Ombudsman s Determination Applicant Scheme Respondent Dr O NHS Pension Scheme (the Scheme) NHS Business Services Authority (NHS BSA) Outcome 1. I do not uphold Dr O s complaint and no further action is required by NHS BSA. 2. My reasons for reaching this decision are explained in more detail below. Complaint summary 3. Dr O has complained about NHS BSA s refusal to deem her various posts of employment and membership of the Scheme as having Mental Health Officer status (MHO status). Consequently, she has not been able to access her benefits as early as she had planned. Background information, including submissions from the parties 4. Dr O worked in Mental Health. In the years from 1988 to 1997, she worked full time for Southwark Social Services in London, employed by the Local Authority. She was a member of the Local Government Pension Scheme (LGPS). 5. Between 1989 and 1997, Dr O says she carried out Adult Psychiatry sessions in addition to her main employment. She says she was employed by the NHS as an honorary Psychotherapist but did not contribute to the Scheme. 6. As part of her main employment, Dr O was seconded to work in the NHS Bloomfield Clinic at Guy s Hospital, London, as a Senior Clinical Psychiatric Social Worker. 7. In 1991, Dr O changed her employment basis from full time to part time. She continued to be based at Guy s Hospital. 8. On 6 March 1995, MHO status was abolished. 9. In 1997, Dr O says she transferred her main employment to the NHS, working as a Psychotherapist in Kent. 1
10. On 22 September 1997, she joined the Scheme. 11. In September 1998, Dr O transferred her benefits from the LGPS to the Scheme. An NHS letter of 10 September 1998, confirmed that the transfer bought her seven years and 353 days of membership within the Scheme. 12. In 2015, at age 56, Dr O left her employment with the NHS. She enquired into the earliest date which she would be able to take her benefits. As she considered that she had MHO status, she believed that she had been entitled to her benefits from age 55. 13. Dr O was subsequently informed that she did not qualify for MHO status, so she could not take her benefits from age 55. 14. In May 2015, Dr O said the following to NHS BSA in her claim for MHO status to apply to her scheme membership: - There was a parity between LGPS and the Scheme; the rights of her membership with the former should be transferable to the latter. She had been employed by the NHS as a trainee Psychotherapist as well as the local authority before MHO status was removed in 1995. Although she was not contributing to the Scheme at this stage, she was nonetheless employed in Psychiatry. She worked full time in Child Psychiatry for the NHS; the NHS had been her base from 1989. 15. Dr O subsequently complained to NHS BSA under its Internal Dispute Resolution Procedure (IDRP). 16. On 11 June 2015, NHS BSA provided a response to the complaint under stage one of the IDRP. It said: - MHO status was abolished in 1995. Its records showed that Dr O joined the Scheme in 1997, so this status could not have applied to her. Although Dr O had an honorary NHS appointment prior to this date, she was paid by a Local Government Employer. This role was not considered as reckonable service for membership of the Scheme. Dr O wished for the Rule of 85 to apply to her transferred LGPS service. However, the pension rights she had accrued in the LGPS were relinquished upon transfer into the Scheme. Consequently, the Scheme s terms and conditions did not apply to her membership of the Scheme; the Rule of 85 has never existed in the Scheme. 17. On 23 July 2015, Dr O made NHS BSA aware that she wished to appeal its decision. 18. NHS BSA provided a response under stage two of the IDRP. Its decision remained that Dr O s complaint should not be upheld. 2
19. Dr O subsequently referred her complaint to this Office for an independent review. 20. NHS BSA provided its formal response to this Office. It explained that Regulation R3 of the NHS Pension Scheme Regulations 1995 (the Regulations), pertained to MHO status and confirmed the terms of this. It said NHS BSA could not grant Dr O MHO status as she was not in pensionable employment as a MHO on 6 March 1995, and she did not have accrued rights under the 1995 section arising from earlier periods of MHO employment. 21. Dr O provided the following comments on NHS BSA s formal response: - She was aware that the cut off date for MHO status was 1995. Her complaint concerned why this should be the criterion, as she was employed by the NHS before this date, and was working on secondment with the NHS from the late 1980 s. The NHS had advised that she switch from the LGPS to the Scheme due to the comparable benefits which the Scheme would provide. The MHO status regulations provided by NHS BSA referred to part time members being granted MHO status if they were in NHS employment and a contributing member of the Scheme in 1999. Her part time employment with the NHS in 1990 should therefore be taken into account. Adjudicator s Opinion 22. Dr O s complaint was considered by one of our Adjudicators who concluded that no action was required by NHS BSA. The Adjudicator s findings are summarised briefly below: - MHO status carried specific rules and NHS BSA was obliged to act in accordance with these. Dr O s main