X v NHS London & Anor

This is an appeal by Mr X against a determination of the Pensions Ombudsman. In the later 1990s Mr X was employed by the Kensington and Chelsea and Westminster Health Authority. His employment was terminated by an agreement of February 1999. I will describe the circumstances which led to the termination later.

Pensions to former National Health services employees are provided for by the National Health Service Pension Scheme Regulations 1995, SI 1995/300. Regulation E2 is headed, "Early retirement pension (ill-health)". Mr X's case is that that Regulation applied to him. The relevant part of the Regulation for the purposes of this case is in Regulation E2(1):

The agency which administers National Health Service pensions did not accept that Regulation E2 applied to Mr X. Mr X then invoked the jurisdiction of the Pensions Ombudsman under section 146 of the Pension Schemes Act 1993. The wording in section 146, which is the provision principally relevant in this case, is as follows:

The Ombudsman considered the matter on the papers, as is his usual practice. The papers included what I believe to have been a full set of relevant contemporary documents, supplemented by written statements by the parties of their positions, and such other evidence as they wished the Ombudsman to consider.

On the basis of the materials before him the Ombudsman concluded, in a written determination dated 24th May 2007, that he did not uphold Mr X's claim that he should have been granted a Regulation E2 pension.

Mr X now appeals to this court under section 151(4) of the Pension Schemes Act:

The proposition that an appeal lies only on a point of law is important and places major limitations on the extent to which the High Court can reverse or vary a decision of the Ombudsman.

I have great sympathy for Mr X. As I will explain, he has the tragic misfortune of suffering from AIDS, and any tribunal or court would understandably wish to do whatever it properly can to assist him. However, despite the impressive presentation of his appeal by Mr Westgate on his behalf, I consider that I have to dismiss this appeal. It is in my judgment impossible to identify any relevant error of law in the Ombudsman's determination. Indeed, I would go further. For the appeal to be unsuccessful, as I fear it is, I do not need to say what I say now; nevertheless I do say that in my opinion the conclusion which the Ombudsman reached was not just a conclusion which he could properly have reached on the evidence before him, but the only conclusion which he could properly have reached.

I record that there are two respondents to Mr X's appeal. The first respondent is the successor to the Kensington and Chelsea and Westminster Health Authority ("the Authority"). The Authority was Mr X's employer. The second respondent is the successor to the agency which administered the National Health Service Pension Scheme ("the Agency").

Mr X became employed by the Authority on 5th June 1996. He was a Locality Health Promotion Manager. At some time, which I do not think I know precisely but which was in the first part of 1998, he was diagnosed as suffering from AIDS and as being HIV positive. He commenced a period of sick leave on 29th June 1998, and in the event he did not return to work at any time before the agreed termination of his employment, which was on 15th or 17th February 1999. However, as I will illustrate in more detail later, there were several letters or other documents from time to time over the period from the end of June 1998 to early 1999 which referred to his wanting to return to work and intending to do so.

In this connection I should say a few things about the understanding of AIDS on the basis of which the appeal has been conducted and on the basis of which I approach it. AIDS is a serious and, indeed, a wicked condition for which, as far as I know, there is no known cure. It significantly affects both the quality of life and the expectation of life of persons who, like Mr X, have contracted it. I think it is right to say that it is not the AIDS virus itself which typically causes death. Rather the virus seriously impairs a sufferer's immune systems, so that he is far more likely than a non-sufferer to contract some other infection, and is also more likely to succumb to such another infection rather than to fight it off and recover from it.

An associated point is that it is not the case that a person who contracts AIDS is thereby incapable of working. It is, I believe, generally understood, and a matter of which judicial notice can be taken, that there are many AIDS sufferers who do continue to work. They are more at risk than others of contracting other illnesses which will prevent them from working for varying durations of time. In some such cases they may not recover, but in other cases they do and they may well return to work.

The points that I have just made are of some significance in connection with the words in Regulation E2:

If an employee contracts AIDS that event does not of itself mean that he has thereby become permanently incapable of discharging the duties of his employment. He is, as I understand it, very much more at risk of succumbing to other illnesses which for longer or shorter periods may keep him away from work, but that is not quite the same thing as that the AIDS in itself keeps him away from work.

