England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2007

Mr Justice Morgan:

1. Ms Chittoo is a member of the BT Pension Scheme. On 5^th May 2005, pursuant to Part X of the Pension Schemes Act 1993, Ms Chittoo referred to the Pensions Ombudsman a complaint or a dispute, which she requested the Ombudsman to investigate and determine. At the time of that reference Ms Chittoo's former employer British Telecommunications Plc ("BT") was still in the course of internal procedures dealing with points raised by Ms Chittoo as to her entitlement under the BT Pension Scheme. The Ombudsman awaited the outcome of those procedures. Those procedures resulted in a decision by BT which was adverse to Ms Chittoo. Thereafter, the Ombudsman investigated the complaint made by Ms Chittoo and/or the dispute between Ms Chittoo and BT and on 27^th March 2007 he published his determination, which did not uphold Ms Chittoo's complaint. Section 151(4) of the Pension Schemes Act 1993 provides for an appeal on a point of law to the High Court from a determination or a direction of the Pensions Ombudsman and Ms Chittoo now seeks to appeal under this subsection. Her Appellant's Notice was filed on the 27^th April 2007, which was just out of time.
2. The fact that Ms Chittoo's Appellant's Notice is just out time has not caused any prejudice to BT as the Respondent to the appeal and I am prepared to grant Ms Chittoo an extension of time for appealing to cover the short period of time involved. I will therefore consider the appeal on its merits and not dismiss it on the basis that it is out of time.
3. Ms Chittoo commenced her employment with BT on 14^th October 1991. Ms Chittoo suffered from ill health and she was on sick leave from 12^th June 2002 and, in fact, never returned to work after that date. In around June 2002, Ms Chittoo was charged by BT with misconduct in the course of her employment. There was considerable delay in determining that charge, the delay being largely attributable to Ms Chittoo's state of health and the concern that she may not have been well enough to participate in BT's disciplinary procedures. Eventually on the 29^th June 2004, BT made its determination in relation to the charge against Ms Chittoo and decided to dismiss her with effect from 22^nd September 2004. Her employment with BT ended on that date. Ms Chittoo appealed against her dismissal pursuant to the internal procedures of BT and on the 9^th December 2004, pursuant to those procedures, BT upheld the decision to dismiss Ms Chittoo.
4. At the hearing of the appeal before me, Mr Grant, who appeared on behalf of BT, told me that Ms Chittoo had brought proceedings in an Employment Tribunal contending that she had been unfairly dismissed and those proceedings were later settled between Ms Chittoo and BT. No documents referring to the reference to the Employment Tribunal were put before the court and the Pensions Ombudsman does not appear to have been informed of those proceedings. BT did not tell me the terms of the settlement reached in those proceedings.
5. The essential dispute between Ms Chittoo and BT as to her pension related to the operation of Rule 5.1 of the BT Pension Scheme. Rule 5.1 deals with "Medical early retirement after 2 years' Qualifying Service" and provides:

"A Member who leaves Service before Normal Retirement Age with at least 2 year's Qualifying Service and who is certified by the Employer as having been retired under the Employer's medical retirement procedure may choose an immediate pension."

Rule 5.1 continues by specifying the benefits under a pension payable pursuant to that Rule.

