Department for Education v Molyneux

Where pension scheme regulations require an applicant to supply all medical evidence necessary to establish entitlement, that burden rests on the applicant. A supplementary power allowing the scheme administrator to request further information does not, without clear words, impose a corresponding duty to identify evidential gaps or invite further evidence.

Public law duties informing the administration of a statutory pension scheme do not justify implying an obligation inconsistent with clear regulatory language. Such a supplementary power should nevertheless be construed pragmatically, so that it can operate where, for example, an easily supplied document is missing or circumstances change.

The appellant, a teacher and member of the Teachers’ Pension Scheme, applied for an ill-health pension. The Department for Education rejected the application, on medical advice, because permanent incapacity had not been established. Following internal reviews, the Pensions Ombudsman directed the Department to reconsider the application and obtain further information from the appellant’s medical practitioners.

On the Department’s appeal under section 151 of the Pension Schemes Act 1993, the High Court held that the Ombudsman had failed to take proper account of regulation E33(2A) of the amended regulations and remitted the matter. The central issue before the Court of Appeal was whether regulations E33(2A) and E33(3) imposed an implied obligation on the Secretary of State to request further medical evidence before rejecting an application.

1. Appeal dismissed. The High Court had reached the correct conclusion in allowing the Department’s appeal and remitting the Ombudsman’s determination.
2. Regulation E33(2A) of the amended Teachers’ Pension Regulations 1997 is framed as an obligation on the applicant to provide all medical evidence necessary to determine entitlement to incapacity benefits. It places the whole of the onus of producing that evidence on the applicant. The word “accompanied” may have some elasticity and may include evidence supplied before the decision or an internal appeal, but that does not alter the allocation of responsibility.
3. Regulation E33(3) confers a supplementary power on the Secretary of State to request relevant information, including medical evidence, as he thinks fit. Read pragmatically, the power may be used where an easily supplied document is clearly missing, or where a relevant change of circumstances comes to light. It is not an implied obligation to identify missing evidence, formulate questions, or defer a decision until the applicant has supplied further material.
4. The Secretary of State’s public law duties, informed by the general law applicable to pension trustees and the principles discussed in Harris v Shuttleworth [1994] ICR 991, do not require an implication inconsistent with the clear wording of regulation E33. The approach to practical construction applied in British Airways Pension Trustee Ltd v British Airways plc [2002] EWCA Civ 672 supported this conclusion.
5. The remaining grounds did not require determination because they could not alter the result. Lady Justice Arden gave the leading judgment; Lord Justice Aikens and the President of the Queen’s Bench Division agreed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the High Court’s conclusion on the interpretation of regulations E33(2A) and E33(3).
• High Court of Justice (Chancery Division): On an appeal under section 151 of the Pension Schemes Act 1993, HHJ Mackie QC allowed the Department’s appeal from the Pensions Ombudsman and remitted the matter for reconsideration, citing [2010] EWHC 2631 (Ch).
• Pensions Ombudsman: Directed the Department to reconsider the ill-health pension application after finding that relevant information had not been obtained and that treatment options had been assessed incorrectly.