The NHS Business Services Authority v Williams [2016] EWHC 1952 (Ch)

[2016] EWHC 1952 (Ch)

Case No CH/2015/0189

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

IN THE MATTER OF REGULATION R2 OF THE NATIONAL HEALTH SERVICE PENSION SCHEME REGULATIONS 1995

AND IN THE MATTER OF A DETERMINATION OF THE PENSIONS OMBUDSMAN AND AN APPEAL UNDER SECTION 151 OF THE PENSION SCHEMES ACT 1993

Venue Royal Courts of Justice, 7 Rolls Buildings, Fetter Lane

Date 28/07/2016

London, EC4A 1NL

Before

MR JUSTICE WARREN

Between

THE NHS BUSINESS SERVICES AUTHORITYAppellant

CHRISTINE WILLIAMSRespondent

Oliver Sanders (instructed by the Treasury Solicitor) for Appellant

David E Grant (instructed by Blake Morgan LLP) for Respondent

Hearing Hearing dates: 23, 24 February 2016

Judgment Approved

Mr Justice Warren :

Introduction

[1]The issue in the present appeal is whether the Respondent (“Ms Williams”), was “in pensionable employment as a nurse” within the meaning of Regulation 2 of Part R of the National Health Service Pension Scheme Regulations 1995 (“the 1995 Regulations”).

[2]The Appellant (“NHSBSA”) is the administrator of the National Health Service Pension Scheme (“the Scheme”), a statutory pension scheme providing final salary benefits for certain persons employed in the National Health Service (“the NHS”). Ms Williams is a member of the section of the Scheme governed by the 1995 Regulations.

[3]Under Regulation E1 of the 1995 Regulations, the normal retirement age of a member is specified as 60. But where Regulation R2 applies, Regulation E1 applies as if the reference to age 60 were a reference to age 55. The status thus conferred is referred to as “Special Class Status” (or “SCS”), although this is not a term which appears in the 1995 Regulations themselves. If Ms Williams qualified for SCS, her pension, on her early retirement, should have been based on a normal retirement age of 55, and thus should have been reduced, for early payment, only if retirement was before that age. Instead, NHSBSA has taken the position that she does not qualify for SCS and has reduced her pension for early payment from age 60.

[4]The Pensions Ombudsman (“the Ombudsman”) decided that Ms Williams qualified for SCS. His determination (“the Determination”) was released by him on 10 March 2015.

The Scheme

[5]Regulation R2, which is headed “Special provisions for certain members” provides as follows:

“R2 Nurses, physiotherapists, midwives and health visitors (1) Subject to paragraph (2), this regulation applies to a member – (a) who, at the coming into force of these Regulations – (i) is in pensionable employment as a nurse, physiotherapist, midwife or health visitor, or (ii) has accrued rights to benefits under this Section of the scheme arising out of a previous period in which she was engaged in such employment and at no time since the last occasion on which she was so engaged has she had a break in pensionable employment for any one period of 5 years or more, and (b) who spends the whole of the last 5 years of her pensionable employment as a nurse, physiotherapist, midwife or health visitor. (2) This regulation shall cease to apply if the member has a break in pensionable employment for any one period of 5 years or more ending after the coming into force of these Regulations. (3) Where this regulation applies – (a) regulation E1 (normal retirement pension) will apply to the member as if the reference, in paragraph (1) of that regulation, to age 60, were a reference to age 55... ” (a) who, at the coming into force of these Regulations – (i) is in pensionable employment as a nurse, physiotherapist, midwife or health visitor, or (ii) has accrued rights to benefits under this Section of the scheme arising out of a previous period in which she was engaged in such employment and at no time since the last occasion on which she was so engaged has she had a break in pensionable employment for any one period of 5 years or more, and (b) who spends the whole of the last 5 years of her pensionable employment as a nurse, physiotherapist, midwife or health visitor. (a) regulation E1 (normal retirement pension) will apply to the member as if the reference, in paragraph (1) of that regulation, to age 60, were a reference to age 55... ”

[6]The principal enabling Act for the Regulations is the Superannuation Act 1972. Neither that Act, nor the 1995 Regulations or any other regulations made under that Act, provides any definition of “nurse”.

[7]SCS appears to have derived from section 16 of the Local Government Superannuation Act 1937, an Act pre-dating the creation of the NHS. Although the relevant pension scheme provided for a normal retirement age of 60, that Act contained provisions for the early retirement at age 55 of female nurses, midwives and health visitors. The justification for these provisions reflected a contemporary attitude to women which no longer has a place in our society, namely that the specified roles entailed duties which were considered physically arduous and required a high standard of physical fitness which it was then considered would be beyond most women after the age of 55.

[8]That explanation can be found stated in a circular issued by the NHS Superannuation Branch of the Department of Health and Social Security, on 3 April 1989, SD Letter 89(7). It was there described as a concession but it was a concession only in the sense that a policy decision had been taken to make special provision for this class of employee, which was reflected in the statutory provision.

[9]The special treatment was never, in practice afforded to nursery nurses generally. Mr Sanders (who appears for NHSBSA) suggests that this was because the role of a nursery nurse ordinarily involved the care of healthy rather than sick babies and infants and this work was considered less arduous or demanding. That may or may not be so; the Ombudsman made no finding one way or the other about this and I do not take it into account.

[10]Mr Sanders has also explained that, in 1974, certain nursery nurse functions were transferred from local authority control to the NHS. An oversight meant that employing authorities were not initially instructed that the transferred nursery nurses should be excluded from SCS. However, a 1978 instruction was subsequently issued directing their exclusion.

[11]The practical exclusion of nursery nurses, including those working in special care baby units, from SCS is reflected in circulars from the NHS Superannuation Branch over the years. For instance, SD Letter 88(20), dated 22 August 1988, which provided guidance to employing authorities (“EAs”), included the following:

“Following several enquiries made to the Branch, it is confirmed that Nursery Nurses, including those working in special care baby units are not members of the special classes as defined by the regulations. Consequently the minimum retiring age for this group of employees is age 60, and to ensure that in retirement they are treated correctly in accordance with the regulations, all Nursery Nurses should be shown as capacity code “4” on forms… Employing Authorities are asked to bring to the attention of this group of employees that they are not members of the special classes and their normal retiring age is 60. The EA Guide will be amended in due course.”

The EA Guide will be amended in due course.”

[12]Ms Williams did not, at this time, have brought to her attention that she did not qualify for SCS.

