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Pensions Ombudsman directs HSEA to formally withdraw their instruction in relation to the discontinuance of injury grants at age 65 and finds that the issuance of the circular in August 06 is of itself an Act of gross maladministration.

The PNA referred a complaint to the Pensions Ombudsman in December 2008 when the HSE ceased payment of an Injury Grant to a nurse when she reached 65 years of age. This nurse was assaulted in 2000 and was in receipt of the injury allowance from June ’01 to the date of her 65th birthday in 2008.

The Pensions Ombudsman has upheld the complaint and has now directed that The Injury Grant be continued for her lifetime to the extent of a amount equal to the additional Pension which would have been earned by her had her service for June ’01 to her 65th birthday been reckonable for Pensions purposes

The backround to this case was the issue of a instruction from Mr Brendan Mulligan H.S.E.A to Mr Sean Keane HSE Pensions Standards and Quality Manager on 22nd August 2006 that Injury Grants “should not extend beyond normal retirement age”. This instruction together with an extract from a final determination by the Pensions Ombudsman in another case relating to the payment of Injury allowance was the basis for the decision to discontinue the Grant in respect of our member.

The Pensions Ombudsman in his final determination on this case stated in regard to this under “Conclusions”.

“This instruction, as I have already stated, predated my determination in case numbered PO0505039, which was issued in December of 2006. It is disingenuous, at best, to represent the later determination as being the justification for the earlier circular. In fact the determination in question clearly runs counter to the instruction contained in the circular”.“What that circular purports to do is ultra vires the HSEA, as it seeks to fetter the discretionary power conferred by the Article; moreover, the HSEA is not and never was the “authority” (i.e. the employer) in this case and does not itself have the exercise of the discretionary power. In fact, it is not at all clear to me that the HSEA has any function in relation to the administration of the superannuation scheme”.“I can only assume that the imperative of saving money at any cost (in this case, to a former employee) is what persuaded the HSE personnel in Dublin to ignore this anomaly between the dates and also to ignore the fact that I have pointed out that it is not lawful to fetter in advance a discretionary power by laying down a blanket instruction limiting the exercise of the power. Alternatively it may just be an unwillingness to accept that their instruction was quite simply wrong”.“There has been no attempt to explain why the circular referred to above appears to ignore completely the crucial phrase from the Article, “shall be payable for life or....”- to do so would appear to be completely irrational, if not actually perverse”.

The Pensions Ombudsman also outlined what he saw as the intention behind payment of the Injury Grant under section 109.

It is clear to me that the intention behind Article 109 was to cater for the possibility that an Injury Grant might have to be payable for life as, for example, in a situation where an employee was injured early in their career, before they had time to earn any reasonable pension entitlement. In those circumstances, the complete discontinuation of an Injury Grant payment would indeed render them penniless, even though their injuries were sustained in the service of the employer and through no fault of their own”.

In his final determination the Pensions Ombudsman stated inter alia.

“Having regard to the foregoing, and in exercise of the powers vested in me under Section 139 of the Pensions Act, 1990, it is my Final Determination that the complaint made be upheld.The payment of an Injury Grant renders subsequent periods of service non-pensionable. To that extent, it is neither fair nor reasonable to discontinue the grant in toto upon the attainment of pensionable age by the grantee. I therefore direct that the Injury Grant be continued for her lifetime, to the extent of an amount equal to the additional pension which would have been earned by her, had her service from 22nd June 2001 until her 65th birthday been reckonable for pension purposes.I find that the issuance of the Circular on 22 August 2006 is of itself an act of gross maladministration and I therefore direct the HSEA to withdraw formally the instruction in relation to the discontinuance of an Injury Grant at age 65; and that it forthwith inform all units which received that circular that it is incorrect; that all cases of injury grants which come up for review on the attainment by the relevant officer of age 65 should be submitted for consideration upon the merits of each case.I further direct that the HSE and the HSEA shall henceforth desist from issuing any instruction which purports to fetter in advance the exercise of a discretionary power, whether that power is given to a Minister or to an authority under the terms of the Local Government Superannuation Scheme”.