Nhs Pension Scheme · CAS-52721-C3G8

CAS-52721-C3G8

Ombudsman’s Determination Applicant Mrs Y

Scheme NHS Pension Scheme (the Scheme)

Respondent NHS Business Services Authority (NHS BSA)

Outcome

Complaint summary

Background information, including submissions from the parties The sequence of events is not in dispute, so I have only set out the main points. I acknowledge there were other exchanges of information between all the parties.

Prior to 1 October 2017, Mrs Y was concurrently employed in three part-time NHS nursing roles by Cambridgeshire Community Services NHS Trust (CCS). She contributed to the 1995 section of the Scheme as part of this employment.

NHS BSA has since provided further information about Mrs Y’s employment with CCS as follows:-

• The initial role which began on 1 March 2008; Mrs Y was employed part-time for 26 hours per week with a FTE annual salary of £35,873.

1 CAS-52721-C3G8 • A second role which began on 6 May 2016; Mrs Y was employed part-time, with irregular hours and a FTE annual salary of £35,616.

• A third role which began on 5 September 2017; Mrs Y was employed part-time, with irregular hours and a FTE annual salary of £35,253.

On 1 October 2017, Mrs Y began her employment at the Munro Medical Centre (Munro), contributing to the 1995 section of the Scheme as part of this employment. She was employed on an ‘ad hoc’ basis, at a rate of £200 per session of three-and-a- half hours. Mrs Y continued to work in her existing posts at CCS at this time.

On 1 November 2017, Mrs Y accessed her Total Reward Statement (TRS) via the Scheme’s website. This gave an estimate of £2,112.99 for the annual pension she could receive, plus a tax-free lump sum of £6,338.96, if she were to retire at the Scheme’s Normal Retirement Age (NRA) and take the standard benefit option. The estimate was based on a reckonable membership length of 4 years and 275 days, and pensionable pay of £35,561.49, which had been updated to 31 March 2017.

On 20 December 2017, Mrs Y accessed her TRS via the Scheme’s website. This gave the same estimate of benefits as had been provided on 1 November 2017. NHS BSA has explained that the figures were identical, because there had been no updates to its records in the intervening period.

On 5 January 2018, Mrs Y emailed NHS BSA. She said that she held two part-time NHS posts with considerably different rates of pay and hours worked. Mrs Y raised the following questions:-

• Given that her pension would be based on the highest annual pensionable pay figure from her last three years of Scheme membership, she asked if this was determined from the total salary paid, or the rate of pay.

• How her pension entitlement would be calculated if she had two part-time jobs that fell under different pay bands.

• If she worked on a ‘bank’ basis in the lower-paid job, was she able to opt out of pension contributions for this job and have her final pensionable pay based on the higher-paid of the two jobs.

• Was there a minimum number of hours that she needed to work for a job to be included as part of her pension entitlement.

• She understood that for a job to be considered as part of the final pensionable pay, she would need to have been in a post for at least a year. She asked, if she had been in a higher band post for the final year and in a lower band post for previous years, whether both jobs would be included in the calculation of her pensionable pay.

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Mrs Y’s position

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NHS BSA’s position

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Adjudicator’s Opinion

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Mrs Y did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider. Mrs Y provided further comments in response to the Opinion. In summary, she said:-

• As part of her initial contact with NHS BSA, she made reference to her employment being at considerably different rates of pay. She was told that her pension would be assessed as the halfway point between these posts. Given that NHS BSA was aware of her pay at CCS, the information she provided about her other post having considerably higher pay should have led NHS BSA to ask further questions. It is reasonable to expect that NHS BSA should have highlighted the potential implications of Regulation R5(4) and/or suggested that she seek independent advice.

