Principal Civil Service Pension Scheme · CAS-73691-W0V1

CAS-73691-W0V1

Ombudsman’s Determination Applicant Ms D

Scheme Principal Civil Service Pension Scheme (the Scheme)

Respondents Department for Work and Pensions (the DWP)

Cabinet Office (the CO)

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.

On 5 April 1993, Ms D joined the Civil Service, through her employment with the DWP, and she was enrolled into the Final Salary section of the Scheme, otherwise known as (the 1972 Section).

The 1972 Section is administered in accordance with the Principal Civil Service Pension Scheme Section II (the 1972 Section) Regulations (the Regulations).

Regulation 1.12 provides the criteria that needs to be met before an IHER award can be made, and states:

“1.12 “Retirement on medical grounds” means retirement from the Civil Service with a medical certificate issued by the Scheme Medical Adviser which

1 CAS-73691-W0V1 states that the person concerned is prevented by ill health from discharging his duties, and that his ill health is likely to be permanent”.

The “Ill Health Retirement – Procedural Guidance for Employers (May 2012)” (the Guidance) provides the following definitions in relation to IHER:

• Prevented means having significant incapacity;

• Ill health means: “recognised condition, which gives rise to the incapacity. Appropriate clinical findings and investigations must support the diagnosis”;

• Discharging his duties means: “providing regular and efficient service in the normal duties of the grade. Members do not have to be incapable of attending work but rather incapable of providing acceptable levels of performance or attendance. The requirement to make reasonable adjustments for those with health problems governs acceptability”;

• Likely means: “‘on the balance of probability’. The effects of treatment are taken into account when considering the incapacitating effects of a condition. Only standard treatments widely available in the UK are considered and the chances of a successful outcome taken into account”; and

• Permanent means: “until the normal pension age (NPA), which for most civil servants is 60. The ill health has to result in permanent incapacity from the duties in question”.

Regulation 3.1 of the Regulations provides that, once a civil servant reaches their NPA, or retires the day before reaching age 75, on or after 6 April 2006, their retirement benefits will be calculated as follows:

• an annual pension of 1/80th of his pensionable earnings multiplied by the length of his reckonable service;

• a lump sum of 3/80ths of his pensionable earnings multiplied by the length of his reckonable service. Regulation 3.11 provides a civil servant with the right to a persevered pension and lump sum if they resign or opt out of the Scheme, with two or more years qualifying service.

Regulation 3.4 “retirement on medical grounds” states that if a civil servant retires on medical grounds (1.12), and qualifies for a pension under regulation 3.1, or a preserved pension under 3.11, they are eligible for an IHER pension and lump sum. The pension and lump sum is calculated in accordance with regulation 3.1. However, an enhancement of pensionable service is applicable if the civil servant is medically retired from active service. An individual’s reckonable service is enhanced as follows:

• Service less than 10 years is doubled; or

2 CAS-73691-W0V1 • Service exceeding 10 years either increased up to:

o 20 years; or

o by 6 2/3 years, whichever provides the greater benefit.

In 2000, Ms D was diagnosed with chronic kidney disease.

In 2010, Ms D was diagnosed with lgA Nephropathy (Berger’s Disease).

On 30 March 2012, Ms D went on a period of extended sick leave during which time she attended appointments with occupational health (OH).

On 27 July 2012, Ms D began a phased return to work.

On 11 October 2012, Ms D went on a second period of extended sick leave. During this period of absence, the DWP looked into transferring her to another site that could support a reduction in her working hours. However, at the time, this was not possible.

In December 2012, Ms D spoke with her employer about applying for IHER. At the time, Ms D did not believe that she would meet the criteria for IHER. Consequently, Ms D’s line manager telephoned OH to query what the IHER criteria was. An OH nurse explained that to be eligible for IHER, it needed to be accepted that Ms D was permanently incapable of any work. A subsequent referral to the Scheme Medical Adviser (SMA) was not made at this time.

On 10 January 2013, Ms D attended a meeting with the DWP about her absences. She explained that she was unable to work full-time hours. Consequently, the DWP offered her a six-month temporary contract with reduced hours.

