Pension payment suspension deemed unlawful

The BMA has secured victory in the high court over changes made by health secretary Matt Hancock to the NHS pensions scheme in England and Wales

This is an edited version of an article first published by the BMA

Mr Hancock amended NHS pension rules in April 2019, giving himself the power to suspend payment of pensions benefits to any doctor or NHS professional who had been charged with certain criminal offences but not yet convicted.

Most, if not all, public sector pension schemes contain provisions for the suspension of a person’s benefits – but only after the point of conviction; yet, if the changes were to be allowed, NHS professionals would be the only public sector workers to have the threat of forfeiture of their pensions hanging over them at any time from when the charges were made.

Charge and conviction

However, in a judgement handed down today, the high court agreed with the BMA’s argument that the new regulations breached:

• Article 6 (right to a fair trial)
• Article 14 (protection from discrimination)
• Article 1
• Protocol 1 (right to peaceful enjoyment of property) of the European Convention on Human Rights and the Public Sector Equality Duty under the Equality Act (in failing to have regard to the equality implications of the changes).

Handing down her judgment following a judicial review brought by the BMA against the health secretary, the Honorable Mrs Justice Andrews wrote that no explanation had been given, “to how the scope of the power to suspend (and, indirectly, the power to forfeit) came to be expanded to cover the period between charge and conviction, or what the thinking was behind it”.

She added the government had failed to draw a distinction between someone charged with a crime and someone convicted of a crime, despite the fundamental principle in law being that “every defendant to a criminal charge, however serious, and however compelling the evidence against him may appear, is presumed innocent until proved guilty to the criminal standard”.

Natural justice

“Today’s judgment is a victory for natural justice for our members and for all NHS professionals across England and Wales who could have been unlawfully deprived of their pensions benefits had these rules remained in place,” BMA council chair Chaand Nagpaul said.

“We could not allow the government to simply disregard the fundamental principle that a person charged with a crime is presumed innocent until proven guilty. These rules assume guilt from the outset, with little regard for the impact on a doctor’s well-being, career or personal life.

“From the evidence presented it is clear the government made no assessment of – or, worse, just disregarded – the potential effect this rule change would have on those who are retired and already drawing on their pensions, and those who are older, ill or disabled.

“We welcome today’s judgment and, on behalf of our members, we are glad that these regulations, which should never had been approved in the first place, will now be struck from the statute book.”

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