• She was led to believe that it was possible to opt out of her lower-paid posts and have her pension based on the FTE salary at Munro, notwithstanding the number of hours she worked in that post. That information was incorrect, because her pension benefits were not based on her pro rata pay of approximately £111,000 per year. She relied on the information she was given by NHS BSA. Had an appropriate answer been provided, referencing the potential implications of Regulation R5(4), she would have investigated at that stage how it might affect her pension entitlement.

15 CAS-52721-C3G8 • She is not being offered a pension on the basis that she was informed and had been expecting. She has asserted that there was maladministration by NHS BSA in not making her aware of Regulation R5(4) and its potential impact. Giving incomplete advice, where the information excluded causes the individual to make decisions on incorrect assumptions, is as negligent as giving incorrect advice.

• She continued to work for CCS until March 2022, so has lost the qualifying membership that would have been earned from her opt out up to March 2022. This would have made a significant difference to her pension entitlement.

• She considers that NHS BSA’s failure to chase Munro for the annual update would amount to maladministration.

• The Opinion made no reference to the fact that, subsequent to her post at Munro, she had taken a second similar post at another GP Practice. This was paid at a higher rate of £230 per session of three-and-a-half hours. The Opinion also did not include that the nurse recruited to succeed her in both posts, after her retirement, was paid on the same basis as her. She considers that this supports her position that the rate of pay for her post at Munro was not inordinate.

• She has asserted that redress should be calculated based on what her benefit entitlement would have been, if she had not opted out of the Scheme for her employment at CCS. This should include additional interest at 8%.

• Her understanding is that she is entitled to the return of the contributions that were overpaid. She considers that this should be repaid with interest added at statutory interest rates.

NHS BSA also provided further comments, which are summarised below:-

• Mrs Y’s email, dated 15 January 2018, referred to the enhancement of her pension as potentially being ‘marginal’, if she were to opt out of her other posts. This appears to understate the level of enhancement she expected. It considers that this comment would reasonably lead to a conclusion that there was no inordinate difference in salary, or it would suppress any concerns about whether Regulation R5(4) was relevant to the enquiry.

• Its position is that Munro is responsible for the repayment of Mrs Y’s overpaid contributions. It has contacted Munro to request that it arrange this, as well as consider the payment of additional interest. NHS BSA said this request was first made to Munro as part of its IDRP complaint response in 2020.

• It accepts the Adjudicator’s recommendation of an award of £500 for the distress and inconvenience Mrs Y has suffered.

I have considered the comments submitted by Mrs Y and NHS BSA, but they do not change the outcome. I agree with the Adjudicator’s Opinion.

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I partly uphold Mrs Y’s complaint.

Directions

Dominic Harris

Pensions Ombudsman 4 December 2023

19 CAS-52721-C3G8 Appendix 1 - Scheme Regulations C1(10) and C1(11) “Part C Pensionable Pay, Pensionable Service and Qualifying Service

C1 Meaning of “pensionable pay” and “final year's pensionable pay”…

…(10) Where, having regard to the matters referred to in paragraph (11), the Secretary of State considers that the amount which would, but for the Secretary of State's determination under this paragraph, constitute the member's final year's pensionable pay is inordinate, determine—

(a) what the amount of that pensionable pay is to be, and

(b) the date from which any change in the amount of that pay as a result of that determination is to take effect.

(11) Those matters are—

(a) any variations in the level of the member's pensionable pay during a period not exceeding ten years and ending with the earlier of the date the member ceases to be in pensionable employment or the date the member dies;

(b) the general level of pensionable pay pertaining in NHS employment for members of the same or an equivalent grade or post during the period under consideration for the purposes of paragraph (a);

(c) promotion and re-grading prospects in NHS employment for members of the same or an equivalent grade or post during the period under consideration for the purposes of paragraph (a);

(d) any other matters the Secretary of State considers relevant.”