On 16 January 2013, the DWP wrote to Ms D and acknowledged that she did not accept the proposed six-month temporary reduction in her hours. Consequently, her absence could no longer be supported, and it notified her that she was to be dismissed on the ground of inefficiency with 13 weeks’ notice, for which she would receive pay in lieu of.

After Ms D was dismissed from her role, she received 100% compensation under the Civil Service Compensation Scheme. Consequently, her Scheme benefits were preserved for payment at a later date.

On 3 August 2016, Ms D telephoned MyCSP, the Scheme administrator at the time, and started the process of applying for the early payment of her preserved award (EPPA).

Between 2016 and 2017, Ms D went through the IHER process. In the first instance, her application for EPPA on IHER grounds was declined. However, under stage two of the appeals process, the SMA put her appeal on hold as it appeared to them that Ms D wished for her application to be treated as a retrospective ill health retirement (RIHR). This would mean any potential award would be backdated to her last day of DWP employment. However, after several telephone calls, Ms D clarified that she 3 CAS-73691-W0V1 only wished to be considered for EPPA, as she did not want any contact with the DWP.

In November 2017, Ms D’s IHER appeal was considered by the appeal board under stage three of the appeals process. The appeals board was comprised of Dr Atkinson (consultant occupational physician) and Dr Le Roux (consultant psychiatrist). Ms S attended the appeals board in person, supported by her sister and niece. Dr Atkinson and Dr Le Roux provided their opinion on Ms D’s eligibility for an EPPA and said, in summary:-

• They were provided with medical reports dated from between 30 August 2016 to 11 November 2016. These reports were provided by Dr Alsharbaty (consultant pathologist), Mr Webb (consultant ENT surgeon), Mr Kundodyiwa (consultant obstetrician and gynaecologist) and Dr Edwards (GP).

• Since Ms D was dismissed from her DWP employment there had been not significant improvements in her health. Her chronic kidney disease had now been diagnosed as stage three. She had bilateral carpal tunnel syndrome which she underwent surgery on the right side one month ago. She had also been diagnosed with fibromyalgia and used a CPAP machine for sleep apnoea.

• After the onset of her health problems and her experiences with the DWP, she took sertraline and diazepam for anxiety and depression. She was seen by a consultant psychiatrist and was now on her third cycle of anti-depressant medication and the previous two were unresponsive. While the sertraline helped her mood was low with a sense of pessimism for the future.

• A report dated 11 November 2017 by Dr Levshankov (consultant in anaesthetics and pain medication) said that she attended a pain management clinic. Dr Levshankov said that she was unable to take a “potent painkiller” due to the “comprehensive pharmacological regime” she was on. She was only able to receive alternative therapies from the pain clinic for her ongoing pain.

• Ms D’s debilitating conditions were fibromyalgia and depression, though her other conditions did interact with one another. She had engaged with all available treatments with no improvements over the past five years. The combination of illness and symptoms were significantly disabling and proving resistant to treatment.

• It was tempting to think that her conditions could be treated separately to result in an improvement in symptoms and a return to full-time work. However, his view was that this was unlikely to be achievable before she reached her NPA and so her appeal was upheld.

• Although her fibromyalgia was recently diagnosed, she developed typical symptoms of fibromyalgia at the time she left DWP employment. He did not have the benefit of hindsight to see that there had been no improvement in her symptoms. However, on the balance of probabilities, given her multiple conditions, 4 CAS-73691-W0V1 the outlook for her fibromyalgia would have been poor when she left the DWP and she would have been unlikely to return to full time work.

Consequently, Ms D was eligible to receive an EPPA backdated to the date of her IHER application in August 2016. Ms D’s EPPA was payable from the date of her application, unreduced.

Between November 2017 and February 2018, Ms D, with the help of her sister, contacted the DWP and asked for Ms D’s IHER pension to be considered for RIHR. Ms D said that the decision not to refer her to the SMA, in December 2012, for IHER was made by her line manager on the basis that she would not qualify for it.

On 27 February 2018, the DWP referred Ms D’s request onto the CO to review.

