Ombudsman s Determination

Transcription

1 Ombudsman s Determination Applicant Scheme Respondent Mrs N Local Government Pension Scheme (the Scheme) Oxfordshire County Council (the Council) Outcome 1. I do not uphold Mrs N s complaint and no further action is required by the Council. 2. My reasons for reaching this decision are explained in more detail below. Complaint summary 3. Mrs N s complaint is that the Council failed to properly consider her request for her deferred benefits to be brought into payment on the grounds of ill health from 25 October Background information, including submissions from the parties 4. Ms N was an Administrative Assistant for the Council. She became a deferred member of the Scheme on 2 December Ms N applied for ill health retirement on 25 October She was then three days short of her 64 th birthday. 6. As relevant, extracts from The Local Government Pension Scheme Regulations 1997 (the 1997 Regulations), are provided in Appendix 1. A summary of the medical evidence is provided in Appendix The Council s occupational health provider is People Asset Management (PAM) OH Solutions. 8. In May 2014 Mrs N gave her consent for PAM to request further medical information and provided the name and contact details of her Pain Physiotherapist (Ms Lappin), GP (Dr Moorhead), orthopaedic consultant (Mr Howard), and pain management consultant (Dr Edwards). She advised she had not seen Mr Howard or Dr Edwards within the last year, but said they were relevant to the diagnostic process and prognosis. 1

2 9. The Council subsequently obtained a brief report from Dr Moorhead and a copy of Mrs N s physiotherapy notes from February 2011 to September On 31 October 2014 Dr Olowookere, an independent registered medical practitioner (IRMP), gave his opinion that Mrs N does not currently meet the criteria for consideration for IHR by the pension board and certified that Mrs N was not permanently incapable of discharging efficiently the duties of her former employment. 11. The Council s ill health panel (The Panel) duly turned down Mrs N s application. The Council wrote informing Mrs N on 10 November Mrs N appealed invoking the Scheme s two-stage internal dispute resolution (IDR) procedure. At IDR stage 1 she said:- Commenting on Dr Olowookere s report:- o It was too general about spondylosis and did not sufficiently relate to her circumstances. Her condition affected her cervical, thoracic and lumbar regions. It had also been described as a musculo skeletal disease and had been present since the late 1980 s. o It contained no prescriptive drug information and it appeared that her medical notes had not been thoroughly read. o The comment that physio sessions had been of benefit did not refer to her level of capability for work before or after treatment. The physio sessions had never alleviated the pain, just improved her flexibility for a very short period. She had had no physio treatment for at least five years. The physio consultations she attended were for pain management only. o Sentences had been picked from her physiotherapist s February 2014 report which supported the decision to decline her application. But contradictory phrases that supported an alternative decision she is in pain all the time and has always had a debilitating problem with back pain had been ignored. She had duly asked her physiotherapist to clarify some of the comments that she had made in her report, including the amount of lengths of swimming she did and on driving. The expression very active lady required clarification. It was used in the context that she had limitations in activity and daily life and part of her pain management programme was to control the level of pain. Therefore she tried to keep as mobile as her condition would allow. o There was a comment on morbidity. Enduring continual pain inevitably affected her temperament and state of mind. Depression was a consequence. Her medical records included prescriptive anti-depressants. o Dr Olowookere gave no reason for his decision. It had taken the Council an excessive amount of time to review her application. Had the right questions been asked? She did not know. But it was not sufficient to just request medical reports. Dr Salisbury (GP) was willing to provide additional 2

