Nhs Pension Scheme · CAS-37294-G0Y2

CAS-37294-G0Y2

Ombudsman’s Determination Applicant Mrs S

Scheme NHS Pension Scheme

Respondent NHS BSA

Outcome

Complaint summary

Background information, including submissions from the parties

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Employer and Role From To

Cheltenham & District Health Authority August 1986 March 2000

Various nursing roles

NHS Gloucestershire January 2002 March 2013

Project Manager – Clinical Quality and January 2002 March 2003 Governance

Assistant Director of Service Development March 2003 June 2007

Deputy Director Clinical Development and June 2007 June 2010 Engagement

Deputy Director Clinical Development and June 2010 March 2012 Nursing

Deputy Director of Quality and Nursing March 2012 March 2013

NHS Trust Development Authority (which April 2013 April 2020 became part of NHS Improvement in 2016)

Head of Quality (also referred to as Head of April 2013 August Clinical Quality), band 8d, 2014

Deputy Clinical Quality Director/ Head of August 2014 April 2020 Quality, band 9

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“That an individual with a nursing qualification and retained nursing registration does not give that individual an automatic right to SCS.

NHS Pensions has been provided with a copy of your job description…for the period June 2007 to June 2010…The job description refers to the clinical nature of the role and the person specification confirms that the post holder must have…NHS Clinical professional qualification…

That a “NHS Clinical professional qualification” is required means the post is not restricted to a nurse, as other suitably qualified NHS professionals could

3 CAS-37294-G0Y2 apply for and be appointed to this post. As a nursing qualification is not essential SCS cannot be retained.”

• There was insufficient evidence to make a final decision on whether Mrs S was eligible for SCS or not.

• NHS BSA had not properly taken into account all the information provided by NHS Gloucestershire.

• NHS BSA had not provided an adequate explanation of why it did not accept NHS Gloucestershire’s stance regarding Mrs S’ eligibility for SCS.

• NHS BSA had not communicated with NHS Gloucestershire or Mrs S to explain why it had not accepted NHS Gloucestershire’s statement that Mrs S would not have been a successful candidate if she did not hold a nursing qualification.

4 CAS-37294-G0Y2 “EAs are reminded that it is SOLELY the duties performed that determine special class status and classification is not influenced by either the pay scales used or possession of a nursing qualification.

Whilst nursing duties are many and varied the following, if they form a major proportion of the duties performed, will comply with the definition of arduous for the purpose of granting special class status:

• Lifting, carrying, controlling and restraining

• Feeding, bathing, dressing and attending to personal needs

• Constant attendance and monitoring of patients

• Responsibility for administering treatment and drugs.”

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1 The NHS Business Services Authority v Christine Williams [2016] EWHC 1952 (Ch)

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,

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my Office

Summary of Mrs S’ position

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Summary of NHS BSA’s position

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Ombudsman’s decision Mrs S has complained that NHS BSA has decided that she no longer holds SCS. This means she was unable to retire at age 55 without her pension being subject to early retirement reductions.

The test NHS BSA has applied in reaching this decision can be summarised as follows:

• In order for a nurse to be eligible for SCS, they must have been in a nursing role on 6 March 1995.

• In order to retain SCS, a nurse must then subsequently either:

o remain in front-line nursing roles for their entire career until age 55; or

o following the 1983 Griffiths report, they can “retain” SCS if a nurse moves away from front-line nursing roles to management positions, provided that two criteria are met: firstly, that the immediately preceding role was also eligible for SCS; and secondly, that a nursing qualification is essential for the current role.

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14 CAS-37294-G0Y2 In NHS BSA v Williams, the Court had to decide whether Mrs Williams was in “pensionable employment as a nurse” within the meaning of Regulation R2 of the Regulations. In considering whether a member is in “pensionable employment as a nurse” within Regulation R2, the Court held, per Warren J at 152:

“employment as a nurse” was intended by the draftsman of the 1995 Regulations to capture principally those members of the Scheme who were qualified nurses employed in a nursing job. It is … not simply because of their job function, but also because of their job titles, job descriptions and importantly qualifications.”

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“Providing nursing expertise and leadership in relation to critical patient care issues such as infection prevention and control, safeguarding, medicines management, continuing health care, clinical safety and risk management.”