On 15 March 2018, the CO responded to the DWP and said:

“It is clear that the employer did not consider it appropriate to refer the member to the Scheme Medical Adviser. However, in the extra information provided it appears clear that the member confirmed she did not wish to be considered for IHR in the months before dismissal. This being the case retrospective applications are not appropriate where the member changes their mind some years after dismissal.”

On 23 March 2018, the DWP informed Ms D that the CO did not agree that she was eligible to be considered for RIHR. The DWP said that she, or a representative, could appeal this decision within three months if she wished to.

On receipt of the CO’s response, Ms D submitted an appeal for her IHER award to be regarded as an RIHR, backdated to her last day of DWP employment. Subsequently, the DWP forwarded Ms D’s appeal onto Health Management Ltd, the Scheme’s occupational health provider, to consider.

In response, Health Management Ltd informed the DWP that it was unable to accept Ms D’s appeal until it received the approval to do so from the CO.

On 20 July 2018, the CO emailed DWP and explained that RIHR can only be approved by the CO where there is clear evidence that an individual was dismissed without IHER being properly considered. In Ms D’s case, in 2013, Ms D did not wish to be considered for IHER. The CO will exercise its discretion for consideration for RIHR if there has been an error on the part of an employer, not because the member has changed their mind. Ms D’s appeal should not have been referred to Health Management Ltd. If she wished to appeal the CO’s decision, she was free to do so under the Scheme’s Internal Dispute Resolution Procedure (IDRP). As the decision rested with the CO, her appeal would be considered under stage two.

On 27 July 2018, Ms D asked for her complaint to be investigated under stage two of the Scheme’s IDRP. She explained that there had not even been a full month between the DWP asking if she wanted to apply for IHER, and then being dismissed from her role. She was not provided with any information about IHER at the time, nor 5 CAS-73691-W0V1 was it explained to her what IHER entailed. The DWP did not take into account her mental health between December 2012 and January 2013.

On 13 September 2019, the CO issued its stage two IDRP response to Ms D’s complaint and explained that:-

• It apologised for the time taken to respond to her IDRP complaint.

• There was no automatic statutory right to an IHER on leaving employment due to incapacity. There were certain regulations and criteria that needed to be met before an award could be made.

• It was understandable why she believed she should be entitled to a RIHR award after she successfully appealed and overturned the decision not to grant her an EPPA award in 2017.

• When an employer was considering dismissing an individual due to incapacity, they were required to consider IHER. The Guidance was available to civil servant employers to assist them with dealing with starting, and progressing, applications for IHER.

• It was clear that prior to her dismissal, the DWP had referred her to, and spoken with, its OH provider. However, the Guidance made clear that only the Scheme appointed SMA could provide an opinion on an individual’s eligibility to IHER against the relevant criteria.

• As the DWP was considering dismissing her from her role, it should have referred her to the SMA. While she was given information on IHER, and it was accepted that Ms D did not feel she met the criteria, the DWP did not have to accept her view on the matter. Instead, the DWP should have automatically sought the view of the SMA about Ms D’s incapacity.

• It upheld Ms D’s appeal and directed the DWP to send her a medical consent form. On receipt of the completed form, the DWP was to forward any corresponding evidence to the SMA to conduct a RIHR review from the date Ms D left DWP employment.

• If it is deemed that Ms D met the criteria for IHER at her date of leaving employment, she would be required to repay the compensation she received under the Civil Service Compensation Scheme. She was unable to receive both compensation and an IHER award from her employment end date.

On receipt of the CO’s response, the DWP started the process of arranging a RIHR review regarding Ms D’s incapacity.

On 18 September 2020, Dr Birrell, an SMA appointed to conduct the RIHR review, provided her opinion. In considering the RIHR application, Dr Birrell took into account the following evidence: the IDRP response of 13 September 2019; a report from Dr Breach (GP) dated 9 August 2020; reports from Dr Hirst (GP) dated 4 and 29 October 6 CAS-73691-W0V1 2012; nine OH reports from between 5 October 2009 to 19 November 2012; SMA reports from Dr Cryer, Dr Gallagher and Dr Atkinson respectively dated 5 April 2017, 14 June 2017 and 25 November 2017 for stages one to three of the IHER appeals process.