In fact, Mr X did contract a series of other illnesses that led to him going on sick leave at the end of June 1998 and in the event never returning to his work with the Authority. Mr Westgate's skeleton uses a neat expression to explain this point:

The documents show that at some time Mr X was suffering from a particular condition which kept him away from work, but the condition was improving so that he planned to return to work soon. Yet as soon as he shook off one condition which had been keeping him away from work, he picked up another condition which had the same effect. It was obviously a very difficult and troublesome time for him.

I wish to mention three other matters which were happening in the second part of 1998. One was that someone else was appointed to the specific job which Mr X had carried out within the Authority. The Authority was proceeding on the basis that Mr X would return to it when his condition improved, but a different position would have to be found for him. Mr X seems to have been dissatisfied with the Authority's conduct in putting someone else into his job. I comment in passing that Mr X's reaction, whether justified or not, only makes sense on the footing that he was expecting to get back to work himself, despite the current illnesses from which he was suffering.

A second thing that was happening was that there was or was to be a major reorganisation of the Authority, which involved some former posts within its service disappearing and some new posts being created. As I read the documents, the Authority thought that it would find a position for Mr X within its reorganised structure. However Mr X was unhappy about it, and he seems to have believed, rightly or wrongly, that he would be disadvantaged by the shake up which was in progress.

A third thing that happened was that the fact of Mr X's condition came to be known by some of his colleagues or acquaintances who were among the staff of the Authority. He was understandably dissatisfied over this since he wished, entirely understandably, that his condition should be kept confidential. Indeed he had made this clear in a letter to one of his superiors in the Authority, Dr H.

Mr X was generally dissatisfied with how, as he saw it, he was being unfairly and insensitively treated by his employer, the Authority. He consulted a representative of his Union, UNISON. This was Paula Williams. She wrote to Dr H at the Authority, protesting on Mr X's behalf.

On 4th January 1999, Mr X, guided I am sure by his Union, commenced in (I believe) the Employment Tribunal a complaint against the Authority alleging discrimination on grounds of disability. One of the things he said was that he should not have been removed from his post. Again I make the comment that that only makes sense on the basis that Mr X intended to return to work and believed that he would be able to do so.

Later in January 1999, Mr X wrote to the Authority to the effect that he was due to return to work on 18th January, but would prefer not to do that until an agreement about his future was sorted out.

In the event, he contracted another of what Mr Westgate describes as opportunist illnesses in February 1999 and he went back into hospital on the 15th of that month.

Paula Williams must have been involved in negotiations with the Authority to resolve the dispute between it and Mr X. It will be remembered that he had commenced formal proceedings against the Authority on 4th January. By 15th January (as it happens the day when Mr X went back into hospital) a document resolving the dispute had been prepared. Paula Williams signed it for Mr X on 15th February and an officer or employee of the Authority signed it on 17th February. One of the things that it provided was that Mr X's employment with the Authority was terminated.

Mr X's case before the Ombudsman was, and his case before me is, that by this document he, within the meaning of Regulation E2, retired from his employment with the Authority and did so "because of physical infirmity that makes him permanently incapable of efficiently discharging the duties [his] employment."

In the circumstances I think that I ought to set out the document in full. It is as follows:

“We the undersigned have agreed:

Without any admission of liability the Respondent (Kensington and Chelsea & Westminster Health Authority) agrees to pay the Applicant (Bryan X), within 14 days of receipt of form COT3 signed and dated by the Applicant or his representative, the sum of £14,970.09 (Fourteen Thousand, Nine Hundred and Seventy Pounds and Nine pence) in full and final settlement of all and any claims he may have regarding rights for which a conciliation officer has a statutory duty (s. 18 Employment Tribunals Act 1996) and where the rights arise under the Employment Rights Act 1996 and all rights relating to the Applicant’s contract of employment which will subsequently be terminated on the basis of the above.

The Applicant agrees to withdraw any claims submitted, within five (5) days of this agreement.

It is agreed that the attached reference, Appendix 1, will be the reference provided to future potential employers.

The settlement does not affect any rights the Applicant may have in relation to industrial injury claims or any accrued pension rights.”

Having outlined the relevant facts in the previous part of this judgment, I wish now to refer to some specific extracts from the documents. I do this simply in order to substantiate some general propositions which I have already put forward. The extracts which I will be quoting show in some cases that there were quite frequent references to Mr X returning to work. They show that by January and February 1999 he was plainly dissatisfied with the Authority as an employer. He was obviously content to leave. At least, he was content to leave on the basis of being paid the amount which the compromise agreement provided for him to be paid. There is, as far as I can see, no reference anywhere in any contemporary document to Mr X's medical condition meaning that he was permanently incapable of returning to work or of discharging the duties of whatever employment he might have in a reorganised Authority.

