Ill health retirement, Pensions and Insurance assessments
Pensions
The concept of pensions is not new. Roman soldiers could retire after twenty-five years’ service and receive a pension worth a decade’s pay. The Royal Navy first awarded pensions to all seamen after twenty years of service in 1859. A state pension was first awarded to everybody in UK in 1948, at age 65 for men and 60 for women. At the time, few people were over that age, so the cost was relatively small. Since then, life expectancy has increased substantially. As a result, the state pension age has increased since, currently to 66 for all, increasing progressively to 68 over the next couple of decades.
For most, the state pension is insufficient, and most employers now have pension schemes. These can be taken early, usually with an actuarial reduction. This reduction can substantially reduce the annual pension income so many employees choose not to take their pension early. Most pension schemes are allied to the state pension age, but some have an earlier ‘normal pension age’ to reflect particularly arduous employment such as the armed forces, police, and firefighters. This earlier pension age has been increased for most, and the armed forces, police and firefighter pensions are now aligned with a normal pension age of 60. Those who leave early may not be able to take their deferred pension until age 65 or until state pension age.
Ill health retirement (IHR)
Those who have to retire early through ill health may be eligible for immediate payment of pensions that are either not actuarially reduced or are enhanced with additional payments so the pension represents the value it would have been if retiring at normal pension age. This process is generally governed by regulations, either statutory, or rules established for private pension schemes that are governed by the pension trustees.
Ill health retirement (IHR) generally refers to the process of leaving employment through ill health and receiving pension payments early. Pension schemes usually differentiate between current members and deferred members who had previously left employment and are subsequently applying for early payment of pension on ill health grounds, referring to ‘ill health retirement’ and ‘deferred benefits’ or ‘preserved benefits’.
Eligibility
The regulations or rules of pension schemes are generally poorly understood by employers and employees. Many think they can just take their pension early on ill health grounds without having to meet statutory criteria. Their treating clinicians rarely understand the rules or regulations so often ‘support’ IHR when they are simply advising their patient to stop work on medical grounds for a period of time while they recover.
The process of applying
The process of applying for IHR is, as noted above, usually governed by statute or rules. There are several stages. The first is for the employer to decide to terminate the contract of employment on capability grounds. If there is no need to terminate the contract because the employee is still capable of working in their role, IHR would not be appropriate. ‘Capability’ also considers sickness absence levels for conditions that are variable over time, and where performance varies over time. ‘Work capability’ requires not just the ability to work on any one day, but reliable and effective service.
It is common for employees to believe they can retire because they have a specific diagnosis even though they can still work, so they may well ask if they are entitled to IHR, and their managers may well ask on their behalf. We may be used to some insurance schemes paying a lump sum if we have a specific diagnosis, but IHR doesn’t work like that. It is not based on diagnosis, but on the effect of that diagnosis on capacity for work.
Once it is clear that the employee is unable to work in their role, an application is made to the pension trustees. This would usually start with an occupational health referral, or a request for a treating clinician to complete a form outlining the medical evidence. Where occupational health are involved, there are often several steps. An initial assessment will consider the likelihood that the employee is medically incapable of working, then a request will be made for medical evidence from the GP or treating clinicians, then a further assessment is needed by an occupational physician to formally review the evidence with a report to the pension trustees (e.g. Teachers Pensions, NHS Pensions, University Superannuation Scheme, Superannuation Arrangements of the University of London (SAUL)). Some schemes require a report and certificate from an independent occupational physician (e.g. Firefighters Pension Scheme and Local Government Pension Scheme).
Where pensions trustees make the final decision, they may have access to medical advisers who will review the reports and certificates from occupational health or from treating clinicians.
Who decides whether an employee is eligible for an ill health pension?
It is unusual for the decision to award a pension to be made by a doctor. The only scheme where this applies is the Police pension where the doctor has a statutory role. In most schemes the decision is made by the pension trustees who consider the rules or regulations of the scheme and the medical evidence provided. In some schemes such as Local Government Pension Scheme it is the employer who decides, taking account of the medical evidence provided.
Who pays?
