The British Medical Association has issued legal proceedings against the government, challenging recent changes that enable the suspension of benefit payments when a National Health Service Pension Scheme member has been charged with certain criminal offences.
In December 2018, the Department of Health and Social Care published a consultation on proposed changes to the NHSPS regulations.
It suggested amendments to extend existing forfeiture rules so that the secretary of state could suspend the right to, or the payment of, benefits if a member or other beneficiary is charged or convicted with an offence that might lead to all or part of those benefits being forfeited.
It’s the first time I’ve seen an ability to suspend before there is a conviction
Kirsty Bartlett, Squire Patton Boggs
In its response to the consultation in March this year, the department confirmed it would go ahead with implementing the proposal. The suspension changes came into effect on April 1 2019.
But the BMA has said it is challenging these changes in the High Court, arguing that they are in breach of the European Convention on Human Rights.
A photograph of a presentation slide, shown during the BMA’s recent annual representative meeting, stated: “BMA has issued legal proceedings in the High Court seeking judicial review to challenge the lawfulness of amendments made to the NHS Pension Scheme giving the Secretary of State the power to suspend the payment of benefits under the Pension Scheme where the member has been charged with certain criminal offences.”
The photograph, tweeted by Krishan Aggarwal, deputy chair of the sessional GPs subcommittee, GPC UK, and a member of the BMA pensions committee, shows the BMA is claiming the amendments “are contravention of the European Convention on Human Rights by reason of breaching the right to a fair trial, breaching the right to possession of one’s property, and being discriminatory”.
The BMA also claims that the decision is in breach of the principles of public law “by being irrational and also in breach of the public sector equality duty”.
A BMA spokesperson said the application for judicial review was filed on May 24 2019.
Forfeiture only forward-looking
Sections 91-93 of The Pensions Act 1995 set out the specific circumstances in which occupational pension scheme benefits can be forfeited.
Kirsty Bartlett, partner at law firm Squire Patton Boggs, noted that it has been a long-standing principle that pension benefits could be forfeited in some cases – if the member owes money to the employer, for example.
"The bit in the Pensions Act that basically says, if your scheme rules have that type of forfeiture provision, it's allowed – normally you have to have a court judgment... it has to be proven, if you like, that the money was owed”, Ms Bartlett noted.
However, in this case the government is going a step beyond forfeiture, with the legislation giving the secretary of state the power to suspend benefits before there is a conviction.
She highlighted that the forfeiture provision that was already in the NHSPS legislation is only forward-looking.
If pensions have come into payment and a doctor was convicted, future pension instalments would be stopped, but the government “wouldn’t be able to go and try and claw back benefits that had already been paid out”, she said.
The forfeiture provisions only apply to certain offences.According to the DHSC’s consultation response, in the case of pension scheme members, “these are offences committed in connection with their employment which are liable to lead to serious loss of confidence in the public service, or are gravely injurious to the State”.
The powers also apply in respect of convictions for treason or offences under the Official Secrets Acts where the scheme member has been sentenced to at least 10 years in prison.
With regard to scheme beneficiaries, relevant offences are the manslaughter or murder of the scheme member, “or any other offence of which the unlawful killing of the member is an element”.
Ms Bartlett said: “It’s a pretty high bar before benefits would be forfeited, but you can imagine, in circumstances of someone being charged and all the rest of it, it’s not beyond the realms of possibility that they would also be stopping work, retiring – bringing benefits into payment.”
While it may be rational to suspend benefits and then ultimately forfeit them if the member is convicted, “it’s definitely an extension to what is normally the case – it’s the first time I’ve seen an ability to suspend before there is a conviction”, she said.
Could some members struggle with defence costs?
Usually, if a member is charged but does not end up being convicted of that offence, “it’s only a suspension, so they will get the benefits back, plus interest”, Ms Bartlett said.
LGPS unmarried couples discrimination unlawful, Supreme Court rules
In 2017, the Supreme Court has ruled that regulations requiring unmarried Local Government Pension Scheme members to nominate a cohabiting partner in order for them to receive a survivor’s pension contravened the European Convention on Human Rights.
But in terms of timing, the suspension of benefits could have a significant impact on scheme members who had already retired or members looking to retire.
“If someone has been charged with a really serious offence, they’re unlikely to still be working – I would suspect – so if they’re not getting money in from their employment and they can’t receive their pension, I can understand why the BMA would be worried about its members being in that situation,” Ms Bartlett notes.
This could be an issue if they are facing the costs of defending themselves.
For members who are not eligible for legal aid because they are too wealthy, but they are not receiving any salary and they cannot receive their pension, "I can see why they might argue it's making it harder for people to defend themselves", she noted.
The DHSC does not comment on ongoing litigation cases.