A letter of 24th July 1998 from Mr X to a lady at the Human Resources Department of the Authority includes the following:

On 21st August 1998 Dr Cooney, Occupational Health Physician, wrote to Dr H, Mr X's superior at the Authority:

On 5th September 1998 Mr X wrote to Dr H:

On 18th September 1998 there was another letter from Dr Cooney to Dr H:

On 8th October 1998 Dr H replied. She thanked Mr X for his letter and said, among other things:

On 15th October 1998 Mr X wrote again to Dr H:

On 21st October 1998 Dr H replied:

On 30th October 1998 Mr X wrote a fairly long letter to Dr H. Included in it was the following:

On 11th November 1998 Paula Williams of the Union first appears in the documents. She wrote to Dr H. Her letter was headed "Bryan X - return to work". She then complained about the manner in which Mr X had been treated by the Authority and she complained about the circumstance that Mr X's former position had been now given to someone else. She suggested an informal meeting to try to resolve the situation. Her letter ended:

On 11th November 1998 there is a third letter from Dr Cooney to Dr H. It includes the following:

On 30th November 1998 Paula Williams of UNISON wrote to the Director of Human Resources at the Authority:

On 11th December 1998, Dr H wrote to Mr X. The letter includes this paragraph:

On 11th January 1999 Mr X wrote to Dr H. He told Dr H that all discussions regarding his post and recent developments within the Department would be represented by Paula Williams. He continued:

On 19th January 1999 Paula Williams wrote to Dr H. Her letter includes the following:

Finally, I refer to a letter from Dr H to Mr X dated 19th January 1999, only one sentence:

I comment with reference to the quotations which I have set out above that, as it appears to me, they amply demonstrate: first, that Mr X, despite setbacks, wanted to return to work and regularly gave dates when he hoped, mistakenly as it turned out, that he would be able to do so; second, that although the Authority had filled Mr X's previous position with someone else, the Authority nevertheless expected Mr X to return to it in some capacity or other; third, that as time passed Mr X was becoming increasingly dissatisfied and disenchanted with the Authority as his employer.

I have already quoted the compromise agreement of 15th and 17th February 1999. It will have been noted that at the end of the first paragraph of the letter there is a provision that Mr X's contract of employment will be terminated on the basis of what had been set out previously in the paragraph. After some time (a matter of months rather than years) Mr X and those advising him became aware of the possibility that he might qualify for a Regulation E2 pension. If he did, it would be of considerably more value to him than any other rights which he had in consequence of the termination of his service with the Authority. I will not follow through the ins and outs of his attempts to secure agreement that a Regulation E2 pension could be payable to him. I think it is sufficient for present purposes for me to say that the Agency was not willing to accept that he should receive a Regulation E2 pension. In the course of its deliberations the Agency wrote a number of letters indicating that it considered itself to be bound by the view of the Authority on the matter. It has been criticised for that. I think the criticism is justified, but I do not think that this is a point which has any impact on the outcome of the present appeal, and I shall not say anything more about it.

Eventually there was final decision by the Agency that Mr X did not qualify for a Regulation E2 pension. It was possible under the Pension Schemes Act for Mr X to appeal against that decision to the Pensions Ombudsman and that is what he did.

As I have said, the Ombudsman had what I believe to have been a complete set of relevant documents before him and he considered other materials that were presented to him. In accordance with his usual practice, he sent a draft provisional decision to the parties for comments. Some comments were made. The Ombudsman's final determination was issued on 24th May this year 2007. The major part of the decision is occupied by the Ombudsman's outline of the facts and of the various statements made to him by the parties involved. He states his own conclusions, quite briefly, towards the end of his determination and I will quote only a few of the paragraphs containing his conclusions:

“43.

It seems unlikely had any application been made in August 1998 that Mr X would have me the criteria. Far from indicating that he was permanently incapable of working, both his own statements and the view of the OH practitioner was that a return to work was expected, initially on 16 November 1998. I note that despite some setbacks shortly after that view was expressed, it seems that Mr X was regarded as fit enough to return to work on 18 January 1999 although in the event he did not do so. I am not persuaded by Mr X’s arguments that his former Employer should have drawn the conclusion at the time that he was permanently incapacitated. I do not see how the Employer can be criticised either for relying on the expert opinion of the OH practitioner, or for accepting at face value Mr X’s statements, made on a number of occasions, that he wished not only to remain in employment but that he was capable of so doing.