3 medical evidence and Dr Moorhead was also willing to support her application. It appeared that additional medical evidence had not been requested. Her application should be reviewed and referred to another IRMP. 13. The Council asked Dr Olowookere to clarify his opinion. Dr Olowookere said whilst his opinion was unchanged there had been significant changes in Mrs N s condition and he recommended a current specialist review/opinion. 14. The Council s County HR Manager turned down Mrs N s stage 1 appeal:- Dr Olowookere s October 2014 report specifically referred to Mrs N s condition. In it he referred to x-rays and treatments such as drugs, injections and physiotherapy and how successful these had been. Dr Olowookere confirmed he had considered reports from Mrs N s GP and physiotherapist. The beneficial effect of physiotherapy did not relate solely to improvements in Mrs N s pain, but also how this had helped Mrs N to keep active and functioning. Clearly Mrs N continued to have an ongoing professional relationship with Ms Lappin, although Mrs N described this as discussing pain management. Dr Olowookere was clearly aware of Mrs N s pain problem and mobility. In light of this he was required to consider whether Mrs N s condition rendered her, on the balance of probabilities, permanently incapable of efficiently discharging the duties of her former employment with the Council. Dr Olowookere said Mrs N s prognosis was generally favourable. He had considered the relevant question and it was his view that Mrs N did not satisfy the criterion, albeit she did have pain. While it was possible to infer Dr Olowookere s reasoning from his October 2014 report he could have been more explicit. Further clarification had therefore been obtained from the IRMP and the Council was satisfied that Dr Olowookere had taken all relevant factors into account in confirming his decision. The time taken to respond to Mrs N s October 2013 application had been far too long for which the Council apologised. 15. Mrs N invoked IDR stage 2. Mrs N said:- Non-movement substantially increased her pain levels. It was important that she kept active and moved regularly. Consequently, she would not be able to perform administrative duties for the whole or part of a day. She was distressed that the Stage 1 decision maker had disputed her comments about physiotherapy. At the consultations her physiotherapist discussed pain management and did not perform physiotherapy treatments. 3

4 Dr Olowookere had referred to her condition as lumbar spondylosis. The initial diagnosis in 2004 was musculo skeletal disease and cervical spondylosis. Lumbar spondylosis had developed at a later date. Dr Olowookere had made general comments about spondylosis not specifically about how it affected her. The persistence of the effects of her conditions for approximately the last 30 years meant its outcome to date could not be considered generally favourable. Her GP wished to support her application. What information did the Council require to pursue the matter further? The response to the delay in reviewing her application was unsatisfactory. Changes could occur within that time span and another person reviewing her application may not have reached the same conclusion. 16. Following consultation with the Pensions Advisory Service (TPAS), Mrs N added to her appeal:- The Council had advised that its decision was based on Dr Olowookere s October 2014 report. That report referred to reports from her GP and physiotherapist. But it was not clear that the Council had seen either report and therefore it appeared that it had not taken into consideration all relevant information in reaching its decision. The Stage 1 decision maker referred to Dr Olowookere s decision. But it was the Council s responsibility to make the decision. In his February 2015 report Dr Olowookere said that an applicant was required to have undergone a reasonable range of treatments before ill health could be said to be permanent. That was not the case. The IRMP needed to take a view on the efficacy of any remaining treatments. Neither of Dr Olowookere s reports referred to her capability for work or suggested what work she may be capable of and why. 17. The Stage 2 decision maker upheld Mrs N s appeal. He concluded that Dr Olowookere s opinion was not sufficiently detailed to enable the Council to satisfy itself that right questions had been asked and that the decision was not perverse. The Council should have clarified whether the medical evidence supported an opinion that Mrs N was capable of efficiently discharging her former Council duties, or whether the opinion was based on further improvements to her 65 th birthday. If the latter the Council should have satisfied itself that it was reasonable for the improvements to occur within that timeframe. 18. The stage 2 decision maker suggested that the Council review its decision seeking additional clarification from the IRMP as appropriate. He said the Council should clearly explain its final decision and the evidence it had relied on. 4

5 19. Following the stage 2 decision PAM requested information from Dr Salisbury pertaining to her condition up to the end of October The letter advised that Mrs N had left the Council s employment as an Administration Assistant in 2001 and that her role was likely sedentary in nature (office based). The letter said Mrs N had applied for the early release of her preserved pension benefits and in essence permanent incapacity from her duties needed to be demonstrated due to ill health. 20. Dr Moorehead responded to PAM s request. He replied that he had not seen Mrs N since February He said he did not consider that Mrs N was physically incapable of doing her (office based) job. 21. Dr Manickarajah (IRMP) certified that Mrs N was not permanently incapable of discharging efficiently the duties of her former employment at the date of her application for ill health retirement or for the period from then to her 65 th birthday. 22. The Council duly turned down Mrs N s application. 23. Mrs N wrote to the Council on 8 November 2016:- She had discussed Dr Manickarajah s report with Dr Moorehead and it had become apparent that her GP had misapprehended her work role at the Council. He had thought the role involved regular movement. He had no job description. She had explained to him that the role included long periods of sitting at a desk using a computer, telephone and collating papers for posting. Her GP had always been aware that sitting and standing for long periods aggravated her condition and he had apologised. He also explained that he had wanted to portray the psychological problems she had been experiencing. Dr Manickarajah referred to a comment that her GP had never seen her struggle to walk, etc. But he last saw her in February This level of recollection was most surprising to include in a report nearly two years later. Dr Manickarajah referred to the effectiveness of medication. Medication had been prescribed for depression, pain relief and sleep deprivation over the whole period in question (October 2013 to her 65 th birthday). Her response to it had taken several months and did not occur within that timeframe. Her condition had induced too much pain and she had become irrational. Had she been employed at that time a medical certificate would have been issued. Working through the pain had led to disciplinary action in a previous job and in another employment she had resigned to avoid the situation recurring. She had unsuccessfully tried part time employment and had been provided with workplace adjustments, which included 15 minutes away from her desk every hour. But her behaviour had recurred and her pain level had increased. She had taken painkillers since 2003 and they were reintroduced on repeat prescription in July