Dr Birrell did not agree that Ms D was eligible for RIHR, a summary of Dr Birrell’s opinion is provided below in paragraphs 36 to 49.

Dr Birrell understood that she was required to determine if Ms D met the criteria for IHER as at her date of dismissal. The criteria for IHER was that an individual was prevented by ill health from discharging their duties, and that the ill health was likely to be permanent. Permanent meant until Ms D’s NPA which was 60.

In considering if Ms D was permanently prevented from her normal occupation, she took into account: Ms D’s capacity for her role; if Ms D was prevented from her role, whether the incapacity would likely be permanent in the absence of future treatments; and whether future treatments would affect the permanence of the incapacity.

When considering the effects of treatments, she took into account: if Ms D’s medical circumstances had been reasonably investigated; treatments received and their effectiveness; and if Ms D had received all reasonable treatments.

If future treatments were still available and open to Ms D, she needed to consider: the likely benefit of the future treatment, and whether it would sufficiently allow Ms D to return to her role and provide efficient service before her NPA; and if there was any reasonable evidence to demonstrate that future treatments would be unlikely to result in an improvement in her incapacity.

She was unable to identify any reasonable adjustments that could be made to Ms D’s workplace when she was dismissed on 16 January 2013. Ms D’s condition would likely give rise to substantial long-term adverse effects on normal day to day activities, without treatment. There was reasonable medical evidence to support the assertion that Ms D was prevented from discharging her DWP duties. Though, the key consideration was whether the incapacity was permanent.

A report from Ms D’s GP, dated 9 August 2020, obtained for the purpose of the RIHR, explained that Ms D experienced: work-related stress, depression, lgA Nephropathy, and obstructive sleep apnoea. In January 2013, she was under the care of Nephrology with Nephrotic syndrome (kidney problems). This was the key condition causing incapacity in 2013 for which Ms D remained under regular review.

The GP explained that, in December 2012, Ms D was prescribed anti-depressant medication and that she was seen by Gastroenterology outpatient clinic for iron deficiency anaemia. She was listed as clinically obese, and she had commenced CPAP for her sleep apnoea.

Reports from the OH provider made clear that Ms D was experiencing fatigue resulting in periods of sickness and an inability to work more than five hours a day.

7 CAS-73691-W0V1 The principal cause of the fatigue was Ms D’s chronic kidney disease. She was, at the time, awaiting treatment for a respiratory disorder that interfered with her sleep.

There was no indication that a permanent reduction in her hours was required in January 2013. OH notes said that Ms D was demonstrating that she was fit for work on restricted hours and that there was no medical bar preventing her from working a given number of hours. The only limiting factor was fatigue.

Ms D’s symptoms deteriorated significantly in March 2012 when it was recorded that she suffered chronic tiredness and pain in her feet and hips resulting in a period of sick leave. On returning to work, Ms D was only able to manage reduced hours, and she was unable to perform her full-time duties. She felt under pressure to return to her full-time hours which resulted in stress/depression and more time off work. Her condition had not improved since 2013, and she had now been diagnosed with stage three kidney disease and fibromyalgia.

She noted that Ms D successfully appealed a decision not to award her an EPPA in 2017. The appeal was upheld and an EPPA paid to Ms D on the basis of her fibromyalgia and depression being the main conditions. This was in addition to her multiple other conditions. She was engaging in all treatments available to her; however, “a vicious cycle of symptoms [were] significantly disabling and [were] proving largely resistant to medical intervention, or [were] untreatable, as in the case of her ongoing pain”. In 2017, it was accepted that it was unlikely that Ms D would be able to receive individual treatments for her conditions, to impact her symptoms before her NPA. So, she met the criteria for an EPPA.

The SMA responsible for upholding her EPPA appeal noted at the time she left the DWP employment, she developed typical fibromyalgia related symptoms. The SMA said that the fibromyalgia diagnosis could have been made at this point. With the benefit of hindsight, the appeals board responsible for reviewing her EPPA stage three appeal thought that, on the balance of probabilities, given her multiple conditions, the outlook for an improvement in her fibromyalgia would have been poor when she was dismissed. So, she would have been unlikely to return to full-time employment.

