TPO upholds maladministration complaint against NHS BSA

The Pensions Ombudsman (TPO) has upheld a complaint against National Health Service (NHS) Business Services Authority (BSA) for telling a deferred NHS Pension Scheme member they could be re-admitted to the scheme and continue to pay contributions past the age permitted by regulations.

The complainant, Professor G, said that NHS BSA had refused to honour its promise to re-admit him into the scheme from 2001.

He argued that he should be entitled to benefits for his service from 2001, irrespective of whether NHS BSA’s promise to allow him to be re-admitted on an exceptional basis was made in error, as it had no power to promise to provide benefits other than in accordance with the NHS Pension Regulations 1995.

Professor G also claimed that NHS BSA had acted negligently in telling East London NHS Foundation Trust that he could be re-admitted to the scheme and that, if he was entitled to admittance from 2001, the trust misrepresented his contractual rights and acted negligently upon his employment.

The complaint against East London NHS Foundation Trust was not upheld by TPO.

TPO stated that NHS BSA telling Professor G and the trust that he could exceptionally remain and continue to pay contributions to the scheme even though he had reached age 60 was not permitted under the regulations, which “amounted to a negligent statement/misrepresentation".

It also found that NHS BSA was in breach of its statutory to administer the scheme in accordance with the regulations, and in breach of a concurrent ongoing duty of care in negligence to provide the correct benefits under the scheme, by administering the scheme on the basis that Professor G was entitled to be a member from May 2001 to October 2014 when he was actually ineligible.

Furthermore, TPO determined that NHS BSA was in breach of its duty of care in negligence to administer the scheme in accordance with the rules by accepting contributions up to 2006 and issuing documents to the complainant indicating he was an active member of the scheme from February 2001 to October 2014.

Separately, the ombudsman found there had been various breaches of law by NHS BSA in relation to the administration of the complainant’s pension as detailed in its determination.

NHA BSA was ordered to calculate and pay Professor G an amount equal to his personal pension loss, pension and lump sum arrears, overpaid employee contribution, and simple interest at the Bank of England rate on all these sums from the date of determination.

Additionally, NHS BSA was told to pay the complainant £4,000 for the “exceptional distress and inconvenience” he had endured.

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