Permanent injury benefit
Mrs L complained that the NHS Business Services Authority (NHS BSA) had not considered her application for permanent injury benefit (PIB) correctly.
Mrs L left NHS employment on the grounds of ill health in November 2013. In February 2015, she applied for PIB on the basis that she was suffering from “recurrent psychotic depression” triggered by a move from one ward to another.
NHS BSA’s medical advisers considered Mrs L’s claim and rejected her application. Mrs L appealed via both stages of the IDRP and NHS BSA did not uphold the complaint. NHS BSA’s medical adviser had accepted that Mrs L’s perceptions about aspects of her work were a trigger for her psychological symptoms, but without the underlying condition it was unlikely that the perceived stress factors would have led to the severity of Mrs L’s symptoms. It concluded that the long-term psychological ill health and related incapacity was wholly or mainly due to a longer term underlying constitutional psychiatric condition.
At the time Mrs L’s complaint was brought to this office, the courts were considering an appeal regarding a Determination of a previous Deputy Ombudsman and her decision not to uphold a PIB claim (Young v NHS BSA). Following an appeal, NHS BSA agreed to reconsider cases in line with the Court of Appeal’s findings, which included Mrs L’s complaint. However, NHS BSA later said that Mrs L’s case was not one which it would reconsider as it was a case decided under Regulation 3 of The National Health Service (Injury Benefits) Regulations 1995 (the Regulations) and, in its view, was not affected by the recent judgment (which it considered to be restricted to Regulation 4 decisions only).
In summary, Regulation 3 provides for a member who has sustained an injury or disease in the course of employment which is wholly or mainly attributable to their employment, and it is wholly or mainly attributable to the duties of their employment. Regulation 4 sets out the scale of benefits which may be paid and provides that a benefit is paid if the member’s earning ability is permanently reduced by more than 10% because of the injury or disease.
The Adjudicator upheld the complaint and remitted it back to NHS BSA to reconsider. She said that although NHS BSA did not accept that Mrs L had sustained an injury wholly or mainly attributable to her NHS employment, the evidence suggested otherwise. NHS BSA had accepted that the move to the new ward had caused Mrs L stress which triggered symptoms of anxiety and depression. However, it was of the view that the stress experienced by Mrs L would not have resulted in symptoms of such severity in someone who was not suffering from an underlying mental health condition. This was not the question NHS BSA should have been asking, but instead it should have separated the question of the injury from the consequences. Therefore, Mrs L was entitled to have NHS BSA reconsider whether the stress she suffered was wholly or mainly attributable to the move to the new ward. The Adjudicator concluded that Mrs L’s PIB application had not been considered in accordance with the relevant regulations.
NHS BSA disagreed and so the Ombudsman determined the case and upheld Mrs L’s complaint. The Ombudsman commented on the Court’s judgment that while the decision was primarily focused on the interpretation of Regulation 4, this did not mean that it could not assist in the interpretation of Regulation 3. It was noted that Regulation 3 uses the phrase “wholly or mainly” which indicates that Mrs L’s NHS employment does not have to be the sole cause of the injury. NHS BSA needed to determine whether Mrs L had experienced stress which was, at least, mainly caused by her move to the new ward. The Ombudsman concluded that NHS BSA had looked at the effects of the injury rather than whether there was an injury that was attributable to Mrs L’s employment. The Ombudsman referred the case back to NHS BSA and asked it to consider if Mrs L sustained an injury which was wholly or mainly attributable to her NHS employment or the duties associated to her employment. In doing so, it should not make reference to Mrs L’s underlying health. If NHS BSA found that Mrs L had a qualifying injury, then it should then consider if Mrs L’s earning ability has been permanently reduced by more than 10%.
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