Dr Birrell noted that at the time Ms D left DWP employment, there was no indication that a diagnosis of fibromyalgia had been considered. Dr Birrell understood that, based on the medical evidence available in 2013, Ms D’s chronic tiredness was attributed to a combination of her kidney disease, sleep apnoea and depression. She was receiving appropriate treatment for each of these conditions at the time. So, it was reasonable to believe there would be a sufficient improvement in her symptoms to allow a return to work.

In Dr Birrell’s opinion, Ms D was prevented from discharging the duties of her role when she was dismissed. However, based on objective medial evidence at the time, her incapacity would have been considered unlikely to have lasted till her NPA. While the SMAs in 2017 offered slightly differing opinions, Dr Birrell believed this was on the

8 CAS-73691-W0V1 basis that the SMAs did not understand the specific criteria that needed to be met for a RIHR award. Further, the SMA’s opinions were also made with the benefit of hindsight.

On 24 September 2020, Ms D contacted the DWP and said that she wished to appeal the decision not to grant her RIHR.

On 7 October 2020, the DWP responded to Ms D and said that she needed to complete form APP1 to appeal the decision. The appeal needed to be submitted within three months of the date she was notified that she was not eligible for RIHR.

On 19 January 2021, Ms D asked for the deadline to submit an appeal to be extended as the required forms were only provided on 7 October 2020, she tested positive for Covid-19 on 16 October 2020, various members of her family also tested positive for covid-19 and there were two family bereavements.

On 4 February 2021, Ms D completed form APP1 to appeal the decision not to grant RIHR and said:-

• Once she was granted an EPPA in 2017, she was told that she would not have to go through the IHER/appeals process again. Dr Atkinson said that his report was sufficient to retrospectively award Ms D her pension.

• Dr Birrell dismissed the opinion of Dr Atkinson, for which Ms D therefore questioned Dr Birrell’s medical expertise. Further, Dr Birrell said that there was no indication that a diagnosis of fibromyalgia was being considered in 2012. However, Dr Birrell did comment that in 2012 Ms D suffered from chronic tiredness, pain and difficulty sleeping, all typical symptoms of fibromyalgia.

• If more evidence was available at the time in 2012, it was likely that Ms D would have been diagnosed with fibromyalgia. NHS statistics (2020) reported that fibromyalgia cases rose from 54,081 in 2014/15 to 136,949 in 2018/19. This was most likely due to a better understanding of the condition. Diagnosing fibromyalgia was difficult as there was no specific test for it.

• It was likely that Ms D was not diagnosed with fibromyalgia in 2012 due to a lack of understanding as opposed to the condition not being present. Dr Atkinson said that this condition could have been diagnosed in 2012.

On 10 May 2021, the DWP contacted Health Management Ltd regarding Ms D’s appeal of the decision to decline RIHR. In response, Health Management Ltd informed the DWP that, if the appeal was logged outside of the agreed three-month appeal window from the date of the decision, MyCSP needed to be contacted to request an extension.

On 11 May 2021, the DWP contacted MyCSP and informed it that Ms D had submitted an appeal outside of the three-month period. It provided MyCSP with Ms D’s reasons for requesting an extension and asked for an extension. MyCSP did not respond to the DWP. 9 CAS-73691-W0V1 On 17 June 2021, Ms D contacted the DWP for an update on the appeal she submitted in January 2021.

On 3 July 2021, the DWP responded to Ms D and said that it was awaiting a response from MyCSP to confirm if it would agree to an extension to the appeal period.

Adjudicator’s Opinion

A member’s entitlements to benefits when taking early retirement due to ill-health are determined by the scheme rules or regulations. The scheme rules or regulations determine the circumstances in which members are eligible for ill-health benefits, the conditions they must satisfy and the way in which decisions about ill-health benefits must be taken.

