Ill-health early retirement from LGPS: Independence test for certifying medical practitioner

Mark Poulston comments on a recent determination by the Deputy Pensions Ombudsman that will have implications for many local authorities.

Pensions Partner, Mark Poulston comments on a recent determination by the Deputy Pensions Ombudsman that will have practical implications for many employing authorities and administering authorities.

Background

In October, the Deputy Pensions Ombudsman (DPO) upheld a complaint brought by a deferred pensioner member of the Local Government Pension Scheme, Damien Kelly.  [Kelly (PO-678)].  The complaint was made against Mr Kelly’s former employer, Sefton Council, and Merseyside Pension Fund.

Mr Kelly’s complaint related to his application for ill-health early retirement which had been refused by his former employer.

The DPO identified several failings in the decision making and appeal process.  The DPO directed the Council to reconsider Mr Kelly’s application.  The DPO also ordered the Council and Merseyside Pension Fund each to pay £250 to Mr Kelly in compensation for distress and inconvenience.

In this short article, I will focus on just one of the issues: the independence of the medical practitioner.

The independence test

Before making a decision, the Council was required to obtain a certificate as to Mr Kelly’s medical condition from an independent registered medical practitioner (IRMP).  The IRMP has to be “independent” in accordance with Regulation 56 (1) of the Local Government Pension Scheme (Administration) Regulations 2008.

The doctor who supplied the report was employed by a provider of occupational health services to the Council.  Although the doctor had never met Mr Kelly and had signed the declaration that she was an IRMP, the DPO decided that she could not be considered independent.

The DPO noted that the Regulations state that the IRMP must not have acted (at any time) as a representative of the employing authority or any other party related to the case.  The DPO said she could not see how this requirement could be met if the doctor worked for the provider of Occupational Health Services to the Council.

Accordingly, the DPO decided that the Council had failed to obtain the required medical certificate.

Practical implications

This determination highlights just how stringently the LGPS Regulations must be applied.  Based on the facts in this case, many employing authorities may recognise potential weaknesses in their own procedures for dealing with ill-health early retirement cases.  It is likely that other authorities had previously considered that a doctor employed by their provider of Occupational Health Services would meet the independence test provided they had not been involved in the individual case.  In view of this determination, that is not correct.  Accordingly, employing authorities should review their procedures in this area.

Mark Poulston is a Pensions Partner based in our Liverpool Office. If you have any queries regarding the issues raised in this article please contact mark.poulston@weightmans.com.

Share on Twitter