Owens v Dudley Metropolitan Borough Council

The central issue was whether employment providing children with techniques to deal with emotional and behavioural difficulties could amount to employment "in the capacity of a teacher" for the purposes of the Teachers' Pension Scheme under s.9 of the Superannuation Act 1972 and the Teachers' Pensions Regulations 1997. The court held that the ordinary meaning of "teacher" is not confined to classroom instruction of the national curriculum and can include one-to-one teaching of techniques that enable pupils to access mainstream education. The contractual description, job specification and the actual duties performed were material to establishing the capacity in which the appellant was employed. The Court of Appeal allowed the appeal, holding that the appellant's role as a "Specialist Teacher - Counselling" involved teaching in the relevant statutory sense and thus entitled her to participate in the Teachers' Pension Scheme; the county court’s narrower approach was unsound.

The court directed that the appellant be declared a teacher for the purposes of the TPS and ordered remedial steps: admission to the TPS and placement as if she had not been moved to the LGPS, or, if the TPS will not admit her, transfer of benefits and payment of the agreed loss of £7,941.

Background and parties: The appellant, a qualified teacher and counsellor, was employed by Dudley Metropolitan Borough Council in a post described in recruitment material and her contract as "Specialist Peripatetic Teacher - Counselling". The respondent local authority designated the posts as organisers and moved the appellant from the Teachers' Pension Scheme (TPS) to the Local Government Pension Scheme (LGPS). The appellant (supported by the National Union of Teachers) sought a declaration that she was entitled to be admitted to the TPS and damages.

Procedural posture: The appellant lost in the Coventry County Court (His Honour Judge Gregory). With permission to appeal granted by Rix LJ, she appealed to the Court of Appeal, which heard argument on 15 March 2011 and delivered judgment on 31 March 2011.

Nature of the claim / relief sought: (i) a declaration that the appellant was employed "in the capacity of a teacher" for the purposes of the TPS and therefore entitled to admission to that scheme; and (ii) damages or compensatory relief for the loss caused by placement in the LGPS.

Issues framed by the court: (i) the proper construction of the term "teacher" in the statutory and regulatory framework (s.9 of the Superannuation Act 1972 and the Teachers' Pensions Regulations 1997); (ii) whether the appellant's contractual description and actual duties meant she was employed in the capacity of a teacher; and (iii) whether the county court had applied an unduly narrow conception of teaching.

Court's reasoning and decision: The Court of Appeal emphasised that Parliament had not narrowly defined "teacher" in the Teachers' Pensions Regulations, so the word must be given its natural meaning. That natural meaning is not limited to classroom instruction, number of pupils, or delivery of the national curriculum. The court accepted there is a blurred line between counselling and teaching in some contexts, but held the contractual terms and job description — specifically references to "delivering teaching in emotional, behavioural and cognitive education" and enabling access to learning — demonstrated that the appellant's duties included one-to-one teaching of techniques to remove barriers to learning. The county court had approached the concept of teaching too narrowly; on the totality of the evidence the appellant was properly described as employed in the capacity of a teacher and thus eligible for the TPS. The court allowed the appeal, granted the declaration sought and ordered remedial steps including placement in the TPS or, if admission was refused, transfer of TPS benefits to the LGPS and payment of the agreed loss (£7,941).

Subsidiary findings: The court noted the distinction between contractual job title and actual duties is important: the contract and the reality of the duties are both relevant. It also observed that differing classifications for pay and pension may coexist but the statutory test for pension entitlement depends on employment capacity, not merely contractual labels.

Appeal allowed. The Court of Appeal held that the appellant's role, as described by her contract and by the evidence of her duties, involved one-to-one teaching of techniques enabling pupils to engage with mainstream education and therefore she was employed "in the capacity of a teacher" for the purposes of the Teachers' Pension Scheme. The lower court had applied too narrow a definition of "teaching." The court granted a declaration and ordered remedial steps including placement in the TPS or transfer/compensation if TPS admission is refused.

Appeal from Coventry County Court (His Honour Judge Gregory, Case No. 9ST00019). Permission to appeal granted by Rix LJ. Appeal heard in the Court of Appeal (Civil Division); neutral citation [2011] EWCA Civ 359 (judgment 31 March 2011).