England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/04/2011

Mr Justice Briggs :

INTRODUCTION

1. This is an appeal on points of law by Mr John Batt from the decision of Deputy Pensions Ombudsman Jane Irvine dated 19^th August 2010, by which she rejected his complaint that his former employer the Royal Mail Group Ltd ("Royal Mail") had been guilty of maladministration in reaching a decision not to award him an ill-health retirement pension on the termination of his employment in October 2006.
2. The rules of the Royal Mail's pension scheme applicable to Mr Batt at that time provided for a member with at least ten years reckonable service to receive an immediate enhanced pension if he or she is "retired by the Employer before normal retiring age through Incapacity". Incapacity is defined as:

"Serious physical or mental ill-health (not simply a decline in energy or ability) such that, in the opinion of the Employer, the Member is permanently incapable of:

(a) carrying out his current duties;

(b) carrying out such other duties for the Employer as the Employer might reasonably expect the Member to perform; and

(c) engaging in employment with any other employer of a type which, in the opinion of his present Employer would be reasonable and appropriate for the Member."

3. The terms of a "National Ill-health Retirement Agreement" between the Royal Mail and the employees' unions makes further provision for "Retirement on ill-health grounds with a lump sum payment". This is defined as:

"Cessation of employment as a result of serious physical or mental ill-health (not simply a decline in energy or ability) such that, in the opinion of Royal Mail Group or associated employer (whichever is the employer), the employee is, for the foreseeable future, incapable of:

(a) carrying out his current duties;

(b) carrying out such other duties for the employer as the employer might reasonably expect the employee to perform."

4. The same agreement provides that "permanent incapacity" shall be taken to mean incapacity lasting until normal retirement age or for at least ten years from the date of the relevant medical opinion, whichever is the soonest. The phrase "foreseeable future" in the provisions about retirement on ill-health grounds means a period of at least nine months from the date of the relevant medical opinion. I shall refer to the two tests as "incapacity" and "ill-health" respectively. It is to be noted that the incapacity test for entitlement to an immediate enhanced pension presents a formidable obstacle to a candidate employee, both because of the potentially lengthy period for which future incapacity must be established, and because of the requirement that the employee should be incapacitated from engaging in employment with any other employer, rather than merely in further employment with Royal Mail.
5. At all stages in the process which Royal Mail applied for the purpose of forming an opinion as to the level of Mr Batt's disability, it was concluded that he satisfied the ill-health test but not the incapacity test. Accordingly, he was awarded a lump sum benefit rather than an immediate enhanced pension.
6. Mr Batt's complaint is that if the combined effect of his various physical and mental ailments had been properly assessed by Royal Mail, he would have been found to have satisfied the incapacity test, and that its failure to do so arose from a succession of irregularities in the process, which the Ombudsman ought to have identified as maladministration.
7. Mr Batt appeared as a litigant in person. While he did his best to focus his appeal upon errors of law by the Deputy Ombudsman, and while he was ably assisted by his wife in the presentation of relevant documents, it is clear that he continues to harbour a belief that what he regards as unfair treatment by Royal Mail was the deliberate consequence of an orchestrated process of unfairness towards him whereby he was singled out for less favourable pension treatment than the general run of his fellow employees. His submissions therefore ranged over a substantially wider area than permitted by the confines of this statutory appeal. I intend no disrespect to him in identifying only his main arguments, and concentrating on those which might be supposed to have some prospect of revealing a relevant error of law by the Deputy Ombudsman.