6. For the purpose of Rule 5.1 of the Pension Scheme, Ms Chittoo was a Member who had had two years' Qualifying Service. Her employment with BT up to its termination on 22^nd September 2004 was Service as defined in the Pension Scheme. Normal Retirement Age was defined as the age of 60. Ms Chittoo was born on the 31^st July 1962.
7. As appears from the facts set out below, BT as the Employer never did certify that Ms Chittoo had retired under the Employer's retirement procedure. Ms Chittoo's complaint was, in essence, that BT ought, under its medical retirement procedure, to have determined that she was eligible to retire under that procedure, following which she would have retired under that procedure and, in such circumstances, BT should then have certified that fact. There was no document put before me which set out the procedure which is referred to in Rule 5.1 as "the Employer's medical retirement procedure". However, it seems to be accepted that BT did follow a procedure in this case and if one examines that procedure one can see the various steps involved in the medical retirement procedure which is referred to in Rule 5.1. For this purpose, I will summarise the sequence of events in the present case.
8. For the purpose of identifying BT's medical retirement procedure, I can begin with the letter dated 5^th May 2004 from Dr Macaulay of Accenture HR Services Limited to BT. Although there had been a detailed investigation of Ms Chittoo's medical condition prior to the date of this letter, this letter is a convenient starting point for the purpose of identifying the procedure which was adopted.
9. On 5^th May 2004, Dr Macaulay wrote to BT referring to Ms Chittoo's medical condition and stating in paragraph 6:

"There is no evidence to indicate that permanent incapacity has resulted. Accordingly, the BT PS criteria for ill health retirement are not likely to be met in this case. Medical retirement would therefore not be supported."

Ms Chittoo obviously referred that letter to the Pensions Advisory Service, OPAS. On 30^th June 2004, OPAS wrote to the trustees of the Pension Scheme asking for information. On 4^th August 2004, OPAS wrote to Ms Chittoo referring to the letter of 5^th May 2004. OPAS advised Ms Chittoo that if she wanted to challenge BT's decision not to accept her application for early retirement on medical grounds, that it was "vital" to obtain medical reports in support of her challenge. OPAS specifically directed Ms Chittoo as to what the medical reports should deal with. OPAS sent to Ms Chittoo a document, given to OPAS by the trustees of the scheme, which referred to the criteria for ill health retirement in BT, being essentially that the employee should be permanently unable to render regular and efficient service in the normal duties of their grade. On 8^th October 2004 and 5^th November 2004, BT wrote to OPAS giving further information as to BT's decision in relation to Ms Chittoo. On 22^nd December 2004, Dr Macaulay wrote to Ms Chittoo setting out details of medical assessments made by, or on behalf of Accenture, in relation to Ms Chittoo in the period 2002 up to 5^th May 2004.

10. On 30^th March 2005, OPAS recommended to Ms Chittoo that she complain about BT's delay in dealing with the matter to the Pensions Ombudsman.
11. Although Ms Chittoo's employment with BT had ended on the 22^nd September 2004, on 5^th April 2005 BT wrote to Ms Chittoo stating that BT was prepared to consider an application for early retirement on medical grounds. The letter contained information as to what were the relevant duties of her employment, which should be used as the basis of an assessment of incapacity. Ms Chittoo was told that she should submit any additional medical evidence on which she relied. It was clear that it was up to Ms Chittoo to provide the medical evidence which she wished BT to take into account.
12. Notwithstanding the letter of 5^th April 2005, Ms Chittoo did refer the matter to the Pensions Ombudsman on the 5^th May 2005. She stated that the date of the act or omission about which she was complaining was July 2002. She put forward four specific complaints about BT's handling of her requests to be permitted to retire on medical grounds. The first complaint was that all the earlier medical assessments related to matters arising out of her employment and were not related to the granting of a retirement pension. Her second complaint was that BT had "casually" stated that she did not qualify for early retirement on medical grounds. Her third ground was that, as early as August 2002, her GP supported retirement on medical grounds but this was never followed up by BT and BT had not contacted Dr Wilson, a consultant neurologist at the Royal Free Hospital, although BT was aware that Ms Chittoo was his patient. The ground of complaint continued by stating that when BT made a discretionary decision it should consider all material facts. The fourth complaint was that BT had delayed dealing with her application to be considered for retirement on medical grounds. In a part of the form which invited Ms Chittoo to say what she was seeking in order to put matters right, she stated that BT needed to seek the medical opinions of her GP, of her consultant neurologist, Dr Wilson, and of a consultant orthopaedic surgeon.
13. BT wrote to Ms Chittoo on the 12^th May 2005 referring to early retirement on medical grounds and stating that BT had been advised that the criteria for such retirement were not met at the time of Ms Chittoo's dismissal from BT but nonetheless she had the right to appeal against BT's decision and she was now being given the opportunity to appeal. The letter identified a number of questions that BT's Occupational Health Services would normally ask of a medical practitioner, where retirement on medical grounds was being considered, and the letter set out eight such questions. The eighth question was :

"Do you consider Ms Chittoo likely to be permanently incapacitated and therefore permanently unable to undertake her normal work?"

