Q00117
PENSION SCHEMES ACT 1993, PART X
DETERMINATION BY THE PENSIONS OMBUDSMAN
Applicant / : / Mr V HillScheme / : / The Principal Civil Service Pension Scheme (PCSPS)
Employer / : / The Home Office
Manager / : / Civil Service Pensions (CSP)
MATTERS FOR DETERMINATION
1. Mr Hill argues that the Home Office and CSP have misinterpreted Section 11 of the PCSPS Rules in respect of the assessment of impairment in earning capacity resulting from a qualifying injury. He argues that they have incorrectly applied a ‘sole attribution’ test to the assessment of impairment earning capacity.
2. Some of the issues before me might be seen as complaints of maladministration while others can be seen as disputes of fact or law and indeed, some may be both. I have jurisdiction over either type of issue and it is not usually necessary to distinguish between them. This determination should therefore be taken to be the resolution of any disputes of facts or law and/or (where appropriate) a finding as to whether there had been maladministration and if so whether injustice has been caused.
MATERIAL FACTS
The Principal Civil Service Pension Scheme - Section 11 Injury Benefits
3. At the time of Mr Hill’s application, Rule 11.1 provided,
“This part of section 11 applies to persons serving in full-time or part-time employment in the Civil Service …”
4. Rule 11.3 ‘Qualifying conditions’, provided,
“Except as provided under rule 11.11, benefits in accordance with the provisions of this section may be paid to any person to whom the section applies and
(i) who suffers an injury in the course of official duty, provided that such injury is solely attributable to the nature of the duty or arises from an activity reasonably incidental to the duty …
except that benefits will not be payable if the said injury or disease, or aggravation, is wholly or mainly due to or is seriously aggravated by his own serious and culpable negligence or misconduct.”
5. Before 1 April 1997, 11.3(i) referred to a person who,
“suffers an injury in the course of official duty, provided that such an injury is directly attributable to the nature of the duty or arises from an activity reasonably incidental to the duty”
6. Rule 11.6 provided,
“Subject to the provisions of this section, any person to whom this part of this section applies whose earning capacity is impaired because of injury and:
(i) whose service is ended otherwise than at his own request or for disciplinary reasons before the retiring age may be paid an annual allowance and lump sum according to the medical assessment of the impairment of his earning capacity, the length of his service, and his pensionable pay when his service ends;
(ii) whose service is ended at his own request or who is discharged for disciplinary reasons …
(iii) who is receiving sick pay or sick pay at pension rate for his injury, or whose entitlement to paid sick leave has expired …”
7. Rule 11.7 set out the scale of benefits payable. There had to be an impairment to the person’s earning capacity of greater than 10%, before any benefit was payable.
8. A table included in Rule 11.7 set out ‘Proportion of Pensionable Pay’ for ‘Impairment of earning capacity’ against ‘Length of Service or Reckonable Service if Longer’. Impairment was divided into four categories; ‘Slight impairment’ (>10% impaired but not >25%), ‘Impairment’ (>25% impaired but not >50%), ‘Material impairment’ (>50% impaired but not>75%) and ‘Total impairment’ (>75% impaired). Service was also divided into four categories; less than 5 years, 5 years and over but less than 15 years, 15 years and over but less than 25 years and 25 years and over. The level of ‘guaranteed minimum income’ ranges from 15% for a member with less than 5 years service and slight impairment to 85% for a member with 25 years or more and total impairment.
Background
9. Mr Hill was employed, as a prison officer, by HM Prison Service until he retired on the grounds of ill health in May 2000. In September 2000, he applied for a permanent injury allowance on the grounds that his condition (Post Traumatic Stress Disorder (PTSD)) had resulted from several traumatic situations he had experienced during his career as a prison officer, the most severe being a riot in 1990.
10. Although his application was initially refused, CSP determined that Mr Hill had suffered a qualifying injury and directed the Home Office to look at his entitlement to injury benefit.
11. Information was sought from a Dr Jones, who had been treating Mr Hill. He provided a report on 10 November 2003. He outlined Mr Hill’s history and commented,
“To be already traumatised by previous experience would have made him all the more vulnerable in the later horrors of the Strangeways experience.”
12. Dr Jones noted that there was no history of psychiatric trouble in Mr Hill’s family. He said,
“It is highly significant that until this period he had not manifested any functional disablement attributable to previous trauma. His condition was consequent on current and recent prison service events and experiences.”
13. Dr Jones commented that Mr Hill’s wife’s account had suggested that he had already been substantially affected by his service in Northern Ireland and Germany. However, he went on to say that there was no clinical condition causing disablement until Mr Hill had suffered the effects of his prison service. Dr Jones concluded that Mr Hill’s condition would have emerged gradually and increasingly affected him. However, he did not think that Mr Hill would have broken down into his present state except for his experience at Strangeways. Dr Jones expressed the opinion that Mr Hill’s condition would not have occurred by reason of his military experience alone but would have occurred by reason of his prison service experience in the absence of military service. On that basis, he said he regarded Mr Hill’s condition to be solely attributable to his prison service.
14. A Dr Sheard advised CSP on 17 December 2003. He commented on the report provided by Dr Jones and said that he found the arguments difficult to follow,
“For example Dr Jones says “I think that in fact his condition would very likely have gradually emerged irrespective of the more recent work pressures”. However he also says “I do not consider he would have broken down (sic) his present chronic clinical state and present total disablement except by reason of Strangeways and his other prison experiences of recent years”. I am afraid I am unable to support the psychiatrist’s view that Mr Hill’s present condition is solely attributable to his duties in the Prison Service.
