Booth v Oldham MBC

The appellant sought immediate payment of an early/ill‑health pension under the Local Government Pension Scheme Regulations 1997 (notably regulations 27 and 31). The Court of Appeal concluded that the Employment Tribunal's earlier finding that the appellant was not a disabled person at the date of dismissal operated as an issue estoppel on the material period relevant to entitlement and, on the facts, established that he was not permanently incapable of discharging his duties between August 2001 and December 2002. The court also held that the Pension Regulations provide a bespoke statutory dispute‑resolution scheme (including referral to an appointed person, the Secretary of State and the Pensions Ombudsman) which the claimant had failed to pursue, so he could not maintain a fresh High Court action to enforce the statutory rights. The appeal was dismissed for those reasons.

Background and parties: The appellant, a long‑serving employee of Oldham Metropolitan Borough Council, was dismissed for capability on 31 August 2001. He claimed entitlement to an immediate or enhanced pension under the Local Government Pension Scheme Regulations 1997, relying on ill health retirement provisions. The respondent council resisted the claim.

Procedural posture: The matter produced extensive litigation. The appellant pursued Employment Tribunal proceedings under the Disability Discrimination Act 1995 and the Tribunal found on 25 June 2003 that he was not a disabled person. An Appointed Referee under the Pension Regulations considered the pension dispute but the appellant did not pursue the statutory appeals to the Secretary of State or the Pensions Ombudsman. A High Court claim seeking loss from the council's alleged contractual breaches (failure to refer for medical assessment and to secure early pension payment) was struck out by Mackay J. Permission to appeal was given in respect of an alternative claim concerning the council's refusal to refer in December 2002/December 2003, leading to this appeal to the Court of Appeal.

Nature of relief sought: Immediate payment of pension benefits (early or enhanced pension) under the Local Government Pension Scheme Regulations 1997, on the basis of permanent incapacity by reason of ill health.

Issues framed by the court:

• Whether the Employment Tribunal's finding that the appellant was not disabled operated as an issue estoppel preventing a later finding of permanent incapacity under the Pension Regulations for the relevant period;
• Whether the tests for disability under the DDA 1995 and for permanent incapacity under the Pension Regulations were sufficiently different to permit a fresh determination; and
• Whether the appellant was obliged to pursue the statutory dispute resolution machinery in the Pension Regulations and the Pensions Schemes Act 1993 before bringing a High Court action.

Court's reasoning and conclusions: The Court of Appeal held that, on the facts and the evidence available to the Employment Tribunal (including medical reports up to September 2002), the Tribunal's conclusion that the appellant was not disabled at the date of dismissal meant there was no basis to conclude he was permanently incapable between August 2001 and December 2002. Thus the appellant could not show the required ill‑health incapacity for the pension. The court further held that the Pension Regulations contain a specific statutory dispute resolution scheme which the appellant had not exhausted; having statutory remedies available, he could not bypass them by bringing a late High Court action. The court did not decide the broader question whether a DDA finding would always preclude pension incapacity claims in other circumstances but found it unnecessary to do so on these facts.

Appeal dismissed. The Court of Appeal upheld Mackay J's decision on two principal grounds: (1) the Employment Tribunal's finding that the appellant was not a disabled person at the material time meant there was no evidential basis to establish permanent incapacity under the Pension Regulations for the relevant period, and (2) the appellant had failed to pursue the statutory dispute‑resolution procedures provided by the Pension Regulations and the Pensions Schemes Act 1993, so he could not maintain a fresh High Court action to obtain the pension relief.

Employment Tribunal decision 25 June 2003 that the claimant was not a disabled person; Employment Appeal Tribunal dismissed the claimant's appeal (judgment 21 May 2004). Appointed Referee considered the pension dispute in late 2002/early 2003 but the claimant did not pursue further statutory appeals. High Court (Mackay J) struck out the claim on 11 April 2008; permission to appeal limited to the alternative claim was granted (after an initial refusal by Sir Richard Buxton). Appeal to the Court of Appeal: [2009] EWCA Civ 880 (this judgment).