Local Government Pension Scheme · CAS-50233-Q4J9

CAS-50233-Q4J9

Ombudsman’s Determination Applicant Mr S

Scheme Local Government Pension Scheme (LGPS)

Respondent Torfaen County Borough Council (the Council)

Outcome

Complaint summary

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

The Council is the Scheme Employer and Administering Authority for the Greater Gwent (Torfaen) Pension Fund (the Fund). The Fund is part of the Scheme.

Mr S was employed by the Council as a full-time Street Scene Operative. His employment was terminated in September 2017.

In March 2019, Mr S requested the early release of his deferred pension on the grounds of ill health. Mr S was then age 52. His normal pension age (NPA) is 67.

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8.7. In September 2017, Mr S was started on Amitriptyline.

8.8. Mr S was referred back to the Primary Care Mental Health Team in July 2018 for cognitive behavioural therapy (CBT), but he (Dr Conway) was unsure if Mr S had attended.

8.9. Things then seemed to improve. However, they had recently exacerbated again, and he had referred Mr S back to the Primary Care Metal Health Team.

8.10. Currently, Mr S was on the maximum daily dose of Sertraline. He hoped CBT would improve Mr S’ anxiety and depression.

“[Mr S] reports a mental ‘breakdown’ about 20 years ago, but his ongoing mental health problems started about 4 years ago. He has been treated for anxiety and depression since. [Mr S] believes that his difficulties in the workplace had a negative effect on his mental health condition, which has been associated with poor appetite, sleep disturbance, poor motivation and low mood which has led to suicidal thoughts. [Mr S] tried an antidepressant medication with little help and his GP changed that tablet to his current medication that he is presently taking at the highest dose. [Mr S] confirms that he has accessed counselling through his work and GP. I understand that his family doctor has referred him to the mental health team for CBT (cognitive behavioural therapy) which is likely to improve his ongoing mental health problems.

2 CAS-50233-Q4J9 In the consultation, I had a long discussion in relation to [Mr S’] symptoms. He appears to experience periods of low mood and episodes of high mood, for example when he spends a lot of money purchasing unnecessary items on eBay.

[Mr S] tells me that his wife stopped him buying a car that they did not need. As I explained to [Mr S], I suspect that he has bipolar disorder. I advised him to discuss further with his GP or the mental health team.

Opinion

[Mr S] describes significant mental health problems which have affected his mood, motivation and concentration and also his capacity. In my opinion, he is presently unfit for work. Whilst he has tried 2 different antidepressants, there are other medications that could improve his condition. Also, cognitive behavioural therapy is likely to have a positive effect too. I am therefore unable to conclude that [Mr S’] incapacity is permanent. He has not yet exhausted all evidence-based treatment modalities that are likely to control his mental health problems.”

The same month, the Council informed Mr S that based on Dr Mansouri’s assessment it was unable to meet his request for the early release of his pension benefit.

In December 2019, Mr S invoked stage one of the Fund’s two-stage Internal Dispute Resolution Procedure (IDRP). Mr S said:-

11.1. He did not believe Dr Mansouri was fully qualified to assess his mental health wellbeing.

11.2. He struggled with day-to-day tasks and was currently working part-time.

11.3. He suffered depression and panic attacks and could not control his emotions and had had two hospital appointments with the mental health team.

11.4. He had lost his job at Tesco, working eight hours per week, because of his outbursts.

11.5. He was on Quetiapine, which made him tired all the time.

11.6. Appealing the Council’s decision had had a massive impact on his mental wellbeing. He had worked for the Council for 34 years and was totally dismayed by its decision.

11.7. If it was not for his family, he would not be here.

11.8. It took all his mental strength to leave the house, never mind work.

11.9. If his appeal was successful, it would remove a lot of mental and financial 3 CAS-50233-Q4J9 pressure on him.

11.10. He was attending counselling once a week.

Mr S enclosed with his appeal details of his medication.

The stage one IDRP decision-maker (the Council’s Head of Strategic HR and Asset Management) upheld the decision not to grant Mr S ill health retirement. He said:

“I have reviewed the information that you have supplied in support of your appeal and also the report provided by Dr Mansouri. In his report, Dr Mansouri concluded that you hadn’t exhausted all medical and therapeutic options at the time of your consultation with him and that as a consequence, he could not confirm that your incapacity was permanent. His view was therefore that you were ineligible for ill health retirement. I have reviewed the statement that you have provided in support of your appeal and cannot identify any evidence that challenges this position. Your statement indicates that you are now in employment, which suggests an improvement in your health since the consultation with Dr Mansouri in August. On the basis of the evidence provided, I therefore uphold the decision not to grant you ill health retirement.”

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“I am seeing [Mr S] for 1:1 support currently for his mental health. If he is able to obtain his pension now, he would be able to cut his current work hours which would be advantageous to his mental health and well-being.”

