Nhs Pension Scheme · CAS-52639-R1X4

CAS-52639-R1X4

Ombudsman’s Determination Applicant Mrs N

Scheme NHS Pension Scheme (the Scheme)

Respondent NHS Business Services Authority (NHS BSA)

Outcome

Complaint summary

Background information, including submissions from the parties

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6 CAS-52639-R1X4 Adjudicator’s Opinion

Mrs N did not accept the Adjudicator’s Opinion and in response, she provided further comments. In summary she said:-

• She was still waiting for two hip replacements. Due to COVID-19, there is a waiting list for this operation. In addition, she had been diagnosed with another

7 CAS-52639-R1X4 condition which required treatment and recovery before she could be considered for a hip replacement operation. She also had a series of additional medical problems.

• Under normal circumstances, her hip replacement operations would have been completed by now and she would have been able to return to work. She had worked for nearly 40 years as a nurse and never thought she would have to live off benefits. She cannot understand why she cannot receive her Scheme pension now. If she was a healthy nurse working for the NHS, she would have been able to receive her pension from age 55 and still work part-time for the NHS.

• The SMA had been hasty with its decision when it said that Mrs N’s problem would probably resolve itself over time. She is concerned about this decision, because the SMA never spoke to her, it was unaware of her past medical history and did not contact her consultant. The SMA was not in a position to give a prognosis, when her own consultant was unable to give a timeframe due to the severity of the condition.

• She found the procedure of claiming her Scheme pension misguided and unfair. On numerous occasions, she asked how to access her benefits online, and was told that she could not do so. She was unaware how much her pension was, as she had been told to access the information online. There was also no explanation of what was entailed in the various stages of her claim.

• NHS BSA misplaced some important and confidential information. When she asked it to forward the consultant’s report to the SMA, NHS BSA initially ignored this and made a decision without that evidence. She had to appeal as a result of this.

• She was not informed that her condition could be reviewed again, within three years of her claim. She had been trying to explain to NHS BSA that a time frame could not be placed on the recovery of her type of illness. She was not offered a review at the time.

• She recently contacted NHS BSA to discuss the possibility of a re-assessment of her claim. NHS BSA was not answering the telephone due to high volumes of work. Its website did not explain clearly which form she needed to complete and submit.

• This lengthy process was not helping her when she really needed her Scheme pension due to ill health. She had raised her concerns over NHS BSA’s process, the fact that she was unable to access information about her pension online and that she had never received a yearly statement of her Scheme benefits.

• She feels that, because she left the NHS, she has no right to access or even obtain her pension. This should not make any difference as she worked for her pension.

8 CAS-52639-R1X4 • NHS BSA does not know the series of illnesses she had since her initial application.

Mrs N’s complaint was passed to me to consider. I have noted Mrs N’s further comments but I find that they do not change the outcome. I agree with the Adjudicator’s Opinion.

Ombudsman’s decision

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I do not uphold Mrs N’s complaint.

Anthony Arter

Pensions Ombudsman 14 September 2022

10 CAS-52639-R1X4 Appendix One Summary of the medical evidence

In a letter dated 22 November 2019, Miss A Nicolas (SpR in Orthopaedics) said:-

• Mrs N had a three-month history of gradually worsening left hip pain, with no history of trauma, but she was struggling to mobilise. She had attended the Accident and Emergency department, as well as her GP on a number of occasions, trying a multitude of painkillers without success.

• X-rays of the pelvis, from October 2019, showed early osteoarthritic changes on both hips.

• On 2 November 2019, a CT scan of the pelvis showed no cause for the left hip pain. A subsequent MRI scan showed bone oedema in the left hip, with a differential diagnosis of infection and regional migratory osteoporosis or avascular necrosis.

• Blood tests from 2 November 2019 were normal and were repeated on the day.

• On examination, Mrs N had flexion to 90 degrees, beyond which it became painful. She also had pain on external rotation, but internal rotation was satisfactory. She was neurovascularly intact. There was a full range of knee movement with no tenderness on palpation of the joint lines. Mrs N’s ACL and PCL, medial and collateral ligaments were intact.

• Repeat X-rays were taken and were similar to those of October 2019.

• She had told Mrs N that pain management and mobilising with crutches for the time being was the most appropriate course of treatment, as there was nothing she could offer her surgically at this stage.

• Mrs N was offered a referral to physiotherapy and crutches, but Mrs N declined.

In a letter to the GP, dated 23 December 2019, Dr Slavin (Consultant Occupational Health Physician), explained that he had been asked to provide advice in connection with Mrs N’s application, in his capacity as medical adviser to NHS BSA. He also said:-

• His understanding was that Mrs N had been working as a nurse. However, the Scheme would need evidence that Mrs N was unfit for work, not just as a nurse, but potentially as an administrator or somebody who would work in a seated capacity.

• He noted that Mrs N had been referred to an orthopaedic surgeon and wanted to see any correspondence the GP had received from the surgeon, and which outlined what treatment was likely. He also required to see any comments about

11 CAS-52639-R1X4 Mrs N’s prognosis and the GP’s assessment as to what her functional capacity was.

• On the basis of the AW240 form submitted, it was likely that prosthetic surgery would restore Mrs N’s mobility considerably. It was also likely that she would be able to work in an administrative capacity.