[13]The Ombudsman records at [11] of the Determination the explanation given by the Department of Health that during 1989 and 1990 there was a review of SCS. This explanation is set out in more detail in [57] and [58]. It appears that, in the course of this review, the Department of Health consulted the Chief Nursing Office and other NHS nurse leads and stakeholders. The Chief Nursing Officer said that focusing on arduous duties for SCS classification was less relevant and that a nursing qualification was more important. It was also noted that merely holding a qualification should not be the deciding criterion, but that there should also be a requirement for it in carrying out the person’s duties.

[14]It was decided that the earlier main focus on “physically arduous” duties for classification purposes had by then become less relevant. In contrast, the holding of a professional qualification had become more important. The review included the position of nursery nurses in neonatal intensive care units and views were sought from interested parties. The Ombudsman puts it this way: “In relation to nursery nurses in neonatal intensive care units [the Department of Health] sought views on their position and were advised that the role remained mainly concerned with routine caring duties and normally for healthy rather than sick patients. While some Nursery Nurses were beginning to undertake more duties of a clinical nature this was, and remains, under the direction of a professionally qualified senior nurse. Following this review the Department maintained its earlier determination that SCS could not apply to nursery nurses. Their roles, even in the neonatal units, were not considered physically arduous and did not require a professional qualification. They were mindful that while whilst [sic] many nursing roles had evolved and continued to do so the SCS provisions were about protecting the rights of staff who had met the criteria prior to certain transfers of functions to the NHS.” [That is a reference to the transfers which included the transfer of certain functions from local authorities in 1974.]

[15]The Department continued to maintain the view that even neonatal nursery nurses did not qualify for SCS, a view which was reflected in further communications. One example is SD Letter 89(7), dated 3 April 1989. It refers again to SCS as a concession granted because “it was felt that the arduous physical nature of practical nursing required a degree of stamina that could not be demanded of women beyond the age of 55”. It also included the following:

“EAs are reminded that it is SOLELY the duties performed that determine special class status and classification is not influenced by either the pay scales or the possession of a nursing qualification. Whilst nursing duties are many and varied the following, if they form a major proportion of the duties performed, will comply with the definition of arduous for the purposes of granting special class status • Lifting, carrying, controlling and restraining • Feeding, bathing, dressing and attending to personal needs • Constant attendance and monitoring of patients • Responsibility for administering treatment and drugs.” • Lifting, carrying, controlling and restraining • Feeding, bathing, dressing and attending to personal needs • Constant attendance and monitoring of patients • Responsibility for administering treatment and drugs.”

[16]Another example is SD Letter 90(13), dated 18 June 1990, which includes the following:

“Definition of a Nurse 2. A member is accepted as a nurse if she holds a nursing qualification recognised by the UK Central Council for Nursing, Midwifery and Health Visiting and is employed in a job which requires such a qualification as part of the job specification. In addition, those in occupations traditionally accepted as analogous to nursing can be classified as nurses. These include Nursing Auxiliaries, Physiotherapists, Midwives and Health Visitors. Nursery Nurses do not qualify for Special Class Status.”

[17]The second and third sentences are to my mind slightly confusing. Physiotherapists, midwives and health visitors qualify for SCS not because they are nurses (although it may be that these caring professionals could properly be described as nurses in a wide sense of the word) but because they are mentioned expressly in the relevant statutory provisions (including most recently the 1995 Regulations). Mr Sanders’ position before me was that nursing auxiliaries are not “nurses” within the meaning of Regulation R2, and that their acceptance for SCS was at best a concession and may at worst have been incorrect. This has no impact, he submits, on the status of nursery nurses, in relation to whom SCS has never been accepted even by concession.

[18]The same circular goes on to address the status of Occupational Health Nurses. Such persons had not, up to that time, been accepted as qualifying for SCS. That position changed:

“Occupational Health Nurses have not, in the past, been accepted as qualifying for Special Class Status. It has now been agreed that they should do so. EAs should therefore amend their records to redesignate all Occupational Health Nurses as members of the Special Classes and advise the members concerned.” [Emphasis in original]

Ms Williams’ employment by the NHS

[19]Ms Williams is a qualified nursery nurse. From 1 September 1977 to 7 June 2014, she was employed by the Cardiff Vale University Health Board as a Nursery Nurse in the Neo-Natal Intensive Care Unit of the University Hospital of Wales. As to qualification, the Ombudsman records at [22] as follows:

“Staff employed as nursery nurses at the time Ms Williams was first employed were required to have gained the National Nursery Examination Board (NNEB) qualification. Whilst this was not a United Kingdom Central Council for Nursing, Midwifery and Health Visiting qualification, it was widely viewed as an essential qualification for staff working as nursery nurses within the special care baby unit neonatal area. The NNEB qualification appears as an essential criterion on the person specification for this post and is broadly comparable to NVQ level 3. In addition nursery nurses are required to undertake the NHS course “Nursing care of well and sick babies”.”

[20]This appears to have been taken from a letter from Ms Williams’ employer in which it was stated that the NNEB qualification was not a nursing qualification. It is to be noted that the NNEB qualification held by Ms Williams was a generic qualification for nursery nurses and nannies which was not specific to work on neonatal intensive care units. As indicated in [22] of the Determination, this level of qualification is broadly compatible with NVQ level 3 and thus is generally considered a vocational alternative to A Levels. By way of contrast, registered nurses must, today at least, hold a degree in nursing and are therefore qualified to a much higher level than nursery nurses. In the past, before registration required a degree, nurses were trained in different skills and to a higher level than nursery nurses.

[21]The Ombudsman records at [23] of the Determination the statement from Ms Williams’ employer that, while it would not be appropriate for staff to “restrain or control” babies, the remainder of the duties referred to in SD Letter 89(7), set out at [15] above, would form a major part of Ms Williams’ duties. There is nothing to suggest that the Ombudsman doubted that statement. He is, I consider, to be taken as having accepted it as a matter of fact. He added that “they have provided details of complex duties undertaken by her adding that within the neonatal unit Nursery Nurses are viewed as most valuable members of the nursing team”.

[22]I also consider that the Ombudsman is to be taken as having accepted the statement of Ms Williams’ employer as recorded in [25] of the Determination:

“In relation to what Ms Williams’ role was in 1995 (when the Regulations came into force) they say that the role of Nursery Nurses has evolved over time. They are now trained in giving medication and the need to complete a drug training and assessment which was approved by the Trust Board – and this was new since 1995. The cohort of babies that they would be expected to look after now has changed as neonatal care has developed and more extreme premature babies are surviving. More nursing care was needed which is provided by the Nursery Nurses under the supervision of a trained nurse.”

