The Nhs Business Services Authority v Christine Williams
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warren |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] EWHC 1952 (Ch) |
| Date | 28 July 2016 |
| Court | Chancery Division |
| Docket Number | Case No: CH/2015/0189 |
[2016] EWHC 1952 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE MATTER OF REGULATION R2 OF THE NATIONAL HEALTH SERVICE PENSION SCHEME REGULATIONS 1995
AND IN THE MATTER OF A DETERMINATION OF THE PENSIONS OMBUDSMAN AND AN APPEAL UNDER SECTION 151 OF THE PENSION SCHEMES ACT 1993
Royal Courts of Justice
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
Mr Justice Warren
Case No: CH/2015/0189
Oliver Sanders (instructed by the Treasury Solicitor) for the Appellant
David E Grant (instructed by Blake Morgan LLP) for the Respondent
Hearing dates: 23, 24 February 2016
Judgment Approved
Introduction
The issue in the present appeal is whether the Respondent (" Ms Williams"), was "in pensionable employment as a nurse" within the meaning of Regulation 2 of Part R of the National Health Service Pension Scheme Regulations 1995 (" the 1995 Regulations").
The Appellant (" NHSBSA") is the administrator of the National Health Service Pension Scheme (" the Scheme"), a statutory pension scheme providing final salary benefits for certain persons employed in the National Health Service (" the NHS"). Ms Williams is a member of the section of the Scheme governed by the 1995 Regulations.
Under Regulation E1 of the 1995 Regulations, the normal retirement age of a member is specified as 60. But where Regulation R2 applies, Regulation E1 applies as if the reference to age 60 were a reference to age 55. The status thus conferred is referred to as "Special Class Status" (or " SCS"), although this is not a term which appears in the 1995 Regulations themselves. If Ms Williams qualified for SCS, her pension, on her early retirement, should have been based on a normal retirement age of 55, and thus should have been reduced, for early payment, only if retirement was before that age. Instead, NHSBSA has taken the position that she does not qualify for SCS and has reduced her pension for early payment from age 60.
The Pensions Ombudsman (" the Ombudsman") decided that Ms Williams qualified for SCS. His determination (" the Determination") was released by him on 10 March 2015.
The Scheme
Regulation R2, which is headed "Special provisions for certain members" provides as follows:
"R2 Nurses, physiotherapists, midwives and health visitors
(1) Subject to paragraph (2), this regulation applies to a member –
(a) who, at the coming into force of these Regulations –
(i) is in pensionable employment as a nurse, physiotherapist, midwife or health visitor, or
(ii) has accrued rights to benefits under this Section of the scheme arising out of a previous period in which she was engaged in such employment and at no time since the last occasion on which she was so engaged has she had a break in pensionable employment for any one period of 5 years or more,
and
(b) who spends the whole of the last 5 years of her pensionable employment as a nurse, physiotherapist, midwife or health visitor.
(2) This regulation shall cease to apply if the member has a break in pensionable employment for any one period of 5 years or more ending after the coming into force of these Regulations.
(3) Where this regulation applies –
(a) regulation E1 (normal retirement pension) will apply to the member as if the reference, in paragraph (1) of that regulation, to age 60, were a reference to age 55… "
The principal enabling Act for the Regulations is the Superannuation Act 1972. Neither that Act, nor the 1995 Regulations or any other regulations made under that Act, provides any definition of "nurse".
SCS appears to have derived from section 16 of the Local Government Superannuation Act 1937, an Act pre-dating the creation of the NHS. Although the relevant pension scheme provided for a normal retirement age of 60, that Act contained provisions for the early retirement at age 55 of female nurses, midwives and health visitors. The justification for these provisions reflected a contemporary attitude to women which no longer has a place in our society, namely that the specified roles entailed duties which were considered physically arduous and required a high standard of physical fitness which it was then considered would be beyond most women after the age of 55.
That explanation can be found stated in a circular issued by the NHS Superannuation Branch of the Department of Health and Social Security, on 3 April 1989, SD Letter 89(7). It was there described as a concession but it was a concession only in the sense that a policy decision had been taken to make special provision for this class of employee, which was reflected in the statutory provision.
