it is not for me to go one step further and say what the outcome of taking such evidence ought to have been. In cases where there is some conflict as to the medical opinions obtained, it is not infrequently my practice to direct that the reconsidered decision should be taken with the benefit of a fresh, independent medical opinion. As set out below, I consider that a further medical opinion in this case would assist.

I turn now to Mrs Grieve’s complaints concerning the handling of her appeals against the Employer’s failure or refusal to certify that her employment terminated on the grounds of Serious Ill Health or Permanent Incapacity. Rule D5(b)(ii) provides that a member may appeal against any decision by the Employer to refuse to give any certificate under Rule D5 9(a) in accordance with the internal appeals procedure from time to time laid down by the Employer. The appeals procedure is set out in a memorandum dated 6 April 1994, the contents of which are referred to above. Stage 1 of the appeals procedure constitutes a review of the original decision undertaken by the Medical Advisor who, in Mrs Grieve’s case, was the original decision maker. The appeals procedure provides that where “a significant period of time has elapsed since the medical consultation, the Medical Adviser will meet again with the Member to consider any changes to the medical condition. The Medical Adviser will review the original decision following this consultation.” In Mrs Grieve’s case, as she has pointed out, some months elapsed between the making of the original decision and her appeal. I consider a period of months amounts to “a significant period of time” and I consider that Dr Nash should have had a further consultation with Mrs Grieve as part of his review of his original decision. As he did not, I consider that stage 1 of the appeals procedure was not carried out in accordance with the procedure as set down. In my view, a failure to carry out an appeal consistent with the set down procedure amounts to maladministration. I further note that when Mrs Grieve, in a letter dated 27 August 1994, requested “full details of the appeal procedure” the reply from Mr Sands, the Employer’s Personnel Director, did not enclose a copy of the memorandum and, whilst the appeals procedure was outlined, omitted to mention the need for the Medical Adviser to meet again with the member where “a significant period of time has elapsed since the medical consultation”. I consider that there was a failure, amounting to maladministration, to provide the full details as requested.

On a more fundamental note, I have already indicated that I regard Dr Nash’s original decision as flawed in that he failed to obtain information as to Mrs Grieve’s psychological condition and the decision he reached as to the prognosis in relation to her physical condition was not necessarily consistent with the medical reports he obtained. As his review of his original decision failed to identify those shortcomings and simply endorsed his original findings, it follows that I regard his review as similarly flawed.

Turning now to stage 2 of the appeals procedure, it was incumbent on Dr Juniper to consider all the relevant material and then come to a decision as to whether Dr Nash’s original decision should be changed or upheld. Dr Juniper agreed with Dr Nash that Mrs Grieve fell within the Ill Health (and not Serious Ill Health or Permanent Incapacity) category. There is nothing to indicate how Dr Juniper in fact reached his decision and what factors he took into account. Although he had the benefit of a further meeting with Mrs Grieve (on 28 November 1994) it is assumed that he took into account the material before Dr Nash and, indeed, he was charged with considering the same. It seems that, in so doing, he too failed to recognise the need, in circumstances where it was clear that, in addition to her physical symptoms, Mrs Grieve was also experiencing and receiving treatment for psychological problems, to obtain complete and coherent information as to Mrs Grieve’s psychological state and its effect on her prospects of returning to work. Neither did Dr Juniper consider whether the conclusions reached by Dr Nash in relation to Mrs Grieve’s physical condition were in fact supported by such medical evidence as had been obtained in relation thereto. Again, it seems to me that, in failing to recognise the shortcomings in Dr Nash’s approach, Dr Juniper’s reconsideration, at stage 2 of the appeals procedure, was flawed.

