City of London Corporation: Pensions

Baroness Hoey Excerpts

Thursday 22nd February 2018 Commons Chamber

[Kate Hoey (Vauxhall) (Lab)]

I would rather not be here this evening speaking in this Adjournment debate, not because I do not care about the issue very much, and particularly about my constituent, Mr Clifford Bell, but because I believe that it is such a simple matter that it should have been resolved years ago. It has not been, and I gave a commitment to my constituent that I would bring it to the House in an Adjournment debate.

I want to begin by setting out the facts of my constituent’s case before moving on to the problems that I have faced in seeking to resolve it and the relevant basic policy concerned. My constituent Mr Clifford Bell worked for the City of London Corporation as a security and services assistant from December 1989 until he suffered an injury on 6 November 2000. He slipped on a metal screw while walking down some marble stairs, fell, hitting his head, and was knocked unconscious. Mr Bell’s health deteriorated while he was on subsequent ill-health leave, as he went on to suffer from loss of hearing in his right ear, incessantly loud tinnitus, dizziness, loss of balance and a series of blackouts that occurred without warning, four of which led to his hospitalisation.

On 10 December 2001, the City of London Corporation made a claim on his behalf to the Department of Work and Pensions to pay him industrial injury benefits, and he was then assessed by a DWP doctor. In February 2002, he was notified that he had been diagnosed with

“loss of mental equilibrium and loss of neurological function”,

and awarded industrial injury benefits for 12 months before a further examination. He continued to be awarded annual industrial injury benefits until 8 December 2008, when he was adjudged to be qualified to receive industrial injury benefits for life.

On 10 June 2002, Mr Bell met the City of London Corporation about his long-term absence from work and submitted a written application for an early retirement ill-health pension, but he was informed two days later that this was being turned down because the City of London Corporation’s in-house doctor could not say that Mr Bell’s injuries were permanent. He informed them that their two options of either early retirement on a basic pension or alternative work were not acceptable to him, and the City of London Corporation deemed him no longer to be an employee from 24 September 2002.

After months of resistance, Mr Bell was finally provided with a copy of an additional accident report that the City of London Corporation had sent to the Health and Safety Executive 17 months after his accident spelling out that it found

“it difficult to believe that he could have slipped on a screw whilst wearing Dr Martens safety shoes”

and that

“there are a number of staff…who suspect that the incident, if it really happened as Mr Bell describes it, may have been exaggerated.”

Not only do vague beliefs and suspicions have no place in an accident report, but I reiterate that he was diagnosed annually by the DWP for eight years before being awarded lifetime industrial injury benefits in 2008.

In June 2004, Mr Bell filed a grievance against the City of London Corporation for its handling of this case, and in 2005 he signed a compromise agreement for the City of London Corporation’s insurers, Chubb insurance Ltd, to consider his case under the Local Government (Discretionary Payments) Regulations 1996. The insurers found in his favour and awarded him a termination package of about £50,000, but not an ill-health pension.

That is the timeline so far of Mr Bell’s case. So far as he was aware, these were the relevant facts, until in 2012 he discovered the local government pensions committee’s circular 252, which noted that the Local Government Pension Scheme Regulations 1997 should have been relevant in his case. Regulation 97(9) states:

“Before making a decision as to whether a member may be entitled under regulation 27 or under regulation 31 on the grounds of ill-health, the Scheme employer must obtain”—

must obtain—

“a certificate from an independent registered medical practitioner as to whether in his opinion the member is permanently incapable of discharging efficiently the duties of the relevant local government employment because of ill-health or infirmity of mind or body.”

Regulation 98 sets out that he should have received a written notification of the decision by the IRMP as soon as possible, giving the reasons for the decision and setting out his appeal rights to the Secretary of State under regulation 102.

The Local Government Pension Scheme (Amendment No. 2) Regulations 2001 further specified, in sub-paragraph 9A:

“The independent registered medical practitioner must be in a position to certify, and must include in his certification a statement, that—

(a) he has not previously advised, or given an opinion on, or otherwise been involved in the particular case for which the certificate has been requested; and

(b) he is not acting, and has not at any time acted, as the representative of the member, the Scheme employer or any other party in relation to the same case.”

None of those regulations—not one—was followed.

In Mr Bell’s research at that time, he discovered two relevant appeals, 869 and S00495, which saw the Secretary of State emphasise the importance of the opinion of the independent registered medical practitioner, including one judgment against the City of London in 2008. By the time Mr Bell discovered that those requirements had not been followed, he was well out of time for consideration by the pensions ombudsman.