The letter continued by stating that any further medical evidence which Ms Chittoo provided would be presented to BT's doctor who would consider whether the criteria for medical retirement were met and Ms Chittoo would be advised accordingly. As with the letter of 5^th April 2005, it was reasonably clear that BT saw the onus as being on Ms Chittoo to produce any medical evidence on which she wished to rely and that BT would then give due consideration to all the medical evidence, including that produced by her.

14. On the 11^th August 2005, Ms Chittoo's GP wrote a two page letter to Dr Macaulay of Accenture HR Services, who were dealing with the matter on behalf of BT. The GP set out Ms Chittoo's history. On the second page of the letter, the GP stated that Ms Chittoo was under the care of Dr Tony Wilson who was one of the senior neurologist consultants at the Royal Free Hospital. The letter stated:

"It is worth noting that Dr Wilson is extremely pessimistic about the likelihood of improvement in Ms Chittoo's recovery. In a further report that I have had sight of he comments that it is most unlikely that Ms Chittoo will find herself able to get back to normal employment."

The GP did not enclose any report from Dr Wilson. The GP then addressed the various questions identified in the letter of 12^th May 2005 to which I have referred. The concluding paragraph stated:

"I consider Ms Chittoo to be permanently incapacitated and therefore unable to undertake her normal work as outlined in the job description submitted by BT….., this is based on the fact that I have seen no significant improvement in her condition over the last few years as much as I would have liked to see her situation improve. I believe that my opinion is also shared with my fellow professionals who have worked closely with this patient at the Royal Free Hospital."

15. On 25^th August 2005, Dr Macaulay of Accenture wrote to the Chief Medical Officer of BT summarising Ms Chittoo's medical history. Dr Macaulay stated that when she had last advised on the matter in April 2004, she did not feel that the medical retirement criteria were met. That would seem to be a reference to her letter of 5^th May 2004 to which I have referred. Dr Macaulay referred to the letter from Ms Chittoo's GP of 11^th August 2005 and Dr Macaulay stated that she awaited "your appeal verdict on this case".
16. Dr Litchfield, the Chief Medical Officer of BT did not himself determine whether the circumstances were such that Ms Chittoo was entitled to retire on medical grounds. Instead, on 3^rd November 2005, he wrote to Dr Doreen Miller FRCP FFOM of Miller Health Management. Dr Litchfield sent Dr Miller a number of documents relating to Ms Chittoo's medical history. In his letter he wrote:

"In order to qualify for the enhanced pension benefits of medical retirement, BT's medical advisors must sign a certificate which states that the individual is likely, through physical or mental disablement, to be permanently unable to give regular and efficient services in the duties of his/her grade. In this context "likely" means on the balance of probabilities. "Physical or mental disablement" means a recognised medical condition causing incapacity from work. "Permanently" means to the normal BT pensionable age of 60 years. "Unable" means incapable of doing so despite the individual's best efforts, which would include co-operation with medical treatment, reasonable adjustments, or alternative duties. "Regular and efficient service" means acceptable standards of attendance and performance. "Duties of his/her grade" means the substantive post, as reasonably adjusted, and suitable alternative work which is available. "