Having found that both stages 1 and 2 of the appeals procedure were flawed, I next consider the further reviews carried out by the Employer. As far as I am aware, Mrs Grieve’s case was reconsidered by Dr Juniper in August 1995. A further review was instigated by Dr Cooper in May 1998 and concluded in August of that year. The matter was looked at again later that year by Dr Ferriday who wrote to Mr Grieve in May 1999 with the outcome. To deal with each of those reviews in turn: when Mrs Grieve requested that her case be reconsidered in August 1995, she supplied an updated medical report from Mr Klugman. That report dealt with her physical condition and Mr Klugman concluded:

“… I think it probable that [Mrs Grieve] will have some pain in her neck, right shoulder and in the interscapular muscles on a permanent basis as a result of the whiplash injury to her neck and damage to the right shoulder.

I do not see any prospect of her returning to work in the foreseeable future.”

Whilst it would perhaps be unrealistic to expect Dr Juniper to reach a conclusion different from that which he reached earlier, it is nevertheless the case that, when he reconsidered the matter and failed to identify and address the issues I have identified, his review was necessarily flawed. Further, the later report from Mr Klugman dated 14 July 1995 should have put Dr Juniper on notice that Mrs Grieve’s physical symptoms were likely to persist for longer than had originally been envisaged and should have prompted a re-examination of Dr Nash’s original conclusions. It is therefore my view that Dr Juniper’s review failed to identify shortcomings in not only the process by which Dr Nash reached his original decision and Dr Nash’s review but also in Dr Juniper’s own approach under stage 2 of the appeal procedure.

Turning to the first review in 1998, I do not regard Dr Cooper’s approach as particularly helpful. He felt that the matter rested on two key questions being, first, whether the original recommendation on Ill Health retirement was correct, in the light of subsequent developments and, secondly, whether there was any significant reduction in life expectancy. I regard the second point as a complete red herring as there is nothing in the definition of Ill Health or Permanent Incapacity which refers to a reduced life expectancy and I do not see the relevance of the consideration.

There is some evidence that, once the matter was passed to Dr Ferriday, she approached the task of reviewing the matter with a greater degree of thoroughness and that she took a more questioning stance. In particular, it appears that she was the first of those reviewing the matter to consider sight of Mrs Grieve’s psychiatric reports to be necessary. She also reviewed Mrs Grieve’s GP’s medical records before Mrs Grieve was advised that the original medical opinion given in 1994 was felt to be correct. However, on the evidence I have seen, I am not convinced that her review was entirely adequate, much less such as to negate the earlier, flawed reviews.

I appreciate that Mrs Grieve’s right of appeal (against the Employer’s decision not to provide the requisite certificate to the Scheme trustees) was, strictly, as set out in Rule D5(b)(ii) and therefore, once the two-stage process as provided for therein had been exhausted, any other appeal or reconsideration was, on the face of the matter, discretionary. However, Mrs Grieve was entitled to expect both stages of the appeal process to be carried out properly and, to the extent that any additional reviews were discretionary, the Employer having undertaken to reconsider, even if not strictly required to do so, Mrs Grieve was entitled to expect any such reviews to be carried out properly. In the light of my criticisms as to the conduct of the two-stage appeal process, I am not satisfied that Mrs Grieve’s case was subject to a proper appeal process and I consider that there was a failure on the part of the Employer to ensure that the appeal process was carried out properly. In my view, that failure amounted to maladministration. In so far as the subsequent reviews were concerned, I am not satisfied that any of those reviews were properly conducted. Whilst it does not necessarily follow that, simply because the reviews failed to produce the desired outcome as far as Mrs Grieve was concerned, such reviews must have been flawed, I do expect to see some evidence that the original decision had been scrutinised and weighed against the available evidence, and that any evidence found lacking had been requested. In Mrs Grieve’s case, there were, in my view, obvious questions surrounding the original decision which, at the very least, ought to have warranted further investigation on review. In particular, on the evidence I have seen, only Dr Ferriday attempted to address the obvious lack of evidence as to Mrs Grieve’s psychological condition. I take the view that there is evidence of maladministration in the handling of the reviews and, as I have indicated, that maladministration cannot be avoided by the fact that such reviews were, strictly speaking, discretionary.