“it would be fair, reasonable, and justifiable for NHS BSA to accept that the responsibilities over and above the Job Description from 2010 to 2013 as described by the Directors were nursing in nature when carried out by Mrs [S]. In my opinion it has been demonstrated that from 2010 to 2013 nursing was essential for the role that she was undertaking on an exceptional basis.”

As Deputy Director of Quality and Nursing, Mrs S was therefore in pensionable employment as a nurse for the purpose of Regulation R2.

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“…the post holder will be clinically qualified and relevant professional registration is essential.”

“To support the regional Medical and Nurse Director [and the Deputy Director of Nursing] in the delivery of the [Directorate/ regional] objectives.”

“…she was appointed… because of her nursing skills, experience and qualification which was essential for the setting, role, responsibilities and the team in which she is employed. [Mrs S] would not have been employed if she had not been registered as a nurse with the Nursing and Midwifery Council (NMC).”

…

17 CAS-37294-G0Y2 “[Mrs S’] employer required her to maintain her professional registration as an essential qualification for the role and the Employer Statement said that the team [Mrs S] manages “would not be able to deliver an effective operation without her nursing experience and qualification.”

“…include devising strategies to prevent infection, analysing complex harm reviews, reviewing safe staffing/nursing levels, understanding patient experiences, reviewing the care, safety and experience of patients e.g. long waits in A&E, investigating whistleblowing concerns regarding nursing care, and undertaking the senior nurse role for hospital and service site visits or CQC mock inspections”

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I uphold Mrs S’ complaint.

Directions

Anthony Arter

Pensions Ombudsman 26 May 2021

19 CAS-37294-G0Y2 Appendix 1 Extract from NHS Pension Scheme Regulations 1995 (as amended) SI 1995/300

“Nurses, physiotherapists, midwives and health visitors

R2.—(1) Subject to paragraph (2), this regulation applies to a member—

(a) who, at the coming into force of these Regulations—

(i) is in pensionable employment as a nurse, physiotherapist, midwife or health visitor, or

(ii) has accrued rights to benefits under the scheme arising out of a previous period in which she was engaged in such employment and at no time since the last occasion on which she was so engaged has she had a break in pensionable employment for any one period of 5 years or more,

and

(b) who spends the whole of the last 5 years of her pensionable employment as a nurse, physiotherapist, midwife or health visitor.

(2) This regulation shall cease to apply if the member has a break in pensionable employment for any one period of 5 years or more ending after the coming into force of these Regulations.

(3) Where this regulation applies—

(a) regulation E1 (normal retirement pension) will apply to the member as if the reference, in paragraph (1) of that regulation, to age 60, were a reference to age 55,”

20 CAS-37294-G0Y2 Appendix 2 Extract from letter from Director of Nursing at NHS Gloucestershire of 2 April 2019

“I am writing regarding [Mrs S’] employment with NHS Gloucestershire in 2012/13 when she was accountable to me as the Director of Nursing and Clinical Development for NHS Gloucestershire, an NHS organisation responsible for the commissioning of patient services.

[Mrs S] was employed as a nurse in 2012/13, her role was Deputy Director of Quality and Nursing for NHS Gloucestershire. [Mrs S] and I were the two most senior nurses in the organisation, and she acted up for me across the full range of my duties in my absence which included the Nurse Director role at Board level (a voting member of the CCG’s Governing Body).

[Mrs S] was employed because of her extensive nursing knowledge, skills and experience. In her Deputy Director of Nursing role she was responsible for improving the quality and safety of patient care, patient experience and clinical outcomes, and she was instrumental in developing new services and clinical pathways. [Mrs S] managed a team of nurses whose roles were exclusively nursing.

There were many aspects of [Mrs S’] nursing skills, experience, knowledge and expertise that were essential for her to undertake this senior nursing role:

• Providing expert nurse leadership, advice and guidance to nurses, other health care professionals and managers across a range of specialities and organisations • Providing nurse leadership, advice and expertise at Board level and acting up for the Director of Nursing across the full range of her duties. • Providing nursing expertise and leadership in relation to critical patient care issues such as infection prevention and control, safeguarding, medicines management, continuing health care, clinical safety and risk management • Leading portfolios for safeguarding, infection prevention and control, nurse education and continuing health care, and managing the nurses in these teams, (which are only nursing roles, so requires a registered nurse manager). Responsibility for their training, supervision, professional development and maintaining their registration and revalidation • Providing professional advice on all nursing matters and an advisory and supervisory role as a senior member of the nursing team • Investigating complaints and incidents using nursing expertise, acting on outcomes and sharing the learning for the benefit of patients and to improve nursing and other clinical care. To provide specialist nursing advice and support to patients and their families where required • Nurse lead for investigating significant clinical incidents with other health care professionals and overseeing the outcomes and improvement. • Preparing, providing and participating in nursing and joint HCP educational programmes and events

21 CAS-37294-G0Y2 • Undertaking clinical quality surveillance, reviewing quality of services and ensuring the clinical effectiveness and safety of services from a nursing/clinical perspective • Developing nursing and clinical policy and protocols, maintaining health care and nursing standards, along with the development of evidence based clinical nursing practice in line with current research and guidelines • Leading on the development of services and the required standards of care for nursing and other clinical care, to ensure they incorporate current nursing professional recommendations and standards • Developing clinical audit strategy and clinical audit programmes in partnership with other clinicians • Providing expert clinical, professional and quality governance support and advice • Clinical lead for Prison & Probation Ombudsman investigations. • Nurse member INNF panels • Relationship development as a nurse leader with GPs and practice staff, NHS provider clinical executives and other system stakeholders and partners

It was only possible for [Mrs S] to undertake these roles and responsibilities as she was a nurse with a great deal of knowledge, experience and skills and I employed her because of this. She had a wealth of nursing knowledge and skills that only stem from being a being a frontline nurse for a considerable number of years in a range of clinical specialities and as her career progressed also using this knowledge to drive and influence nursing policy agendas. She kept herself up to date at all times in relation to nursing developments and best practice.

[Mrs S] would not have been employed if she had not been registered as a nurse with the Nursing and Midwifery Council (NMC). [Mrs S] was required to maintain her professional registration and abide by the NMC Code which sets out the professional standards of practice and behaviour that nurses must uphold. Nurses must act in line with this Code, whether they are providing direct care to individuals or bringing their professional knowledge to bear on nursing practice in other roles such as hers as the Deputy Director of Nursing.

The programmes of work that [Mrs S] was responsible for required a senior experienced nurse and she fulfilled that role, if she had not been employed as such then nursing expertise would have been required from another nurse as nursing input was essential for the professional leadership, nursing advice and leadership, the right governance and for the success of her programmes. Whilst [Mrs S] assumed additional management responsibilities as a Deputy Director, she continued to meet the criteria to retain SCS which is to hold a nursing qualification and undertake functions in addition to management duties including providing professional advice on nursing matters and an advisory and supervisory role within nursing.”

22 CAS-37294-G0Y2 Appendix 3 Extract from Mrs S’ line manager Interim Delivery and Improvement Director of 5 April 2019

“As discussed, please find my supporting statement as your line manager below:

[Mrs S] fulfils the Head of Quality role for the NHS Improvement South-West (North) team. This involves coordinating the quality oversight and support across 11 NHS providers in our patch. [Mrs S] is also the senior relationship holder for the provider Directors of Nursing in this patch. [Mrs S] was appointed to this role because of her nursing skills, experience, knowledge and qualification. These are essential for the setting in which our team operates within the NHS, both for her role and for the team in which she is employed.

As the Delivery & Improvement Director for the team and [Mrs S’] line manager, I rely on the professional nursing expertise [Mrs S] brings to understand and advise me on our response to quality issues across the patch. These are often complex in nature and could pose a considerable risk to the quality of patient care if not handled appropriately, making professional nursing expertise essential. If [Mrs S] was not in my team I would need to source the nursing advice and expertise from another experienced and qualified nurse.

As our first point of contact with Board-level Directors of Nursing across the patch, [Mrs S’] expertise as a nurse and her nursing registration is also essential in ensuring she is a credible and trusted professional from the perspective of these individuals, and her advice respected. “

23 CAS-37294-G0Y2 Appendix 4 Extract from Employer statement from Chief Nursing Officer dated 9 April 2019

“1. [Mrs S] has been employed as Head of Clinical Quality since 1 April 2013.