Mr Bell first contacted me in September 2014, and I wrote my first of many letters to the City of London Corporation seeking to understand why the rules had not been followed in his case. I wrote to the City of London on 20 October 2014, 26 May 2015, 6 July 2015, 12 October 2015 and 4 November 2015, on each time to the head of the human resources department who had dealt with his case. On each occasion they responded by stating that Mr Bell was not eligible for an ill health pension, making reference to the Local Government Pensions Committee’s circular 252 in 2011 and the details of the compromise agreement he had signed in ignorance of his actual rights. Despite my repeatedly asking why the 1997 and 2001 regulations had not been followed in his case, those questions were not answered.

On 27 January 2016, I wrote to the town clerk and chief executive of the City of London, quoting regulation 97(9) of the 1997 regulations and simply asking why those and the similar 2001 regulations should not apply in this case. In his answer of 26 February, the town clerk, John Barradell, stated:

“In May 2002 the Corporation’s Occupational Health Team advised that there was ‘no evidence of permanent incapacity due to ill health so medical retirement is not an option at this point’. This view was confirmed on 11th June 2002 when Dr Copeman”—

the corporation’s internal doctor—

“advised that he was unable to state that Mr Bell had any form of medical condition or illness which would result in his permanent inability to work for the Corporation in his current position. This medical opinion meant that it was not possible under the LGPS for Mr Bell to be retired on the grounds of ill health.

It appears that Mr Bell has misunderstood the application of Rule 97(9) referred to in your letter. Rule 97 was not engaged and there was no requirement for an IRMP because Dr Copeman’s advice was that Mr Bell did not come within the requirements for ill health retirement.”

I admit that I became very frustrated at that point. The suggestion was that because the internal doctor did not give approval, the independent doctor need not be asked for their opinion, which strikes me as the whole point of the protections set out in those regulations.

In seeking to make sense of that, I wrote to the then Minister for Local Government, the hon. Member for Nuneaton (Mr Jones), in July 2016, setting out the case and stating that Mr Barradell’s answer was

“as clear as mud, since the rule clearly states that independent analysis must be obtained before such a decision is made.”

I asked him to confirm first that the legal position remained as I stated in the letter, secondly whether there would be any exemption to the requirement that independent analysis be obtained before a decision would be taken on an individual’s eligibility, and thirdly what course Mr Bell could follow to get what he is entitled to. As expected, the Minister did not—quite rightly—go into detail about my constituent’s individual case, but he confirmed that the regulations were in effect at the time and did not indicate any scope for exemptions.

I wrote again to Mr Barradell on 12 December 2016, asking him to review his decision based on the confirmation given by the then Minister. He did not reply to this letter, and so I had to chase him—not literally—and he eventually replied on 30 May 2017, stating that

“the City’s position as set out in previous correspondence…remains unchanged”,

and that it did not believe it had had any obligation to inform Mr Bell of his rights at the time. He concluded:

“The City Corporation remains of the view that it has acted properly and fairly in its handling of this case and believes there are no grounds for it to consider this matter further.”

Mr Bell has tried to pursue this down many avenues over the many years since the original injury in 2000, but because he did not discover the details of the 1997 LGPS regulations until 2012, he had by that point already exhausted his appeal options. I had stated to the City of London Corporation on several occasions that if it could not satisfactorily explain why the rules should not apply in this case, I would have to raise this matter in the House. That is why I believe I have no option but to do so now.

There are two alternatives: either the City of London is refusing to apply the rules properly, or the regulations as they exist do not work as they should to provide the assurance of an independent assessment. Industrial injuries are by their nature unexpected, disturbing and painful events. If they are of the severity to lead to an ill-health retirement, it is quite right that this should follow assessment by an independent doctor as soon as possible and that it should follow a process that sets out the details clearly. Surely such a process cannot and should not be short-circuited by the decision of an organisation—particularly an organisation such as the City of London Corporation—to use an in-house doctor, and not allow the worker to have their injuries certified by an independent practitioner.

I apologise to the Minister and to the House for this very detailed tale, but I wanted to put it on the record. Fundamentally, is the Minister happy with the way in which these regulations operate? Is he aware of other cases where organisations have used the decision of an in-house doctor to override the need, as laid down by the regulations, to get the opinion of an IRMP? If he is aware of such cases, does he intend to tighten the process to prevent this from happening? Is he also concerned about organisations—particularly an organisation such as the City of London Corporation—not giving workers details of their rights in such instances? Is he aware of other complaints about the City of London Corporation in particular not fulfilling its obligations under these regulations? It has not been forthcoming with details to me. Possibly most difficult, can he recommend any further steps that my constituent Mr Bell can follow to have his case finally considered by an independent medical professional? He is even willing to pay for that independent medical professional to get an opportunity to have his case looked at.