As I have indicated above, in circumstances where it is for the Employer to reach a decision as to whether a member falls within a certain defined category, it is generally not for me, where I consider that the process by which such a decision has been reached is flawed, to substitute my own decision but I can direct the Employer to take its decision again and, if appropriate, I can direct the decision to be taken again with the benefit of fresh and independent medical evidence which, again as I have indicated, I consider would be desirable and appropriate in the circumstances of this particular case. I note that, in its representations in response to the complaint, the Employer offered Mrs Grieve the opportunity to undergo a medical examination by an external medical expert. However, in its letter dated 29 February 2000, the Employer made it clear that the report would be commissioned on an entirely discretionary basis and would not form part of the internal appeals procedure which the Employer considered to have already been exhausted and that, in the light of that report, the Employer would consider, on a discretionary basis, the position further. Whilst I certainly regard the Employer’s offer as constructive and as capable of forming the basis of a way forward in this case, given my findings and the nature and background to this matter, I consider it necessary to redefine that offer somewhat and encompass it in the directions set out below.

Finally, Rule D5(b)(i) purports, in effect, to limit a member’s legal entitlement. By way of background, I should perhaps mention that the provisions relating to retirement on the grounds of Serious Ill Health or Permanent Incapacity were introduced when the Scheme was amended. It is well established that any attempt to oust the jurisdiction of courts will be held to be contrary to public policy (see, for example, Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329). There is also now the Human Rights Act 1998 which incorporates into English law Article 6 (the right to a fair trial) of the European Convention on Human Rights. Whatever the significance of the provisions of Rule D5 in relation to members’ “civil rights”, I have no doubt that any attempt by Rule D5(b)(i) to oust my jurisdiction in respect of injustice caused by maladministration is ineffective.

RESPONSES TO THE NOTIFICATION OF PRELIMINARY CONCLUSIONS

A Notification of Preliminary Conclusions was sent to the parties on 12 July 2001. Mr Grieve, on behalf of his wife, commented by letter dated 27 July 2001. In addition to pointing out a number of typographical errors (which have been corrected above) he made some substantive comments. In particular, he expressed doubt that Dr Nash, when he completed the certificate, had ever seen Dr Turnbull’s letter of 21 April 1994. Mr Grieve also drew attention to the fact that Dr Turnbull, in his later (undated) letter to me, stated that, had he been informed as to the necessity of providing prior to 22 July 1994 a diagnosis and prognosis, he would have brought forward Mrs Grieve’s next appointment and would, in all probability, have submitted her to the same psychological questionnaires that he used on 19 September 1994 (and from which he was able to diagnose PTSD). Whilst amendments have been made to reflect Mr Grieve’s comments, the outcome of the complaint is unaltered.

Mr Grieve pointed to my preliminary finding that there had been maladministration on the Employer’s part and suggested that it would be appropriate for Mrs Grieve to be awarded compensation for stress, anxiety and frustration suffered. I have considered that claim but I am not inclined, in the circumstances of this particular case, to order payment of compensation in respect of any distress Mrs Grieve may have suffered. It seems to me that, in the main, any distress suffered by Mrs Grieve stems from the Employer’s refusal to grant her application for an ill-health early retirement pension. As I have made clear, it is not for me to seek to determine whether the Employer’s decision was correct. I must confine myself to an examination of the route by which that decision was reached and if, as in this case, I consider that the procedure was flawed and, as a result, injustice suffered, direct that the matter be reconsidered properly.

In a further letter dated 16 August 2001, Mr Grieve referred to a letter from Mrs Grieve dated 27 August 1994 requesting details of the appeals procedure. Mr Grieve said that the reply dated 26 October 1994 from Mr Sands, the Employer’s Personnel Manager, gave a shortened and incorrect version of the appeals procedure and it was not until March 2001, during the course of the investigation of this complaint, that the full and correct information was produced to my office. Mr Grieve suggested that it was a further instance of maladministration on the Employer’s part not to provide a copy of the relevant memo (or the information contained therein) in response to Mrs Grieve’s original request. I concur with Mr Grieve on this point and paragraph 79 above has been amended accordingly.