2. The generic job description for this role is attached at Appendix 1. Whilst this is a generic job description, the specific role that [Mrs S] fulfils and that she was appointed to was because of her nursing skills, experience and qualification which was essential for the setting, role, responsibilities and the team in which she is employed. [Mrs S] would not have been employed if she had not been registered as a nurse with the Nursing and Midwifery Council (NMC).

3. As a result NHS Improvement requires [Mrs S] to maintain her professional registration and arranges for her to receive the necessary reminders to re-register and revalidate every three years, thus evidencing that that she continues to practice safely and effectively as a nurse. [Mrs S] gained her revalidation on 30 September 2017 thus evidencing she is still working as a nurse. Nurses must act in line with the NMC Code (attached at Appendix 2), whether they are providing direct care or using their professional knowledge in relation to nursing practice in other roles such as [Mrs S’].

4. Whilst it might be possible for the role to be undertaken by someone holding another clinical qualification in a different setting, [Mrs S’s] team would not be able to deliver an effective operation without her nursing experience and qualification. In the specific setting in which she works, and for her specific role in that setting, her nursing experience and qualification is therefore essential. [Mrs S’] senior nursing experience enables her to undertake the fullest breadth/depth required for the role.

5. It should further be noted that [Mrs S] has a registered nurse reporting to her and part of her role responsibilities is to ensure that this individual meets the necessary requirements to maintain their professional registration and revalidation.

6. The majority of the stakeholders with whom the role interacts on a day to day basis across the range of responsibilities are registered nurses of varying levels of seniority and to communicate effectively requires a senior registered nurse.

7. The nature of the work requires the role-holder to have a deep and broad working knowledge of managing clinical issues and events from a nursing perspective with the required knowledge and skills to be able to understand the risks to patients and to progress the necessary quality improvements. The required knowledge set is found in registered nursing staff (such as [Mrs S]) working at senior leadership level; as previously stated she is in a job that is normally carried out by registered nurses in the NHS.

8. Examples of [Mrs S’] work include devising strategies to prevent infection, analysing complex harm reviews, reviewing safe staffing/nursing levels, understanding patient experiences, reviewing the care, safety and experience of patients e.g. long waits in A&E, investigating whistleblowing concerns regarding nursing care, and undertaking the senior nurse role for hospital and service site visits or CQC mock inspections.

24 CAS-37294-G0Y2 9. The programmes of work for which [Mrs S] is responsible require a senior experienced nurse and if she had not been employed as such in her team then nursing expertise would need to be sought from another experienced and qualified nurse. Her input is essential for the professional nursing leadership, nursing assessment, support and advice she provides to her team and the NHS organisations she works with. [Mrs S] can undertake her role as she is a nurse with a great deal of knowledge, experience and skills as a result of having frontline nurse experience and having worked in a range of clinical specialities and health care settings.

10. By way of further context, the Nursing and Midwifery Council Code of professional standards of practice for behaviour for nurses and the Nursing Revalidation process recognise that, as they progress their careers, nurses will provide leadership to make sure people’s wellbeing is protected and to improve their experiences of the health and care systems, rather than simply the direct clinical care typically associated with nursing. The Head of Clinical Quality is such a role.

Appendix 1: Job description & person specification

Job Title Head of Quality

Directorate South Region

Department/Team Delivery and Improvement

Location Grade 2.2 / Band 9

Reports to Delivery and Improvement Director

Professionally Accountable to Director of Nursing

Job Summary/Purpose

The Senior Clinical Lead will have a key leadership role in the sub region contributing to delivery of NHS I objectives by:

• Providing clinical advice and guidance to the regional delivery directors and hold responsibility and accountability for the surveillance of the standard of quality and safety at trusts within the sub region, in line with NHS Improvement’s operating framework. • Take oversight of improvement strategies across the sub region to ensure improvements in quality are actioned and effective • Leading the clinical team managers and co-ordinating specialist advice for example in relation to HCAI and medicines management contribution to this process and take the initiative to step up surveillance, intervention and improvement when the situation warrants it. • Apply his/her expert knowledge to help prevent infection, inform strategy and in the preparation of intervention plans to help mitigate clinical risk in providers. • Provide expert advice on healthcare associated infections and related issues.

