Lee Andrew v Royal Devon and Exeter NHS Foundation Trust

An appeal on a point of law from a Pensions Ombudsman determination may raise illegality, procedural impropriety or irrationality, including a material self-misdirection on the facts. The appellate court must avoid treating factual disagreement as a legal error and must respect the Ombudsman’s investigatory discretion.

Where inaccurate pension information is alleged to have caused loss, reliance and causation are distinct questions. The relevant issue is whether the claimant would have retired when he did, rather than whether he would eventually have retired. An employer’s possible duty to make reasonable adjustments, including redeployment, is materially different from the claimant’s opportunity to compete for another job. A failure to address that distinction may constitute an error of law.

Mr Lee Andrew appealed under section 151(4) of the Pension Schemes Act 1993 against a determination of the Pensions Ombudsman dated 17 December 2021.

The Trust had provided an inaccurate ill-health retirement estimate. Mr Andrew said that he relied on it in retiring. The Ombudsman awarded £1,000 for distress and inconvenience but rejected financial loss, concluding that Mr Andrew would have retired in any event because he qualified for Tier 1 ill-health retirement.

The appeal concerned the proper approach to reliance and causation, the Ombudsman’s decision not to hold an oral hearing, and whether the possibility of redeployment pursuant to the duty to make reasonable adjustments had been wrongly treated as equivalent to applying competitively for another NHS role.

1. Appeal on reliance and causation dismissed. The Ombudsman’s conclusion necessarily implied that, even with a correct estimate, Mr Andrew would have retired on the same date. The Ombudsman had considered the possibility of a later retirement after continued sickness absence. His conclusion that the available evidence did not establish that outcome was neither without evidential foundation nor perverse.
2. Reliance and causation are distinct. The relevant question was whether Mr Andrew would have retired on 18 February 2018, not merely whether he would eventually have retired. Nevertheless, the Ombudsman was entitled to conclude, on the evidence of the Tier 1 application and award, the prolonged sickness absence and the surrounding circumstances, that Mr Andrew would not have remained in employment beyond that date.
3. Oral hearing. The Ombudsman had not rejected Mr Andrew’s recollection or state of mind. The alleged intermediate course was necessarily speculative, and the decision to determine the complaint on the available material fell within the generous ambit of reasonable disagreement: [2014] EWHC 4240 (Ch).
4. Redeployment. The Ombudsman erred in law by treating the fact that Mr Andrew could apply competitively for another NHS role as answering the question whether he might have been redeployed as a reasonable adjustment. Those possibilities were materially different. The duty to make reasonable adjustments could extend to placing an employee in another post without competitive interview where reasonable: [2004] ICR 954. The Ombudsman therefore failed to address a potentially relevant source of financial loss.
5. The appeal was dismissed on ground 1 and on the oral-hearing ground, allowed on ground 2, and remitted to the Ombudsman to reconsider whether Mr Andrew suffered financial loss because, relying on the inaccurate estimate, he did not seek redeployment.

• Chancery Appeals, High Court: The appeal against the Pensions Ombudsman’s determination dated 17 December 2021 was dismissed on the reliance, causation and oral-hearing grounds, allowed on the redeployment ground, and remitted for reconsideration.