47.

Mr X’s employment ended as part of the terms of the Agreement to compromise the proceedings before the Employment Tribunal. Although I have noted that NHS Pensions were informed that the reason for termination was redundancy, no such reason was given in the Agreement. It would be more accurate to say that his employment was terminated by mutual consent. No doubt, particularly from Mr X’s viewpoint, his illness may have been a factor for him to take into account but that is not the same as saying that he retired because of physical or mental incapacity.

48.

It may well be, had the employment not ended in the way that it did, that Mr X would, at some later date have left due to incapacity. But it may also be that he would have been made redundant, or else offered suitable alternative employment within the Employer. As a matter of fact none of those possibilities is the reason why Mr X left employment. It follows that in my view Mr X did not meet the criteria set out in the Regulation.

50.

I do not uphold Mr X’s claim that he should have been granted retirement on grounds of ill health on or before February 1999. Contrary to his assertion the evidence was that he was at that time expected to be fit to return to work.”

Mr Westgate, on behalf of Mr X, submits that the Ombudsman's decision was wrong in law and that the Ombudsman ought to have concluded that the conditions of Regulation E2 were satisfied. I have already set out the relevant part of Regulation E2, but for convenience I will repeat it here:

Broadly, I accept the submissions of Mr Nicholls for the Agency and of Miss Chudley for the Authority as to the conditions which need to be satisfied for Regulation E2 to apply. Mr Nicholls said that there were three conditions, but in deference to Mr Westgate's submissions in reply I will split what was Mr Nicholls' second condition into two. So on that basis there are four conditions. They are as follows:

Conditions 1 and 2 are clearly satisfied. Mr X did retire from his employment with the Authority. On this particular occasion he retired, not by a unilateral act on his part, but by an agreement reached between himself and the Authority. It is accepted, however, that although there was an element of agreement in what happened, it was still the case that Mr X retired from his employment. And as to the second condition, clearly Mr X had a physical infirmity and indeed a very serious one.

Condition 3 was not satisfied if the matter fell to be judged at the time when the employment terminated. On 17th February 1999 there was no way of telling whether the AIDS from which Mr X was suffering would make him permanently incapable of discharging the duties of his employment. He might have recovered and been able to go back to work, and everything that Mr X had been saying or writing in the preceding months suggested that he thought he would have done those things, that is to say recovered and gone back to work.

Mr Westgate says that condition 3 is nevertheless satisfied because, even though it was not known on 17th February 1999 that the AIDS related infirmity from which Mr X was suffering made him incapable permanently of working, in the event that has proved to be the case. Mr Westgate says that that is sufficient and he relies in this respect on the decision of Lightman J in Spreadborough (the Pensions Ombudsman) v Wandsworth LBC [2004] EWHC 27 (Ch). I am far from convinced by this. The Spreadborough case was concerned with a rather different question arising under different provisions of a different scheme. However, I will not pursue this particular matter because in my judgment the crux of the case is condition 4 and in my definite judgment condition 4 is not satisfied. It simply was not the case that Mr X's retirement happened because of his infirmity.

I could, I think, leave this matter simply on the basis of the following four propositions:

However, I will not leave the matter simply on that basis. As Mr Westgate has effectively said (and there is some force in this), the Ombudsman's reasoning, particularly in his paragraph 47, is very truncated. To say, as the Ombudsman does, that the employment was terminated by mutual consent is no doubt true, but does not necessarily of itself resolve the question which the Ombudsman had to determine. It is surely necessary to address the further question: why did Mr X and the Authority mutually consent to the determination of the employment? Was the reason because Mr X was suffering from AIDS? The Ombudsman did not spell out his answer to that question, although I think that his answer is clearly implicit and is that the reason was not because Mr X had AIDS. However, if the line is pursued that paragraph 47 leaves gaps which it is unsatisfactory to fill by reference to what is implicit rather than what is stated, the most which Mr Westgate could hope to achieve would be for me to remit the case to the Ombudsman to make a specific finding upon why it was that the parties agreed that Mr X's employment should terminate.