6 It would not be possible for her to undertake a job similar to her role at the Council. Her absence from work would outweigh the period she was at work. The comments of her physiotherapist appeared not to have been taken into account. Namely:- o She has always had a debilitating problem with back pain. o Has been struggling with more spasm which is understandable with a problem that has been apparent for many years. o Activity is done on her terms at variable daily levels. o She is in pain all the time. o She gets very fed up when she is limited by the pain The taking of holidays was no indication of a person s work capability. She was incapacitated not disabled. The statement that she was active implied a level of ability to engage in all sorts of activities and sports. This was certainly not the case. There were limitations to her daily life. For example, when swimming she had to rest between alternate lengths and perform exercises. She could not take a prolonged walk and she could not wholly do all household duties. 24. The Council replied that it had no further powers to act. Mrs N s position 25. Mrs N says: The IRMP reviews have focused on her lumbar spondylosis. No reference has been made to her nerve root irritation. It is this condition that induces the persistent pain, prohibits some functions for long periods of time and in conjunction with her degenerative disc disease impacts on her daily routines. The Council failed to review any medical evidence, give an indication of what medical evidence should be requested or what questions should be asked. The review had been completed by PAM. The PAM reports include inaccurate information. PAM did not consider or collect all available evidence. It appears only comments that supported PAM S decision were considered. The original diagnosis in 2004 was cervical spondylosis. Medical records now show the thoracic and lumbar areas of her spine are affected. It appears that PAM did not consider Ms Lappin s September 2014 report on how the condition affects her daily life. Ms Lappin, with whom she had had the most recent appointments, had not been contacted. She last saw her GP in February 2014, who at that time arranged her 6

7 referral to Ms Lappin. Ms Lappin s view on pain and its effect did not concur with her GP s comments. Her GP s notes are brief. Dr Manickarajah s 1 February 2016 report comments on her psychological problems, but with no dates. They are recurrent to date. Being able to get out of a chair and walk after a 10 minute consultation is no indication that she would be able to sit at a desk in the workplace for long periods. The Council s position 26. The Council says: It, rather than PAM, made the decision to refuse Mrs N s October 2013 application. A pro-forma was submitted by the HR Officer to the Council s ill health pension panel (the Panel). The Panel members (the Corporate HR Manager and HR Business Partner) signed it on 10 November 2014 and the HR Officer wrote to Mrs N informing her of the panel s decision. The Panel did not directly review any medical evidence in coming to its decision it relied solely on the report provided by Dr Olowookere. Neither did the decision maker at IDR stage 1 and 2. This is normal practice. The Panel and Council officers are not qualified to analyse and interpret medical reports. In accordance with the LGPS Regulations the Council appoints an IRMP to obtain relevant medical reports, review them and come to an opinion about the individual s health and prognosis. It is the IRMP s report together with information about the individual s employment that is passed to the Panel. The Panel must be satisfied that the IRMP has considered all relevant and no irrelevant information. It is clear that the following information was considered:- o Reports from Mrs N s GP, including a review of all consultations, including with Ms Lappin. o Mrs N s psychological and physical health. o Medication that she had been prescribed, its success or otherwise. o Investigations and findings from x-rays and an MRI scan. On Mrs N s comments in relation to irrelevant or inaccurate information and to supposition. In making its decisions about Mrs N s application the Council considered three reports: Dr Olowookere s reports dated 31 October 2014 and 20 February 2015 and Dr Manickarajah s report dated 1 February The IRMPs reports appear to have been based on reports and information that they gathered from both Mrs N s GP and Physiotherapist and are comprehensive. The reports took into account investigations carried out by x-rays and an MRI scan, consider the effects of medication taken and give references to diagnosis. Dr Olowookere 7