employment between 1988 to 1997 was with Southwark Special Services, where she was employed by a Local Authority. As Dr O was seconded to work at Guy s Hospital, an NHS establishment, she believed that in essence, she was working for the NHS. Yet Dr O s employer was the Local Authority, therefore she would not have been eligible for membership in the [NHS] Scheme. Instead, Dr O was contributing to the LGPS. Dr O undertook additional employment in the form of an honorary appointment within the NHS for which she contended she was employed by the NHS. NHS BSA, however, said that Dr O was paid by a Local Government employer. Irrespective of who employed Dr O, she did not contribute to the Scheme as part of this employment, so she cannot be deemed as having pensionable service. Regulation C2 of the Regulations, which defines pensionable service, says that this would involve any period of pensionable employment in which the member contributed to the scheme. Whilst Dr O considered that the LGPS and the Scheme were comparable, they were distinct to one another and subject to their own, differing rules. 3
A member needed to be part of the Scheme before 6 March 1995 to be granted MHO status. Dr O was not a member before this date. The Rule of 85, a former LGPS regulation, did not apply to Dr O in terms of her membership of the Scheme. Although Dr O had said that she was advised by the Scheme to transfer her LGPS benefits on the basis that these were comparable or equivalent, no evidence had been presented that such a discussion took place. Nonetheless, irrespective of what Dr O may have been told, her entitlement to MHO status was determined by the Regulations, not by what she had been informed. 23. NHS BSA accepted the Adjudicator s Opinion. Dr O did not accept the Adjudicator s Opinion. She asked that further enquiries be made about MHO status and the advice she was provided by NHS BSA when transferring her LGPS benefits. 24. The Adjudicator requested information from NHS BSA from the time of the transfer, including any discussions which had taken place. She also relayed Dr O s strong belief that there was some provision within the Regulations for MHO status to be granted to those who had worked within the NHS before 6 March 1995, but were not contributing to the Scheme. 25. NHS BSA responded to this request enclosing all the papers it held regarding the transfer. It also said that there was no precedent within the Scheme which would allow a member who joined, for the first time, after 6 March 1995 to be granted MHO status. 26. The Adjudicator considered the information but did not find anything to suggest that NHS BSA had informed Dr O that benefits transferred from the LGPS would be comparable or equivalent to those accrued in the Scheme. The Adjudicator informed Dr O that her conclusions remained the same. 27. The complaint was then passed to me to consider. I agree with the Adjudicator s Opinion, summarised above, and I will therefore only respond to the key points made by Dr O for completeness. Ombudsman s decision 28. I understand that MHO status was abolished on 6 March 1995, the date on which the Regulations came into force. These state that MHO status applies to a member in pensionable employment under the Scheme as a Mental Health Officer, at the date on which the Regulations came into force. Dr O joined the Scheme in 1997, therefore MHO status could not have applied to her. 29. Dr O held various positions within the mental health field before 6 March 1995, which she says should be categorised as being part of her pensionable service. Here, the National Health Service (Superannuation) Regulations 1980 (the 1980 Regulations) are relevant. 4
30. Under Regulation 4, which determines the application of the 1980 Regulations, it says that these apply to officers of an employing authority... Similarly, the term service refers to an officer of an employing authority. Prior to 1997, Dr O was not employed by an employing authority as defined by the 1980 Regulations, therefore, the employment she undertook prior to this is not reckonable under the Scheme. Accordingly, Dr O did not have MHO status in these posts as she contends. 31. I understand that Dr O held an additional employment in the form of an honorary appointment within the NHS. Dr O believes that she was employed by the NHS but NHS BSA has said otherwise. In any case, Regulation 5(1) of the 1980 Regulation says: Subject to the provisions of paragraph (2), a person who holds an appointment which by the terms thereof is declared to be an honorary appointment, whether or not a distinction award is payable, shall in respect of that appointment be deemed not to be an officer to whom this Part of these regulations applies 32. Hence, this employment also would not be considered as having reckonable service for the purposes of her scheme membership. 33. Lastly, whilst Dr O maintains that she was informed by a representative of NHS BSA that her accrued LGPS benefits would carry NHS Scheme membership or the equivalent when transferred, I have not seen any evidence that such advice was given. 34. I am satisfied that NHS BSA has administered the provision of MHO status in accordance with the Regulations. 35. Therefore, I do not uphold Dr O s complaint. Anthony Arter Pensions Ombudsman 4 August 2017 5