25 CAS-37294-G0Y2 • Work as part of a quality surveillance and assurance team within the Clinical Directorate. • Working as part of a team, contribute to the application of the broader quality surveillance and assurance processes. • Developing constructive and productive relationships with Trusts and key external stakeholders such as NHSE area teams and CQC regional managers. work closely with the regional delivery directors and sub regional teams, taking a strategic view of quality and safety across the sub region. • Deputise for the Deputy Director of Nursing and Quality as appropriate. • Ensure strategic policy is translated into effective operational delivery and practice within area of responsibility.

The Senior Clinical Lead will also be expected to have a key role working with the national nursing and medical director, e.g.:

• NHS Improvement is the operational name for the organisation that brings together Monitor, NHS Trust Development Authority, Patient Safety, the National Reporting and Learning System, the Advancing Change team and the Intensive Support Teams. • Key regional link for cross cutting groups such as the Clinical Directorate planning group • National lead for the Directorate on specific clinical safety or quality issues where a national approach is required

The post holder will be clinically qualified and relevant professional registration is essential.

Key Accountabilities

Leadership

• Manage a team comprising of a Senior Clinical Advisor, Senior Clinical Manager and Clinical Team Manager and/or other posts commensurate with the position • To support the regional Medical and Nurse Director, and the Deputy Director of Nursing in the delivery of the regional objectives • Forge positive working relationships in order to support an effective matrix approach to achieving NHSI objectives • Provide strong contribution to sub regional tri-partite meetings, Quality Surveillance Groups and Quality Summits for area of responsibility. • Supporting Trusts within the portfolio ensuring trust boards have appropriate scrutiny of quality and safety to recognise and act on early warning signs of failure, • Provision of regional expert advice on areas of personal clinical expertise as requested by the regional nurse or medical director or deputy. • Proactively escalate and brief the regional nurse / medical director or deputy on any quality or safety issues of significant concern, using an SBAR approach.

26 CAS-37294-G0Y2 • Work with regional medical and nurse directors to ensure the effectiveness of the quality offer is equitable, and needs based on assessment of risk. • Ability to advise and credibly influence on the clinical quality agenda at a regional and sub-regional level

Quality improvement

• Ensure that at an operational level, the benefits of NHS Improvement’s approach to supporting quality improvement as set out through planning guidance and Accountability Framework, are realised, with appropriate governance structures in place. • Work with quality colleagues across the region to identify cross cutting themes and learning and lead an integrated approach to improvement • Lead on quality improvement programmes across portfolio and the wider region when appropriate in accordance with NHS Improvement’s strategy and operating model. • Identify early warnings of failure for Trusts, within the assigned portfolio of Trusts, but also having regard to Trusts across the region for areas of clinical expertise, and ensure appropriate plans to mitigate the risks are in place. • Ensure that clinical information is properly integrated into the overall strategy and work of the region and sub region, working closely with NHSIs informatics team. • Monitor data / intelligence on quality to identify trends and performance profiles. Work closely with the Quality Insight and Intelligence Director and his / her team to ensure the adoption and application of intelligence about individual trusts in the portfolio, • Actively seek out opportunities to identify and promote continuous quality improvement. • Undertake specialist reviews/ visits to trusts as necessary and ensure positive and constructive relationships with trust staff are maintained. • Work with NHSE and CCGs to avoid duplication of oversight whilst acknowledging different accountability frameworks and approaches • Working closely with local teams of the Care Quality Commission, and other regulatory bodies such as Health Education England • Hold budgetary accountability for direct reports and work within Standing Financial Instructions as appropriate. • To oversee development and reporting of timely management information and analysis for regional workstreams defined by the Nurse and Medical Director(s) • Oversee the quality of produced reports, briefings and presentations • Lead work on quality programmes, projects and initiatives, and develop success measures • Working closely with clinical team colleagues, to improve, devise and establish consistent systems and processes for the surveillance of quality plans and profiles as part of NHS Improvement’s overall arrangements for quality surveillance and assurance proportionate to risk.

