Thomas v Pensions Ombudsman 2

Reference: (1996) OPLR 95, (1997) OPLR 61

The appellant was, prior to being struck off the dental register in 1983, a practising dentist and a member of the NHS Pension Scheme. He applied, unsuccessfully to be reinstated to the register in 1992. On reaching the age of 55, the appellant claimed that he was entitled to an immediate early retirement pension under the NHS Pension Scheme. Under regulations, members of the scheme who had attained the age of 50 and completed 5 years service were entitled to an early retirement pension provided that the Secretary of State certified that the reason for their retirement was either redundancy or in the interests of efficiency. Mr Thomas had no such certificate, but contended that he was forced to retire as a result of the failure of his application for reinstatement in 1992. The pension scheme rejected his claim to an early retirement pension on the grounds that he was not in service at the time of his 55th birthday. In addition, it was claimed that the regulations providing for this form of early retirement pension were not in force until 1991. There was therefore no such right in existence when Mr Thomas left service.

Following a complaint to the Ombudsman, the Ombudsman's senior complaints investigator wrote to Mr Thomas stating a preliminary view that there did not seem to be a complaint which could be decided in favour of Mr Thomas. Unless Mr Thomas was able to produce any alternative facts, the refusal to reinstate him to the dental register was not a form of forced early retirement. Neither were the early retirement provisions in force when his pensionable employment ceased in 1983. The Ombudsman subsequently wrote to Mr Thomas confirming this view.

Mr Thomas appealed on the grounds that the Ombudsman had failed to investigate his complaint and had made an error of law. Carnwath J held that it was a requirement under the regulations that, in order to obtain an early retirement pension, the member must have a certificate from the Secretary of State. Mr Thomas had no such certificate and therefore did not meet the prescribed conditions to qualify for an early retirement pension. In addition, as Mr Thomas ceased pensionable service in 1983, he could not actually bring himself within those retirement provisions. The Ombudsman therefore had no further matters which required investigation and the appeal was dismissed.