Some schemes such as Police and Firefighter pensions are ‘unfunded’ and paid directly from taxes. Most are funded throughout employment by the employer and employee with the funds invested until needed. Pension schemes are responsible for substantial investments and their role is governed by statutes, some specific to the scheme as well as the general financial statutory requirement for good governance. In some cases, such as the Local Government Pension Scheme, each employer has their contribution reassessed by independent actuaries every three years, and if there is a funding shortfall the employer will have to contribute additional payments to the scheme. In the 2022 assessment, funding varied from 80% to 154%; in the former case substantial extra funds would have been required, in the latter, future funding would be reduced. Ultimately such arrangements could put a small employer out of business if they exceed expected IHR rates.
What is ‘fair’?
Pension schemes, including IHR schemes, are there to support employees. It is their right to have access to the funds, however they must also merit the payments. Employees must therefore be given fair and reasonable consideration, but the pension funds also need to be protected from unscrupulous requests. The process must therefore be conducted with due care and diligence, it must be transparent, and there must be scope for the employee to appeal any decision.
There will always be different opinions; any process must consider the range of opinions and justify choosing one over another. In most cases, as with civil law in general, the test is ‘on balance of probabilities’. In practice, the assessment should include clinical judgement to determine whether the individual should lie above or below the threshold.
What test does the scheme use?
Some schemes will simply assess the employee against the standard job requirements. For example, a firefighter must be able to fulfil all the fitness requirements to fight fires. Many will use this as the initial part of the assessment but then also require an assessment against other roles. Payment may only be made if the employee is more generally incapable of employment.
Most schemes require an applicant to be permanently incapable of their current role. Permanent is usually to normal pension age but may be for a defined period of time such as five or ten years. Permanent means just that; if they are likely to recover within that time, they do not meet the scheme criteria.
Many schemes have a second stage in assessment against a wider role such as other job activities, or other ‘gainful employment’ that may be any employed role for any employer. There is usually a definition such as ‘employment of thirty hours or more for a period of a year or longer’, expecting reliable and effective service over a period rather than just for one day.
Pensions schemes use the civil law test of 'balance of probability' both for current fitness and prognosis. Is the applicant more likely than not to be incapable of their role, and are they more likely than not to remain incapable? This will require some input from the employer who is responsible for determining capability and for determining what adjustments are reasonable. It is the role of the doctor to determine whether there is a medical reason for any lack of capability.
Are assessments fair and reasonable?
While the expectation is that those undertaking the assessments will apply rigorous objective criteria to any assessment, observations show in practice that the process varies widely across the UK and across individual pension schemes.
Those involved may not understand that the process is statutory, governed by law with the expectation that all involved will respect and uphold the legal requirements. They may be misled or persuaded to support an application without understanding what is involved financially or legally. They may simply not understand how to undertake an objective and impartial assessment. In many cases they may not understand the legal criteria of the scheme.
The evidence of pension assessments over the past century shows a generally very poor application of objectivity or quality. Where the process has been investigated objectively, for example for firefighters during the early 1990s, it was found that relatively few firefighters served to normal pension age. Most retired on medical grounds ‘because they could’ and did so at the most financially beneficial point for the pension scheme when they had served for 26.25 years. A cosy relationship had built up between the occupational physicians completing the pensions paperwork, the employers, the unions, and employees. This was challenged by Government who introduced the concept of the Independent Qualified Medical Practitioner who would assess pensions objectively and in accordance with the regulations. The result was that the rate of successful IHR applications dropped from around 17/1000 employees to around 1/1000 employees.
An assessment of teachers pensions demonstrated a surprising number of those considered permanently incapable of teaching ever again had returned to teaching and many more had sought other employment (Brown et al., 2006).
When we undertook an audit of the local government pension scheme (LGPS) in 2008-10, the results across all pensions authorities in England and Wales demonstrated substantial variation. The IHR rate in Mid and North Wales was 3/1000, in South Wales it was 4/1000, the average was around 2.1/1000, in Southeast England the rate was around 1.4/1000 and in my own pensions authority where we had established a process of annual review and audit, we had a rate of 0.7/1000. The differences could not be explained by chance. When specific cases were looked at, it was obvious that the IRMPs completing the certificates simply didn’t understand the regulations or how to assess cases objectively.