[23]In March 2004, Ms Williams and another nursery nurse on the same unit Ms Manship, prepared (for what purpose I do not know) a job-description for “Nursery Nurse on the Neonatal Unit”, which was Ms Williams’ position. The job summary summarises the job as being “to provide designated care to the sick neonate, under the supervision of the nurse in charge. To carry out any non-clinical task/duties which contribute towards the smooth running of the clinical area” and the job purpose is identified as being “to care for babies on the unit and to support and advise parents on the care of their baby”.

[24]The job description was reviewed by Mary Glover, Senior Nurse Paediatric Critical Care and Neonatology on the unit and who can be taken to have approved it. The Ombudsman does not refer in terms to that job description in the Determination. He does, however, record, at [26], that Ms Williams’ employer had provided the job description in place prior to 1995 for a “Nursing and Midwifery Staff Council Grade C Nursery Nurse” which was essentially identical to the role description in use from 2004. In [27] he sets out the “specific duties” listed in that job description. He quotes those specific duties in precisely the form in which they appear in the job description provided by Ms Williams. Paragraph 4 is as follows:

“Perform skills where there is a specific requirement for speed or accuracy. Make judgments involving facts or situations some of which will require analysis e.g. drug administration (following Trust drug administration policy for Nursery Nurses). Care of oxygen dependant babies. Care of babies following surgical procedures. Resuscitation. Performing Gurthrie tests. Tube feeding babies. Assisting with hearing and eye tests.”

[25]I have not myself been provided with the job description that was provided by Ms Williams’ employer. I think that I am entitled to assume, and do assume, that there was no material distinction between the specific duties identified in the job descriptions provided by Ms Williams and those identified in the job description provided by her employer to which I have just referred.

[26]Ms Glover wrote a letter on 10 May 2013 in support of Ms Williams’ claim to SCS in which she quoted several paragraphs of that job description setting out some of Ms Williams’ duties and responsibilities and describing her role as being “to provide designated care to the sick neonate, under the supervision of the nurse in charge”. The specific duties listed are all reflected in the specific duties set out in the job description provided by Ms Williams. There are only minor differences. For instance, the specific duty set out in [23] above contains different punctuation, the Trust is referred to as UHB and the word “nasogastric” is added before “tube feeding”.

[27]At [28] of the Determination, the Ombudsman records that a request was made for the employer to provide a copy of the job description of the most nearly comparable nursing job to that of a Neonatal Nursery Nurse that would qualify for SCS. In response to that, the employer sent the job description for a Nursing Auxiliary within the Women’s and Child Health Directorate, who would potentially work alongside a Nursery Nurse. In [30] it is recorded that the job summary for a Nursing Auxiliary states that the post holder assists the qualified nurse within the clinical area to provide care and support to children/young people and their families while attending the department. Duties would be carried out as directed by the qualified nurses, who would also supervise activities. Specific duties listed included the giving of direct patient care, carrying out height and weight assessment and other baseline assessments. Also included were reception duties, maintaining cleanliness of the clinical area and equipment, stock orders and contributing to safety of the area.

[28]The Ombudsman quoted, at [29], from a guidance sheet produced by NHSBSA about SCS, which he clearly saw as significant. This factsheet explained that Nursery Nurses were excluded from SCS but went on to say that a nursing qualification is not always required for a person to qualify for SCS, an example being; “a Nurse Auxiliary who may perform the same arduous duties as a qualified nurse grade but who does not hold a nursing qualification would qualify for SC status. The essential factor is that they are working in a nursing capacity. Conversely a person, who holds a nursing qualification but works as for example, a secretary, would not qualify for SC status.”

The Determination

[29]The Ombudsman summarises Ms Williams’ position at [31] to [38] of the Determination and NHSBSA’s position at [39] to [53]. He also records observations from the Department of Health in [54] to [60]. Those positions and observations are reflected in the submissions made to me and I will deal with them, so far as necessary, in due course.

[30]The Ombudsman’s own reasoning and conclusions are dealt with in [61] to [81]. It is worth mentioning at this point what the Ombudsman says in [64]. He effectively rejects the suggestion by NHSBSA that SCS (after 1990) was a continuation of a historical provision which could not be extended to any other group. Manifestly it was, contrary to that position, extended by the inclusion of Occupational Health Nurses as explained by the Department. He notes that the Department’s “approach in determining SCS has changed in moving from placing the emphasis on whether a specific role was arduous and concentrating on the definition introduced in 1990 relating to qualifications”. I agree entirely with what he says in [64].

[31]In [65] to [68], the Ombudsman states that the Regulations must be interpreted purposively, by which he means so that they can be given effect: in the absence of a definition of “nurse”, the term must be given its ordinary meaning. I do not disagree with that statement; but a word can have more than one “ordinary” meaning and the context is critical to an understanding of the correct “ordinary” meaning. In the present case, the context is that of persons employed within the NHS entitled to benefits under a pension scheme covering a variety of posts. The search is for the features which identify a person employed as a nurse in that context. The Ombudsman himself appears to recognise that when he says in [73] that, in the case of the 1995 Regulations, “nurse” should be “given the sense that would normally be applied to it in the healthcare service”. In that context, he observes in [74] that it is possible for person to hold a post described as “nurse” without actually being a nurse in the generally understood meaning of the word: that is to say it is not the title which matters but the activity.

[32]At [70], the Ombudsman effectively rejects NHSBSA’s argument that “Nursery Nurse” and “Nurse” are mutually exclusive terms, relating to different professions. He considers that the argument might have had some force if the actual test had been whether a person was in “a clearly closed set of people”. He sees, however, the test as having shifted over time with a debate about who is to be included. If occupational health nurses, midwives and nursing auxiliaries are species of “nurse” for the purposes of the legislation, why, he asks cannot a nursery nurse, in principle, also be? Mr Sanders challenges that approach.

[33]In [71] and [72], the Ombudsman accepts that it is appropriate to operate a rule of thumb that holders of some posts are unlikely to be considered nurses. But he says that an individual disputed case demands a proper consideration of whether the legislation has been properly applied. He says (and I agree) that whether Ms Williams was a nurse must be determined on the basis of her individual case and the role that she performed. He says this:

“As it stands, her entitlement has been determined on a basis that is not in line with anything set out within the Scheme’s regulations. She was ruled out primarily because of her job title and qualifications. The correct test would have been whether a person with some knowledge of the field would describe her as a nurse.”

Mr Sanders contends that that is wrong; the absence of a nursing qualification answers the question against Ms Williams.

