Sanderson v NHS Business Services Authority

For a self-employed locum practitioner, deemed pensionable employment depends on a current engagement under the required contract for services. A future booking or contractual obligation to work later is insufficient. The relevant question is whether, at the material time, the practitioner is bound to perform services now, including activity incidental or ancillary to that performance. Such activity may include necessary travel, breaks, or conduct constrained by the contract. The engagement must also be linked appropriately to contributions to the Scheme. A purely personal break from work ends the engagement for these purposes.

The appellant appealed on a point of law from the Pensions Ombudsman’s determination of 30 January 2019. The Ombudsman had refused his complaint concerning the death benefits payable following the death of his wife, a self-employed locum GP and member of the National Health Service Pension Scheme.

The issue was whether she was in pensionable employment when she died during a Christmas and New Year gap between completed and future bookings. If so, the appellant would qualify for more generous death-in-service benefits under the National Health Service Pension Scheme Regulations 1995/300. If not, benefits were payable on the basis of death in deferment.

1. Appeal dismissed. The appellant’s wife was not in pensionable employment when she died. Her future bookings did not constitute current engagement under a contract for services.
2. The 1995 Regulations ordinarily link death-in-service benefits to the member’s current status at the time of death. The deeming provisions for self-employed locum practitioners seek to reproduce the relevant current characteristics of employment, rather than extend cover merely because a contract imposes an obligation to work in the future.
3. The expression “engaged” in the definition of locum practitioner is in the present tense. It requires a current obligation to perform services now under a qualifying contract for services. A contractual undertaking to provide services later is insufficient.
4. The engagement may include direct clinical work and activity incidental or ancillary to performing the contracted service. It may also include periods during which the practitioner is not doing something that he or she would otherwise do because the contract imposes a relevant duty or restriction. There must be an appropriate link between that engagement and contributions to the Scheme.
5. Travel necessary to provide the contracted services, and breaks forming part of the process of properly performing them, may fall within the engagement. Whether a continuous multi-day engagement exists is fact-sensitive and was left open. It may require evidence that there was no cessation and re-engagement within paragraph 9A of Schedule 2.
6. On the facts, the appellant’s wife was enjoying a break of more than two weeks. There was no finding that she was performing services or undertaking ancillary activity under any contract. The break therefore ended her engagement, notwithstanding her future bookings.

The appeal was dismissed.

• High Court (Chancery Division): appeal from the Pensions Ombudsman’s determination of 30 January 2019; appeal dismissed.
• Pensions Ombudsman: complaint not upheld. The Ombudsman agreed with the Adjudicator that the member was in pensionable employment only on days on which she actually worked, subject to the wider analysis of engagement addressed by the High Court.