20 CAS-52721-C3G8 Appendix 2 – Scheme Regulations R5(4) and R5(4a) “Part R Special Provisions for Certain Members…

…R5 Part-time employment…

…(4) Subject to paragraph (5), for the purpose of calculating a member's final year's pensionable pay in respect of part-time employment, the member's pensionable pay will be the amount that the Secretary of State determines would have been paid in respect of a single comparable whole-time employment and any amount by which the member's actual final year's pensionable pay in respect of part time employment exceeds the amount determined will be ignored.

(4A) “A single comparable whole-time employment” in paragraph 4 means the number of hours, half-days or sessions which the Secretary of State determines would constitute a single comparable whole-time pensionable employment.

(5) Paragraph (4) does not apply to the calculation of final year's pensionable pay for the purposes of—

(a) regulations F1(2) and F2(2) (lump sum payable on death in pensionable employment or after pension becomes payable);

(b) regulation S2 (reduction of pension on return to NHS employment).”

21 CAS-52721-C3G8 Appendix 3 – Details of comparable posts provided by Mrs Y The screenshot was obtained on 25 April 2021

22 CAS-52721-C3G8 Appendix 4 – Details of comparable post provided by NHS BSA

JOB DESCRIPTION

POST TITLE: Clinical Nurse Specialist BAND: Band 6 HOURS: 34 hours a week LOCATION: iCaSH Norfolk, Breydon Clinic Great Yarmouth REPORTING TO: Clinical Nurse Manager RESPONSIBLE TO: Service Manager ACCOUNTABLE TO: Head of Integrated Contraception & Sexual Health

Cambridgeshire Community Services NHS Trust is committed to safeguarding and promoting the welfare of children, young people and vulnerable adults and expects all staff and volunteers to share this commitment.

Job Purpose:

1. To assess contraceptive/sexual health needs of patients attending iCaSH Services.

2. To work within iCaSH offering advice and treatments/procedures for patients who require contraception and sexual health services.

3. To act in a responsible manner, being courteous at all times with sensitivity towards the needs of the individual patient, recognising their right to dignity and privacy.

4. To provide training and education to professionals and groups of young people outside of the clinical setting.

5. To work as a member of a fully integrated contraception and sexual health service with a willingness to undertake further training in contraception or sexual health to achieve this where identified.

Main Duties and Responsibilities

1. Provide specialised advice for patients within sexual health services. 2. Carry out complex clinical assessment to aid differential diagnoses for sexual and reproductive health problems. 3. Plan and deliver evidence based care and treatment. 4. Perform contraceptive or sexual health examinations and procedures as required or clinically indicated to aid differential diagnosis. 5. Interpret results and act accordingly. 6. Ensure understanding of and stress the importance of any medical treatment indicated and to describe and explain testing and follow-up procedures.

7. To provide effective partner notification to ensure attendance and testing/treatment of partners at risk, adopting methods that are appropriate and in line with the Partner Notification Policy produced by the Society of Sexual Health Advisors in STDs (SSHA) (where integrated).

23 CAS-52721-C3G8 8. To work with patients to assess risk and to provide information about and discussion of risk taking behaviour and risk reduction.

9. To provide a safe environment and non-judgemental approach to enable patients to ask questions and discuss concerns.

10. To assess whether patients have other concerns and to follow up with appropriate signposting and/or referral as required.

11. To take telephone enquiries from the general public and health care professionals about sexually transmissible infections including HIV, Hepatitis B/C and all contraceptive queries. To discuss risk and respond appropriately to those who are anxious.

12. To record interventions accurately and concisely in patient clinical records and keep confidential records for the purposes of partner notification.

13. Provide appropriate contraceptive advice and methods to ensure an integrated approach.

14. To independently assess, plan and evaluate programmes of care with use of Patient Group Directions (PGDs) or if you have a non-medical prescribing qualification, you will be required to practice as a prescriber as part of this role.

15. To fit and remove LARC where appropriately trained.

Results management, recall procedures and data collection

1. To record data on all patient contacts to enable audit, evaluation and planning of services.

2. To provide management of positive STI/HIV, Hepatitis results. This includes documenting and interpreting results, onward referral where appropriate, and undertaking recalls according to agreed protocols.