[34]And so the Ombudsman concluded in [76] that NHSBSA was wrong to exclude Ms Williams on the grounds that nursery nurses had never been included. He goes on in [77] to say that it would also be wrong to exclude Ms Williams on the grounds that she does not have a qualification from the Nursing and Midwifery Council or its predecessor. As he points out, NHSBSA recognises that such a qualification is not necessary by including nursing auxiliaries (although I mention here, again, that Mr Sanders submits that nursing auxiliaries do not qualify as “nurses” within the Regulations).

[35]At [79], the Ombudsman turns to the job description in place for Ms Williams in 1995 and also the job description of a nursing auxiliary. He detects a number of features consistent with the OED definition of nurse which he had quoted in [75] (including “a person….who cares for the sick or infirm”); and he also notes that the job description of a nursing auxiliary has almost no duties that might be regarded as acting as a nurse. His conclusion, at [80], is that Ms Williams’ role was one of nursing care; it was such a role in 1995 and, with some increase in duties later, it was still a nursing role at the time that Ms Williams retired.

[36]Before turning to the grounds of appeal, I note that the Ombudsman has dealt with Ms Williams’ complaint to him by answering the question whether she was a “nurse”. He has not, in terms, answered the question whether Ms Williams was “in pensionable employment as a nurse”. His answer would, I am sure, have been that she was. But in answering the question which he did, he may have missed some nuance of interpretation of Regulation R2. Just as a qualified nurse might be employed as a receptionist (and so not fall within Regulation R2, not being employed as a nurse), so too a qualified nurse, in a market of oversupply of nurses, might take a job as a nursery nurse in a neonatal unit. It can then be argued that the nurse is not employed as a nurse but as something else. This is, perhaps, the same (or a similar) argument to that rejected by the Ombudsman, that Nurse and Nursery Nurse are different professions and with which I must deal in due course.

[37]As well as determining the substantive issue in favour of Ms Williams (and making appropriate directions to reflect that determination), the Ombudsman ordered NHSBSA to pay Ms Williams the sum of £250 “for the distress caused”.

Qualifications and names

[38]I have found it helpful before turning to the Grounds of Appeal, to consider the status and qualification of nurses, and the other professionals mentioned in Regulation R2, over a period of time. Mr Grant, for Ms Williams submits that the regulation of the professionals who come within the scope of the provision is of little relevance and certainly not determinative of the issue under appeal. I agree that it is not determinative. However, I think that these provisions do shed some, albeit perhaps dim, light on the meaning of “employed as a nurse” in Regulation R2.

[39]Nurses, midwives and health visitors were included in section 16 of the Local Government Act 1937. By the time of that Act, each of those professions was well- established, well-recognised and subject to statutory regulation imposing requirements as to certification, registration and training. That is not to say that a person performing the functions of a person registered as, for example, a nurse but not themselves registered could not be referred to as a nurse. By way of analogy, the profession of accountant is subject in England and Wales to registration and training by a number of professional bodies, so that one finds, today, Chartered Accountants and Certified Accountants to name but two. Other countries have their own professional bodies. But a person does not need to be qualified to perform accountancy functions and, if they do perform such functions, it would be a perfectly ordinary meaning of the word to describe them as an accountant.

[40]So far as nurses are concerned, the Royal College of Nursing was founded in 1916 and obtained a Royal Charter in 1928. The profession has been subject to a series of Acts and statutory instruments including the Nurses Registration Act 1919, Nurses Act 1943, Nurses Act 1949, Nurses Act 1957, Nurses (Amendment) Act 1961, Nurses Act 1964, Nurses, Midwives and Health Visitors Acts 1979, 1992 and 1997, the Health Act 1999 and the Nursing and Midwifery Order 2001. The successive regulatory bodies were the general Nursing Council, the UK Central Council for Nursing Midwifery and Health Visiting as well as National Boards, and now the Nursing and Midwifery Council. The 1919 Act provided for the creation of a register of nurses. A supplementary register was provided for under section 2(2)(d) of nurses “trained in the nursing of sick children”.

[41]In the 1943, 1949, 1957 and 1964 Acts, “nurse” is defined as “a nurse for the sick” (and in the first three, it is expressly provided that “nursing” is construed accordingly). There has since well before the Scheme was first constituted been a scheme of registration and enrolment for nurses and assistant nurses, the use of designated titles being prohibited with penalties in some cases when such a title has been improperly used: see for instance section 27 of the 1957 Act, section 14 of the 1979 Act and Article 44 of the 2001 Order (which are in rather different terms). Further, section 28 of the 1957 Act (superseding section 6 of the 1943 Act) provided that a person who is not a registered nurse or an enrolled nurse commits an offence if they take or use the name or title of “nurse”. This was subject to certain provisos which are not material in the present case save proviso (a) relating to a “children’s nurse” to which I will return later. A “children’s nurse”, for the purposes of section 28, meant “a person whose avocation is that of caring for children”. A person could fall within that definition without having any involvement with sick children; it would not be correct to describe them as a “nurse” within any ordinary meaning of that word by reason simply of being a children’s nurse within that definition. The same definition was to be found in section 20 of the 1943 Act. This contrasts with the definition of a “nurse” set out at the start of this paragraph. And it also contrasts with nurses “trained in the care of sick children” under the 1919 Act (as to which see the preceding paragraph above).

[42]The entirety of the 1957 Act including section 28 was repealed by the Nurses, Midwives and Health Visitors Act 1979: see section 23(5) of, and schedule 8 to, that Act. Section 14 of the 1979 Act was the provision dealing with titles and badges and read as follows:

“(l) A person commits an offence if, with intent to deceive (whether by words or in writing or by the assumption of any name or description, or by the wearing of any uniform or badge or by any other kind of conduct)— (a) he falsely represents himself to possess qualifications in nursing, midwifery or health visiting; or (b) he falsely represents himself to be registered in the register, or in a particular part of it. (a) he falsely represents himself to possess qualifications in nursing, midwifery or health visiting; or (b) he falsely represents himself to be registered in the register, or in a particular part of it. (2) A person commits an offence if— (a) with intent that any person shall be deceived, he causes or permits another person to make any representation about himself which, if made by himself with intent to deceive, would be an offence by him under subsection (1); or (b) with intent to deceive, he makes with regard to another person any representation which— (i) is false to his own knowledge, and (ii) if made by the other with that intent would be an offence by the other under that subsection. (3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.”

The qualifications referred to were the “appropriate professional qualifications” defined in section 11(2), that is to say, qualifications entitling individuals to apply for admission to the “register of qualified nurses, midwives and health visitors”.