17. Dr Litchfield concluded his letter of 3^rd November 2005 by asking Dr Miller to prepare a report "in the normal way" assessing Ms Chittoo's case against the criteria he had set out and recommending to the Appeal Authority whether the appeal should be upheld or denied. At the hearing before me, Ms Chittoo did not suggest that the instructions given to Dr Miller were inappropriate in any way.
18. On the 19^th January 2006, Dr Miller signed a 13 page report on the question that had been referred to her. Dr Miller's report set out the background to the reference. The report then contained a detailed medical history of Ms Chittoo by reference to medical reports, memos and correspondence which began on the 7^th October 1994 and ended on the 11^th August 2005. These reports included various reports from Ms Chittoo's GP over the years including the letter he had written on the 11^th August 2005. Dr Miller referred to the passages in the letter of 11^th August 2005 which referred to Dr Wilson being extremely pessimistic and which also referred to the GP's fellow professionals who had worked closely with Ms Chittoo. Dr Miller's report also referred to various assessments by Dr Macaulay over the years including Dr Macaulay's report of 5^th May 2004 to which I have referred. Dr Miller also referred to various reports from a Dr Giagounidis, an Occupational Physician who had commented upon Ms Chittoo. When Dr Giagounidis had been asked to assess Ms Chittoo, the principal reason for him being asked to make the assessment was in connection with her ability to participate in the disciplinary procedures at BT, although Dr Giagounidis also commented upon his perception of the future as regards Ms Chittoo's medical condition. For example, in his report of 30^th April 2004, as recorded by Dr Miller, Dr Giagounidis stated that he believed that further specialist treatment would be likely to improve Ms Chittoo's health significantly to the extent to which her level of pain was manageable enough to allow a return to work, possibly with adjustments. He also thought that Ms Chittoo would remain unfit for work for the foreseeable future, at least a year, at which time she would need to be rehabilitated back to work, initially working from home.
19. Dr Miller set out a list of all the various reports, memos and correspondence which she had considered and this list comprised some 32 items. Having summarised the contents of those documents, Dr Miller set out her own consideration of the matter over some 2 pages. She referred to a report of 25^th August 2005 (from Dr Macaulay) as the final medical report she had considered. She referred to two notable omissions amongst the factors which had been put forward for the purpose of assessing the likely permanence of Ms Chittoo's condition. The first related to the fact that from April 2002 up to that time, Ms Chittoo's employment circumstances were insecure and the impact of that on her mental ill health had not been considered. Dr Miller also referred to the absence of reports from any medical professionals who were directly treating Ms Chittoo for her chronic pain, chronic fatigue and bouts of depression. Dr Miller stated that there was no report which clearly outlined what treatment Ms Chittoo had received, her progress, what treatment if any was planned and a prognosis of Ms Chittoo's mental health and chronic pain problems.
20. Dr Miller's report then contained the following 2 paragraphs:

"It is clear from the final report provided by Ms Chittoo's GP, and Dr Giagounidis' last report, that it was Ms Chittoo's depression and chronic pain problems that were a barrier to her return to work. Whilst Dr Sandford [the GP] was of the opinion, which he believed was shared by Ms Chittoo's treating practitioners, that Ms Chittoo was permanently incapacitated as she had not had any significant improvement in her condition over the last few years, Dr Giagounidis believed that whilst the outlook on Ms Chittoo's health was uncertain, further specialist treatment could likely improve her health to the extent to which she could return to work.

Having assessed all of the evidence, I am of the opinion that Ms Chittoo, aged 43, has chronic fatigue and chronic pain syndrome and is currently unfit for any sort of work and for the foreseeable future, despite consultant assessment and treatment. However, there is no evidence to show that Ms Chittoo will be permanently incapacitated for the next 17 years. I do believe that she could improve with further treatment, and that she would gain significant benefit from participating in a residential rehabilitation programme."

21. Dr Miller concluded her report with the following:

"On the basis of all the information provided I do not believe that Ms Chittoo fulfils the criteria for medical retirement and I would therefore recommend to the Appeal Authority that this submission should be DENIED."

