Young v NHS Business Authority

On an appeal from the Pensions Ombudsman limited to a point of law, the High Court must not entertain factual challenges disguised as legal appeals. Under the National Health Service (Injury Benefits) Regulations 1995, the requirement that permanent loss of earning ability be by reason of the injury is satisfied if the employment injury was a contributory or operative cause. It need not be the sole, dominant or main cause. The decision-maker must assess the injury’s effect on the claimant with the claimant’s actual pre-existing condition, rather than by asking what effect it would have had on an otherwise comparable person without that condition. The matter must be reconsidered on that basis.

Mrs Young, a former NHS community nurse, suffered a back injury at work and subsequently became unable to work. Her application for permanent injury benefit under the National Health Service (Injury Benefits) Regulations 1995 was refused after medical advice attributed her continuing incapacity to pre-existing degenerative spinal changes.

The Deputy Pensions Ombudsman dismissed her complaint. Mrs Young appealed to the High Court under section 151(4) of the Pension Schemes Act 1993, arguing that NHS Business Authority had applied the wrong statutory causation test and had failed to consider the effect of the injury on her with her actual pre-existing condition.

1. The appeal succeeded and the determination of the Deputy Pensions Ombudsman was set aside. The appeal jurisdiction under section 151(4) of the Pension Schemes Act 1993 was confined to points of law. An appealable error included misapplication of a legal principle, misconstruction of a statutory provision, or a decision which no reasonable Ombudsman properly directing himself could have reached, as explained in Wakelin v Read [2000] OPLR 277.

2. Regulation 4(1) of the National Health Service (Injury Benefits) Regulations 1995 required the permanent reduction in earning ability to be by reason of the employment injury. The ordinary language did not require the injury to be the sole, dominant, main or operative cause in the sense of being the predominant cause. A contributory or operative causal connection was sufficient.

3. The purpose of the scheme, although providing a generous substitute income for employment-related loss, did not justify imposing a narrower causation test. The introduction of the wholly-or-mainly requirement into regulation 3(2) confined the injuries capable of qualifying by reference to their connection with employment. It did not add a dominant-cause requirement to regulation 4(1).

4. The decision-maker had asked the wrong question. It had considered what effect the injury would have had on a woman of Mrs Young’s age without a pre-existing condition, rather than what effect the injury had on Mrs Young given her actual condition. The injury might ultimately prove to have had no permanent effect, but that question required proper medical consideration.

5. The jurisdictional objection failed. Mrs Young was entitled to challenge the later, live determination after the Ombudsman’s earlier determination had been quashed and reconsideration directed. NHS Business Authority had properly followed the earlier direction, but that did not prevent a further appeal on the legal question.

6. The matter was remitted to NHS Business Authority for reconsideration on medical advice in accordance with the judgment. The court noted, without deciding the issue, that regulation 4(2) also required consideration of whether cessation of employment was by reason of the injury; those words had the same meaning in both parts of regulation 4.

1. High Court (Chancery Division): the appeal from the Deputy Pensions Ombudsman was allowed, the determination was set aside, and the matter was remitted to NHS Business Authority for reconsideration.
2. Pensions Ombudsman: the Deputy Pensions Ombudsman dismissed Mrs Young’s complaint in a determination dated 28 November 2014.
3. Pensions Ombudsman: an earlier determination had quashed the original refusal and directed reconsideration.