In response to the Notification of Preliminary Conclusions, the Employer, through its solicitors, Slaughter & May, produced, under cover of a letter dated 28 August 2001, detailed submissions. Slaughter & May had also written on 24 August 2001 concerning my jurisdiction to investigate. I do not propose to deal, on a line by line basis, with each and every comment made and I will confine my comments to what I regard as the significant points raised. However, on a general note, I am somewhat surprised that the Employer should apparently object so strongly to my preliminary conclusions when, as recognised at paragraph 86 of the Notification of Preliminary Conclusions, the Employer had already offered Mrs Grieve the opportunity to undergo a further medical examination by an external medical expert.

The Employer invited me, in the light of new evidence, to decline to exercise my discretion to investigate Mrs Grieve’s complaint out of time. In support, a copy of a previously unseen psychiatric report prepared by a Dr Pfeffer and dated 25 March 1998 was produced, together with Dr Turnbull’s comments thereon dated 28 March 1998. The Employer pointed out that Dr Pfeffer, in the first paragraph of his report, noted that during 1997 Mrs Grieve had “improved significantly to the extent that although she was not back to normal she had seriously thought about going back to work …”. He went on to say that he thought that “for some at least of 1997 she would have been able to do a part-time job provided she was not under pressure.” However, he then noted that “in the six weeks prior to seeing [Dr Pfeffer] she had a relapse of her [PTSD] and her depression as a reaction to the impeding court case.” The Employer suggested it was difficult to see how Mrs Grieve could bring a complaint out of time when, at the time she could have brought a complaint within time (within three years of Dr Juniper’s decision notified on 10 January 1995) she was not, so the Employer argued, suffering from Serious Ill Health or Permanent Incapacity as defined. The Employer contended that I would not have exercised my discretion to investigate Mrs Grieve’s complaint out of time, had Dr Pfeffer’s report been available earlier to me. I fail to follow the logic in the Employer’s argument which presupposes that a full recovery was a forgone conclusion. In any event, the relapse to which Dr Pfeffer refers as having occurred six weeks prior to Mrs Grieve seeing him (on 28 January 1998) must have taken place some time in December 1997 and therefore within the three-year period from 10 January 1995.

Turning now to other main points made by the Employer: it was argued that the date at which the test of incapacity should be applied was when Mrs Grieve’s employment ended (31 March 1994) and not 22 July 1994 (the date of the certificate). I accept that is correct and it is presumably the case that Dr Nash’s certificate was given on the basis of her condition as at 31 March 1994. Paragraph 62 above has been amended accordingly, as have paragraphs 102 and 103.

The Employer did not accept that the principles as set out in the case of Edge (referred to above) applied. I am unable to agree that it is not open to me in this particular case to consider the Employer’s decision against the background of the principles as set out in the case of Edge. I further do not accept that, in the absence of bad faith, it is not open to me to consider Dr Nash’s certificate in the context of the Employer’s consequent decision.

As to whether Dr Nash’s decision can be regarded as perverse, as far as Mrs Grieve’s psychiatric condition is concerned; as I have indicated, it is not for me to say whether I consider that Dr Nash’s implicit conclusion, that Mrs Grieve would recover over the next twenty years, was correct. What concerns me is the process by which Dr Nash reached his conclusion. Much has been made of the previously unseen evidence (from Dr Pfeffer and Dr Turnbull) and strenuous attempts have been made to justify Dr Nash’s approach. However, I remain concerned that Dr Nash was able to conclude that Mrs Grieve would recover despite the knowledge that she had unresolved and potentially serious psychological symptoms about which he had very limited information and which he did not apparently consider it appropriate to investigate further. I am not persuaded by the Employer’s arguments, largely based on evidence prepared for other purposes, that, even if Dr Turnbull’s evidence had been sought, it would not have assisted Mrs Grieve.