The special treatment was never, in practice afforded to nursery nurses generally. Mr Sanders (who appears for NHSBSA) suggests that this was because the role of a nursery nurse ordinarily involved the care of healthy rather than sick babies and infants and this work was considered less arduous or demanding. That may or may not be so; the Ombudsman made no finding one way or the other about this and I do not take it into account.
Mr Sanders has also explained that, in 1974, certain nursery nurse functions were transferred from local authority control to the NHS. An oversight meant that employing authorities were not initially instructed that the transferred nursery nurses should be excluded from SCS. However, a 1978 instruction was subsequently issued directing their exclusion.
The practical exclusion of nursery nurses, including those working in special care baby units, from SCS is reflected in circulars from the NHS Superannuation Branch over the years. For instance, SD Letter 88(20), dated 22 August 1988, which provided guidance to employing authorities ("EAs"), included the following:
"Following several enquiries made to the Branch, it is confirmed that Nursery Nurses, including those working in special care baby units are not members of the special classes as defined by the regulations.
Consequently the minimum retiring age for this group of employees is age 60, and to ensure that in retirement they are treated correctly in accordance with the regulations, all Nursery Nurses should be shown as capacity code "4" on forms…
Employing Authorities are asked to bring to the attention of this group of employees that they are not members of the special classes and their normal retiring age is 60.
The EA Guide will be amended in due course."
Ms Williams did not, at this time, have brought to her attention that she did not qualify for SCS.
The Ombudsman records at [11] of the Determination the explanation given by the Department of Health that during 1989 and 1990 there was a review of SCS. This explanation is set out in more detail in [57] and [58]. It appears that, in the course of this review, the Department of Health consulted the Chief Nursing Office and other NHS nurse leads and stakeholders. The Chief Nursing Officer said that focusing on arduous duties for SCS classification was less relevant and that a nursing qualification was more important. It was also noted that merely holding a qualification should not be the deciding criterion, but that there should also be a requirement for it in carrying out the person's duties.
It was decided that the earlier main focus on "physically arduous" duties for classification purposes had by then become less relevant. In contrast, the holding of a professional qualification had become more important. The review included the position of nursery nurses in neonatal intensive care units and views were sought from interested parties. The Ombudsman puts it this way:
"In relation to nursery nurses in neonatal intensive care units [the Department of Health] sought views on their position and were advised that the role remained mainly concerned with routine caring duties and normally for healthy rather than sick patients. While some Nursery Nurses were beginning to undertake more duties of a clinical nature this was, and remains, under the direction of a professionally qualified senior nurse. Following this review the Department maintained its earlier determination that SCS could not apply to nursery nurses. Their roles, even in the neonatal units, were not considered physically arduous and did not require a professional qualification. They were mindful that while whilst [ sic] many nursing roles had evolved and continued to do so the SCS provisions were about protecting the rights of staff who had met the criteria prior to certain transfers of functions to the NHS." [That is a reference to the transfers which included the transfer of certain functions from local authorities in 1974.]
The Department continued to maintain the view that even neonatal nursery nurses did not qualify for SCS, a view which was reflected in further communications. One example is SD Letter 89(7), dated 3 April 1989. It refers again to SCS as a concession granted because "it was felt that the arduous physical nature of practical nursing required a degree of stamina that could not be demanded of women beyond the age of 55". It also included the following:
"EAs are reminded that it is SOLELY the duties performed that determine special class status and classification is not influenced by either the pay scales or the possession of a nursing qualification.
Whilst nursing duties are many and varied the following, if they form a major proportion of the duties performed, will comply with the definition of arduous for the purposes of granting special class status
• Lifting, carrying, controlling and restraining
• Feeding, bathing, dressing and attending to personal needs
• Constant attendance and monitoring of patients
• Responsibility for administering treatment and drugs."
Another example is SD Letter 90(13), dated 18 June 1990, which includes the...
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