[43]Section 14 was not affected by the 1992 Act. And although it was repealed by the 1997 Act, it was replicated by section 13 of that Act. The 1999 Act repealed the 1997 Act in full. However, Article 44 of the 2001 Order adopted the wording of section 14 of the 1979 Act with minor amendments.

[44]I gain no assistance from the 1997 or 1999 Acts or from the 2001 Order. All of these post-date the 1995 Regulations. The issue in relation to Regulation R2(1)(a) is whether Ms Williams was employed as a nurse when the 1995 Regulations came into force. Whether she was or was not so employed cannot, it seems to me, depend in any way on the provisions of the subsequent legislation just mentioned. Although, in theory, Ms Williams might have been employed as a nurse in 1995 but ceased to have been so employed thereafter (whether because of a change in her job specification or functions or because of a change in the meaning of “nurse”), it is not suggested that if she falls within Regulation R2(1)(a) she does not also fall within Regulation R2(1)(b). [Regulation R2 is set out at [5] above.] There is no scope for the application of the “always speaking” principle of interpretation.

[45]Midwives have their own body, the Royal College of Midwives. This was founded in 1881 and obtained a Royal Charter in 1947. It is not obligatory for a midwife to be a member of the Royal College although the position today is that they must notify an intention to practice to the Nursing and Midwifery Council. This profession too has been subject to a series of Acts and Statutory Instruments and a succession of regulatory bodies. It has been possible for midwives to obtain certification for many, many years. As long ago as 1936, the Midwives Act 1936 obliged relevant local authorities to secure the provision of certified midwives in their areas. As to use of titles, section 14 of the 1979 Act applied to midwives in the same way as it applied to nurses. Further, under section 17 of that Act, a person other than a registered midwife or registered medical practitioner was prohibited from attending a woman in childbirth (save in cases of emergency or in the course of training as a medical practitioner or midwife) and breach of that prohibition was an offence. That remains the position under article 45 of the 2001 Order.

[46]Health Visitors also have their own body. The first was the Royal Society of Health founded in 1876 and subsequently granted a Royal Charter. The Royal Institute of Public Health was founded in 1886 (under a different name) and was granted a Royal Charter in 1929. The merger of the two bodies resulted in the Royal Society for Public Health in 2008. This profession too has been subject to a series of Acts and successive regulatory bodies. Under Regulation R2 of the National Health Service (Qualifications of Health Visitors) Regulations 1972, it was provided that no person could employ a person as a health visitor unless they satisfied one of a number of conditions, the principal condition in the case of England and Wales being the holding of a health visitor’s certificate. The pre-existing regulatory framework was revised by the 1979 Act by creating the UK Central Council for Nursing, Midwifery and Health Visiting. That Council remained in place as the governing body until the creation of a new Nursing and Midwifery Council in 2002 by the 2001 Order. That Order brought about significant changes including the end of all references to health visitors in existing legislation (although not in the 1995 Regulations governing the Scheme).

[47]On the establishment of the NHS in 1948, section 16 of the 1937 Act was adopted but with the addition of physiotherapists. Physiotherapists had their own institute, the Chartered Society of Physiotherapy, as a successor to a number of predecessor bodies and adopting the name in 1944. Successive regulatory bodies have governed the profession. The first was a voluntary body called the Board of Registration of Medical Auxiliaries established by the BMA in 1937. From 1960, regulation was in the hands of the Council for Professions Supplementary to Medicine and after that regulation was, and remains, in the hands of the Health Professions Council/Health and Care Professions Council. The Professions Supplementary to Medicine Act 1960 introduced a system of registration for a number of professions including physiotherapy.

[48]Under regulation 3 of the National Health Service (Professions Supplementary to Medicine) Regulations 1974, a person could not be employed by a health authority as a physiotherapist unless they were registered in respect of physiotherapy, at least where their employment began after the regulations came into force. That remains the position today.

[49]So far as concerns the use of the titles nurse, midwife, health visitor and physiotherapist, I have, so far as concerns nurses, already referred to the relevant provisions of the 1957 and 1979 Acts (providing that a person who is not a registered nurse or an enrolled nurse commits an offence if they take or use the name or title of “nurse”).

[50]So far as concerns the use of the title “midwife”, prohibition of the use of the name or title of “midwife” by uncertified persons was introduced by section 1(1) of the Midwives Act 1902. This provision remained in place under subsequent legislation including the Midwives Act 1951 (which established the Central Midwives Board and assigned to it the function of keeping a roll of certified midwives). Section 8 of the 1951 Act created an offence in almost identical terms as that created by section 1(1) of the 1902 Act.

[51]“Midwife” was subsequently designated as a protected term by section 14 of the 1979 Act, which was replicated by section 13 of the 1997 Act. The 1997 Act was in force until 1 August 2004, at which point the current provisions relating to the registration of midwives (to be found in the Nurses and Midwives (Parts of and Entries in the Register) Order of Council 2004) took effect. Midwives are identified as a category in Column 1 of Schedule 1: their designated title found in Column 2 is “Midwife”. Accordingly, a person cannot be described as a midwife unless they are a registered midwife. In summary, since at least 1979, it has not been permissible for a person who was not certified or registered to attend a woman in childbirth or to call herself a midwife.

[52]As to health visitors, they do not appear as such in the 2004 Order of Council. They now fall under the heading Specialist Community Public Health Nurses part of the register and that is their designated title.

[53]As to physiotherapists, section 6 (read with section 1) of the 1960 Act provided that a registered physiotherapist could use the title “state registered physiotherapist”. The use of that title by a person who was not registered was an offence. It was also an offence for a person to “take any name, title, addition or description falsely implying” that his name was on the register. That remained the position until the commencement of the Health Professions (Parts of and Entries in the Register) Order of Council 2003. The designated title for a physiotherapist is “Physiotherapist” so that use of that title is now permitted only by registered physiotherapists.

[54]Mr Grant submits that there is no prohibition on the use of the title “Physiotherapist” per se. That has not been correct since 2003. In any case, even before then, it is to be remembered that since at least 1974, a person could not be employed by a health authority as a physiotherapist unless they were registered.

Grounds of Appeal

[55]There are four grounds of appeal which appear under four headings: i) Ground 1: erroneous interpretation of “nurse” in Regulation R2. ii) Ground 2: erroneous application of Regulation R2 to Ms Williams. iii) Ground 3: erroneous comparison with nursing auxiliaries. iv) Ground 4: erroneous award of compensation. It is convenient to record the parties’ arguments on Grounds 1, 2 and 3 before embarking on my discussion of those arguments.