I accept that, if there is a further fact to be found, the court on an appeal would not normally make the finding itself, but would remit the case to the first instance fact-finder. In this case that means the Ombudsman. However, there is an exception where on the evidence there is only one tenable finding which is possible. It is pointless for the court on appeal to remit to the Ombudsman a question of fact where the court considers, as I have to say I do, that there is only one possible finding which could be made.

On the basis of the evidence which I have reviewed earlier, I am of the firm opinion that the only possible finding for the Ombudsman, if he had spelled out in detail what led to his conclusion, was that Mr X's illness was not the reason for his employment terminating. The facts to my mind make it clear beyond dispute that the employment terminated as part of a compromise settlement of a discrimination complaint. It terminated at a time in the lead up to which Mr X had frequently referred to returning to work. Moreover, it terminated at a time when, whether justifiably or not, Mr X was thoroughly disenchanted by the Authority as an employer and manifestly did not wish to continue in its services. It terminated in circumstances where there is no evidence of the Authority ever having said that, because Mr X was ill, therefore he could not continue to be employed by the Authority.

In all those circumstances I simply cannot see as a conceivable possibility that the Ombudsman could find that the reason why the parties agreed that Mr X's employment should terminate was that, as they both accepted, the AIDS from which he was suffering made him permanently incapable of performing the duties of his employment.

Mr Westgate has correctly said that Mr X's illness must have had something to do with the circumstances which led to the termination of the employment. If Mr X had not been ill and thus had not been absent from work for quite a long time his original job would presumably not have been filled by someone else. If he had not been ill and away from work, he would not have brought proceedings against the Authority for disability discrimination. Those matters, however, are only to say that, if Mr X had not had the misfortune of contracting AIDS, the circumstances which led to the decision that his employment should be terminated would not have arisen. Thus, his illness was a significant feature of the background against which it was agreed between him and the Authority that his employment would terminate. But in my firm judgment that is far too remote for it to be able to be said that the illness was "the cause" or even "a cause" of the termination. It was a condition which had existed and which gave rise to other more immediately relevant circumstances. Those more immediately relevant circumstances were the true cause or causes of the termination. For those reasons I am satisfied that, on the main point raised in this appeal, the Ombudsman's decision is correct, even if he might have expanded somewhat in his reasons for it. To that extent I dismiss the appeal.

There is another point with which I have not yet dealt. The Ombudsman has jurisdiction under section 146(1)(a) of the Act to investigate and make determinations about complaints of maladministration. He also has power under section 151(2) of the Act to give directions requiring steps to be taken to rectify maladministration.

Here Mr Westgate submits, if I follow the point correctly, that the Authority as Mr X's employer was guilty of maladministration in the following respect. Employees of the Authority, and in particular Dr H, should have realised that, as time passed towards the end of 1998 and into early 1999, the incapacity brought about by Mr X's illness had become permanent; and even though this may not have been so back in the middle of 1998, nevertheless a stage had been reached where Mr X was permanently incapable by reason of the AIDS from which he was suffering of efficiently discharging the duties of his employment.

The argument continues that the Authority, and Dr H in particular, should have drawn Mr X's attention to Regulation E2 and should have suggested that he should request the Authority to terminate his employment explicitly on grounds that he was suffering from permanent ill-health. The argument then says that, if that had happened, the Authority would have been willing to terminate the employment on grounds so described, and the Agency would have agreed to pay a Regulation E2 pension. The Authority, and Dr H in particular, did not do any of those things and its omission to do them is said to have been maladministration.

It seems to me that the argument has essentially been dealt with and dismissed in paragraphs 41 and 43 of the Ombudsman's determination. Without repeating those paragraphs, I would say that I agree with what the Ombudsman says. Further, even if those paragraphs are not precisely directed to the way in which Mr Westgate puts the point, I am not prepared to remit this single issue to the Ombudsman. After all, Dr H had received communications from Dr Cooney to the effect that Mr X's condition should improve. It seems to me that it simply would not be open to the Ombudsman to find that there was maladministration by Dr H in her not having failed to work out for herself either that Dr Cooney was wrong or that, as time passed and Mr X suffered yet more opportunistic illnesses, the situation had already turned into one of permanent incapacity justifying a claim for a pension and a Regulation E2. For those reasons, I do not accept the maladministration argument which has been put to me on Mr X's behalf.

For the foregoing reasons, I must dismiss this appeal.