As to Mrs Grieve’s physical symptoms, I am not suggesting that, from Mr Klugman’s evidence, Dr Nash should have concluded that Mrs Grieve’s incapacity would continue for another twenty years (ie to her normal retirement date). However, again what concerns me is the process by which Dr Nash was able to determine that it would not.

I do not find convincing the Employer’s arguments that the benefit (ie the facility for an ill-health pension) has been conferred on condition that it does not give rise to any legally enforceable rights. The Employer relies on the case of Rose & Frank Co v J R Crompton & Bros Ltd [1925] AC 445. However, it seems to me that the facts of that case were very different to the present situation and its application can therefore be distinguished. In particular, that case was a commercial one and concerned a business agreement made between three companies. The present situation is not a commercial or business arrangement. Whilst I accept that the Employer was not compelled to make special provisions for employees retiring on health grounds, given that such provisions were made, I have no difficulty in saying that it is incumbent on the Employer to apply those provisions properly and that any attempt to preclude investigation of maladministration by me in pursuance of my statutory role should fail.

I have accepted certain submissions on behalf of the Employer as to the appropriate scope of any directions and made amendments accordingly so as not to enlarge the benefits for Mrs Grieve beyond the provisions of the Rules.

To deal with some more minor matters, I note what the Employer said about Gill Russell and paragraph 83 above has been amended accordingly. I further note that Mrs Grieve’s normal retirement age is 65 years and not age 60 years as suggested by Mr Grieve.

To sum up, all that has been said on behalf of the Employer has been considered. However, aside from the alterations which I have mentioned, and which do not affect the outcome, I am not persuaded that my preliminary conclusions were wrong and, despite strenuous efforts on behalf of the Employer to persuade me otherwise, I remain unconvinced that Mrs Grieve’s application for an ill-health pension was properly considered.

DIRECTIONS

I direct that the Employer shall properly reconsider, with the benefit of fresh advice from an independent medical expert or experts (see below), whether to certify in writing to the Scheme trustees that Mrs Grieve’s Pensionable Service was terminated on the grounds of Serious Ill Health or Permanent Incapacity.

I say “expert or experts” because I consider it necessary for the Employer to obtain fresh and independent evidence both as to Mrs Grieve’s physical and psychological conditions at the relevant time (31 March 1994). In the event that it is not possible to find an expert (approved by Mrs Grieve) appropriately qualified to express a view on both her physical and psychological conditions, two experts will need to be consulted.

For the avoidance of doubt, I recommend that the expert or experts instructed should be asked to come to a view, based on such medical evidence as was or ought to have been then available, as to whether, on 31 March 1994, Mrs Grieve satisfied the definition of Serious Ill Health or Permanent Incapacity in Section O of the Rules then in force. In expressing a view on that question the expert or experts instructed should be asked to consider whether, at 31 March 1994, it would have been possible for a firm diagnosis and prognosis to have been given, both in relation to Mrs Grieve’s physical and psychological conditions. The expert or experts instructed should be advised that, in considering those matters, a requirement that the condition, whether physical or psychological, is likely to last until normal retirement age (ie age 65 years) can be implied. The expert or experts instructed should be furnished with all the medical reports (including Dr Turnbull’s letter to me) and Mrs Grieve should be prepared, if required, to undergo a further examination or examinations.

I direct that Mrs Grieve shall be notified of the Employer’s decision, in accordance with paragraph 102 above, within 28 days of receipt by the Employer of the fresh medical report or, if two new medical reports are obtained, within 28 days of receipt of the last received report.

If the Employer’s decision is not in Mrs Grieve’s favour, she will retain her right of appeal in accordance with the appeals procedure set out in the memorandum dated 6 April 1994.

DR JULIAN FARRAND

Pensions Ombudsman

31 August 2001

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download