THE FACTS

8. Mr Batt commenced work with Royal Mail in February 1991. By 2005 he was working as what is now described as a post delivery person. By 2006 he was suffering from the combination of a number of ailments. They included the loss of the tips of three fingers, the after-effects of a ruptured bicep, deteriorating eyesight and depression. He had gone on long-term sick leave in August 2005, and a brief return to work in January 2006 was followed by further sick leave beginning in the following month.
9. The Royal Mail's procedures for decision-making about an employee's eligibility for a lump sum or disability pension involve a number of stages, beginning with a referral to the Employee Health Service ("EHS"), leading to a decision by management based on the EHS's advice, followed by a two-stage appeal process. The first consists of a reference back to the EHS and the second of a referral to an independent medical board consisting of two medical specialists drawn from outside the Royal Mail.
10. Mr Batt was referred to the EHS in September 2006 and examined by a Dr Manickarajah, an occupational physician. In a written report dated 4^th September 2006 Dr Manickarajah concluded that Mr Batt satisfied the ill-health test, being currently unfit for work, suffering from a long-term condition with no foreseeable date for a return to his regular duties. Accordingly, in October 2006 Mr Batt was notified that he was to be retired on grounds of ill-health and provided with a lump sum payment of £11,647.33.
11. In December 2006 Mr Batt's union obtained a report from a Mr Bates, a consultant ophthalmic surgeon. His report dated 18^th December 2006 advised that Mr Batt's eyesight did not prevent him from following any form of employment but that the combination of his then current visual difficulties, other medical conditions and his psychiatric condition meant that work was "currently impossible". He recommended the obtaining of a psychiatric report.
12. Mr Batt was referred back to Dr Manickarajah in March 2007 and, as part of the first stage in the appeal process, his case was referred to a Dr Swales, a consultant occupational physician, who reviewed Mr Batt's condition on the basis of available case notes, rather than by a personal examination. Those notes included a report from a Mr Cox, a consultant ophthalmic surgeon which appears broadly to have confirmed Mr Bates' opinion, namely that Mr Batt's eye condition did not prevent him from being employed, but that he needed a formal psychiatric assessment. Dr Swales concluded that Mr Batt did not satisfy the incapacity test, there being no evidence to suggest that his medical difficulties made him permanently unfit for work.
13. Mr Batt then appealed to the independent medical board, being of the view, in particular, that Royal Mail should have given him further time to obtain a psychiatric report. He consulted Dr Susan Johnson, a consultant psychiatrist in July 2007, and in a letter to Mr Batt's GP Dr Barnes she stated her "impression" that he was "suffering from a severe depressive episode, perpetuated by the dispute with his employer". She recommended a change in his medication and suggested a further review in November. It does not appear that Dr Johnson provided any further written opinion or advice in 2007.
14. Mr Batt was interviewed by an independent medical board consisting of Dr Ryan, a specialist occupational physician, and Dr Verma, a consultant psychiatrist, on 3^rd January 2008. The board rejected his appeal, giving detailed written reasons in a six page document on the following day, which identified the documents with which they had been provided both in advance of and during the hearing. They included Mr Bates' December 2006 report but not Dr Johnson's July 2007 advice, although Mr Batt told me that he had tendered it to the board at the hearing. It is evident that the board were aware that Mr Batt was obtaining specialist psychiatric advice from July 2007.
15. The Board's opinion, in agreement with Doctors Manickarajah and Swales, was that the combined effect of Mr Batt's physical and psychiatric ailments was that, while he satisfied the ill-health test, there was no evidence that he was permanently incapacitated within the meaning of the incapacity test. They conducted their own examination of his psychiatric condition and concluded that he suffered "from Mild to Moderate degree of depressive illness secondary to physical disabilities and unhealthy employment situation" and that he had "a clinical depression which can best be described as middle to lower end of the moderate scale". They continued:

"The impact of his medical condition has been significant on his day to day functioning capabilities. Access to psychiatric care did not occur until July 2007. Ongoing psychiatric support and compliance with medication is required to control his symptom profile. There were no prognostic factors identified by the Medical Board to suggest that his condition is not likely to respond to psychiatric care. There is evidence that suggests his symptom profile is improving however, following his perception of how he has been managed at work he is unlikely to obtain full resolution until his employment issues are entirely resolved."

