Brooks v Civil Aviation Authority 2

Reference: (2000) OPLR 365

The member's employment was terminated in 1991 on grounds of capability and conduct. In 1995 he applied to the Scheme for an ill-health pension. His application was refused on the basis that there was no grounds for the award of an ill-health pension at the time of his dismissal nor any medical evidence to support his claim. He was invited to submit to a medical examination, which he did, but his application was again refused on the basis that although he was incapable of performing his own job in 1991, the employer could have retained him to do a different job had it chosen to do so. The member complained to the Pensions Ombudsman that his application for an ill-health pension had been improperly rejected.

The Ombudsman rejected the member's complaint. The member then complained that the Ombudsman had failed to investigate the complaint in so far as he relied on a decision of the employment tribunal to determine the reason for his dismissal and had not undertaken his own independent investigation of the facts.

The wide powers of investigation which the Ombudsman has enable him to decide how to conduct an investigation. It was entirely appropriate for the Ombudsman to base his findings on the reason for the member's dismissal on the basis of a review of the existing material. He reviewed the material which included the tribunal's decision and the reasons for it. Having done this, he was entitled to conclude that the member was dismissed for capability and conduct and therefore outside the provisions of the ill-health rule.

Although not necessary to decide the question, the court went on to say that if an employee was dismissed because he was unable to perform his normal duties as a result of incapacity, he would have qualified for a pension under the rules of the Scheme (which referred to "incapacity… to perform his duties") even though he would have been fit to perform other duties.