In a medical report sent to Dr Slavin, dated 21 February 2020, the GP said:-

• Mrs N had been certified as unfit for regular employment, due to the pain in her left hip and her right knee. She had been referred to a specialist for these.

• She had been to Accident and Emergency and had X-rays and MRI scan for the pain in her left hip and right knee. She had also attended the fracture clinic.

• She had been referred to orthopaedics, but the general level of interaction was unknown.

• She was unlikely to recover. A specialist opinion by a consultant was expected.

In its letter declining Mrs N’s application for EPDB, dated 26 February 2020, the SMA said:-

• The specialist evidence was that the early osteoarthritic changes in Mrs N’s hips were not responsible for the hip pain that she was experiencing. Pending further tests, the diagnosis was unclear. The treatment plan was for mobilisation with support and pain management, neither of which had yet taken place. It was unclear why Mrs N had declined this treatment plan.

• The evidence was that Mrs N was currently, if temporarily, unfit to work as a nurse. However, the evidence was, on balance, compatible with current and future fitness for a less physically demanding type of regular full-time employment, such as a desk-based sedentary role, with appropriate support and reasonable adjustments under disability legislation, if required. That is, she was considered currently medically fit for regular employment of like duration, regard being had to the number of hours, half days and sessions she worked in her last NHS employment.

• The diagnosis, treatment plans and long-term prognosis remained unclear. The presence of early osteoarthritis on Mrs N’s X-rays was not consistent with her degree of perceived symptoms. Even if it were to be accepted that she was currently unfit for any kind of regular full-time work, such incapacity would be unlikely to continue at least until her 60th birthday, such that it might be considered permanent.

• Because of this, permanent incapacity for regular employment of like duration was not supported by the medical evidence. The medical criteria for the deferred benefit condition were not satisfied, on the balance of probabilities.

12 CAS-52639-R1X4 In a report dated 4 March 2020, Mr S Scott (Consultant Orthopaedic Surgeon) said:-

• Mrs N had severe left hip pain due to the diagnosis of probable transient bone marrow or early avascular necrosis.

• Her mobility was extremely limited at present. She was able to walk around her home using furniture for support, but could manage only very short distances outdoors, with her partner supporting her.

• She had sleep disturbance and required regular analgesia.

• It was unclear what treatment would be suitable for Mrs N. If her symptoms settled spontaneously, this would be within the next six to twelve months. If her symptoms continued, she might need hip replacement.

• In his opinion, Mrs N was not fit for work at the present time, even in a sedentary occupation, due to the significant limitations of her mobility and the large doses of analgesia she required.

On 12 March 2020, Dr Evans (Consultant Occupational Physician) wrote to NHS BSA, on behalf of the SMA, to advise whether the criteria for EPDB were likely to have been met at the time of the original application. He said:-

• The medical evidence was that, at the time of the original application, Mrs N was unfit for regular full-time employment, this being of like duration to her former NHS role. Her incapacity was the result of bilateral hip pain and also right knee pain. The cause of Mrs N’s symptoms was, and remained, unclear. However, it appeared from her account that she had been unable to work since autumn 2019, as a result of her symptoms.

• It also appeared that these symptoms were progressively getting worse and that they had persisted despite regular analgesia. At the time of the original application, Mrs N was, to a large extent, house-bound because of her symptoms. She required assistance with daily activities. Her mobility was compromised.

• In November 2019, the GP had stated that Mrs N’s symptoms were the result of osteoarthritis. However, at that time, she had not had the opportunity of assessment by an orthopaedic surgeon. She was subsequently seen by Miss Nicolas, a specialist registrar in orthopaedics, on 22 November 2019.

• It was evident from the documents provided that Mrs N was dissatisfied with the consultation with Miss Nicolas. However, in her report, Miss Nicolas gave three possible diagnoses for Mrs N’s symptoms. These were infection, regional migratory osteoporosis and avascular necrosis. Blood tests undertaken at the start of November 2019 were normal. While Miss Nicolas wished to repeat these for completeness, she indicated that if these blood tests were normal, then the likely diagnosis would be either transient regional migratory osteoporosis or avascular necrosis.

13 CAS-52639-R1X4 • He had no reason to question Miss Nicolas’ diagnoses. It was therefore appropriate to consider the application on the basis that the extant diagnosis at the time of the application was one of these latter two conditions. Regional migratory osteoporosis was an uncommon disorder, the cause of which was unknown. It was his understanding that the alternative differential diagnoses based on MRI imaging were infection or necrosis, as indicated by Miss Nicolas. He also understood that trauma was also a differential diagnosis for the imaging appearances. However, there was no history of trauma in this case.

• It was his understanding of the literature that the natural history of regional migratory osteoporosis was that it was a self-limiting condition. Symptoms generally resolved within a period of 24 months, although the radiographic changes did persist for some months after symptoms had been resolved. The condition could recur.

