The Pensions Ombudsman (PO) has given his determination in a complaint by Mrs B against Barclays Bank.
Mrs B was an “After Work” (AW) member of the Barclays Bank UK Retirement Fund (the Scheme). Her employment was terminated by Barclays Bank in October 2011 on grounds of ill-health.
Under the scheme rules, an AW member could take ill-health early retirement “at any age at the discretion of the Bank” if retirement was due to “Incapacity”, defined as “the situation where the Bank considers him or her permanently and totally unable to carry out any employment”, or if the member satisfied the “HMRC Test”, meaning the member “will continue to be medically incapable … of continuing his or her current occupation ...” In both cases, entitlement was conditional on the trustee and Barclays receiving evidence from a registered medical practitioner that the member satisfied these medical criteria.
Barclays told Mrs B, who was in her early forties, that she did not meet the criteria to receive an ill-health pension and enclosed a copy of a report from July 2011 by Dr Gray, a doctor at its occupational health adviser, AXA PPP Healthcare. Dr Gray noted earlier opinions by an independent examining doctor and Mrs B's French GP that she was unlikely to return to work, but concluded that she “cannot be considered permanently medically unfit for work on the balance of probability” because it would be “reasonable to expect further improvement of her condition with both medical and psychological evidence based interventions from her pain management specialists over time”. When Mrs B appealed against the decision, another AXA occupational physician, Dr Mason, reviewed the case but reached a similar conclusion.
Mrs B provided further letters written in early 2014 from her treating doctors in France but AXA's occupational physician Dr Tremlett disagreed with the treating doctors' poor prognosis. His report said there was no evidence that Mrs B had “ever received suitable psychological support or treatment”, that “evidence from research demonstrated that there was a realistic expectation” that individuals with her condition could adapt enough to return to work and that he thought it “remained reasonably likely” that she could do so before age 60.
When Barclays turned down Mrs B's appeal, she approached the Pensions Advisory Service, who asked Barclays to reconsider and sent it a medical certificate from Mrs B's French rheumatologist, Dr Abdeddaim. This set out her treatment and stated that she should be regarded as “handicapped” and an “invalid”. After obtaining a further opinion from an AXA occupational physician, Dr Westlake, which was in line with his colleagues', Barclays said that to overturn its appeal decision it needed to see evidence that there was no anticipation of improvement in Mrs B' condition. Finally rejecting her claim in December 2014, Barclays said the medical certificate supplied had no reasoned arguments to support its conclusion and did not say how her treatments might affect her prognosis.
Mrs B complained to the PO that Barclays had decided not to award her an ill-health pension from the date her employment ended based on incorrect and incomplete information.
The PO upheld the complaint, noting that he agreed with the Ombudsman adjudicator's initial opinion that Barclays had failed to make a proper decision as it had based its decision as to whether Mrs B was incapacitated or satisfied the HMRC Test on incomplete medical opinions. Following the adjudicator's opinion, Barclays made further submissions.
Firstly, Barclays submitted that following the decision in Edge and others v Pension Ombudsman and another , its decision could only be overturned if it had asked itself the wrong question or misdirected itself in law; had considered irrelevant factors or failed to consider relevant factors; or had reached a decision that that no reasonable body of trustees could reach. It said the adjudicator's findings did not appear to be on any of these grounds. Rejecting this argument, the PO held that the principles set out in Edge referred to the exercise of discretionary powers, but determining whether Mrs B was incapacitated was a finding of fact only (in contrast to Barclay's discretion whether to agree to retirement).
Secondly, Barclays referred to the High Court judge's comment in Suffolk County Council v Wallis  that:
“… it is impossible in my view to see how it can be said that the acts of [a medical practitioner] … can be said to be lain at the door of the [person responsible for the management of the scheme] so as to find them guilty of maladministration”.
Barclays argued that in the same way, omitting to ask a medical practitioner to provide more detailed evidence for their opinion could not amount to maladministration. It said that under the scheme rules, it was not required to request that registered medical practitioners provide “evidence-based reasons” as to why they have reached a particular view. The PO also rejected this argument. Although Barclays was not responsible for the acts of its medical advisers, it must understand the reasons for their opinions and make a properly informed decision. If there was a shortfall, such as an omission, in a report, Barclays should not “blindly accept it” or “simply rubber stamp the adviser’s opinion”. If the evidence on which the decision was based was flawed then it followed that the decision had not been properly made.
The PO reiterated the adjudicator's finding that Barclays had accepted the opinions of Dr Gray, Dr Mason and Dr Westlake without knowing the treatments they had in mind, the improvement they expected and over what timescale. Barclays also accepted Dr Tremlett's opinion although he failed to say why unspecified psychological support or treatment was reasonably likely to allow Mrs B to return to work. As the adjudicator said, Dr Tremlett's reference to “research” was a generalised comment which he did not apply to Mrs B's situation and Barclays’ position during the appeal that there must be no anticipation of improvement in Mrs B's condition was too stringent. Furthermore, when it came to the opinions of Mrs B's treating doctors, Barclays conversely dismissed them citing a shortfall of information. Given the difference of opinion, Barclays should instead have asked AXA to contact the treating doctors for this information and confirm if it changed their opinion.
The PO held that these failings amounted to maladministration. He remitted the decision whether to award Mrs B ill-health benefits back to Barclays, who must first obtain a new medical report from an AXA medical adviser not previously involved. This report must provide “evidence-based reasons for why recovery is to be expected” if it found against Mrs B. Barclays must also pay her £500 for the significant distress and inconvenience caused by its maladministration.
It is not uncommon for a scheme's own medical advisers to reach a different view about an ill-health applicant's state of health compared to the view taken by the applicant's own doctors.
The issue for decision-makers is how to deal with this kind of conflict of evidence.
In this case, the PO made clear that a decision-maker must carefully evaluate the available evidence and query any inconsistencies or omissions if necessary. While a decision-maker is not expected to have expert medical knowledge, they should ensure they understand all the evidence on which they rely in reaching a decision.