The cost of IHR for the LGPS can be considerable. When we did the audit, the total cost of IHR in the LGPS for England and Wales was £186,854,580 for a total of 3411 awards. 2505 were at Tier 1,473 at Tier 2 and 433 at Tier 3. A shift from the average at 2.1/1000 to the rate in Southeast England would represent a reduction to £124,569,720, saving around £60 million per annum. Increasing to the highest rate would add around £169 million per annum. We estimated the on-off cost (potentially for the employer) of paying into the pension scheme for one Tier 1 IHR was around £107,000. A Tier 2 cost around £30,000 and a Tier 3 £27,000.
We must put ‘savings’ in context. Where individuals meet the criteria, they should get the payments; that is what the schemes are intended for. However, where they clearly didn’t meet the criteria, the employers were having to pay into the scheme from general taxation, taking funds away from other local authority activity.
Key roles in the IHR process
Line Manager
There are several key roles in the IHR process. The line manager will need to consider capability and decide whether the employee is no longer capable of the role. They must also establish the normal pension age for the scheme and the employee’s age. It is not unusual for a referral to be received by occupational health to consider ill health retirement when the employee is already above normal pension age. In most cases, IHR cannot apply once the employee has reached normal pension age. It may apply after normal pension age where specific injury benefits are available, and the injury was ‘on duty’.
The initial assessment will usually involve discussions with HR and may include considering adjustments to the role (bearing in mind the requirements of the Equality Act 2010 to make ‘reasonable adjustments’) and this can include considering redeployment. It should also include a conversation with the finance department so the employee knows their financial position; what pension benefits could they expect and how would this compare to their current or adjusted pay?
The IHR process is only there to support employees with medical reasons for incapacity. It is not there to help ‘manage difficult employees’. Not getting on with fellow employees, disagreements with management, difficulty getting to work, other responsibilities outside work such as childcare or caring for elderly relatives, disciplinary issues in the workplace or criminality are generally not appropriate reasons to consider IHR unless there is an enduring underlying medical reason for such behaviour.
Where physical fitness is a requirement, loss of fitness through weight gain or lack of exercise is not a reason for seeking IHR. The employee is expected to maintain fitness and that may require regular exercise and weight management. IHR would not then be reasonable or appropriate.
It is not a substitute for redundancy processes, although if an employee is being considered for redundancy and they are developing a serious medical condition, IHR should be considered before they are made redundant. Failure to do so could be considered unfair and maladministration.
It is common for an employee to be incapable of their current role and therefore eligible to be considered for ill health retirement but to remain in employment in an adjusted or different role. In most cases this will represent a substantial financial advantage to the employee who will receive more income from their new employment than they would from an ill health pension.
Is it good for the employee to receive IHR?
While there are clear financial benefits from IHR, there are health implications too. A major review of work and health two decades ago concluded that most work is good for health (Waddell, 2006). Studies have shown that those who retire early die early. There is a social class difference here, with the lower social classes faring worse than higher social classes (Morris, 1994, Tsai, 2005). The message is clear; all other options should be considered first. While IHR may be the only way forward, it should be avoided if possible because it may be harmful to the health of the employee. All other options should be considered first.
Nevertheless, if an employee applies for IHR and meets the regulations or rules, they are entitled to receive IHR. Most scheme rules allow them to undertake some work after taking IHR.
Questions for line management and HR
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Is the employee in the pension scheme? Is the employee below normal pension age? Is the employee incapable of providing reliable and effective service? Is the reason medical? |
Occupational Health (OH)
Occupational health (OH) may get a referral to advise on ill health retirement. This may be a question alongside others in relation to capability and adjustments or it may be a separate referral. There is no ‘right and wrong’ way to manage these referrals, however where a statutory process is involved it may be best, or necessary, to consider a formal request separately from other occupational health matters. If the assessing doctor must be ‘independent’, they would not usually be able to advise on current fitness for work and on eligibility for ill health retirement. It may be appropriate, when the employee is clearly permanently incapable of their current role, to proceed to giving a formal opinion on ill health retirement straightaway. The regulations usually stipulate that ‘independent’ means ‘never having been previously involved in the case’.
The first question that OH must address is whether there is a medical issue to explain the loss of capability. This requires a medical diagnosis, and an assessment of whether the incapacity would be expected with this diagnosis. For example, knee osteoarthritis would affect capability when an employee requires good mobility but would not usually affect capability if the role is largely sedentary.
