Council failed to reach its own decision on what tier of ill health retirement an employee was to be awarded.

Ben Spence

The Pensions Ombudsman has given his determination in a complaint by Ms R against the City of Wolverhampton Council and West Midlands Pension Fund.


Ms R was employed as a Higher Level Teaching Assistant at New Park School in Wolverhampton. Ms R was a member of the Local Government Pension Scheme (LGPS)

On 7 February 2014, following a period of sickness absence, Ms R was referred to Occupational Health who said that she was fit to carry out her duties with the exception of being able to restrain pupils by herself.

On 10 March 2014, Ms R was referred to Dr Gandham, an independent registered medical practitioner (IRMP) who certified that, in his opinion, Ms R is suffering from a condition that, on the balance of probabilities, renders her permanently incapable of discharging the duties of her employment with her employer because of ill health. He also said that she does not have a reduced likelihood of being capable of undertaking gainful employment before her normal retirement age (NRA).

On 27 March 2014, the Council turned down Ms R’s application, following Dr Gandham’s report. Ms R appealed this decision who subsequently agreed that Ms R’ case be referred to another IRMP (Dr Richards) for a further medical opinion.

On 27 July 2014, Dr Richards considered the occupational health notes, including a report from Ms R’s general practitioner (GP) and consultant rheumatologist. Dr Richards certified that he does not consider that Ms R would be permanently incapable of discharging efficiently the duties of her current role and he would not support her request for an IHRP. Ms R appealed this decision.

On 9 December 2014, the Council referred the matter back to a new IRMP, Dr Bush, for reassessment. He said that she is likely to be capable of undertaking gainful employment within the next three years or before her NRA. He recommended that a Tier 3 IHRP should be awarded.

On 22 May 2015, Ms R ceased her employment with the Council and was awarded Tier 3 IHRP.

On 29 May 2015, Ms R appealed the decision made by Council. The decision maker accepted Dr Bush’s opinion and turned down Ms R’s appeal.

On 15 December 2015, Ms R appealed. The Council referred Ms R’s case back to Dr Cathcart to provide an independent medical opinion. Dr Cathcart said his opinion does not differ from that of Dr Bush in that Ms R did satisfy the criteria for an IHRP from December 2014 and at that time Tier 3 was appropriate. He also said that based on further medical evidence since December 2014, Ms R’s condition would have deteriorated and that a higher Tier may be now appropriate.



Ms R’s complaint was considered by one of the Pension Adjudicators who concluded that further action was required by the Council. The Adjudicator was of the view that the Council did not properly consider Ms R’s eligibility for an IHRP. It is not the Pensions Ombudsman’s role to review the medical evidence and come to a decision of his own as to Ms R’s entitlement to an IHRP. That decision is for the Council to make.

The Adjudicator was of the opinion that the decision was made by Dr Bush and the Council merely relied on it without coming to its own independent view and properly communicating this to Ms R in writing. So, the Council did not follow the Scheme Regulations correctly.

The Council did not accept the Adjudicator’s Opinion and this was referred to the Ombudsman.

The Ombudsman agreed with the adjudicator which upheld Ms R’s complaint and found that the case is to be remitted back to the Council to reconsider afresh after nominating a new IRMP independent to the case to provide a certificate. The Council should then consider all of the relevant evidence before making its decision and inform Ms R of its decision in writing, explaining the reasoning behind it.



Determination in a complaint by Ms R, 13 February 2018 (PO-13645)

Ben Spence – HR Business Partner

Ben Spence

I am a confident and commercial MCIPD qualified HR Professional with over 15 years’ experience in Human Resources. Prior to joining Cook Lawyers I spent 3 years at Wigan and Leigh College as a HR Business Partner and 4 years providing a HR Service to Schools in Lancashire and Wigan through the local authority. I have a real passion to ensure employment issues are managed effectively and in a timely manner.