Armed Forces Pension Scheme 1975 · CAS-46693-S2M2

CAS-46693-S2M2

Ombudsman’s Determination Applicant: Mr S

Scheme: Armed Forces Pension Scheme 1975 (AFPS 75)

Respondent: Veterans UK

Outcome

Complaint summary

Background information, including submissions from the parties Background

“Early payment of preserved pension in case of ill-health

(1) A deferred member who has not reached the age of 60 may claim early payment of the pensions and lump sums payable … on grounds of ill health …

(3) A claim under paragraph (1) …

(a) must be made in writing to the Scheme administrator …; and 1 CAS-46693-S2M2 (b) must be supported by evidence from a registered medical practitioner that because of physical or mental impairment the member is, and at least until reaching … the age of 60 … will continue to be, incapable of any full-time employment.

(4) If the Defence Council is satisfied of the matters mentioned in paragraph (3), and that the member has ceased to carry on the member’s occupation –

(a) the pension or pensions are payable with effect from the date on which the claim was received by the Scheme administrator; and

(b) the lump sum or lump sums are payable immediately …”

“We were instructed by the PO to review the case and decision related to the Jan 2012 claim is that right? As part of that we are to seek clarification of the then opinions of the GP (2013) and Mr Lloyd (2012) who did the hernia repair … I have a GP report on the war pension file from Dr Perkins dated March 2013 when he says [Mr S] had been his patient for about six months. This means that when he wrote the letter “supportive” of the EPPP claim in Jan 2013 his knowledge of [Mr S] was even shorter.

…

I have now obtained his war pensions file and have a medical board dated March 2013 around the time of the AFPS determination and also a new one in connection with a war pension appeal dated August 2016. I am not sure whether strictly this evidence is admissible for EPPP.

When people have mega symptoms and little to find objectively I am always worried that something new and serious might suddenly come to light. Hence I have sought the updates.

The first board (2013) I think shows a level of function that supports the previous decision on EPPP. He had been working up to April 2012 but not since because of his operation. Observed activities are at Sec 9 of the report. The recent 2016 board shows static for most of his conditions and still able to walk about 160 m and to drive. He is attending a university course. New MRI has apparently shown a partial tear of the iliopsoas tendon right for which he is to have surgical opinion. Apart from pain he has reasonable function in the lower back upper limbs and hips and takes only paracetamol and amitriptyline at night.”

“Many thanks for your recent letter dated the 6th October 2016 …

2 CAS-46693-S2M2 I can confirm that my letter dated 21st January 2013 referred purely to his ability to undertake any full-time military occupation.

[Mr S] is only 44 years of age, I am certainly unaware of any medical issues which would preclude him from any full-time civil employment, obviously depending on the role.”

“To clarify the point in question as to whether [Mr S] could return to full time work. At the time I reviewed him I believed he could not return to full time work because of his ongoing pain issues which are exacerbated by physical activity, including prolonged periods of sitting and standing. He has chronic pain in his lower abdomen, groin and upper thighs which relates to his bilateral groin disruption which he had in 2012. Despite surgery … he continues to have debilitating pain which I believe would prevent him working full-time. Clearly, time is often a good healer and this is why I stated he should consider part- time duties. I also suggested he has physiotherapy but there are some patients, and he may be one, who never fully recover from their physical complaint.

I would therefore support an application for part-time work but because his symptoms date back to 2012, you may want him re-assessed by your own medical officer.”

3 CAS-46693-S2M2 “[The SMA] noted that Professor Lloyd is not an occupational physician and seemed to identify pain as the limiting factor. There is no reference to a Pain Clinic or impact of any other intervention. At Pain Clinics in addition to medication a major intervention is cognitive behaviour therapy so that patients take charge of their pain. Pain is not by itself and without assessment and treatment usually considered a reason for employability [sic]. Given the increasing evidence that work is good for health and well-being and the requirements of employers to meet the Equality Act in terms of job modification.

[The SMA] noted that Professor Lloyd’s letter dated 19 April 2012 was written only days after bilateral groin surgery and at a time when [Mr S] would have been unlikely to have fully recovered from the acute effects of surgical intervention, never mind the on-going effect of the underlying pathology. At that date Professor Lloyd recorded improvement in the post-operative period with some on-going pain. While recording “some continuing disabilities” Professor Lloyd looked forward to further gradual improvement over the next few months. He supported the idea at that date i.e. 19 April 2012 of return to part time work. He was of the opinion that [Mr S] should undergo continuing physiotherapy. She noted the Ombudsman’s interpretation of Professor Lloyd’s reference to part time employment. With respect she did not think that this was the only possible interpretation. This is particularly because of the due date relative to surgery, the prognosis given and Professor Lloyd’s expectation of further improvement over the next few months.

The GP report dated 10 October 2016 sets out a slightly different picture from his 2012 letter and clarifies the intention of the 2012 letter which was limited to full time military employment. It is not clear whether or not Dr Perkins has recently seen [Mr S]. It is reasonable, however, to assume that primary care would be the first port of call for someone with [Mr S’] disorder. It is also true that were he attending hospital, surgical or indeed any follow up, update letters would be being sent to his GP. The tone of Dr Perkins letter does not suggest that this is the case. He, however, emphatically identified nil at this date, 10 October 2016, which would preclude [Mr S] from full time civilian employment, depending on the role.

[The SMA] remains of the opinion that following scrutiny of the new reports and reconsideration of the case facts, that at the due date, the previous advice to reject your application was appropriate.