“I understand [Mr S] has applied for his local government pension. He has been struggling with work. He has a history of mental health problems. He was seen by a psychiatrist in October who diagnosed with [sic] emotionally unstable personality traits. He struggles with his moods and spends a lot of time feeling low. His behaviour sometimes can be a little erratic and he tells me this can lead to difficulties with social interactions at work. He feels his mental health is exacerbated when in work and feels mentally drained.

His current medication includes Sertraline 200mg and we have recently added in Quetiapine 75mg.

I would be grateful if you would take this into consideration.”

6 CAS-50233-Q4J9 “The email from [Ms] Wohlgemuth states that if [Mr S] is able to access his pension now, he would be able to cut his working hours which would be advantageous to his mental health and wellbeing. The GP letter confirms that [Mr S] experiences ongoing mental health problems but does not provide any additional information in relation to his prognosis. Dr Conway also states that the treatment has recently been modified.

I do not disagree with the statements from Ms Wohlgemuth and Dr Conway. I also reviewed the medical evidence supplied to me prior to [Mr S’] appointment with me on 15th August 2019. Based on the information available I advise that [Mr S] is presently unfit for work. The question is whether, considering the benefits of treatments available, his incapacity is likely to be ‘permanent’.

Given the additional information from his GP and the mental health nurse, there is no evidence to suggest that [Mr S] will be permanently incapable of undertaking his duties despite the treatment methods available. Hence, my opinion in my report dated 15th August 2019 remains unchanged.”

“The medical conclusions available at the time you requested payment of your deferred pension indicate that you were unfit for work, however, in the view of the IRMP, your incapacity is not permanent.

…I have reached the following conclusions: • The most recent opinion of the IRMP is based on the currently available medical information and report. • The assessment has therefore been made on information that was current at the time the decision was made. • Your employer [the Council] is required to act taking into account the advice and recommendation of the IRMP • The IRMP has clearly set out his reasons for his opinion in the report dated 15th August 2019 and the 1st April 2020 • [the Council] has acted in accordance with prevailing LGPS Regulations.

I would therefore have to conclude that the Council’s decision is based on the advice of the IRMP and was undertaken on timely and available information, was reasonable in the context of the evidence considered and was undertaken in accordance with the LGPS Regulations. I therefore can find no grounds to overturn the original decision of your Employer, [the Council].”

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8 CAS-50233-Q4J9 Adjudicator’s Opinion

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1 Regulation 72(4)

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Mr S did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mr S provided his further comments via the Office of Ms Neagle MS which do not change the outcome. I agree with the Adjudicator’s Opinion and note the additional points raised by Mr S.

Mr S’ further comments

Ombudsman’s decision My role in this matter is not to look at the medical evidence and make my own decision based upon it, but to consider whether the Council made its decision in the right way based on the available evidence. I agree with the Adjudicator that the Council did that for the reasons set out in paragraph 22 above.

Mr S says that the pension officer at stage two IDRP, declined to assist him in obtaining up-to-date medical records from the hospital treating him. As the Adjudicator said the essential purpose of the IDRP was to look at the original 2019

11 CAS-50233-Q4J9 decision. The IDRP decision-makers were not required to consider if Mr S’ condition had worsened since Dr Mansouri gave his opinion.

If Mr S considers that his health has worsened since Dr Mansouri assessed him, he may make a fresh application to the Council for the early release of his deferred pension on the grounds of ill health.

I do not uphold Mr S’ complaint.

Anthony Arter

Pensions Ombudsman 31 March 2022

12 CAS-50233-Q4J9 Appendix The Local Government Pension Scheme Regulations 2013 (SI2013/2356) (as amended)

“(1) A deferred member who, because of ill-health or infirmity of mind or body -

(a) becomes permanently incapable of discharging efficiently the duties of the employment that member was engaged in at the date the member became a deferred member, and

(b) is unlikely to be capable of undertaking gainful employment before normal pension age, or for at least three years, whichever is the sooner,

may ask to receive payment of a retirement pension whatever the member's age.

(2) A request under paragraph (1) must be made in writing to the deferred member's former Scheme employer or appropriate administering authority where the member's former Scheme employer has ceased to be a Scheme employer.

(3) Before determining whether or not to agree to a request under paragraph (1), the deferred member's former Scheme employer, or administering authority, as the case may be, must obtain a certificate from an IRMP as to whether the member is suffering from a condition that renders the member -

(a) permanently incapable of discharging efficiently the duties of the employment the member was engaged in because of ill-health or infirmity of mind or body; and, if so,

(b) whether as a result of that condition the member is unlikely to be capable of undertaking gainful employment before reaching normal pension age, or for at least three years, whichever is the sooner…”

(a) holds a diploma in occupational health medicine (D Occ Med) or an equivalent qualification issued by a competent authority in an EEA state; and for the purposes of this definition, “competent authority” has the meaning given by section 55(1) of the Medical Act 1983; or 13 CAS-50233-Q4J9 (b) is an Associate, a Member or a Fellow of the Faculty of Occupational Medicine or an equivalent institution of an EEA state;”

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