Regulation 1.12 provides the criteria for “Retirement on medical grounds”. That is, on receipt of an IHER certificate from the SMA, an individual is entitled to an IHER award if it is accepted by the SMA that they are “prevented by ill health from discharging his duties, and that his ill health is likely to be permanent” which is until their NPA.

The Guidance provides that, in exceptional circumstances, a member who has already left employment may be considered for RIHR. This is generally only agreed by the CO when the member: left employment due to ill health, but they were not considered for IHER; or the member was not aware that they could apply for IHER. The CO, in Ms D’s case, has agreed to the DWP undertaking a RIHR review/decision as she was not referred to the SMA before she was dismissed from DWP employment.

The decision as to whether Ms D met the eligibility criteria for RIHR was for the DWP to make as the decision maker. This is a finding of fact; Ms D either met the IHER criteria under regulation 1.12, as at the date she was dismissed, or she did not. Before the DWP can reach a decision on any RIHR application, it is required to obtain the opinion of an SMA on the Ms D’s health and incapacity as at 16 January 2013. In

10 CAS-73691-W0V1 this case, Dr Birrell was appointed as the SMA in charge of reviewing Ms D’s RIHR application.

The Regulations are slightly different to some other public sector schemes; to the extent that the employer cannot grant ill health retirement unless the SMA has come to the opinion that the member meets the criteria. It was unlike the Local Government Pension Scheme, for example, where the employer should weigh up the medical evidence. Having said that, the Adjudicator explained that the employer was not expected simply to proceed if there was something obviously amiss with the SMA’s decision. The employer was required to look for the kind of things a layperson might spot. For example, an error or omission of fact or a misunderstanding of the relevant rules. The employer can refer a decision back to the SMA if there was something factually wrong. But the employer would not be expected to challenge a medical opinion.

In undertaking a RIHR review, the decision whether Ms D met the criteria under regulation 1.12 had to be made without the benefit of hindsight, and so the way in which Ms D’s condition/s progressed after her DWP employment ceased was not relevant. However, this did not preclude the SMA from considering reports that provided further insight into any conditions, or symptoms, that were present at Ms D’s last date of DWP employment.

The medical evidence indicated that the reason for Ms D’s incapacity, in 2012/13 was due to fatigue/chronic tiredness attributable to her kidney disease, obstructive sleep apnoea and depression. So, the Adjudicator believed that it was appropriate for Dr Birrell to disregard any evidence relating to Ms D’s more recent fibromyalgia diagnosis in 2017. None of the evidence available in 2012/13 indicated that a diagnosis of fibromyalgia was being considered/investigated at the time. So, it would have been inappropriate for Dr Birrell to take this into consideration in reviewing Ms D’s incapacity in 2013 for the purpose of RIHR.

Dr Birrell, when considering the RIHR, noted that the DWP was unable to permanently accommodate a reduction in Ms D’s hours in her role due to a number of staff already being part time. There were also no additional reasonable adjustments that could be made to Ms D’s workplace to facilitate a return to her role. It was noted from the various OH reports that Ms D was able to actually undertake her role, albeit only while on reduced hours.

Dr Birrell’s overall view was that Ms D was receiving appropriate treatments for her recognised conditions (kidney disease, obstructive sleep apnoea and depression). On this basis, Dr Birrell believed that it would have been reasonable to suggest that Ms D’s symptoms would have sufficiently improved to allow a return to her role. Dr Birrell went on to say that while “Ms D was prevented by ill health from discharging her duties at the point she left employment” based on “objective medical evidence … her incapacity would be considered unlikely to continue until the scheme pension age” and so she was “unlikely to satisfy the scheme criteria for permanence”. Dr Birrell provided an IHER certificate in support of this. 11 CAS-73691-W0V1

Ms D did not accept the Adjudicator’s Opinion, and the complaint was passed to me to consider. Ms D provided her further comments which do not change the outcome. I agree with the Adjudicator’s Opinion and note the additional points raised by Ms D, which are:-

• On receipt of the CO’s stage two IDRP response letter, the DWP was told to provide her with a medical consent form. Instead, the DWP asked her to complete a new IHR1 form so that her request for RIHR could be considered by the SMA.