If it is clear that there could be a medical reason, then this usually requires further medical evidence. It is usual to write to either the GP or the treating specialist to request a report. This report must include the diagnosis, with sufficient evidence to demonstrate that a diagnostic process was fulfilled. A diagnosis of ‘cancer’ should include a description of the investigative process and the staging of the cancer. A diagnosis of an autoimmune inflammatory condition should include the results of blood tests, a description of the clinical assessment and findings, and a statement of diagnosis. Most specialists will write reports to the GP following each appointment, and these reports generally contain enough information to confirm the diagnosis objectively.
Most pension schemes require a more general assessment of fitness for ‘gainful employment’ and that usually requires a medical examination of the applicant to assess their general fitness for employment. Typically, this will include the impact of the condition on normal day to day activities, such as independence with self-care and dressing, mobility, the ability to manage household activities, ability to read, watch TV, drive etc. Applicants who require substantial help and support are more likely to meet the IHR criteria while those who are independent and active are less likely to do so. These assessments should be, as far as reasonably practicable, objective. Most of the assessment is based on the history provided by the applicant. If they want IHR they may be tempted to exaggerate. Any assessment must therefore note any discrepancies between observed behaviour and reported difficulties. An applicant who reports severe visual difficulties but who drove to the assessment may be exaggerating. One who reports severe back pain limiting sitting to five minutes, but who sits comfortably throughout a 45-minute assessment may be exaggerating. The nature of any pathology should be related to any reported disabilities. Minor grade 1 osteoarthritis of the knee is not expected to cause severe mobility impairment while severe grade 4 osteoarthritis of the knee would usually substantially impair mobility.
The difference between current fitness and prognosis
Any assessment in relation to the pension schemes will not just consider how the medical condition currently affects the employee, but the prognosis.
An employee who is waiting for a total hip replacement is likely to be substantially disabled in relation to mobility and manual handling. If they have surgery, they should recover much of their mobility and function within three months and could potentially return to most active roles and provide reliable and effective service for many years. Seeing them in clinic today will provide no realistic view of how they will be in a year.
The assessment will mostly relate to a review of the evidence base for hip replacements, what studies show about recovery and rehabilitation, and how long the new hip will last. The assessment should also look at the whole patient; their hip may become functionally normal after surgery but if they also have severe osteoarthritis of the other hip, both knees and both ankles, they may remain substantially impaired even after both hips and both knees have been replaced.
Questions for OH
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Is there a diagnosed medical condition and do you have evidence to confirm this? Does the diagnosed medical condition explain the current incapacity? Are there any other contributing medical factors? What is the prognosis for the medical conditions? Are there any treatments likely to improve the conditions in the time remaining to normal pension age? Are these treatments readily available? |
Preparing for an IHR opinion
If there is insufficient medical evidence available to answer these questions, reports should be requested from the relevant treating clinicians. As most specialists will have written to the GP, in most cases a simple request to the GP for copies of all the specialist reports for the past three to five years will usually provide sufficient evidence.
When requesting reports and evidence from treating clinicians, two points are of particular relevance. The first is that the treating clinician needs to understand the importance of providing a report that includes objective medical facts, sufficient to come to a medical conclusion. A report should not simply state ‘Mrs Smith has cancer’ but should include the exact cancer diagnosis, staging, treatment plan followed, and response to treatment to date. The second point is that the treating clinician is very unlikely to know or understand the specific pensions regulations; never ask the treating clinician for an opinion on eligibility, and better still, ask them specifically not to comment. If they do comment this is generally unhelpful as it may raise expectations inappropriately for the employee.
Lifestyle factors
Many medical problems are affected by lifestyle. For example, someone with substantial respiratory problems who smokes should stop smoking; in many cases lung function will improve significantly and could then allow the employee to resume normal work again. Someone who drinks excessive alcohol may regain fitness when they reduce their drinking. Someone who has stopped exercising and has now failed their fitness test may regain fitness through simple regular exercise. Weight loss may substantially improve fitness and capability. All these lifestyle issues can impact medical conditions, particularly when the employee has frequent sickness absence.
Most pension schemes have an expectation that the employee will ‘play their part’ and address lifestyle factors in order to regain fitness. It is important to consider the part played by any underlying medical issues. Weight loss may well improve fitness generally but once the patient has developed severe knee osteoarthritis this will not improve without knee replacement. If their obesity is clinically morbid or superobese, it may take them a substantial period of time to lose the weight before they can have surgery and there may be specific psychological issues relating to their weight that need to be addressed. Rather than being capable of work again within three months, it could be three years or longer, and if they are due to reach normal pension age at that point, they may be effectively permanently incapable of working in their role in relation to the pension scheme.