For over 17 years, Mr Bell and his family have relentlessly pursued what seems to me to be a grave injustice. In my view, the fact that that grave injustice has been perpetrated by one of the richest local authorities in the country makes it even more disgraceful. I hope that the Minister will be able to provide me with some assurance for me to give my constituent that this will change and that he will get justice.

[The Parliamentary Under-Secretary of State for Housing, Communities and Local Government (Rishi Sunak)]

I congratulate the hon. Member for Vauxhall (Kate Hoey) on securing this debate. I had the pleasure of fighting alongside her in the referendum campaign, and I can see that she has for many years applied the same tireless and tenacious campaigning instincts to this case on behalf of her constituent, and I commend her for those efforts. I particularly welcome the chance to respond to the points that she has made and, indeed, I share her regret that we have had to debate this on the Floor of the House.

Pensions are not just about regulations and procedures; they are about security and peace of mind. We all want to retire on a decent income, and as we live longer and healthier lives, we want to be able to save more and make the most of our retirement. Public sector schemes such as the local government pension scheme include insurance-style benefits that help to cushion us against the most unfortunate events. There are protections when staff are made redundant, and provision for their dependants if they die in service, as well as ill-health benefits such as those at issue in this debate.

Throughout the past 100 years, the LGPS developed as a national scheme to become a valuable and integral part of local government, valued by millions. That said, as the recently ensconced Minister responsible for local government pensions, I can attest that it is not a simple scheme. Some of that complexity comes from the need to cover a wide range of possible scenarios. The provisions dealing with injuries at work—such as those suffered by Mr Bell—will interact with statutory schemes of compensation, employers’ sickness procedures and employment law. Injuries can lead to periods of sickness and to permanent or temporary incapacity. Justice comes from treating like cases alike, but also from making fine judgments and distinctions between cases where appropriate. I want the best possible administration of the scheme. It has been a key aim of the Government to improve transparency and accountability in decision making by such public bodies.

The LGPS is a national scheme set out in regulations, but it is important to note that it is administered locally. That has been a long-standing feature of the scheme, and often one of its strengths. As the hon. Lady will know, local authorities are independent bodies and, first and foremost, they are accountable to their electorates through the ballot box, rather than to central Government. That said, there are routes for independent redress where local authorities fail in their obligations—for example, through the council’s complaints procedure, the local government ombudsman or, when appropriate, the pensions ombudsman. Potentially, and finally, the case can be considered by the courts by judicial review.

It is a feature of any legal system of redress that administrative deadlines and statutes of limitation are associated with each of those, and I am sure the hon. Lady will recognise that all sides in a dispute often benefit from the certainty and closure that those afford. I also believe, however, that if local authorities are to retain the trust of the people they serve, they should always seek to act honourably and correct mistakes, even if they are under no legal obligation to do so. Where I feel a need to call out mistakes, I will do so, from the Dispatch Box if necessary. I hope that my voice in these matters will not be without some moral force.

It gives me comfort that in general the LGPS is well-administered, and the vast majority of complaints received about it are resolved internally. It pays out £9.5 billion in benefits each year, and despite that I am told that there were fewer than 91 complaints to the pensions ombudsman, and of those, fewer than 15% were upheld. Clearly some mistakes will be made, and the impact of those mistakes could be hugely significant for vulnerable people or those of limited means who rely on their pension to sustain their dignity and standard of living in old age.

Let me turn to the details of Mr Bell’s case. The hon. Lady forcefully made her case that the City of London has not complied with its statutory obligations or delivered justice to Mr Bell. As she would expect, my officials have been in touch with the City of London to hear their explanation of events.

It is worth stressing at the outset the obvious difficulty of understanding in precise detail events that happened almost 20 years ago. However, from hearing both sides, it strikes me as common ground that as a consequence of the accident on 6 November 2000, Mr Bell suffered some degree of incapacity. The question appears to be about the degree of severity and the permanence of that incapacity. I expect it is difficult for any medical expert to give a very definite answer to those questions. It is for that very reason that I would expect this to be settled as a question of fact by someone that both parties can have confidence in. That is the plain meaning and intent of regulation 97.

I can see no good reason why the City of London Corporation chose not to instruct an independent registered medical practitioner who could have either confirmed or corrected the judgment that was reached, no doubt in good faith, by the corporation’s occupational health team. Not only was an IRMP not instructed, other consequences followed the failure to consider that a decision of any kind was due in respect of Mr Bell’s application for ill-health retirement. The protections and regulations 98 to 102, whereby a member is informed of his rights of appeal and a reference to the Pensions Advisory Service, appear also not to have kicked in as one might reasonably have expected.