• She had already been through the three-stage appeals process when she was granted the EPPA award in 2017. However, the DWP had her apply for RIHR

12 CAS-73691-W0V1 separately from the EPPA award. It was her understanding the SMA responsible for reviewing her entitlement to RIHR would use the evidence available via her EPPA application to make a decision on her eligibility for RIHR.

• On receipt of Dr Birrell’s opinion and the decision to decline her application for RIHR she was advised to complete form APP1 to appeal the decision, which she did.

• Her view was that Dr Birrell could not dispute the opinion provided by Dr Atkinson when she was granted her EPPA, nor was she qualified to do so. Dr Atkinson’s stage three opinion superseded “all other medical references in relation to [her] application for ill health retirement including retrospectively”.

• There was a delay in the DWP referring her APP1 appeal form onto the SMA in 2021, which resulted in the SMA closing her case.

Ombudsman’s decision

Provided the DWP has acted in accordance with the above principles, and within its powers under the Regulations, I have no grounds to submit the matter back to the DWP to consider again.

I will start by referring to Ms D’s comment that Dr Birrell’s opinion should not ‘override’ that of Dr Atkinson’s. I disagree with Ms D’s understanding of the process undertaken. Dr Birrell’s opinion was provided for the purpose of assessing Ms D’s entitlement to RIHR, whereas Dr Atkinson’s opinion was in relation to an EPPA entitlement. The criteria and requirements for each differ.

13 CAS-73691-W0V1 Section 8.2 of the Guidance provides the criteria that needs to be met for an EPPA to be awarded. That is: “…after leaving the Civil Service, the person falls ill before their scheme pension age and, had they remained in the Civil Service, they would have been retired on grounds of ill health.” If this criteria was met, the preserved pension that was awarded to the applicant under regulation 3.11, and it was calculated and paid in accordance with regulation 3.1, without an enhancement.

As per Dr Atkinson’s report, when looking at the EPPA application, Ms D’s main debilitating conditions were fibromyalgia and depression. These were in addition to her stage three chronic kidney disease and sleep apnoea. He noted that she had engaged with all available treatments within the last five years; however, her conditions were significantly disabling proving resistant to treatment. Dr Atkinson said: “It was tempting to think that her conditions could be treated separately to result in an improvement in symptoms and a return to full-time work”. Ms D “… was unable to take a “potent painkiller” due to the “comprehensive pharmacological regime” she was on. So, it was accepted that Ms D met this criteria and was entitled to an EPPA effective from August 2016.

Later and separately, on receipt of the CO’s approval for Ms D to be considered for RIHR, Dr Birrell needed to consider whether, at the date Ms D left the DWP, she met the criteria under regulation 1.12. That is, she was “prevented by ill health from discharging [her] duties, and that [her] ill health [was] likely to be permanent”, until her NPA. As the Adjudicator has explained, Dr Birrell was looking at the situation at the time Ms D left employment and was precluded from considering information that was not available at the time of the termination of Ms D’s DWP employment. Consequently, Dr Birrell was unable to consider any information relating to Ms D’s fibromyalgia diagnosis, later in 2017, which gave rise to her EPPA entitlement.

Dr Atkinson, in 2017, hypothesised that “… although [Ms D’s] fibromyalgia was only recently diagnosed formally it was at the point that she developed typical symptoms of this that she left work and this could have been diagnosed at that time”. However, she was not so diagnosed at the time, and clearly this view was made with the benefit of hindsight. In 2012/13, there was no evidence to suggest that a diagnosis of fibromyalgia was being considered/explored.

Later, when conducting the RIHR review, Dr Birrell concluded that Ms D was receiving appropriate treatments for her recognised conditions (kidney disease, obstructive sleep apnoea and depression). She had sight of Dr Atkinson’s report, but observed that “…at the point [Ms D] left employment there is no indication that a diagnosis of fibromyalgia had even been considered”. She went on to point out that, since Ms D left employment, it “… is noted that her pain has become more widespread and it was only following a consultation with a rheumatologist in 2017 that she was diagnosed with fibromyalgia” On that basis, Dr Birrell believed that it would have been reasonable to conclude that Ms D’s symptoms would have sufficiently improved to allow a return to her role before her NPA. So, in Dr Birrell’s view, Ms D was not eligible for a RIHR when she left the DWP.