The role of the medical assessor, IQMP or IRMP
Most pension schemes have a specific requirement for a doctor to assess the case objectively in relation to the scheme criteria. Any doctor working in this role must have a clear understanding of their role, the requirements, the scheme criteria and how to undertake the role appropriately. The process is different to that of a treating clinician when the doctor is acting as the patient advocate, supporting their best interests.
In most cases, the assessment is defined in statute, with a series of prescriptive regulations, or covered by the more general requirement for governance. Such assessments would be more in line with medicolegal assessments rather than simple clinical assessments.
There have been substantial changes in approach in relation to medicolegal work over the past couple of decades, driven mainly by the ‘whiplash epidemic’ where so-called ‘experts’ would write whatever was asked of them, and the courts would be faced by two opposing experts with widely differing views that could not possibly be reconciled by objective evidence.
The result was the rewriting of the Civil Procedure Rules and in particular Part 35 that defines the role of an expert, specifically that the expert is preparing the report ‘for the court’ and not for either side. This enshrines the principle of impartiality and requires a high standard of medical practice.
Doctors advising pension schemes or acting as IRMP or IQMP should have a thorough understanding of these principles, and of their statutory role, before embarking on any pensions work. This is not a role to be taken lightly, and there are many doctors who find it difficult to transition from treating clinician to medicolegal expert. Medical assessors must be familiar with the wording of statutes and regulations and must be capable of understanding how to read these statutes and regulations and correctly interpret them in relation to pension schemes. Every word in a statute or regulation has clear meaning and must be followed exactly as written. There is no scope for ‘skim-reading’, making assumptions or ‘interpreting flexibly’.
Most pension schemes require a ‘certificate’ that must be completed by a doctor who meets the requirements of the scheme. Any medical assessor must first ensure that they meet the requirements. These may define qualifications, registration, or independence. The certificate usually follows the wording of the scheme regulations or rules, and these words must be followed in the right order, and in accordance with the regulations or rules. Many medical assessors get this wrong for the LGPS scheme, where the first test of permanence is not met. They read the remaining regulations and believe that although the applicant is not permanently incapable of their role, they can still have a Tier 2 or 3 award. They cannot.
Most importantly, any medical assessment must be capable of scrutiny. Either side should be able to appeal an opinion, and this can only be done if the process taken to reach the opinion is clear. A certificate cannot, by itself, demonstrate the process and interpretation of the rules by the medical assessor. All certificates should therefore be accompanied by a report that lays out the procedure followed. This should be a formal report with a clear layout that can be followed by medical and non-medical readers. Any appeal process will inevitably involve the applicant, line management, HR, and unions, and all should be capable of following the decision-making process that led to the opinion.
When reading some reports written by medical assessors, it may become immediately evident that little or no thought process went into producing them. A half-page of text which mostly focusses on subjective issues and, for example states simply ‘Mrs Smith is thin and frail and obviously won’t ever be able to work again’ provides no objective evidence, no diagnosis, no consideration of the potential impact of treatment or the relevance of lifestyle.
Objective assessments
We assume that any doctor forming an opinion will have done so objectively, basing their opinion on all the facts of the case. In practice, the factors are complex, and most issues will be subjective not objective, particularly the way the patient reports their symptoms.
We know that in similar circumstances, people find it very difficult to give opinions that are clear and objective. The late Prof Daniel Kahneman won a Nobel Prize for his work with economists, showing why decision-making when factors were complex and uncertain was so often flawed. These principles apply equally to doctors, who often get things wrong.
A simple study undertaken in 1995 asked 100 surgeons and 100 GPs to give an opinion on fitness to work in four different work scenarios for five common conditions. The variation was substantial, with no logical reason for the differences. For example, the variation for a 55-year-old man in a physical role returning after a hernia repair was between two and twelve weeks from surgeons and between two and sixteen weeks from GPs. All answered the question, and most were wildly inaccurate (Majeed et al., 1995).
A study looking at experts in occupational health was equally concerning. Seventy-five ‘experts’ were given twelve questions to answer. Overall, only 47% were correct, but when the answers referred to up-to-date research evidence this increased to 83%, while those who included no references only got the answer right 35% of the time (Schaafsma et al., 2005).