Of course, I cannot say what conclusions the IRMP would have reached, or whether indeed an appeal would have been successful. What I can say is that Mr Bell does seem to have suffered an injustice by being denied an independent assessment of this case. However, I must note that Mr Bell did receive legal advice from a reputable firm of lawyers in settling the terms of his dismissal, for limited efficiency, in 2002. In coming to a decision on how best to pursue his case and whether to accept those terms of settlement, I would hope that the advice he received was complete and accurate.

Let me now address directly the questions the hon. Lady put to me in her closing. First, I am very happy to place on record my concern that the regulations do not seem to have been followed in this case. My clear view is that on the facts available to me at this time an IRMP ought to have been engaged in 2002. If the hon. Lady believes it may serve some purpose, I would be very happy to write formally to the corporation and ask it to justify this omission to me.

On the hon. Lady’s other questions more generally, I personally am not aware and the Department is not aware of any other such cases where this practice was followed, nor of any other specific complaints about the corporation’s administration practices. I would hope that if there were cases similar to Mr Bell’s, they would have found their way, correctly and appropriately, to the pensions ombudsman. There, I believe, the arguments advanced would have received a strong hearing.

The hon. Lady asked if I wish to tighten the rules in this area. Having reviewed it, to my mind the regulations then, as now, are clear about the process to be followed. The regulations then, as now, place the correct emphasis on the need for decisions to be taken in a timely way, based on independent advice and with further avenues for advice or appeal clearly signposted. Having reflected on it, the issue at stake here is not that the regulations themselves were at fault, but whether they were properly adhered to and followed. If they were not, however, then at this point, sadly, I cannot see any specific further steps I can take to pursue this case on behalf of the hon. Lady and Mr Bell.

If we were having this conversation at the time of the incident in question, Mr Bell would have had the avenue of appeal and redress through the council’s own two-stage appeal process. Following that, we could have gone to the pensions ombudsman, the Secretary of State or the courts through judicial review. As I said earlier, however, there are good and necessary reasons why we have time limits and limitations in the determination of rights and liabilities. Statutes of limitation are common across civil and criminal law in this country and across the world. Parties must be allowed to know when a matter has finally been settled. Given where we are now, 18 years after the incident in question, unfortunately the ability to access any of those avenues has obviously expired.

At the time, Mr Bell did receive legal advice and sought a settlement with his employers. I very much hope that his solicitors at the time discussed with him these various avenues that may well still have been available at that time and provided advice to him on the best course of action. It may well be worth Mr Bell or the hon. Lady discussing the matter again with the solicitors to make sure that all the correct procedures and avenues were explored. Owing to the separation of powers between central and local government, I cannot intervene in the day-to-day activities of local authorities, except where specific provision is made by Parliament, and I am not aware of any specific basis on which I could intervene directly in this case.

[Kate Hoey]

I thank the Minister for giving way—I know he is coming to the end of his speech—and for his thoughtful response. Does he accept that it should have been up to the City of London Corporation, a council hugely rich in personnel, to inform Mr Bell of his rights? It should not have been up to a solicitor a few years later. Surely there was a moral duty if not a legal duty—I think there is a legal duty; I think the regulations give a legal duty—to inform him of his rights and to allow that independent medical practitioner. That was where it all went wrong—something so, so simple. Does he agree that there is a moral case in respect of the City of London Corporation? I should add also that I would welcome his writing to it on my and Mr Bell’s behalf.

[Rishi Sunak]

Not only is there a moral duty; but—the hon. Lady is right—there is a legal duty both to have used an independent medical practitioner and to have informed Mr Bell of his rights at the time. Mr Bell would, I hope, have been aware of those rights through many of the other communications he would have received as a member of the scheme, but at the point when it became relevant, under articles and provisions 98 to 102, he should have been made aware of them again. It will be of limited comfort to Mr Bell and the hon. Lady, but the pension scheme’s statutory advisory board is currently reviewing the means of resolving disputes locally and looking at simplifying the rules around ill-health retirement. I expect recommendations from the board in due course, and obviously this matter will weigh on my mind as I review those recommendations.

In conclusion, though we have discussed process, I do not want to lose sight of the individual at the centre of this, Mr Bell. The accident that caused him to lose his job seems such a small and random piece of bad luck. That we are still talking about it today shows how unfairness of any kind—of fate or in administration—can be very hard to accept and live with. I do not know whether he is adequately supported today and leading a fulfilling and satisfying life, but I sincerely hope that he is. I commend the hon. Lady again for her tireless work in advocating so forcefully on behalf of her constituent. I know that she will keep pushing the City of London Corporation to examine afresh whether it acted fairly and in good conscience, and I will support her in those efforts. I wish her and Mr Bell every success as she pursues this case.

Question put and agreed to.