27 CAS-37294-G0Y2 • Support Trusts within the sub region to effectively oversee the tracking of progress against plans, ensuring appropriate processes are in place to flag issues, risks and concerns and deliver improvements • Advise on the nature of quality related assessments of trusts at times of assurance visits and take part in such activities as required

General

• Maintain accurate records and data storage to support surveillance of individual trusts • Operate effectively in a flexible and demanding environment and proactively engage with stakeholders. • Communicate proactively, building good working relationships and provide information and advice to a wide range of internal and external stakeholders on a range of business sensitive issues. • Lead as an expert; integrating systems and managing effective working relationships with the appropriate stakeholders. • Provide and receive highly complex, sensitive and contentious information, including presenting information about projects and dependencies to a wide range of internal and external stakeholders in formal settings. • Present highly complex information in a clear, understandable and audience appropriate manner to senior management and board level groups • Deal with complex, contentious and conflicting subject matter problems or in day today work load in workshops, meetings, one to one communications and other events, comprising various parts of the business. • Nurtures key relationships with senior and high profile individuals and responsible for the maintenance of networks. • Employ effective communication, negotiation and influencing skills to enable stakeholder relationships to deliver objectives over the duration of the tenure/project with external organisations to ensure seamless working within the system. • Hold line management responsibility for clinical team members • Ensure appropriate stakeholder engagement strategy is in place defining how the strategy will engage with all stakeholder groups and what information flows will be established and maintained. • Manage system risks ensuring they are appropriately identified and controls and/or mitigation is in place, escalating to the system board as appropriate • Responsible for the recruitment and development of the reporting teams, including undertaking appraisal and personal development and, where appropriate, progressing any disciplinary or capability issues. • Forge positive working relationships, in order to support an effective matrix approach to achieve NHS objectives.

28 CAS-37294-G0Y2 Role Dimensions

Key Relationships (External)

To proactively develop relationships with key stakeholders in the system on both operational and strategic issues in relation to quality, including

• NHS England • Clinical Commissioning Groups • NHS Trusts and other healthcare providers • Local Authorities • Patient/Public Representative Bodies • Relevant National and Local Policy Leads

Contacts with national bodies will normally be with regional or local level representatives, and will also include national representatives when required.

Key Relationships (Internal)

To represent the regional clinical team in relationships with other Directorates.

Numbers and types of staff managed

3 direct reports, Senior Clinical Advisor, Senior Clinical Team Manager and Clinical Team Manager.

Budget Managed

Person Specification

Factors Description Essential Desirable

Qualifications Clinically qualified with current √ appropriate professional registration

First Degree in health related subject √

Educated to masters level in health related subject or equivalent level of √ experience of working at a similar level in specialist area

Minimum of 3 years Senior clinical leadership reporting to a director in Knowledge, √ an NHS provider. Training and Experience Significant experience of delivery quality improvement using √ improvement methodology.

29 CAS-37294-G0Y2 Significant evidence of continued professional development √ Demonstrated expertise in a Healthcare environment

Significant management experience √ at senior level in the NHS or other public healthcare related industry √ Proven senior experience of leading and delivering complex change programmes in a politically sensitive √ and complex environment

Significant experience and understanding of proven √ implementation of project management methodologies

Experience and/or understanding of the health economy – essential

Experience of successfully √ operating in and delivering priorities in a partnership environment

√

Communication Dynamic personality and the ability Skills to build trusted stakeholder relationships and wide support √ networks

Strong external communications skills in a politically sensitive environment and experience in √ handling media

Ability to prepare and produce concise yet insightful communications for dissemination √ to senior stakeholders and a broad range of stakeholders as required

Analytical Ability to analyse highly complex issues where material is conflicting and drawn from multiple sources √

30 CAS-37294-G0Y2 Demonstrated capability to act upon incomplete information, using experience to make inferences and √ decision making

Ability to analyse numerical and written data, assess options and draw appropriate initiatives √

Planning Skills Leadership, vision, strategic thinking and planning with highly developed political skills √

Demonstrated capability to plan over short, medium and long-term √ timeframes and adjust plans and resource requirements accordingly

Autonomy Demonstrated capabilities to manage own workload and make informed decisions in the absence of required information, working to √ tight and often changing timescales

Ability to make decisions autonomously, when required, on √ difficult issues

Management Skills Experience of creating a new team and motivating and inspiring staff to work together to achieve a common √ objective

Ability to delegate effectively √ Ability to work effectively between strategic and operational activities

Demonstrate knowledge of effective budgetary management. √

Physical Skills √

Equality and Will consider the most effective way Diversity to promote equality of opportunity and good working relationships in √ employment and service delivery and has the ability to take actions

31 CAS-37294-G0Y2 which support and promote this agenda

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