14 CAS-73691-W0V1 Dr Birrell, in considering the RIHR criteria, which looked at the situation at the time Ms D left employment, was of the view that she did not meet that criteria. Overall, Dr Birrell’s opinion did not ‘supersede’ the view of Dr Atkinson, it was just that there were separate tests and criteria that needed to be considered by each SMA in regard to entitlement for an EPPA verses that of RIHR. The fact that Ms D is not entitled to an RIHR, does not impact her entitlement to an EPPA.

I note that the DWP accepted the view of Dr Birrell and declined the application for RIHR. It is not my role to determine what evidence the DWP should have considered in reviewing Ms D’s RIHR application, that is for the DWP to consider. My role is to consider whether the evidence relied on by the DWP was appropriate and whether it reasonably supported the conclusion reached.

Essentially, I need to consider whether the DWP’s decision was a rational decision based on the relevant evidence but no more. I find that there were no errors, or omissions of fact for the DWP to consider when it accepted Dr Birrell’s opinion. Further, the DWP’s decision was made on the basis of a seemingly competent SMA who understood and acted in accordance with the relevant regulations. Dr Birrell FRCP FFOM MRCGP, a consultant occupational physician, was the SMA appointed for the RIHR. She clearly had sight of Dr Atkinson’s report, and considered his view that fibromyalgia “could” have been diagnosed at the time Ms D left employment. Nonethless, she was of the view that, “…based on the objective medical evidence available from that time, [Ms D’s] incapacity would have been considered unlikely to continue until scheme pension age and so is unlikely to satisfy the scheme requirement for permanence”. Therefore, for the purposes of Rule 1.12, she enclosed an “ill health retirement refusal certificate” with her report. Accordingly, I find that it was reasonable for the DWP to consider that Dr Birrell had considered the relevant factors, evidence and information, and was qualified to provide an expert opinion on Ms D’s conditions/symptoms and how they might have affected her role based on the requirements. Overall, I am satisfied with the way in which the DWP reached it decision in regard to Ms D’s RIHR application.

Turning to Ms D’s complaint about the procedural aspects of the RIHR application, and the subsequent appeal. Having reviewed the timeline of events, I cannot see that there are any instances where the DWP excessively faltered in its obligations to the IHER or appeals process. I note that between March and July 2018, on receipt of Ms D’s RIHR appeal, the DWP did incorrectly forward the request onto its occupational health provider to consider. This was however, resolved when the CO noted the error and advised Ms D of her IDRP appeal rights on 20 July 2018, for which she then submitted an IDRP complaint on 27 July 2018.

I do, however, find that there was an excessive delay of one year and two months in the CO providing its IDRP response to Ms D, which I consider to be unreasonable. The CO did offer an apology to Ms D; however, it did not go so far as to explain why its response was delayed. This will have undoubtably caused Ms D distress and inconvenience during an already vulnerable time. The CO should recognise this by paying £500 to Ms D. 15 CAS-73691-W0V1 On receipt of Dr Birrell’s decision, Ms D contacted the DWP to appeal the decision on 24 September 2020. The DWP did not provide the required forms to Ms D to submit an appeal until 7 October 2020. Ms D did not submit her appeal until 4 February 2021 and cited her, and her carers, catching covid-19, and family bereavements as reasons why she was unable to submit the appeal within three months of Dr Birrell’s decision. As the three-month period lapsed, MyCSP’s approval was required to accept the RIHR appeal.

To date, MyCSP (now replaced by Capita) has yet to respond to the DWP’s request for an extension to the deadline to accept Ms D's RIHR appeal. MyCSP is not a party to this complaint. However, the DWP does not appear to have proactively followed the matter up with MyCSP, as I would have expected. The DWP should recognise the distress that its inaction will have caused to Ms D by making a payment of £500 to her.

Overall, I partly uphold Ms D’s complaint.

Directions

Dominic Harris

Pensions Ombudsman 10 February 2026

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