22. On the 30^th January 2006, BT wrote to Ms Chittoo stating that the Occupational Health Service (OHS) had considered all the medical evidence in connection with Ms Chittoo's appeal in relation to retirement on medical grounds and had advised BT that the appeal should be rejected. The letter then set out a summary of the conclusions of Dr Miller to which I have referred.
23. Following this outcome, Ms Chittoo's reference to the Ombudsman continued, leading to the Ombudsman notifying the parties of his preliminary conclusions on the 25^th August 2006 and, following further communications, the publication of the Ombudsman's determination on the 27^th March 2007.
24. Before turning to the Ombudsman's determination, I should refer to one or two other events. In the material before the court is a medical report prepared by Dr Wilson of the Royal Free Hospital. The report is undated but was written some time after October 2004 and is addressed to a claims consultant at Abbey Life. I was told at the hearing that Ms Chittoo had a life insurance policy with Abbey Life and she had applied to them to waive payment of the premium under that policy and for that purpose she had asked Dr Wilson to write to Abbey Life. It seems that the letter to Abbey Life must have been in the possession of Ms Chittoo and that she was the source of this letter for the bundle used on this appeal. Dr Wilson's letter states that he first met Ms Chittoo in October 2004. He sets out her medical history and states that her symptoms have been troublesome for more than ten years. This was notwithstanding a lot of different efforts to treat her. He stated that he thought it most unlikely that Ms Chittoo would find herself able to get back to her normal gainful occupation. This letter goes some way to support Ms Chittoo's case that she was permanently incapacitated although it is right to point out that Dr Wilson does not in turn address the question whether Ms Chittoo's condition is likely to improve over the 17 years remaining before she reached the age of 60. However, although Ms Chittoo appears to have been in possession of Dr Wilson's letter, she did not provide it to BT at any time before it made its decision in relation to her application to be allowed to retire on medical grounds. This was notwithstanding BT's letters of 5^th April 2005 and 12^th May 2005 to Ms Chittoo asking her to provide any medical evidence on which she wished to rely.
25. The other matter to which I should refer is that on 9^th October 2006, Professor Maria Ron, Professor of Neuropsychiatry at University College, London Hospital prepared a report on Ms Chittoo. Professor Ron stated that she had seen the various medical reports written about Ms Chittoo by Dr Wilson and the GP. She said that Dr Wilson and the GP felt very pessimistic about Ms Chittoo's ability to go back to normal employment and that Professor Ron concurred with those views. Her reasons were twofold. The first was that Ms Chittoo's severe symptoms had persisted over the years and the second was that she had already undergone a comprehensive treatment programme. Professor Ron supported Ms Chittoo's application for retirement on medical grounds and concurred with her colleagues that Ms Chittoo would not be able to return to any employment even if on a part time basis and working from home. This report was not of course available to Dr Miller when she reached her conclusion on the 19^th January 2006 but it was shown to the Ombudsman.
26. In his determination, the Ombudsman identified Ms Chittoo's complaint as a complaint that BT had improperly refused her an ill health pension. He then stated that some of the issues before him might be seen as complaints of maladministration while others could be seen as disputes of fact or law and, indeed, some might be both. He stated that it was not usually necessary to distinguish between the grounds for the reference to him. His determination should therefore be taken to be the resolution of any disputes of fact or law and/or (where appropriate) a finding as to whether there had been maladministration and, if so, whether injustice had been caused.
27. The Ombudsman then set out the material facts in some detail and quoted extensively from the many medical reports that had been prepared in relation to Ms Chittoo, over the years. The Ombudsman referred to Dr Macaulay's letter of 5^th May 2004, the GP's letter of 11^th August 2005 and Dr Miller's report of 19^th January 2006. It seems fairly clear that the report from Dr Wilson to Abbey Life was not shown to the Ombudsman. The Ombudsman then referred to the report of 9^th October 2006 from Professor Ron and noted that Professor Ron stated that Ms Chittoo's symptoms had become more severe over the preceding four years.
28. The Ombudsman recorded the parties' submissions. Amongst Ms Chittoo's submissions was the contention that BT should have approached Dr Wilson, who had recently taken over her treatment.
29. The Ombudsman's conclusions were as follows:

"BT's decision as to Ms Chittoo's eligibility for an ill health pension fell to be considered under Scheme Rule 5.1. BT went to considerable lengths to obtain medical opinions. Ms Chittoo was examined on several occasions and the opinion of the consultant neurologist who had been treating her was sought. There would have been little point in asking Dr Wilson for a report, as he had only just taken over Ms Chittoo's treatment. I understand Ms Chittoo's concern that a consultation was carried out by telephone. However, this resulted in only one of a number of medical reports. Ill health retirement was first mentioned in the medical report dated 25^th July 2002 and that option was reviewed regularly thereafter. I have seen no evidence that Ms Chittoo's requests for an ill health pension were ignored by BT or that its decision making process was unfairly biased against her. None of the doctors who provided reports before Ms Chittoo left service, including Ms Chittoo's GP, went so far as to confirm that Ms Chittoo met the eligibility criterion. In such circumstances I am unable to conclude that BT acted improperly in deciding that Ms Chittoo did not qualify for an ill health pension. BT agreed to review Ms Chittoo's eligibility for an ill health pension after she had left service presumably with a view to establishing whether she should have been retired under the BT medical procedure. It follows that such a review needed to deal with whether Ms Chittoo met the criteria when she left service, rather than with her present condition. As a matter of fact Ms Chittoo did not leave service as a result of retiring in accord (sic) with BT's medical procedure and I see no reason to criticise the view that such retirement was not appropriate."

30. By way of explanation of the Ombudsman's conclusions, I should add the following remarks. The reference to the Consultant Neurologist was a reference to a Dr Farmer who had prepared a report of 29^th March 2004 which the Ombudsman considered in detail. The reference to a consultation being carried out by telephone was a reference to a Dr Kitchin who had provided a report dated 7^th May 2003. The statement that none of the doctors who had provided reports before Ms Chittoo left service went so far as to confirm that Ms Chittoo met the eligibility criteria needs to be understood by reference to the reports before the termination of Ms Chittoo's employment on the 22^nd September 2004. The Ombudsman was factually correct in that comment. There were various reports from Dr Macaulay and Dr Giagounidis which did not support the case for retirement on medical grounds in the period up to September 2004. The more pessimistic reports from Dr Farmer and the GP also did not go as far before September 2004 as the GP did in his later report of 11^th August 2005. Further, at the hearing before me (although the contrary had originally been argued in the Appellant's Notice), Mr Simeon Jones, who appeared for Ms Chittoo, did not criticise the Ombudsman's decision that the review carried out by BT properly related to the time when she left her employment with BT rather than her condition at a later time.
31. The Ombudsman's conclusions can be summarised by saying that he saw no reason to criticise the view taken by BT, on medical advice, that retirement on medical grounds was not appropriate and he was unable to conclude that BT had acted improperly in the way it had gone about the decision making process.
32. The jurisdiction of the Ombudsman is conferred by Part X of the Pension Schemes Act 1993. Section 146 of the 1993 Act describes the functions of the Ombudsman. Section 146(1) states that the Ombudsman "may investigate and determine" a number of matters which are then set out. Section 146(1)(a) includes within the matters which may be investigated and determined:

"A complaint made to him by or on behalf of an actual or potential beneficiary of an occupation or personal pension scheme who alleges that he has sustained injustice in consequence of maladministration in connection with any act or omission of a person responsible for the management of the scheme".

Section 146(1)(c) includes within the matters which may be investigated and determined:

"Any dispute of fact or law….in relation to an occupational or personal pension scheme between

i) a person responsible for the management of the scheme, and

ii) an actual or potential beneficiary."

