The Pensions Ombudsman (TPO) has upheld a complaint against the London borough of Bromley after it failed to comply with obligations towards a member who ceased work due to ill health.

The complainant, Local Government Pension scheme (LGPS) member, Mrs N, had complained that the borough had declined to backdate her ill health retirement benefits to the date her employment ceased.

Mrs N was employed by Bromley until 15 May 2015, when her employment was terminated on the grounds of capability.

At this point, she submitted a claim to the Employment Tribunal on the grounds of unfair dismissal and disability discrimination, with the claim being settled under the terms of a COT3 Agreement dated 29 August 2016.

The LGPS’s 2013 regulations required that Mrs N’s case be referred to an independent medical practitioner in order to evaluate if and when Mrs N had become unable to work due to ill health.

Regulation 35 also stipulates that “an active member who has qualifying service for a period of two years and whose employment is terminated by a scheme employer on the grounds of ill-health or infirmity of mind or body before that member reaches normal pension age, is entitled to, and must take, early payment of a retirement pension”.

The independent practitioner, Dr Parekh, provided a report on 12 January 2017 that confirmed he considered 11 November 2016 to be the date of confirmation for the ill health retirement, leading Bromley to decide that his was when the complainant’s deferred benefits should be paid from.

However, Bromley also used Dr Parekh’s report to conclude that Mrs N did not meet the conditions for taking early payment of a retirement pension in May 2015, even though he had not been asked to give his reasons for this and it was unclear whether he was aware that he was evaluating Mrs N’s eligibility for these criteria.

Mrs N’s solicitor responded by arguing that her pension award should have been from the day she stopped working in May 2015, though Bromley argued that the borough’s decision-maker had acted based on the recommendation of the independent practitioner.

The solicitor suggested that the independent practitioner would have been able to reach an earlier decision about Mrs N’s health, and thus she would have begun receiving her pension earlier, if it had undertaken a review in 2015, as it would have had access to further evidence.

This evidence included a letter from a neurosurgery professional which indicated that surgery was not an option for Mrs N and that dealing with her condition was “a matter of pain management”.

TPO said: “Mrs N sustained injustice as a consequence of Bromley’s maladministration inasmuch as her eligibility for a pension under Regulation 35 has yet to be properly decided. It is not clear whether Mrs N is in receipt of the correct pension or that it has been paid from the correct date. I uphold Mrs N’s complaint against Bromley.”

Consequently, TPO directed the London borough of Bromley to consider whether Mrs N was entitled to a pension under Regulation 35 at the time of her employment termination, for her pension to be paid in arrears and with interest if she is found to be entitled to one, and pay her £500 for “significant non-financial injustice”.

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