TPO upholds complaint against NHS BSA

The Pensions Ombudsman (TPO) has upheld a complaint against NHS Business Services Authority (BSA) over its failure to allow a member to retire at age 55 without penalisation.

Mrs S, who was bringing the issue to TPO for the second time, complained that her special class status had been incorrectly removed, meaning that she could not take early retirement without her pension being subject to a reduction.

To qualify for this special class status, scheme members must have been employed as a nurse, physiotherapist, midwife or health visitor on or before 6 March 1995, must not have had an employment break of five years or more and must have spent the last five years of their employment working in one of the previously listed roles.

The term ‘nurse’ was undefined in scheme rules and Mrs S worked in various nursing roles between 1986 and 2000, never taking anything close to a five-year break from employment.

From 2002 to 2020, she held a variety of roles with NHS Gloucestershire and NHS Trust Development Authority, including assistant director of service development, deputy director clinical development and nursing, and deputy clinical quality director.

When she contacted NHS BSA to enquire about early retirement in August 2016, Mrs S was told that she did not qualify as her roles since 2002 had been classified as “administrative or managerial” by NHS Gloucestershire, which it said meant she no longer worked in nursing roles and no longer qualified for special class status.

However, NHS Gloucestershire wrote to NHS BSA, informing the body that the complainant’s roles had required a nursing qualification and describing them as clinical nursing roles, but the latter still chose to classify some of her roles differently.

Mrs S complained internally but was unsuccessful, leading her to reach out to TPO and the ombudsman to decide in December 2018 that NHS BSA should launch a full investigation into its decision not to award Mrs S special status, as well as providing her with an explanation as to why NHS Gloucestershire’s evidence of her nursing roles was not being accepted.

Additionally, Mrs S had been awarded £1,000 and told to bring a new complaint to TPO if she disagreed with the conclusions of NHS BSA’s investigation.

Later that December, NHS BSA told Mrs S it still did not consider her qualified for special class status, citing her roles and their descriptions, leading her to respond with supporting job specifications and statements from her employer.

She further complained internally that NHS BSA had failed to launch a full investigation, instead simply rubber stamping its previous decision.

NHS BSA did not uphold Mrs S’ second complaint, leading her to turn once again to TPO.

The ombudsman stated that NHS BSA’s own definition of a nursing role was more restrictive than that set out in the scheme regulations, where the role was largely undefined, and concluded that she had been a nurse for the last five years of her employment preceding her retirement in 2017 and before 6 March 1995.

TPO stated that the classification of her roles between 2002 and 2012 was irrelevant, as the scheme regulations did not state special case status could be lost.

The ombudsman said: “I appreciate that Mrs S is frustrated with how the matter has been dealt with by NHS BSA. She has been through two complaints and arrived at the same outcome, without a full explanation being given by NHS BSA or the clear evidence provided by her employer being taken into account.

“She has explained that the complaint, which has been ongoing for a number of years, continues to have a severe effect on her health.”

NHS BSA was directed to return Mrs S to the same financial position she would have been in without removal from SCS and if she had taken her pension at age 55 without reductions.

The body was ordered to pay her the arrears owed as a lump sum, with interest applied from the date each pension payment had been due, while NHS BSA was also told to pay Mrs S a further £1,000 for severe distress and inconvenience.

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