Ground 1: erroneous interpretation of “nurse” in Regulation R2 Ground 1: NHSBSA’s position

[56]NHSBSA submits, in summary, as follows: i) The Ombudsman failed to identify what “nurse” means. He did not ask himself whether Ms Williams was a nurse (or more appropriately I think whether she was employed as a nurse) but asked himself a different question. This can be seen from [70] of the Determination where he asks why in principle a nursery nurse cannot be a nurse given that occupational health nurses, midwifes and nursing auxiliaries are species of nurse. ii) Given their literal meanings, “nurse” and “nursery nurse” are different professions or occupations and the terms are mutually exclusive. iii) Even on a purposive approach, Regulation R2 was, contrary to the Ombudsman’s approach, intended to apply to a “clearly closed set of people” (see [70] of the Determination and [32] above). Reliance is placed on the absence in Regulation R2 of any reference to nursery nurses in contrast with the inclusion of nurses, physiotherapists, midwives and health visitors. It is submitted that the principle of construction expressed as expressio unius est exclusio alterius applies. The absence of reference to nursery nurses is said to be stark given that Regulation R2 was drafted at a point of time when there had already been consultation on whether they should be included within SCS. Regulation R2 includes four separate occupations and implicitly excludes what is essentially a fifth occupation, that is to say that of a nursery nurse. A nursery nurse is not simply a species of nurse. iv) The Ombudsman erred in concluding that the term “nurse” extends to individuals who are not themselves “nurses” but who are or have been fulfilling a role analogous to that of a “nurse”. Regulation R2 was included to meet what is now, as Mr Sanders describes it, a discredited anomaly, that is to say the incapacity of women over 55 to undertake the perceived arduous work; there is no reason to construe it expansively. v) The Ombudsman also erred in finding that the test for whether someone was a nurse had “shifted over time” (see [70] of the Determination) and in finding that “occupational health nurses, midwives and nursing auxiliaries are for the purposes of the legislation species of “nurse””. Further, the Ombudsman appears to have thought that NHSBSA included within SCS “nursing auxiliaries and others whose roles are ‘analogous to nursing’” (see [77] of the Determination). These were material misunderstandings and misdirections and errors of law: occupational health nurses are nurses; midwives have SCS not because they are seen as a species of nurse, but because they are named in Regulation R2 and were named in its predecessor provisions; and the only dispensation that has been made is for nursing auxiliaries, but this is a matter of practice, it is not because they are seen as a “species of nurse” and it cannot change the meaning of “nurse” in Regulation R2. vi) The legislative intention must have been that Regulation R2 should apply to fixed and readily identifiable employees, such that job titles and qualifications should therefore be determinative, subject to confirmation that the individual is also in pensionable employment in the relevant role. The scope and application of Regulation R2 should be clear and certain and the test must be whether the individual is in fact a nurse, physiotherapist, midwife or health visitor who is in pensionable employment as such and not whether their role is analogous to that of a nurse, physiotherapist, midwife or health visitor. vii) Had it been intended that SCS should depend on a case-by-case investigation and assessment of individual roles and their comparability with those of a nurse, Regulation R2 would have been worded differently and would have set out the relevant criteria. Further, the same approach would apply to persons whose roles were comparable to those of a physiotherapist, midwife or health visitor. Physiotherapy helpers and healthcare assistants might, depending on the precise scope of their individual jobs, qualify for SCS on this approach. This cannot have been intended. viii) The position today is, and has been for many years and certainly since before the 1995 Regulations were made, that a person will only be employed in the NHS as a nurse if they hold a nursing qualification. That proposition, I consider, needs some deconstruction. It means that a person is only employed in an NHS hospital to carry out the full range of activities which a qualified nurse is able to carry out, and can only be employed in a job with the title “nurse”, if they are in fact qualified as a nurse. Whilst Ms Williams is qualified as a nursery nurse, she is not qualified as a nurse. There are some duties of a qualified nurse that she could not carry out.

[57]Mr Sanders relies on the decision of the Court of Appeal in Secretary of State for Work and Pensions v Slavin

[2011] EWCA Civ 1515

(“Slavin”). At [54] of his judgment, Richards LJ considered what was meant by “nursing” in the context of regulations 8(1) and 12A(1) of the Social Security (Disability Living Allowance) Regulations 1981. The claimant resided in a care home and it was common ground that he did not receive treatment from doctors, qualified nurses or other healthcare professionals in the care home. The question was whether he was disqualified from receiving any benefit as a person being “maintained free of charge while undergoing medical or other treatment as an in-patient”. It was accepted by the Court that “medical or other treatment” included nursing as well as medical and dental treatment but that meant nursing by those with professional qualifications or training as nurses. It was held that the domestic or personal care, including the administration of medicine, given to the mentally ill claimant by the staff at the home, who did not have professional qualification or training as nurses and who did not work under the supervision of qualified nurses, did not constitute nursing care. It is to be noted that the word “nursing” does not appear in the relevant regulation. Rather, the authorities established that “nursing” falls within the meaning of “medical or other treatment”. But in using the word “nursing” to describe what was included within “other treatment”, the courts were clearly not including every sort of care which might fall within an ordinary meaning of the word “nursing”. It is in that context that Richards LJ said what he did at [54] of his judgment:

“What, then, is meant by "nursing" for this purpose? Each of the authorities lays stress on the possession of a professional nursing qualification or training. In the Leamington Spa case, Evershed MR referred to "nursing in the sense that the subject or patient is looked after and attended to by persons professionally trained to look after and attend the sick"; Denning LJ drew a distinction between "the exercise of professional skill" and the simple provision of care and attention; and Romer LJ said that nursing "presumably, refers to nursing of a professional character" ….. In White's case, Ralph Gibson LJ referred to "professionally trained nurses" and to "appropriate nurse staffing, including qualified mental nurses" ….. The position is perhaps less clear in Botchett's case. In the main part of his reasoning, Evans LJ stated that the care and assistance received "from nursing as opposed to domestic staff" must be regarded as "medical or other treatment", drawing no distinction between the trained and untrained nursing staff at the nursing home in question; but he did go on to derive support from the Leamington Spa case and its reference to inmates being cared for by persons who were "professionally trained to care for the sick" …... It seems to me that the various references in these cases to professional qualifications and training were fundamental to the reasoning of the court: in each case the decision turned on the fact that the staff of the institution included qualified and/or trained nurses. I acknowledge that nursing has moved on since the days of the Leamington Spa case and that much of what was done then by professionally qualified nurses is done now by nursing assistants working under the supervision of qualified nurses, but I do not think that this development undermines the basis of the decisions or calls for a different approach.”