8 suggested that while Mrs N s condition is long term, the symptoms of pain and activity were manageable through medication and treatment. Reference is made to the success of the management of Mrs N s condition in keeping with her active lifestyle and ability to function independently. Following the IDR stage 2 decision, the Council sought clarification about the period in question and the possibility of improvements being made before Mrs N s 65 th birthday. Dr Manickarajah obtained further details from Mrs N s GP. The GP comprehensively reviewed Mrs N s medical history, looking at records of all previous consultations including those with other departments and with Ms Lappin. He also considered Mrs N s physical and psychological health in providing an opinion on her fitness to work. While Mrs N may not agree with her GP s opinion that she has improved, about her levels of activity and how this relates to her fitness to discharge the duties of an administrator, it was reasonable for the Council to accept the views of the GP and the two IRMPs, which appear to be unequivocal. All of the medical reports provided to the Council take full account of the symptoms of Mrs N s condition, including: the pain experienced, activity levels and her psychological health. It is not sure what other medical evidence the IRMP(s) or the GP could have considered. All of the reports referenced reports obtained from Ms Lappin, which had been considered for the relevant period. It is satisfied that the full extent of Mrs N s condition(s) has been properly considered and does not feel that Mrs N has highlighted any other information that is likely to have made a material difference to the decision outcome. It is not able to comment on any differences of opinion between the views of the Ms Lappin and Mrs N s GP. The GP has the responsibility for seeking a diagnosis and ensuring relevant treatments are put in place, including physiotherapy and pain management. It is for the GP and for the IRMP to give an opinion on the prognosis for Mrs N s condition and her ability to discharge her former Council duties. It looked at the reason for the delay between Mrs N s application and the receipt of Dr Olowookere s report and particularly considered whether it had any effect on the medical opinion provided to the Council and the Council s decision. It appears the initial delay of some months was due to the Council s contract with OH Services being outsourced to PAM. PAM were then waiting some months for specialist medical reports. While the lengthy delay is regrettable, it did not make any material difference to the findings about Mrs N s health and specifically for the relevant period. 8

9 It accepts that Dr Olowookere s October 2014 could have been more explicit, but this was rectified by requesting further detail from the IRMP. Mrs N provided details about her duties (as her job description was not held on file) and this information was passed to the IRMP. While this information was not passed to her GP there was nothing out of the ordinary about Mrs N s administrative role and it would have been reasonable for any GP to have sufficient understanding of the level of activity/inactivity involved with this type of role. It was reasonable for a GP to take into account his/her observations of the patient in consultations as long as this was not solely relied on. A lot of focus has been given to the fact that Mrs N swims regularly, but Mrs N s GP and the IRMP(s) took a wider view of Mrs N being able to function independently and they are clear that her activity levels have contributed to their opinion that she was able to efficiently discharge her duties as an Administrative Assistant. Adjudicator s Opinion 27. Mrs N s complaint was considered by one of our Adjudicators who concluded that no further action was required by the Council. The Adjudicator s findings are summarised briefly below:- The 1997 Regulations require, on balance of probabilities, Mrs N to be permanently (that is to age 65) incapable of discharging efficiently the duties of her former employment because of ill-health or infirmity of mind or body. The 1997 Regulations allow Mrs N to elect early retirement if she meets the eligibility criterion. The Council says the Panel did not directly review any medical evidence in coming to its decision (the initial decision), but relied solely on the report provided by Dr Olowookere. Further it says neither decision maker at IDR stage 1 and 2 read the medical reports provided by Mrs N s GP, physiotherapist or any other consultants or specialists. It says this is normal practice. But that is not good practice. While the Panel (and the respective decision maker at IDR stage 1 and 2) may have no medical background, they should review the medical evidence to ensure that there has been no error or omission of fact by the IRMP and that the IRMP s opinion is not inconsistent with the available evidence. A difference of opinion between the medical advisers would not necessarily mean that the Panel should not accept the IRMP s view but it may warrant it seeking further clarification. Dr Olowookere (the first IRMP) issued two reports. The first in October 2014 and a clarification report in February In both reports he refers to information from the GP and Physiotherapist. But he does not list the medical evidence he has considered. 9