3. To ensure that patients are followed up adequately if they need to re-attend for results, treatment or review.

Communication

1. Adapt communication and language to suit patient group/audience

2. To establish good working relationships with key stakeholders.

3. To liaise with and exchange information with other Sexual Health Services, as relevant for the management of patients.

4. Work collaboratively with all Cambridgeshire Community Services iCaSH Services to ensure a corporate approach.

24 CAS-52721-C3G8 Human Resources

1. Maintaining own professional development and requirement to take part in appraisal and KSF process

Clinical and Practice Governance

1. Observe and maintain strict confidentiality with regards to any patient/family/staff/records and information in line with the requirements of the Data Protection Act.

2. Any data that is taken/shared as part of a phone call or transported, faxed or transferred electronically must be undertaken with regard to the Trust Information Governance and Information Security policies. 3. The post holder must adhere to Trust incident reporting, risk assessment and risk management policies and procedures.

4. The post holder must adhere to infection control policies and procedures.

5. It is a condition of your employment that you are currently registered with the NMC and it is your responsibility to maintain your professional registration.

6. Undertake mandatory training and any other training relevant to the role as required by Cambridgeshire Community Services NHS Trust.

7. The post holder must participate in clinical and other audits as required.

8. Provide patients and their families /carers with information on standards they should expect from the team.

9. Participate in clinical supervision on a regular basis.

10. The post holder is required to participate in relevant emergency preparedness process for their team.

11. Participate in a yearly appraisal of self and others and development review where relevant objectives are set.

12. Be responsible for own compliance for mandatory training requirements.

13. Take responsibility for keeping professionally up to date, demonstrating awareness of policy changes.

14. Attend mutually agreed training courses, seminars and conferences for personal and professional development.

15. Assist with teaching and education to individuals and groups from within and outside the service.

25 CAS-52721-C3G8 General

The post holder must at all times carry out his/her duties with regard to Cambridgeshire Community Services NHS Trust Equal Opportunities Policy.

To be aware of the responsibilities of all employees to maintain a safe and healthy environment for patients, visitors and staff.

All post holders must adhere to the code of conduct on confidentiality and be aware of and adhere to all Trust policies and procedures.

This role will be based within an identified locality, however the post holder must be flexible where the need is required to support service delivery within the iCaSH Service.

This job description is intended only as a guide to the range of duties involved. The post holder will need to be flexible and adaptable in order to respond to other duties that may be required from time to time and the changes and developments within the Trust.

This post is subject to the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 and as such it will be necessary for a submission for Disclosure of Barring Service to be made to check for any previous criminal convictions. Cambridgeshire Community Services NHS Trust is committed to the fair treatment of its staff, potential staff or users in line with its equal opportunities policy and policy statement on the recruitment of ex-offenders.

Sustainability.

It is the responsibility of all staff to minimise the Trust’s environmental impact wherever possible. This will include recycling, switching off lights, computers, monitors and equipment when not in use. Helping to reduce paper waste by minimising printing/copying and reducing water usage, reporting faults and heating/cooling concerns promptly and minimising travel. Where the role includes the ordering and use of supplies or equipment the post holder will consider the environmental impact of purchases.

Date: 20th August 2020

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PERSON SPECIFICATION

Job Title: Clinical Nurse Specialist Band: Band 6

Directorate: Ambulatory Care: iCaSH Date: 20th August 2020

* Assessed method A = Application I = Interview T = Test R = References

Essential Criteria * Desirable Criteria *

Qualifications and Training NMC Independent Prescribing Qualification. Registered Nurse A/I/ A/I/ or T/R Counselling qualification T/R NMC Registered midwife Teaching qualification (ENB 998 or Nationally recognised qualification in C&G 730) or mentorship – must be Contraception and or Sexual Health willing to work towards (i.e NDFSRH/ BASHH STIF)