These factors give a clear indication why so many supposedly expert opinions in relation to IHR are wrong. Indicators of whether the report is likely to be right include a clear well-argued report noting the objective facts rather than subjective findings and referring to the evidence base for prognosis.
Face to face assessments or a review of the documents
A key issue potentially affecting objectivity is the impact of a face to face assessment. It is easy to shift from objective reviewer to subjective advocate for the applicant. In any medical assessment both doctor and patient are performing. The patient may be underplaying their symptoms or overplaying them, depending on the outcome they seek. Inevitably when being assessed for pensions, the applicant is likely attempt to emphasise their difficulties, so it is difficult if not impossible to gain a true objective assessment of function. Any assessment will only reflect current function and symptoms, not future function and symptoms, and if further treatment is expected, little value will be gained from a face to face assessment. The medical reports, particularly the results of tests and investigations, are of far more relevance and importance.
In many pensions assessments it is important to also consider capability for other employments, and evidence of more general function and capability will be needed. This can usually be found or inferred from the medical records, but not always. There may be times when the assessing doctor needs to either speak with the applicant or examine the applicant to gain a fuller picture. Bearing in mind the difficulty in obtaining an objective view of capability from such an assessment, it is only rarely appropriate or necessary to have a face to face, video or telephone assessment. It should be up to the assessing doctor to determine, on the basis of the evidence, whether such an assessment is needed or likely to be of value.
The Pensions Ombudsman recognises this and will support a decision by the assessing doctor not to undertake such an assessment.
The report
As noted above, the key to any pensions assessment should be the report. Following a good report layout should lead the reporting doctor through each step of the process, ensuring each is covered appropriately and fairly. The basis of any report is evidence, and this should be clearly referenced. Any and all medical reports referred to should be listed, so it is clear what evidence was available and how it was used. The current impact of the condition should be discussed, noting whether the reported impairments are expected. The effect of treatments should be discussed, and the expected prognosis, with clear reference to published objective evidence, including statistical outcomes where available. The published evidence should also be listed at the end of the report. The report should then conclude by relating the current impairments and prognosis to the pensions criteria, leading logically to an opinion in relation to the criteria.
In most pensions assessments, there will be limited evidence. Either it will not be possible or reasonable to obtain all medical evidence, or it would not be reasonable or cost-effective to read through all possible medical evidence. Most applicants would have thousands of pages of notes and reports spread across multiple hospitals and their general practice. Reading each one in detail could take days, with no added value. Judgement should be used to determine whether enough has been presented in order to produce a report and opinion. There may well be insufficient to support IHR, and that should be made clear in the report.
It may become apparent that either there is further evidence that has not been made available, or that the patient is about to undergo treatment that could substantially change the prognosis. In an ideal world, any decision on pensions should be deferred until the information is available, or treatment has been concluded. It may be appropriate to recommend deferring the decision. It may not be possible, in which case the medical assessor must come to a clear conclusion based on the information available at the time, noting the potential impact of new information on pension eligibility.
Including clinical detail and consent
In most cases, any consideration of medical issues requires disclosure of medical facts and diagnoses. This requires consent. It also requires judgement. There may be very sensitive medical issues not directly relevant to the pensions consideration and these should not be included in the report. On the other hand, they may be of direct relevance, and it may not be possible to demonstrate that all relevant issues have been appropriately considered without including these details.
It has been argued that the employer or pensions trustees don’t need to know any clinical detail as they are not medically trained. If they are the decision-maker, they cannot make an informed decision without at least some medical information. They must be able to see that the medical assessor has had access to sufficient evidence, has considered that evidence and has come to an appropriate conclusion. Some medical information must therefore be included in the report, sufficient to ensure that all those involved can apply appropriate corporate governance to the process and reach a fair conclusion.
The consent process needs to cover this, and it may be that if the applicant refuses consent, the pensions application cannot proceed. It is also important that the applicant understands that they are consenting to release of medical information, they do not have to agree with the opinion. The process usually requires completion of a certificate, and in some cases, there is confusion over which certificate should be completed. As a result, it is not unusual for there to be a request to complete a certificate after the report has been written and the consent process concluded. Where the certificate does not include any new medical facts, particularly where a different certificate has been requested that is only marginally different in wording from the first, there would not usually be a requirement for further consent. Where a new report is required alongside a certificate, and the report is significantly different to the first report it would be advisable to seek further consent before sending the new report.
