Suspending pension payments to NHS members facing criminal offences 'unlawful' - High Court

The High Court has today (17 January) ruled that the ‘controversial’ changes made by Secretary of State for Health and Social Care to the NHS Pension Scheme last year were unlawful.

The changes gave the secretary power to suspend payment of pensions benefits to any doctor or NHS worker who had been charged with certain criminal offences, before being convicted.

The British Medical Association (BMA) who led the judicial review, argued this would make NHS employees: “The only public sector workers to have the threat of forfeiture of their pension hanging over them at any time from charge”.

The High Court agreed that the new regulations breached Article 6 (right to a fair trial), Article 14 (protection from discrimination) and Article 1, Protocol 1 (right to peaceful enjoyment of property) of the European Convention on Human Rights, and also breached the Public Sector Equality Duty under the Equality Act.

In the judgement, the Hon. Mrs Justice Andrews, stated that no explanation was given for: “How the scope of the power to suspend (and, indirectly, the power to forfeit) came to be expanded to cover the period between charge and conviction, or what the thinking was behind it”.

The judge also highlighted that the government had failed to differentiate between someone charged with a crime, and someone convicted, stating that: "Every defendant to a criminal charge, however serious, and however compelling the evidence against him may appear, is presumed innocent until proved guilty to the criminal standard."

Commenting on the ruling, BMA council chair, Chaand Nagpaul, said: “Today’s judgment is a victory for natural justice for our members and for all NHS professionals across England and Wales who could have been unlawfully deprived of their pensions benefits had these rules remained in place.

“We could not allow the government to simply disregard the fundamental principle that a person charged with a crime is presumed innocent until proven guilty. These rules assume guilt from the outset with little regard for the impact on a doctor’s well-being, career or personal life.

“From the evidence presented it is clear the government made no assessment, or worse just disregarded, the potential effect this rule change would have on those who are retired and already drawing on their pensions and those who are older, ill or disabled."

The NHS pension scheme has drawn attention after pension tax issues caused some doctors to cut back hours and retire early, leading to a government consultation of the tapered and annual allowance.

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