… as Mr Hill has been medically retired there would then be the need to assess the impairment of earnings deemed solely attributable to the incidents in the work environment … Mr Hill’s application must be considered under sole attribution criteria. In the circumstances any impairment of earnings would have to be deemed to be at the lower level. Given the information provided I do not believe I could support an award greater than 10% of impairment of earnings given the underlying vulnerability as a result of earlier experiences and Mr Hill’s personality …”
15. On 3 February 2004, the Home Office wrote to Mr Hill informing him that they had reviewed his application and that BMI had advised that his level of impairment to earning capacity was less than 10%. They said that the level of impairment could be reviewed on the production of new evidence that Mr Hill’s condition had deteriorated since their assessment.
16. Dr Jones provided a further report on 2 March 2004. He explained that Mr Hill was now a detained psychiatric patient in a Medium Secure Unit. Dr Jones again outlined Mr Hill’s history in some detail. He explained that he had first been made aware of Mr Hill in 1998, when he had been contacted by one of Mr Hill’s fellow ex-servicemen, who had also been involved in the Strangeways riots. He said he had then seen Mr Hill in his clinic for traumatised ex-Servicemen. Dr Jones commented that Mr Hill’s previous experience would have made him more vulnerable to ‘the later horrors’ of the Strangeways riots. He commented that he had noted Mr Hill was a ‘markedly obsessional type personality. Dr Jones also felt that it was highly significant that Mr Hill had not manifested any functional disablement previously. He considered that Mr Hill’s condition was consequent on current and recent prison service events and experiences. Dr Jones stated,
“His army background had made him vulnerable to the prison service events which in totality finally caused his eventual disablement. There was no evidence that he would have broken down in this way from military causes if he had not been exposed to the prison service events. On that basis I regard his present unemployability as directly and exclusively a consequence of his prison service.
17. Dr Jones referred to the opinion of another psychiatrist, a Dr Adams, who had seen Mr Hill. Dr Jones reported that Dr Adams had been of the opinion that Mr Hill was suffering from a depressive illness complicated by heavy alcohol use. Dr Jones suggested that this was due to a reluctance on Mr Hill’s part to discuss his Service experiences. Dr Jones commented that Mr Hill’s condition had deteriorated and concluded his report,
“By reason of his mental state Mr Hill is a detained mental patient in a closed unit. His functioning is grossly impaired. He is effectively suffering total impairment.”
18. The Home Office referred Mr Hill’s case back to BMI (their medical advisers) and Dr Sheard provided further advice in April 2004. He referred to his previous advice, which he said had been to consider an injury benefit under direct attribution criteria. Dr Sheard went on to say,
“… as Mr Hill has been medically retired there would be a need to assess the impairment of earnings deemed solely attributable to the incidents in the work environment as sole attribution criteria is applied to impairment of earnings …
I note that prior to his retirement, Mr Hill was receiving pay in the region of £22,657. Any impairment of earnings must be assessed against the same. He is clearly unfit for any reasonable work at present. However, as advised above, my understanding is that impairment of earnings assessments must be made against sole attribution criteria. In the past we have not been minded to support impairment of earnings above 10% …
The new medical evidence consists of a further report from this gentleman’s treating psychiatrist … He therefore advises that Mr Hill’s condition was consequent on current and recent Prison Service events and experiences. The specialist goes on to say that whilst Mr Hill’s Army background had made him vulnerable to the Prison Service events, there was no evidence that he would have broken down in this way if he had not been exposed to Prison Service events …
It is clear that Mr Hill is seriously unwell. On the balance of probabilities he is permanently unfit to work as a Prison Officer. It does appear that his current problems are directly attributable to the work environment … I am, however, mindful that the Pensions Ombudsman has advised that when there is a difference of opinion between the treating clinician and [BMI] with regard to attribution, then there is merit in an independent opinion. We already have the same and this, too, supports sole attribution …
There is no new medical evidence which would lead me to alter my advice … and I therefore am reluctant to increase my impairment of earnings assessment to greater than 10%. If, however, we take the Pensions Ombudsman’s view of the so called independent opinion, then given Mr Hill’s current severe problems then his impairment of earnings must be at least 50 – 75% and probably 75% or greater.
There is, however, one final complicating factor. I note that Mr Hill is currently detained in a secure unit. He did receive a custodial sentence for actions perpetrated after the beginning of his illness. The psychiatrist would suggest that his actions were a direct result of his illness, but clearly this mitigation was not accepted by the court or otherwise, in my understanding, a custodial sentence would not likely have been awarded. It would not be normal to support medical retirement or any injury benefit for an individual who is still under investigation for a disciplinary offence …”
19. The Home Office wrote to Mr Hill on 9 June 2004,
“… With specific regards to the impairment of earnings level Cabinet Office Policy Division in conjunction with Pensions Complaints Branch have advised that “the scheme rules require the impairment of earnings capacity to be assessed by the appointed medical adviser (i.e. BMI)”. Therefore, we have no alternative other than to take BMI’s advice, accordingly Dr Sheard’s assessment is classed as the definitive answer with regards to this case.
BMI in their assessment have advised that they cannot support an award greater than 10% of impairment of earnings given the underlying vulnerability as a result of earlier experiences. In effect your previous military service and experiences have had to be taken into consideration when arriving at the level of impairment. The information on file unfortunately does not support the contention that your employment within the Prison Service is exclusively accountable for your current condition.
As an impairment level of less than 10% has been arrived at no award is payable.”
20. Mr Hill appealed against this decision on the grounds that, it having been decided that he was suffering from a qualifying injury, the test was simply how much his earning capacity was impaired by that injury. In other words, there was no scope for any deemed or actual discounting for non-exclusive attribution. Mr Hill’s solicitor referred to Dr Sheard’s report and said that he appeared to be considering Mr Hill’s case on the basis of sole rather than direct attribution.