• If one considered that the extant diagnosis at the time of the application was regional migratory osteoporosis, then it followed from this that the condition would have been expected to resolve within a two-year period. At the time of the application, Mrs N was over six years from reaching scheme pension age. So, even in the absence of future treatment, her incapacity for regular employment of like duration would have been unlikely to have been permanent.

• If one considered that the extant diagnosis at the time of the application was avascular necrosis, then the course of this condition was quite different. Avascular necrosis did not usually resolve spontaneously. Therefore, any symptoms arising from this condition would, in the absence of future treatment, be likely to be permanent. Therefore, if one considered the extant diagnosis to be avascular necrosis, then at the time of the original application, in the absence of future treatment, any incapacity arising from this condition would have been likely to be permanent.

• Treatment of avascular necrosis depended upon the precise location and the extent of the condition. Initial treatment was often conservative in nature and consisted of reducing weight bearing and analgesia, which was the treatment approach recommended by Miss Nicolas. There was some evidence that drug treatments may be helpful. However, he understood that randomised studies of these drugs treatments had not been performed. Surgical treatment could be undertaken. However, it was his understanding that in the early stages of avascular necrosis there was no consensus as to the most appropriate surgical intervention. If the disease progressed to involve collapse of the femoral head, then the most appropriate intervention was hip replacement surgery. This generally resulted in restoration of function.

• Therefore, if Mrs N’s symptoms were due to avascular necrosis, at the time of her application, it would have been more likely than not that future treatment would have restored her capacity to undertake regular employment of like duration, even if such employment was only of a sedentary nature. Given the time remaining 14 CAS-52639-R1X4 before Mrs N reached scheme pension age, the benefits of this treatment would have been likely to come about before she reached scheme pension age.

On 27 May 2020, Dr Evans wrote to NHS BSA and gave his opinion on Mr Scott’s report of 4 March 2020. He said:-

• Mr Scott also offered two differential diagnoses. These were transient bone marrow, by which he presumed he meant transient bone marrow oedema syndrome, and avascular necrosis.

• Avascular necrosis was one of the differential diagnoses put forward by Miss Nicolas. Miss Nicolas’ other differential diagnosis was transient regional migratory osteoporosis. Transient regional migratory osteoporosis was characterised by joint pain and the presence of bone marrow oedema on MRI imaging. Bone marrow oedema was an MRI finding. The terms ‘transient regional migratory osteoporosis’ and ‘transient bone marrow oedema syndrome’ were describing the same clinical condition.

• Mr Scott and Miss Nicolas therefore agreed on the differential diagnosis for the condition giving rise to Mrs N’s symptoms and incapacity.

• Mr Scott advised that Mrs N’s symptoms might resolve spontaneously, though he offered no opinion as to the probability of this. He was of the opinion that if the symptoms were going to resolve spontaneously, this was likely to be within the next six to twelve months. This was a shorter timescale than he (Dr Evans) had indicated in his previous report.

• His recollection was that he obtained this information from the medical literature. He gave greater weight to Mr Scott’s view, as it was specific for Mrs N. In any event, if spontaneous recovery was going to occur, this would be well before Mrs N reached normal pension age, as this was not until 2026.

• If Mrs N’s symptoms did not resolve spontaneously, then further treatment might be necessary which, as Mr Scott indicated, would be hip replacement surgery. In his (Dr Evans’) previous report, he had explained that the benefits of this would be likely to be sufficient to enable Mrs N to undertake suitable full-time work before she reached Scheme pension age.

On 26 November 2020, Dr Payton (Consultant Occupational Health Physician) wrote to NHS BSA and gave his opinion following Mrs N’s stage two IDRP appeal. He said:-

• The medical evidence was that Mrs N was able to continue working as a nurse until 2019, but developed gradually worsening left hip pain and struggled to mobilise. X-rays of 30 October 2019 showed early osteoarthritic changes of both hips. A CT scan of the pelvis, on 2 November 2019, showed no cause for her left hip pain, but a subsequent MRI scan showed bone oedema in the left hip with a differential diagnosis of infection and regional migratory osteoporosis or avascular necrosis. Pain management and mobilising with crutches was advised as the most 15 CAS-52639-R1X4 appropriate cause of treatment, as there was nothing that could be offered surgically at that stage.

• Mr Scott advised that if Mrs N’s symptoms were to settle spontaneously, this would be within the next six to twelve months. If spontaneous resolution was likely, then her incapacity was unlikely to have been permanent. However, Mr Scott indicated that Mrs N’s symptoms might fail to resolve without further treatment. If further treatment was required, Mr Scott advised that she might require a total hip replacement.

• The evidence indicated, on balance, that even if Mrs N’s symptoms did not settle spontaneously, she was likely to benefit from a total hip replacement. At the time of her original application, it would have been more likely than not that future treatment would have altered the permanence of her incapacity and enabled her to regain fitness for regular full-time employment. Such employment would include work across the general field of employment, including work of a sedentary nature. So, at the time of her application, Mrs N’s incapacity was unlikely to be permanent, either because of spontaneous resolution of her symptoms or in response to treatment in the form of total hip replacement.

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