[58]And so, Mr Sanders says, whether Ms Williams was a nurse turns on whether she held qualifications which amount to nursing qualifications; as to which he says she clearly did not.

[59]This, he would say, is all consistent with the background legislation which I have examined in some detail above. Thus, section 8 of the 1919 Act regulated not only the taking or use of the name or title of “registered nurse”, but also the taking or use of any name, title, addition, description, uniform or badge implying registration or recognition as such. Importantly, it did not apply to individuals taking or using the name or title of “nursery nurse” because this was not a type of “registered nurse”. I would add that, equally importantly, the mere use of the title “nursery nurse” would not be seen as implying registration or recognition as a registered or enrolled nurse. Consistently, a nursery nurse would not have been able to wear a nurse's uniform or a badge since that would have implied registration.

[60]As explained above, the 1943 and 1957 Acts went further than the 1919 Act in prohibiting the use of the titles “nurse” or “assistant nurse” other than by a registered or enrolled nurse, albeit subject to certain provisos. The provisos were necessary because of the expansive nature of the prohibition. For present purposes, the relevant proviso was that nothing prevented a “children’s nurse” from taking or using the title “nurse” unless the circumstances were such as to suggest that the individual was something other than a children’s nurse. Clearly the use of the title “nursery nurse” would fall within this proviso since a nursery nurse was a “children’s nurse” and the use of the words “nursery nurse” would have demonstrated that the individual would not be suggesting that she was a registered or enrolled nurse rather than a children’s nurse.

[61]And so Mr Sanders submits that the above provisions reflect a clear understanding and intention on the part of Parliament in 1943, prior to the establishment of the NHS, that children’s nurses or nursery nurses were not a species of “nurse” and their continued use of that title was (exceptionally) acceptable, notwithstanding their lack of training, provided their use of it was expressly qualified and not confused with registered or enrolled nurses and they remained distinct and distinguishable from nurses.

[62]The regulatory scheme provided for by the 1919, 1943 and 1957 Acts remained in place until it was replaced by the alternative model contained in the 1979 Act (and subsequently the 1997 Act). The new provisions prohibited false claims of qualifications in nursing, midwifery or health visiting or of registration when made with intent to deceive. This approach did not require the making of express provision or any exemption in relation to children’s nurses or nursery nurses as they could describe themselves as such without laying claim to qualifications in nursing or registration as a nurse. This, I would add, is clearly correct since it would be well- known that a nursery nurse did not necessarily hold a nursing qualification.

[63]The conclusion which Mr Sanders asks me to draw from that, is that Ms Williams, particularly in the context of NHS employment within an NHS hospital, was not a nurse - she could not have described herself as such and she has not attempted to do so during the course of these proceedings. It is submitted that she was never in pensionable employment as a nurse for the purposes of R2.

[64]This conclusion is, he says, reinforced by consideration of the position of the other healthcare professions falling within R2, and the use of their respective titles, which I have addressed above. This demonstrates very long-standing, well-established and extensive regulation of all those professionals.

[65]He also makes the point that there is no logical reason for allowing Ms Williams to take the benefit of status as a nurse in connection with Regulation R2 when she did not take the burden of qualifying, registering or being regulated or amenable to disciplinary action as such.

Ground 1: Ms Williams’ position

[66]In addressing NHSBSA’s case, Mr Grant identifies a number of areas of what are, or should according to him be, common ground. It is useful to have these in mind so I set them out here, making certain observations as I go along: i) There is no definition of “nurse” in the 1995 Regulations or in predecessor provisions. This is clearly correct. ii) The advantageous retirement conditions of SCS were historically provided to special classes on account of their “arduous duties”: this remained the test as late as 1989 (see SD Letter 89(7) at [8] and [16] above). This is clearly correct on the Ombudsman’s findings. It does not, however, really assist the debate. Even assuming that this evidence of the genesis of the provision is admissible (which I very much doubt), it only shows that the classes identified were perceived as having relevantly arduous posts justifying special treatment. That evidence does not, I consider, demonstrate that, because a person has an arduous job, they should be treated as falling within one of the special classes when they would not otherwise do so. If a nursery nurse in a neonatal unit is properly to be seen as a “nurse” then she qualifies for SCS; if she is not properly seen in that way, the fact that her duties may be as arduous as those of a “nurse” does not justify extending SCS to her. Further, if that evidence is admissible, it seems to me that equally admissible is the result of the consultation which resulted in confirmation of the policy decision that nursery nurses, including those working a neonatal unit, should not be entitled to SCS. Indeed, by the time of the 1995 Regulations, that factor was no longer of any great relevance and focus was not so much on the arduous nature of the work at all but had shifted to some extent to professional qualification. iii) Section 16 of the Local Government Superannuation Act 1937 refers to “female nurses, midwives and health visitors”: there is no reference to physiotherapists (or indeed nursery nurses). This is clearly correct. iv) By 1990, the term “nurse” in the then current regulations was applied having primary regard to whether an individual had a professional qualification: see [13] of the Determination. I comment that it is clearly the case that regard was had to this factor but whether it was primary or not is not apparent from the Ombudsman’s findings or the material referred to by him. I have already made some comments on SD Letter 90(13) referred to in that paragraph: see [16] above. v) Over time a) it was recognised that certain occupations analogous to nursing (including nursing auxiliaries) can be classified as nurses and b) it was agreed that occupational health nurses should be accepted as qualifying for SCS despite the historic approach to the contrary. vi) As to v) a), I comment that it is true that SD Letter 90(13) saw physiotherapists, midwives and health visitors as analogous to nurses but, as I have already pointed out, they qualify for SCS not because they are analogous to or treated as nurses but because they are expressly mentioned in Regulation R2 (and its predecessor provisions). Nursing auxiliaries have in fact been treated as qualifying for SCS, a treatment which could only properly have been afforded under Regulation R2 (and it has not been suggested that any other provision of the 1995 Regulations could justify this treatment) if they are “nurses”. Mr Sanders’ submission is that auxiliary nurses are not nurses so that it may be that such a treatment should not have been afforded. However, the treatment in fact accorded to auxiliary nurses clearly shows that their role was regarded as analogous to nursing in the sense of involving arduous duties and duties some of which might be carried out by a qualified nurse. vii) As to v) b), I comment that Mr Sanders’ submission that Occupational Health Nurses are nurses is inconsistent with their exclusion, before 1990, from SCS unless their roles and qualifications changed in 1990, as to which there is nothing in the Determination or, so far as I am aware, nor was there any before the Ombudsman. Indeed, SD Letter 90(13) explains that Occupational Health Nurses were to be accepted as qualifying for SCS. The reason given by the Department of Health for this change (see [60] of the Determination) was that in the past the roles of such persons were not considered arduous, under the earlier main criterion. But the move to a criterion requiring the holding of a professional nursing qualification moved them squarely within the revised SCS criteria.

