Douglas Leach successful in test appeal on meaning of NHS Injury Benefit Regulations 1995 – October 2015


The transcript is now available of the judgment of the High Court (Chancery Division) in Young v NHS Business Services Authority [2015] EWHC 2686 (Ch), which determines an unusual statutory appeal (under s.151(4) of the Pensions Act 1995) from a decision of the Pensions Ombudsman.

The NHS Injury Benefit Regulations 1995 (“NHSIBR 1995”) provide various valuable benefits to eligible NHS employees. In Young, the benefit in issue was Permanent Injury Benefit (“PIB”).

To be eligible for PIB, reg.3 imposes a requirement that the employee must have suffered an injury or disease which was “wholly or mainly” attributable to the employee’s NHS employment. A further condition of eligibility is that there must have been a Permanent Loss of Earning Ability (“PLOEA”) of at least 10%. Once those criteria are satisfied, the next question (which arises under reg.4) is whether the PLOEA has arisen “by reason of” the reg.3 qualifying injury.

In Mrs Young’s case, there was no dispute that she had suffered a qualifying injury (“the index injury”) in February 2010: she injured her back whilst manoeuvring a patient. Unknown to her at the time, she also had an underlying degenerative condition of the spine which she contends symptomatic subsequent to the index injury. Her application for PIB was refused by NHSBSA, on the basis of medical advice that a hypothetical individual with no underlying degenerative condition, would have recovered from the index injury relatively quickly. her accepted 100% PLOEA was “by reason of” her degenerative condition rather than the index injury. That reasoning was upheld by the Pensions Ombudsman.

Nugee J (hearing the appeal) agreed with Douglas’s argument for Mrs Young: the correct legal question under reg.4 was whether the index injury was “an operative cause” of the PLOEA, rather than “the operative cause”, which was the effect of the reasoning that the Pensions Ombudsman had accepted. The appeal was allowed and Mrs Young’s application was remitted to NHSBSA for reconsideration. An application for permission to appeal is pending.

The result opens up potential availability of PIB to a wider range of NHS/former NHS employees who have suffered a Permanent Loss of Earning Ability (“PLOEA”) of at least 10%, which may be the result of a combination of causes. This position will only apply to those who sustained a work-related injury on or before 30 March 2013 however, because the government has replaced the Injury Benefit scheme with a new “Injury Allowance” for injuries occurring after that date, which is a contractual benefit obtained directly from the relevant NHS employer. A “sunset period” up to 30 March 2018 is in place for those with pre-31 March 2013 injuries to bring NHSIBR claims, and this period will be extended to 30 March 2038 in exceptional circumstances where the claim arises out of the late onset of symptoms.

To read the transcript in full please click here.


Douglas Leach

Call: 2003

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