Ill health early retirement
Mr H complained that South Tyneside Council (the Council) incorrectly awarded him Tier 2 ill health early retirement (IHER) benefits. He said he was entitled to (more generous) Tier 1 IHER benefits.
Mr H applied for IHER in September 2016. On assessment, the independent registered medical practitioner recommended that he be reassessed in three years. Mr H’s employer terminated his employment and granted him Tier 3 IHER benefits.
Mr H challenged the decision and, on reconsideration, the Council awarded Tier 2 IHER benefits. The Council found that it was more likely than not that Mr H would be able to undertake gainful employment before he reached his normal retirement age and therefore Tier 2 benefits were appropriate. It did not find that the Tier 1 criteria had been met, as the barriers that Mr H claimed prevented him from returning to work were not health related but related instead to his role as carer for his son.
Following this, Mr H argued that the Council had failed to take account of the Equality Act 2010 (the Act) and that the ‘gainful employment’ criterion should be disregarded because it contravenes the Act. He also argued that the Council had failed to take account of his responsibilities as a carer, other legislation and court cases. Although he agreed that in future he might be fit enough to return to work, he could not commit to that while he remained responsible for caring for his son. He said that taking his role as a carer away would be discriminatory to his son and may also be discriminating against him as his carer.
The Deputy Pensions Ombudsman did not uphold the complaint. She clarified that the courts have not ruled that either: regulation 35 (relating to Tier 1 IHER); or the gainful employment criterion contravenes or is incompatible with the Act and it was not within her power to make such a ruling, or to change the relevant regulations.
However, she considered in detail Mr H’s claim of indirect discrimination via his association with his disabled son under the Act and the relevant case law. She found that there was nothing within UK law that provided Mr H with a legal right to protection and that she had no powers to change the law. Therefore, on the basis of the law relevant at the time, she could not find that the Council had interpreted or applied the gainful employment criterion in a manner that contravened the Act.
She also considered in detail whether Mr H might have had a viable claim for reasonable adjustment of the gainful employment criterion. As part of this, she considered relevant case law and found that he would not have had a successful claim. She concluded that there is no legal obligation on the Council to make reasonable adjustments to accommodate Mr H’s carer responsibilities and therefore there was no maladministration on the Council’s part.
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