Experience Competent at undertaking Recent experience of working in sexual Microscopy health (Contraception, GUM or equivalent)

Able to demonstrate competency in supply Experience of research and audit of treatments by Patient Group Directions (PGDs) Counselling experience

Able to work autonomously. Experience of performing presentations to internal and Ability to educate users/patients, staff, external audiences other professionals, statutory & voluntary agencies. Accredited qualification and ability to perform minor surgical techniques Evidence of continuous professional such as LARC insertion / removal development & clinical competence Cervical Cytology Sample Taker Experience of working within a Clinical Governance framework. Experience of working with young people in a non NHS environment Evidence of collaborative working

Team worker

Ability to meet deadlines

Experience of leading a team and managing their day to day activities to ensure smooth running of a service.

27  CAS-52721-C3G8 Proven recent experience of working with young people

Proven experience of innovative practice

Skills Working knowledge of NMC Code of Has a proven ability to work in a Conduct, Confidentiality and Administration sexual health contexts with adults and of Medicine. young people.

Working knowledge of the Law relating to Competent at phlebotomy child protection issues in sexual health.

Awareness of the Modernisation Agenda and its impact on sexual health services and clients.

Specialist clinical knowledge in sexual health and/or related specialties.

Willingness to undertake phlebotomy training if not already competent.

Confidence in self to work with multidisciplinary, multi-agency groups.

Good communication skills.

Open non-judgemental attitude.

Able to travel across trust sites independently on Trust business.

Safeguarding and promoting the welfare of children and young people/vulnerable adults Demonstrates understanding of safeguarding issues and application to contraception and sexual health services and processes

• Ability to safeguard and promote the welfare of children and young people/vulnerable adults • Demonstrates understanding of safeguarding issues • Appreciates the significance of safeguarding and interprets this accurately for all individual children and young people/vulnerable adults whatever their life circumstances. • Has a good understanding of the Safeguarding agenda

28  CAS-52721-C3G8 • Can demonstrate an ability to contribute towards a safe environment • Is up-to-date with legislation and current events • Can demonstrate how s/he has promoted ‘best practice’ • Shows a personal commitment to safeguarding children Working within Professional Boundaries • Accepts responsibility and accountability for own work and can define the responsibilities of others • Recognises the limits of own authority within the role • Seeks and uses professional support appropriately • Understands the principle of confidentiality • Demonstrates professional curiosity

• Emotional Awareness Shows respect for others’ feelings, views and circumstances

Has a range of mechanisms for dealing with stress, can recognise when to use them and does so

• Aware of the range of emotions in self and others • Demonstrates empathy for the concerns of others • Listens to and understands directly and indirectly expressed feelings • Encourages others to express themselves openly • Manages strong emotions and responds constructively to the source of problems Shows respect for others’ feelings, views and circumstances • In highly stressful situations keeps own feelings in check, takes constructive action and calms others down. • Has a range of mechanisms for dealing with stress, can recognise when to use them and does so • Listens to personal comments without becoming defensive

29  CAS-52721-C3G8 Self-awareness Has a realistic knowledge of personal strengths and areas for development

Can demonstrate flexibility of approach.

• Has a balanced understanding of self and others • Can demonstrate flexibility of approach • Shows a realistic appreciation of the challenges of working with children and young people/vulnerable adults

Other • Ability to travel across the County A/I sometimes at short notice • Satisfactory DBS Clearance • Successful applicants to posts at band 6 or above for which a DBS check is required, will be asked to pay for this as a condition of their job offer (£44.00 for an Enhanced Check or £27.00 for a Standard Check). This payment will be deducted from their first month’s salary unless a longer pay back period is agreed with the appointing manager. This will not apply to successful applicants who are registered with the DBS Update Service and in possession of the disclosure certificate, for whom an online status check will be undertaken.

Date: 20 August 2020

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