The NHS Business Services Authority v Williams

Eligibility for special class status under regulation R2 of the National Health Service Pension Scheme Regulations 1995 depends on the objective meaning of being in pensionable employment as a nurse within the NHS. The inquiry is not determined solely by job function, job title or qualification. Those matters inform one another and must be assessed together, including the contractual duties and job description, the actual functions performed, the NHS employment context and relevant professional qualifications.

A person performing some functions ordinarily undertaken by nurses is not thereby employed as a nurse. In the exceptional case of an unqualified person, the post would have to be one practically occupied by a qualified nurse. A neonatal nursery nurse with a distinct qualification, title and job description was not within regulation R2.

Ms Williams was employed from 1977 until 2014 as a nursery nurse in a neonatal intensive care unit and was a member of the NHS pension scheme governed by the National Health Service Pension Scheme Regulations 1995. She claimed special class status under regulation R2, which could reduce her normal pension age from 60 to 55.

The Pensions Ombudsman determined that she was employed as a nurse, relying principally on the nursing care she provided and disregarding the significance of her job title and qualification. NHSBSA appealed under section 151 of the Pension Schemes Act 1993. The central issue was whether her employment was objectively employment as a nurse within regulation R2.

1. Appeal allowed. Ms Williams was not in pensionable employment as a nurse within regulation R2. The Ombudsman’s determination and compensation award could not stand.
2. Regulation R2 does not confer a discretion on NHSBSA, the Minister or another decision-maker to determine whether employment is analogous to nursing. The meaning of “nurse” is an objective question of law for the Ombudsman or the court.
3. The expression “employed as a nurse” must be construed in the context of employment within the NHS. Job title, job description, contractual duties, actual job function and professional qualification are relevant and mutually informative. Job function is important, but it does not automatically override the other factors. A qualified nurse employed as a secretary or personal assistant is not employed as a nurse; conversely, a change of title without a substantive change of role is not decisive.
4. The statutory background concerning the regulation and use of nursing titles supported the conclusion that the draftsman principally contemplated qualified nurses employed in nursing posts. The position of midwives, health visitors and physiotherapists also supported treating qualification as part of being in pensionable employment in the relevant profession.
5. It was theoretically possible for an unqualified person to be employed as a nurse, but only in the most exceptional circumstances, such as employment in a post practically occupied by a qualified nurse. Ms Williams’s duties included nursing functions, but there was no finding that her post was practically the same as that of a registered band 5 or 6 nurse. Her neonatal nursery nurse role remained distinct.
6. An analogy with nursing auxiliaries could not alter the construction of regulation R2. Any mistaken treatment of other employees did not justify extending special class status to Ms Williams. The decision in Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515 did not affect the conclusion.
7. Since Ms Williams was not entitled to special class status, there was no maladministration giving rise to compensation. Even if the substantive conclusion had been wrong, NHSBSA had adopted a well-arguable position.

The judgment states that the Pensions Ombudsman determined on 10 March 2015 that Ms Williams qualified for special class status and awarded her £250 for distress. NHSBSA appealed that determination under section 151 of the Pension Schemes Act 1993.

The High Court allowed the appeal and held that Ms Williams was not in pensionable employment as a nurse under regulation R2.