Owens v Dudley Metropolitan Borough Council

Where pension regulations do not define teacher, the term takes its ordinary meaning. Teaching is not confined to classroom delivery, the national curriculum, or groups of pupils. It may include imparting knowledge, understanding and practical techniques which enable a child to engage with education. Whether employment is in the capacity of a teacher is an objective, fact-sensitive question. The contract and job description provide evidence, but the court must examine the work actually undertaken. Counselling and teaching may overlap. Specialist counselling qualifies as teaching where it teaches techniques to overcome barriers to learning; diagnosis or pure counselling will not. The Court of Appeal therefore held that the appellant was a teacher for Teachers' Pension Scheme purposes.

The appellant, a qualified teacher and counsellor, was employed by the respondent local authority in a specialist counselling role in mainstream schools. Her contract described her as teaching staff and a specialist teacher, and she initially contributed to the Teachers' Pension Scheme. The authority later reclassified her as an organiser and transferred her to the Local Government Pension Scheme.

His Honour Judge Gregory dismissed her claim in Coventry County Court on 30 June 2010, holding that her principal function was counselling and facilitation rather than teaching. The appeal concerned whether her employment satisfied the statutory and regulatory description of a teacher, despite the therapeutic medium and absence of national-curriculum teaching.

The Court of Appeal allowed the appeal unanimously. Lord Justice Leveson gave the leading reasoning, with Lord Justice Pitchford and Lord Justice Ward agreeing.

1. The statutory framework required the court to determine whether the appellant was employed in the capacity of a teacher in a school maintained by a local education authority. The Superannuation Act 1972 and the Teachers' Pensions Regulations 1997 established mutually exclusive pension schemes.
2. The regulations did not define teacher. The ordinary meaning therefore applied. Teaching was not limited by the number of pupils, the place of instruction, or whether the subject formed part of the national curriculum. It included imparting knowledge, understanding and practical skills, including techniques enabling children to engage with education.
3. The question was objective and fact-sensitive. The contract and job description were relevant evidence of the capacity in which the appellant was employed, but were not conclusive. The court had to examine the work actually undertaken. Teaching and counselling were not mutually exclusive. Pure counselling or diagnosis might fall outside the category, but the appellant taught emotional, behavioural and cognitive techniques through counselling.
4. The appellate court applied the approach in Todd v Adams and Chope [2002] 2 Lloyds Rep 293, as referred to in Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2003] 1 WLR 577 and Datec Electronics v United Parcels [2007] UKHL 23. The judge had approached teaching too narrowly. The appellant's one-to-one teaching enabled children to access mainstream education, so she was employed in the capacity of a teacher.
5. A declaration was granted that the appellant was a teacher for Teachers' Pension Scheme purposes. If admitted to that scheme, the authority was to take steps to restore her position. If admission was refused, it was to permit transfer of her existing benefits to the Local Government Pension Scheme and pay £7,941 within 28 days of notification.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 359: allowed the appeal and granted a declaration that the appellant was a teacher for Teachers' Pension Scheme purposes.
• Coventry County Court — His Honour Judge Gregory, 30 June 2010: dismissed the appellant's claim for a declaration and damages.