Tod Davies looks at a recent case which highlighted the complex status of locum practitioners, and the problematic notion of pensionable employment as defined in the 1995 and 2002 NHS Pension Scheme Regulations.
What was the background?
Mr Sanderson complained after the NHS Business Services Authority (NHS BSA—the administrator of NHS Pensions) awarded him death benefits from deferred service, rather than pensionable service (a much higher payment), following the death of his wife, a self-employed locum general practitioner.
Like most GP locums, Dr Sanderson would agree to work sessions at different GP practices on an ad hoc pattern. She had been working the day before she died and had a significant number of bookings for the next four months, but was not working on the exact day she died (Christmas eve). This led the NHS BSA to consider that she was not actually contributing to the NHS Pension Scheme at the time of her death and therefore, did not die in pensionable employment.
On this basis, the NHS BSA decided that the relevant NHS Pension Scheme regulations did not require the lump sum payable under ‘pensionable service’ to be paid, and that her widower, Mr Sanderson, was only eligible to receive the lump sum payable under ‘deferred service’ (a sum significantly less).
Mr Sanderson challenged this decision through the NHS Pension Scheme’s internal dispute resolution procedure, unsuccessfully, before appealing to the Pensions Ombudsman. The argument on this appeal revolved around the meaning of the word ‘engaged’ in the context of self-employment.
What did the High Court decide?
The Court was presented with the argument by the NHS BSA that the meaning of ‘engaged’ must mean the time in which the GP locum was actually working, while Mr Sanderson argued that his wife’s contractual obligation to work shifts at several practices in the weeks that followed her death meant that she was ‘engaged under a contract for services’ as required by the regulations.
The judge recognised that both approaches caused practical difficulties when presented with likely real-life scenarios. On the NHS BSA’s approach, a GP locum is not covered should they die immediately upon leaving the surgery, such as travelling home, or travelling between surgeries. Mr Sanderson’s approach, that a GP locum is ‘engaged’ if the locum has agreed to work a shift at a practice, is problematic as the locum would presumably be covered if a single booking is made in six months’ time, despite not working in the interim.
The judge therefore determined that, as well as actual working time, the period of ‘engagement’ should extend to any time at which a GP locum is engaged in any form of activity, which is incidental or ancillary to their obligations under the relevant contract for services. This is in the sense that they would not be doing what they were doing had they not been bound by duties to provide the relevant service—such as travelling between home and a practice, or between practices, lunch hour and other breaks in the day.
In Dr Sanderson’s own circumstances, the Judge determined it was not possible to characterise what was doubtless a well–earned rest for Dr Sanderson from her labours, as anything other than a break from engagement under the contracts for services to which she had been and was still committed. The appeal was therefore dismissed.
What are the practical implications of this case?
Although they are self-employed, GP locums pay into an NHS pension much like NHS employees do. However, as GP locums are not employees, they do not carry the automatic eligibility to receive certain benefits, or do so only in certain circumstances. One such benefit is death-in-service benefit, which is paid to the surviving relatives should the NHS employee or GP locum die during the course of their work.
Families of GP locums who have died during the course of their work have discovered that NHS BSA take a rigid approach when deciding whether the GP locum died ‘during pensionable employment’ and therefore whether they are eligible to receive the larger benefit payment.
NHS BSA have taken the approach that GP locums are only covered when they die during the time they are actually working. This excludes any time in which the GP locum is not actually working— when travelling to work, sleeping, or indeed on a weekend or other day in which he or she is not physically working at the time of their death.
The decision in this case therefore shows that NHS BSA need to widen their approach to include any time that is ancillary or incidental to working, which should be of some comfort to GP locums.
Article originally written for, and published by Lexis®PSL on 11/11/2019.
Sanderson v NHS Business Services Authority  EWHC 2900 (Ch),  All ER (D)