The board described their conclusion that Mr Batt satisfied the ill-health test but not the incapacity test as having been arrived at on the balance of probabilities.

THE DEPUTY OMBUDSMAN'S DECISION

16. Leaving aside her summary of the facts and competing arguments (which is not significantly challenged by Mr Batt) the Deputy Ombudsman's analysis may be summarised as follows:

i) It was for Royal Mail to decide whether Mr Batt satisfied the incapacity test, for which purpose it was obliged to take into account all relevant matters but no irrelevant ones, to interpret the rules correctly, to ask the right questions, and to reach a decision which could not be criticised as perverse.

ii) Royal Mail's decision-making process satisfied those requirements.

iii) Royal Mail was entitled reasonably to rely upon advice received from its own medical advisers, and from the independent medical board. In the event of a difference between those advisers and Mr Batt's medical advice, Royal Mail were entitled, after weighing up all the advice, to prefer the advice of their own doctors in the absence of strong reasons to the contrary.

iv) Although there were errors of detail in the reports produced by the Royal Mail's advisers they were immaterial, in the sense that, if corrected, they would not have led to any different conclusion on the balance of probabilities.

v) None of Royal Mail's advisers (including for that purpose the independent board) had failed to consider all Mr Batt's relevant medical conditions.

vi) It could not be shown that the independent board's advice was vitiated by any failure to obtain or to consider the written advice of other doctors who had examined Mr Batt. In particular it was for the Board to decide whether to rely upon the reports of others or (as they did) to conduct their own psychiatric examination of Mr Batt, in particular because one of them was himself a consultant psychiatrist.

