NHS Pension Scheme (PO-17403)

Ombudsman’s Determination

Outcome

Professor G has sustained injustice as a consequence of maladministration (involving infringements of various legal rights) by NHS BSA. 

NHS BSA:

• told Professor G on 20 May 2002 and also the Trust, that Professor G could exceptionally remain and continue to pay contributions to the Scheme even though he had attained age 60 and continuing membership of the Scheme was not permitted under the Regulations. This was negligent and amounted to a negligent statement/misrepresentation;

• was in breach of its statutory duty to administer the Scheme in accordance with the Regulations, and also in breach of a concurrent ongoing duty of care in negligence to provide the correct benefits under the Scheme, by administering the Scheme on the basis that Professor G was entitled to be a member for the period from 20 May 2001 to 10 October 2014, when he was not in fact eligible; and

• was in breach of its duty of care in negligence to administer the Scheme in accordance with the rules by accepting contributions up to 2006 and issuing further documentation to Professor G indicating that he was an active member of the Scheme during the period from 01 February 2001 until 10 October 2014 (in particular the 10 September 2004 estimate issued to Professor G’s financial adviser and the June 2010 statement in relation to Professor G’s right to join the 2008 Scheme).

I also find separately that there have been various breaches of law by NHS BSA in relation to the administration of Professor G’s pension as detailed in paragraphs above.

The complaint against the Trust is not upheld:

• The Trust is not in breach of contract (nor is there a contractual estoppel arising) by the Trust failing to give effect to the terms of Professor G’s contract which purportedly said Professor G was able to join the Scheme when he was re-employed in 2001. The contract, if one exists, is legally unenforceable as it is vitiated on grounds of common mistake that Professor G could, under the Regulations, re-join the Scheme; and

• no findings against the Trust have been made in negligence concerning the statement made in 2001, as such a claim is time barred and in any event no loss arose, and the Trust is not liable in negligence regarding information provided to Professor G about his ability to join the Scheme in 2002, as it was reasonable for the Trust to rely on the confirmation from NHS BSA that this was possible.

I also find that NHS BSA is liable to pay Professor G the amounts set out in the Directions (paragraphs 272-277).

Complaint summary

Professor G’s complaint is that NHS BSA has refused to honour its promise to re-admit him into the Scheme from 2001. Professor G claims that he should be entitled to benefits for his service from 2001, irrespective of whether NHS BSA’s promise to allow him to be readmitted to membership of the Scheme on an exceptional basis was made in error because it had no power to promise to provide benefits other than in accordance with the NHS Pension Regulations 1995 (SI 1995/300) (the Regulations).

NHS BSA also acted negligently in telling the Trust and Professor G that he could be readmitted to membership of the Scheme from 2001 despite the fact that NHS BSA had no legal power to permit this.

Further, he claims that if he was not entitled to admittance in 2001, the Trust, upon his employment, misrepresented his contractual rights and acted negligently.