Taking account of the medical evidence the DAAR Deciding Officer concluded that you do not qualify for [early payment of deferred benefits].”

4 CAS-46693-S2M2 Mr S’ position

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Adjudicator’s Opinion

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1 Sampson v Hodgson [2008] All ER (D) 395 (Apr)

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Veterans UK did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Both Veterans UK and Mr S provided further comments which are summarised below. I have considered these comments but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

Veterans UK’s further comments

10 CAS-46693-S2M2 Mr S’ further comments

2 The Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 2006

(SI2006/606) (as amended). 11 CAS-46693-S2M2

Ombudsman’s decision Jurisdiction

“In proceedings in England and Wales on a claim within subsection (1), the power under section 63(1) of the County Courts Act 1984 … must be exercised unless the judge is satisfied that there are good reasons for not doing so.”

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Mr S’ application for the early payment of his AFPS 75 benefits

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“For the purposes of this Part the ill-health condition is met if -

(a) the scheme administrator has received evidence from a registered medical practitioner that the member is (and will continue to be) incapable of carrying on the member's occupation because of physical or mental impairment, and

(b) the member has in fact ceased to carry on the member's occupation.”

“No payment of pension may be made before the day on which the member reaches normal minimum pension age, unless the ill-health condition was met immediately before the member became entitled to a pension under the pension scheme.”

3 Oxford Dictionary.

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Directions

Anthony Arter Pensions Ombudsman

7 December 2021

16 CAS-46693-S2M2 Appendix Medical evidence

“Having said that, I am sure that he can gradually return to part-time work, perhaps working a few hours a day in a sitting position. If he stands for any length of time this does seem to increase his discomfort. However, I would hope that over [the] next 6-12 weeks this will gradually improve.

I think, therefore, it would be reasonable for him to return to work on a part- time basis, although acknowledgment has to be made that he does have some continuing disabilities. Furthermore, I would also recommend that he undergoes physiotherapy, which would include improving the core strength in his abdomen, and also increase the strength of his adductor and quadriceps group of muscles. He also needs continuing physiotherapy to improve the flexibility around his hip and groin region.”

“I am writing in support of the above-named patient and his application for medical discharge from Her Majesty’s Armed Forces.

[Mr S] has become permanently unable to work full time in any capacity through ill health and his health conditions will continue until preserved pension age.

[Mr S] has continuing hip and groin problems, having fractured his acetabulum. He has had attempted restorative surgery … under the care of Mr Richard Villar.

Even with the excellent surgery and care of Mr Villar and Mr David Lloyd in 2012, [Mr S’] health has not improved with regards his hip. He has continued pain and reduced mobility and function.

I support his application to be permanently discharged from the regular army on medical grounds, as well as being permanently discharged from his regular and long term reserve commitments.”

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“I note the contents of Prof Lloyd’s email dated 31 January 2017. Unfortunately I have difficulty in determining whether or not Prof Lloyd has recently seen [Mr S]. I note his conclusions “support application for part-time work”. That appears to relate to date of the email ie 31 Jan 2017. However I note he also suggests possible reassessment of [Mr S]. Prof Lloyd provides no specific reasons for his opinion.

I also find it difficult to disentangle his use of present and past tenses. Prof Lloyd is not an occupational physician and seems to identify pain as the limiting factor. There is no reference to referral to a Pain Clinic or impact of any other intervention. At Pain clinics in addition to medication a major intervention is cognitive behaviour therapy so that patients take charge of their pain. Pain is not by itself and without assessment and treatment usually considered a reason for unemployability. Given the increasing evidence that work is good for health and well-being and the requirements of employers to meet the Equality Act in terms of job modification I also find it difficult to dismiss any full-time job as being suitable ie “prevent him working full-time”.

The letter dated 19 April 2012 was written only days after bilateral groin surgery and at a time when [Mr S] would have been unlikely to have fully recovered from the acute effects of surgical intervention; never mind the ongoing effects of the underlying pathology. At that date Prof Lloyd recorded improvement in the post-operative period with some ongoing pain. While recording “some continuing disabilities” Prof Lloyd looked forward to further gradual improvement over the next few months. He supported the idea at that date ie 19th April 2012 of return to work on a part time basis. He was of the opinion that [Mr S] should undergo continuing physiotherapy.

I note … the PO’s interpretation of Prof Lloyd’s reference to part-time employment. With respect I so not think that is the only possible interpretation. This is particularly because of the due date relative to surgery, the prognosis given and Prof Lloyd’s expectation of further improvement over the next few months.

The GP report dated 10 Oct 2016 sets out a slightly different picture from his 2012 note and clarifies the intention of the 2012 letter which was limited to full- time military employment. Again it is not clear whether or not Dr Perkins has recently seen [Mr S]. It is reasonable however to assume that primary care would be the first port of call for someone with [Mr S’] disorder. It is also true that were he attending hospital, surgical or indeed any follow-up, update letters would be sent to his GP. The tone of Dr Perkins’ letter does not suggest

18 CAS-46693-S2M2 this is the case. He however emphatically identified nil at this date which would preclude [Mr S] from full-time civilian employment, depending on the role.

Overall evidence supported by the GP report suggests strongly that [Mr S] is no longer being seen by Prof Lloyd and given the nature of general practice as the primary focus and co-ordinator of patient care in the UK the GP report supports that and that he is not receiving any medical help.

I would have to advise that following scrutiny of the new reports and reconsideration of the case facts, that at the due date, the previous advice to reject [Mr S’] claim to [early payment of his deferred benefits] and the subject of the PO’s determination was appropriate.”

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