Pensions report layout
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Introduction – name, date of birth, address, job role and employer List of evidence considered, must include: Job description Occupational health notes where available. GP records where available Specialist reports listed individually. Any other relevant evidence A description of the issues, including an extract of key points from the evidence considered, the impact on work, the impact on day-to-day activities, a note of the treatment tried to date and the effect of that treatment. A discussion of the prognosis, including expected future treatment, the likely impact of that treatment, the evidence from published research and guidance documents. A discussion of non-medical factors, such as relationship issues between the applicant and line manager, and with the organisation, social factors including caring responsibilities, and the relevant part played by these in future capacity for work. A discussion of the application of the pensions regulations, including timelines for recovery and return to employment, and the likely capacity for future employment. An opinion. A list of references for prognosis, usually as a list of published studies, reports, and guidance. |
Appeals
As with any legal process, it is essential that there is a process for appealing the opinion. This is only reasonable and fair. It is not necessarily a criticism of the medical assessor, it should be considered a natural part of the process, allowing their opinion to be questioned or challenged, and in particular to enable the applicant to identify any key missing evidence and submit this as a part of the appeal.
There are two stages to any appeal. The first is to question the report, allow further evidence to be submitted, and enable the medical assessor to reconsider, and if appropriate to issue a new, different, certificate and report.
The second is a more formal approach to allow the applicant and employer to consider the overall approach and determine whether there is sufficient evidence to demonstrate either maladministration of the process, or the need to request a second medical opinion. In the public sector this is governed by the Internal Dispute Resolution Procedure, There should not be an absolute right to a second medical opinion; where the first opinion is clear and obviously justified, there could be grounds to refuse a further appeal. Advice can be sought from The Pensions Advisory Service.
Once the internal appeal process has concluded, there is scope for the applicant to progress an appeal to the Ombudsman, first to an Adjudicator and then to the Ombudsman themselves for a determination. This will only consider the administrative processes to ensure they have been correct and fair. The Ombudsman cannot consider the medical opinion. Where there are concerns about the process, the Ombudsman may well require a new medical opinion from another medical assessor.
Auditing pensions work.
Auditing should be undertaken by medical assessors and by employers. All employers should consider the advice above and ask themselves whether their medical assessors have been following the principles outlined above. Are the reports clear, and reasonable? They should consider the statistics relating to pensions awards; are these above the rate expected or below?
Medical assessors should also undertake audit of their work, comparing their reports to others, and ideally requesting third-party assessments of their reports, noting both the layout and content of the reports, and the opinions, relating both to best practice and evidence. This audit is often undertaken internally by larger OH providers.
Most medical assessors will build up a body of research references for their work over time. It is important to continue to update this regularly, adding new references as they are published and remaining aware of new developments in treatment and prognosis. Some areas are undergoing more change than others. Cancer prognosis in particular has seen substantial changes over the past couple of decades. Any audit should also consider the references used and how up to date they are.
References
BROWN, J., GILMOUR, W. H. & MACDONALD, E. B. 2006. Return to work after ill-health retirement in Scottish NHS staff and teachers. Occup Med (Lond), 56, 480-4.
MAJEED, A. W., BROWN, S., WILLIAMS, N., HANNAY, D. R. & JOHNSON, A. G. 1995. Variations in medical attitudes to postoperative recovery period. BMJ, 311, 296.
MORRIS, J. K., COOK, D. G. & SHAPER, A. G. 1994. Loss of employment and mortality. Bmj, 308, 1135-9
SCHAAFSMA, F., VERBEEK, J., HULSHOF, C. & VAN DIJK, F. 2005. Caution required when relying on a colleague's advice; a comparison between professional advice and evidence from the literature. BMC Health Serv Res, 5, 59.
TSAI, S. P., WENDT, J. K., DONNELLY, R. P., DE JONG, G. & AHMED, F. S. 2005. Age at retirement and long term survival of an industrial population: prospective cohort study. Bmj, 331, 995.
WADDELL, G., BURTON, K 2006. Is work good for your health and well-being? In: DEPARTMENT OF WORK AND PENSIONS (ed.). London: The Stationery Office.