33. Section 146(3) includes the employer within the persons responsible for the management of the scheme. Thus the Ombudsman in the present case had jurisdiction to investigate and determine a complaint made to him by Ms Chittoo that she had sustained injustice in consequence of maladministration by BT and he further had jurisdiction to determine any dispute of fact or law in relation to the pension scheme between Ms Chittoo and BT.
34. Section 149 of the 1993 Act deals with the procedure to be adopted on an investigation. Section 150 of the 1993 Act gives the Ombudsman certain powers for the purposes of an investigation. The Ombudsman may require certain persons to furnish information or produce documents; the Ombudsman has powers in respect of the attendance and examination of witnesses and the production of documents; the Ombudsman may obtain advice; and, finally, the Ombudsman may refer a question of law, arising for determination in connection with a complaint or dispute, to the High Court. By Section 151 of the 1993 Act the determination by the Ombudsman must contain the reasons for his determination and will be final and binding subject to a right of appeal to the High Court on a point of law.
35. There was discussion at the hearing before me as to the way in which the Ombudsman might go about an investigation of a complaint of maladministration and/or the determination of a dispute of fact or law. The position in relation to a complaint of maladministration is relatively clear, at any rate for the purposes of this present appeal. In Legal & General Assurance Society Limited v Pensions Ombudsman [2000] 2 All ER 577 at[23], Lightman J said:

"The concept of "maladministration" is broad and includes bias, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness: see R v Local Commissioner for Administration for the North and East Area of England ex-parte Bradford Metropolitan City Council [1979] QB 287 at 311 to 312. It is concerned with the decision making process rather than the merits of a decision."