10 However, PAM has provided a copy of Mrs N s occupational health file, the relevant medical evidence from this is summarised in Appendix 2. It seems the file was made available to both IRMPs. Mrs N says the comments of Ms Lappin appear not to have been taken into account. Namely:- She has always had a debilitating problem with back pain. o Has been struggling with more spasm which is understandable with a problem that has been apparent for many years. o Activity is done on her terms at variable daily levels. o She is in pain all the time. o She gets very fed up when she is limited by the pain These comments are all taken from Ms Lappin s February 2014 letter to the referring GP. Clearly Dr Olowookere considered the letter as he noted from it in his report, referring to Ms Lappin s further comments that Mrs N is very active and that she still swims 60 lengths. It is for the Council in consultation with its medical advisers to attach weight (including little or none) to the medical evidence. While the Council did not consider the medical evidence it appears that Dr Olowookere, and subsequently Dr Manickarajah, did. Mrs N says it appears that Ms Lappin s September 2014 letter to her referring GP was not considered. While neither IRMP specifically referred to it in their respective reports that does not mean it was not considered. The letter was held in Mrs N s OH file, which both IRMPs appear to have had access to. Nevertheless, the comments Ms Lappin made in the letter added nothing materially new to what she had previously said in her February 2014 report. In his 20 February 2015 report Dr Olowookere says that an applicant is required to have undergone a reasonable range of treatments before it can be said that he/she is permanently incapacitated. That is not correct. The relevant question is what is the likely efficacy of any remaining treatment options? Following the IDR stage 2 decision the Council reviewed its decision. PAM requested a report from Dr Salisbury and Dr Moorehead replied to PAM s request. Mrs N points out that Dr Moorehead did not have a copy of her job description - neither does the Council appear to have kept a copy, as it required Mrs N to summarise her former duties which it then referred onto PAM. However, PAM s request did say that Mrs N had been an Administrative Assistant and that the role was likely to have been sedentary (office based). Mrs N says she subsequently discussed Dr Manickarajah s report with Dr Moorehead and that he apologised for not appreciating the sedentary nature of 10

11 her former role. But Dr Moorehead s comments to PAM do not appear to be inconsistent with the relevant medical evidence. Dr Manickarajah was aware of the short period from the date of Mrs N s October 2013 application to her 65 th birthday and clearly was of the opinion that Mrs N was capable of efficiently discharging her former Council duties over that time. His certification is in accord with the 1997 Regulations. Mrs N says Dr Moorehead and Dr Salisbury support her application. But neither doctor appears to have said so in writing to PAM prior to the Council s final decision. Neither it appears did Ms Lappin. But even if there was a difference of opinion between Mrs N s treating doctors and the Council s medical advisers that is not sufficient for the Ombudsman to say that the Council should not have preferred the opinion of the latter. Whilst the Council did not see the relevant medical evidence there was no reason to say that it should not have relied on Dr Manickarajah s report. 28. Mrs N did not accept the Adjudicator s Opinion and the complaint was passed to me to consider. Mrs N provided her further comments which do not change the outcome. I agree with the Adjudicator s Opinion and I will therefore only respond to the key points made by Mrs N for completeness. Ombudsman s decision 29. Mrs N has made a number of comments pertaining to her previous ill health applications and former employment(s). I have not given these further consideration as they are not directly relevant to the complaint that my office has agreed to investigate, namely the refusal of Mrs N s October 2013 application for ill health retirement. 30. Referring to her most recent application Mrs N says:- Medical professionals were contacted over two years from the date of her application. The IRMPs statements indicate that they only requested her most recent medical records. But her condition presented itself in the late 1980 s. There is no reference to nerve root irritation, just the spondylosis. It is her whole spine that is affected. 31. As the Adjudicator said in his Opinion, I am primarily concerned with the decision making process. The issues I consider include: whether the relevant regulations have been correctly applied; whether appropriate evidence has been obtained and considered; and whether the decision is supported by the available relevant evidence. 11

12 32. Following the IDR stage 2 decision a report was requested from Mrs N s GP. Dr Moorehead replied in November 2015 that he had not seen Mrs N since February 2014 and gave his opinion that her disability was not sufficient to prevent her from doing her former job at the Council. 33. Dr Manickarajah clearly understood that he was required to give his opinion on whether Mrs N was permanently incapable of efficiently discharging her former duties at the Council, as at October 2013, and was aware of the short period to Mrs N s 65 th birthday. 34. It was for Dr Manickarajah, to decide if he had sufficient medical evidence to give his opinion. Clearly he considered that he did. 35. I am satisfied that Dr Manickarajah reviewed the relevant medical evidence pertaining to Mrs N s condition. 36. I agree with the Adjudicator, whilst the Council did not see the medical evidence I have no reason to find that it should not have accepted Dr Manickarajah s certified opinion. 37. Therefore, I do not uphold Mrs N s complaint. Anthony Arter Pensions Ombudsman 21 February