THIS APPEAL

17. While not challenging the Deputy Ombudsman's description of the facts, Mr Batt criticised her for failing to conclude that, in a number of respects, they amounted to maladministration. For example he submitted that it was maladministration for Royal Mail to refer him on his initial appeal back to Dr Manickarajah, and then for his case to be reviewed by Dr Swales without a further personal interview with him. He criticised as maladministration Royal Mail's refusal to give him further time to obtain a psychiatric report before his first appeal, in March 2007. He said that Royal Mail had been wrong to withhold Mr Bates' December 2006 report from the independent board, and that Royal Mail should have commissioned its own psychiatric report.
18. In my judgment none of these criticisms, taken singly or in the aggregate, disclose any error or law on the part of the Deputy Ombudsman. Her task was to decide whether Royal Mail's opinion that Mr Batt's condition fell short of satisfying the incapacity test was vitiated in the manner which I have described above. In that context, procedural irregularities committed at an early stage in a process leading to an appeal to an independent medical board are of little consequence unless in some way they can be shown to have undermined the reliability of the independent board's opinion. It is in that context immaterial that, on the first appeal, it might have been preferable for Mr Batt to be interviewed by a different doctor than Dr Manickarajah. Similarly, since Mr Batt had obtained the advice of a consultant psychiatrist well in advance of his hearing before the independent board, Royal Mail's refusal to give him time to do so before his first appeal is also immaterial. Likewise, it is of no consequence that Royal Mail did not itself provide Mr Bates' December 2006 report to the independent board, since Mr Batt provided it himself. It is evident from the independent board's report that those doctors regarded Mr Bates' report as one of the documents to be considered, and as the Deputy Ombudsman observed, it does not follow from the absence of any express reference to it in the body of their opinion that they did not take it into account. More fundamentally, nothing in Mr Bates' report amounted to evidence of permanent incapacity within the meaning of the incapacity test. On the contrary Mr Bates was careful to explain that he had reached no such conclusion.
19. There is a little more substance in the criticism that the independent board's report makes no reference to Dr Johnson's July 2007 advice, or to her view that Mr Batt's psychiatric condition was more serious than the independent board itself considered it to be. But again, there is nothing in Dr Johnson's advice which can properly be read as containing a conclusion that Mr Batt's psychiatric difficulties were permanent, so that he would never be able to work again. Accordingly, on the critical issue whether Mr Batt's condition satisfied the incapacity test, Dr Johnson's July 2007 advice took the matter no further.
20. Mr Batt made various criticisms of the Deputy Ombudsman's reasoning, summarised above. First, he submitted that she was wrong to conclude, in paragraph 28 of the Decision, that Royal Mail "interpreted the Rules correctly". Mr Batt's criticism was based upon procedural irregularities, rather than any misunderstanding of the nature of the disability test imposed by the Rules of the applicable pension scheme, to which the Deputy Ombudsman was referring.
21. I might be suggested, although Mr Batt did not make this point himself, that the Deputy Ombudsman's concise summary in paragraph 26 of the Decision of the difference between the ill-health and incapacity tests was itself less than wholly accurate. It focused on the difference constituted by the need under the incapacity test to show that the employee is incapable of working even for another employer, but did not draw attention to the difference between permanent incapacity and ill-health for the foreseeable future. That distinction is however precisely made in paragraph 4 of the Decision and its omission in paragraph 26 seems to me to have made no significant difference to the Deputy Ombudsman's analysis.
22. Mr Batt challenged as wrong the Deputy Ombudsman's finding at paragraph 32 of the Decision that all Royal Mail's advisers had mentioned each of his medical conditions, pointing out that Dr Manickarajah had made no mention of his ruptured bicep and damaged fingers. In my judgment, while factually correct, this criticism cannot survive the clear consideration of all Mr Batt's medical conditions by the independent board in its report.
23. Mr Batt criticised the conclusions of the independent board, in the section of their report dealing with his psychiatric condition, that he had not suffered early morning waking or inflicted actual self harm. He pointed out that this was contradicted by a letter from his GP Dr Barnes dated 14^th June 2007, with which the independent board had been provided. This is not a point upon which the Deputy Ombudsman commented, save in the indirect and general sense that she concluded that Royal Mail were entitled to rely upon the independent board's own opinion, after interviewing Mr Batt, about his psychiatric condition. While it is a point that may go to the gravity of his condition at that time, there is nothing before me to suggest that it goes to its permanence, nor does a departure by a board of independent professionals from the advice given in a document made available to them by Mr Batt come near to grounding a founding of maladministration on the part of Royal Mail.
24. It is apparent from the papers before the court that by January 2008 Mr Batt had been interviewed or examined, or his case papers considered, and had been reported upon, by no less than nine doctors, including two GPs, three occupational specialists, two consultant ophthalmic surgeons and two consultant psychiatrists. In none of their reports (to the extent available to the court) is there any evidence that would have justified a conclusion that Mr Batt was at the relevant time permanently incapacitated from work within the meaning of the incapacity test. I asked Mr Batt during the hearing whether he could point to any medical advice, given by January 2008, to the effect that he was permanently incapacitated from work, and he acknowledged that he could not. His only submission was that if Royal Mail had sought it, it could have been found.

CONCLUSIONS

25. Nothing in Mr Batt's detailed arguments, both oral and written, or in the papers more generally before the court suggests any error or law on the part of the Deputy Ombudsman in reaching her conclusion that the complaint should be rejected. That is of itself sufficient to dispose of this appeal.
26. Nonetheless, and for completeness, I make it clear that even if I had identified some error or law, the absence of any medical advice by January 2008 (when Royal Mail accepted the independent board's opinion) which tended to show that Mr Batt satisfied the incapacity test must mean that he has suffered no injustice in the way in which his pension entitlement has been addressed by Royal Mail. For this purpose the relevant date is, by the pension scheme Rules, the date of Royal Mail's relevant medical opinion. Whether that is treated as September 2006, when Dr Manickarajah advised, or January 2008, when the independent board advised, the combined effect of all the written medical opinions is that Mr Batt did not satisfy the incapacity test.
27. This appeal must therefore be dismissed.