Booth v Oldham MBC

A claimant cannot circumvent a statutory pension dispute-resolution scheme by bringing a later High Court action to enforce rights created solely by the scheme. Where the evidence establishes that the claimant was not permanently incapable of performing the relevant employment at the material date, a further medical referral cannot found recoverable loss. A finding under the Disability Discrimination Act 1995 may not invariably determine permanent incapacity under the Pension Regulations, because the statutory tests differ. On the facts, however, the evidence made the Employment Tribunal’s finding decisive for the relevant period.

The appellant had been employed by the respondent council and dismissed on capability grounds in August 2001. He claimed an entitlement to immediate or enhanced ill-health pension benefits under the Local Government Pension Scheme Regulations 1997.

He initially used the Regulations’ dispute-resolution procedure before the Appointed Referee, but did not pursue the further statutory routes to the Secretary of State or the Pensions Ombudsman. He later brought a contractual claim in the High Court, alleging that the council should have obtained a medical assessment and awarded enhanced benefits. Mackay J dismissed the primary and alternative claims on the council’s application. Permission to appeal was granted only on the alternative claim.

1. Appeal dismissed. The court upheld Mackay J’s dismissal of the alternative claim.
2. The Employment Tribunal’s finding that the appellant was not a disabled person under the Disability Discrimination Act 1995 was made on medical evidence covering the period relevant to the alleged entitlement. The relevant date could not be later than the date of election under regulation 36 of the Local Government Pension Scheme Regulations 1997. On the facts, the disabilities relied on were such that, if they did not amount to statutory disability, they did not establish permanent incapacity to discharge the duties of the employment between August 2001 and December 2002.
3. The court left open whether a person found not to be disabled under the Disability Discrimination Act will invariably fail to establish permanent incapacity under the Pension Regulations. In this case, however, the medical evidence showed no deterioration sufficient to establish permanent incapacity by December 2002, and the later report did not support such a change.
4. It was unnecessary to decide whether the council had a duty to refer the appellant for medical assessment, since, even if such a duty existed, no loss could have resulted.
5. The pension right depended solely on the Pension Regulations, whether or not they were incorporated into the contract. The Regulations contained specific dispute-resolution machinery. Having begun that process, the appellant had to pursue the statutory routes provided by the Regulations and could not instead bring a High Court action years later.
6. Lord Justice Laws and Mr Justice Mann agreed with Lord Justice Thomas.

• Court of Appeal (Civil Division): [2009] EWCA Civ 880 — appeal dismissed.
• High Court, Queen’s Bench Division (Manchester): Mackay J dismissed the primary and alternative claims on the council’s strike-out or summary-judgment application. Permission to appeal was later granted only on the alternative claim.