36. What is less clear to me is the scope of the Ombudsman's power to determine a dispute of fact or law under Section 146(1)(c). In the present case, Ms Chittoo had said to BT that, on the facts, her medical condition was sufficiently severe to justify retirement on medical grounds. BT, on advice from Dr Miller, did not agree. On a reference to the Ombudsman, is it open to the Ombudsman to decide the facts as to Ms Chittoo's medical condition and what depth of investigation should he carry out to inform himself of the facts for the purpose of his determination?
37. Mr Grant on behalf of BT submitted that it would be undesirable for the Ombudsman to determine for himself the question of whether a member of the scheme should receive an ill-health pension. That was something which a court would not be required to decide and would not assume responsibility for deciding. The Ombudsman's investigation of a dispute of fact under section 146(1)(c) should instead examine the decision making process of BT and ask whether the decision made by BT was one which a reasonable employer could make.
38. By her Grounds of Appeal as set out in the Appellant's Notice, Ms Chittoo contended that the only permissible conclusion that BT could have reached was that she had satisfied the relevant criteria for early retirement on medical grounds. It was thus contended that BT's actual decision was perverse or irrational and that the Ombudsman had erred in law in not upholding her complaint that BT had "improperly" refused her application to it. The Grounds of Appeal initially asserted that BT was wrong to focus on Ms Chittoo's medical condition when her employment ended and should have taken into account her more recent medical condition. That ground of appeal was not pursued at the hearing before me; BT was plainly right to focus on Ms Chittoo's medical condition when the employment ended rather than at a later time.
39. At the end of the hearing, in view of certain submissions that had been made, I invited counsel to put in writing their submissions as to the role of the Ombudsman when he is asked to determine a dispute of fact or law pursuant to section 146(1)(c) of the 1993 Act. Mr Simeon Jones, on behalf of Ms Chittoo, put his case in two ways in his written submissions following the hearing. He first contended that BT's decision was perverse and that the Ombudsman's decision was also perverse in that it did not reach that conclusion. He also said BT's decision making was flawed because BT did not seek a report from Dr Wilson. However, he added further submissions, not advanced at the hearing, which seemed to me to amount to a contention that the Pensions Ombudsman had a duty to investigate all relevant facts as to Ms Chittoo's medical condition and to make his own decision on the facts before him.
40. Mr Simeon Jones later clarified his written submissions by stating that he was not pursuing the further point I have described in the last paragraph of this judgment and that his case was based on perversity on the part of, first, BT and then the Ombudsman and on a criticism of BT's failure to obtain a report from Dr Wilson. The position finally taken on behalf of Ms Chittoo means that it is unnecessary to explore any further the precise function of the Ombudsman when the complaint to him might require him to determine a dispute of fact.
41. In assessing the submissions on behalf of Ms Chittoo, it is convenient to begin with the argument that BT acted wrongly or "improperly" in failing to obtain a report from Dr Wilson and/or that BT's decision making was flawed on that account.
42. In my judgment, there is nothing in the point that BT should have obtained a report from Dr Wilson. BT made it clear to Ms Chittoo in their letters of 5^th April 2005 and 12^th May 2005 that they would consider the evidence that Ms Chittoo wanted to rely upon in support of her application for early retirement on medical grounds. The onus was clearly upon her to put forward what she wanted to rely upon in support of her case. There was no duty on BT to suggest to Ms Chittoo that she should do more than she had done to advance her case. BT gave Ms Chittoo no reason to think that they would themselves approach those treating or advising Ms Chittoo and seek out their medical opinions. Although Ms Chittoo apparently had a copy of a report from Dr Wilson, she did not produce it for BT to consider. Her GP's letter of 11^th August 2005 did refer to Dr Wilson's views and those views were available to be taken into account by Dr Miller. In my judgment, there was no obligation on BT to approach Dr Wilson. BT did not act wrongly or improperly. They were not guilty of maladministration. The Ombudsman did not err in law in any respect in relation to this question.
43. I now turn to the contention that BT's decision, based on the report of Dr Miller, was perverse. Dr Miller had carefully assessed all of the medical evidence which was put before her by either BT or Ms Chittoo. There was little or no difference of opinion as to Ms Chittoo's past medical history or as to her condition in the period leading up to the termination of her employment with BT. What had to be assessed was whether Ms Chittoo had demonstrated that she was likely to be permanently unable to perform her duties and permanence had to be judged for a comparatively long period of 17 years between Ms Chittoo's then current age of 43 and the normal pensionable age of 60. Dr Miller accurately described the opposing views on that issue. She preferred one view to the other and recommended accordingly to BT. BT accepted the recommendation of Dr Miller. In my judgment, there is no doubt that the view adopted by BT was a view which a reasonable person approaching the correct question in a proper manner could adopt. It was therefore not perverse of BT to reach the conclusion which they reached. As it is opinion that BT did not reach a perverse decision, it necessarily follows that I am also of the opinion that the Ombudsman was not perverse to reach the same conclusion as I have reached.
44. Mr Grant on behalf of BT raised a further point that had not been raised before the Ombudsman. This further point was not in Mr Grant's skeleton argument and was raised for the first time at the hearing. Mr Grant said that because Ms Chittoo had been dismissed, it could not be said that she had retired under Rule 5.1 and, in particular, it could not be said that she had retired under BT's medical retirement procedure. He also relied on the fact that Ms Chittoo had commenced proceedings before an Employment Tribunal in relation to her dismissal. Those proceedings had been settled by the parties. Whilst Mr Grant was not able to tell me the terms of settlement, he was able to make the negative point that the outcome of the proceedings did not result in Ms Chittoo being reinstated as an employee. Mr Grant did not specifically rely on Section 146(6)(a) of the 1993 Act (which precludes an investigation or determination by the Ombudsman where the matters complained of have been the subject of proceedings in a court or an Employment Tribunal).
45. In view of my earlier findings as to Ms Chittoo's grounds of appeal, it is not necessary for me to deal with this further argument. This matter was not raised before the Ombudsman and the relevant factual material was not placed before him, nor before me. Accordingly, I will say no more about it.
46. The overall result is that the Appeal is dismissed.