[67]Mr Grant draws attention to the statements from Ms Williams’ own employer, in particular that the duties contained in the job description produced by her are considerable (as set out in [27] of the Determination) and meet the vast majority of those contained in the Guidance contained in SD Letter 89(7) (as to which see [16] above).

[68]Mr Grant observes that there is no challenge by NHSBSA to this or to Ms Williams’ own account as recorded in [33] of the Determination, in particular i) Her duties are primarily the nursing of sick neonates on the neo-natal intensive care unit. ii) She had worked for 36 years on this unit during which time her role had evolved into a unique role for Nursery Nurses. iii) The role of a Nursery Nurse on the neo-natal unit is totally different from that of a Nursery Nurse working in the hospital crèche, where they give basic childcare and supervise play. It was also different from that of a Nursery Nurse on maternity wards where they give support to mothers caring for their own babies.

[69]Mr Grant is right to say that there is no challenge to the description given by Ms Williams of her role. Although the Ombudsman relied principally on the job description, he also referred (see [80] of the Determination) to the evidence which must, I think, be taken to include those elements of Ms Williams’ account to which Mr Grant has referred (which do not include her understanding that some heath care support workers received SCS and to which I attach no weight).

[70]And so Mr Grant submits (although this is more material to the second ground of appeal) that, reading between the lines, it appears to be rightly accepted by NHSBSA that, if the appropriate test of whether someone is a “nurse” for the purposes of Regulation R2 is a substantive test (by which he means the substance of the role rather than the qualification for it or the job title), then Ms Williams’ job description and functions were such that she does indeed satisfy the test.

[71]As to the interpretation of Regulation R2, Mr Grant notes the absence of any definition of “nurse” (observing that the draftsman defines terms when he needs to, for instance mental health officers). Accordingly the legislative intention, he submits, is that the relevant decision maker has to decide what, in their judgment, amounts to a “nurse” for the purposes of Regulation R2.

[72]Mr Grant contends that there are three, and only three, basic ways to identify an individual’s employment, namely by job title, job description or job function. He submits that the correct answer is job function but that, on any basis, Ms Williams was a nurse for the purposes of Regulation R2. He relies on the following factors in support of that conclusion: i) In talking of “pensionable employment as a nurse” and “had a break in pensionable employment for any period of 5 years or more”, Regulation R2 clearly has in mind an individual’s function. ii) Job function will have regard to the job description and to the extent to which the duties actually undertaken correspond with the description. iii) It is the most sensible approach given that Regulation R2 calls for an exercise of judgment and is the best way to address the mischief in question, namely that the default normal retirement age of 60 is too high for people engaged in certain work. iv) In this sense, whether someone’s job title is “nurse” is neither necessary nor sufficient. v) It would be quite possible to have specified that Regulation R2 applies to someone with the requisite title or qualification and, if such matters were to have been decisive irrespective of the substantive role, the word “nurse” would have been specifically defined and there would have been reference to specific job titles or specific qualifications. vi) In cases where a definition is contained of a person’s occupation, it is by reference to function rather than qualification: see for instance, the definition of “mental health officer” in section 1(3) National Health Service Superannuation Regulations 1947 to which I would add that the same point applies to the definition of “mental health officer” in Regulation R3(14) of the Regulations.

[73]Mr Grant then identifies three alleged flaws in the view that eligibility for SCS should be determined by reference to job title: i) It leads to arbitrary outcomes. He refers to the definition of “nursery nurse” in Regulation R2 of the Education (Training Grants) Regulations 1990 where the individual must be “….employed in connection with the education of children under the age of 5”. It would be absurd, he says, if someone who nursed sick children on a neo-natal intensive care unit, worked nurse shifts and did the work of a nurse were to be treated as if she worked in a nursery. ii) It is easy for a job title to be changed for a variety of reasons and there would be no protection against a sudden change of title for whatever reason, let alone protection in the case of clerical error. iii) An approach based on job title irrespective of job function is at odds with the language of Regulation R2 and the statutory concern for those whose duties are arduous who could not be expected to work beyond age 55.

[74]In his skeleton argument, at [40] Mr Grant then says this:

“Accordingly, both on a literal and purposive interpretation, “nurse” should bear its ordinary meaning (ie of a professionally qualified person who cares for the sick or infirm).”

[75]I comment at this stage that I find the introduction of a professional qualification requirement surprising in the context of Mr Grant’s overarching submissions concerning job function being the relevant criterion. It immediately raises the question “What professional qualification?” If the answer is the professional qualification afforded or recognised (for instance in relation to non-EU overseas- qualified nurses) by the Nursing and Midwifery Council or its predecessor, then Ms Williams in not a nurse. But if it means any professional qualification relating to care of the sick and infirm, it might include qualification as a nursery nurse. But it would then follow, logically, that every qualified nursery nurse who cares for the sick or infirm, carrying out functions nothing like as responsible as those of a nursery nurse on an intensive care neo-natal unit, would be a nurse within Regulation R2. I leave the question hanging for the moment.

[76]In the same paragraph, Mr Grant refers to NHSBSA’s reliance on the maxim expressio unius est exclusio alterius. He submits that the present case is not a classic circumstance where the maxim might apply. In any event, it only applies where not outweighed by other interpretative factors.

[77]Mr Grant makes the point, with which I agree, that to say that the Ombudsman erred in concluding that the term “nurse” extends to individuals who are not nurses (ie by title) but who fulfil a role analogous to that of a nurse, begs the very question to be determined, that is to say, what is a “nurse” within Regulation R2. He also submits that NHSBSA’s complaint that the Ombudsman failed to identify what “nurse” means ignores; i) The finding at [66] that nurse is to be given its ordinary meaning. ii) The finding, at [72] that nurse means what someone with the relevant knowledge of the admissible background would objectively consider to be a nurse. iii) The reference to the OED definition of “nurse” which the Ombudsman applies at [77] and [79].

[78]In response to NHSBSA’s criticism (as to which see [32] above) of the finding at [72], Mr Grant says that this is misguided for two reasons: i) The starting point is the ordinary meaning of the word “nurse” which has nothing to do with qualifications and everything to do with function. ii) The correct test is, as the Ombudsman put it, to ask whether a person with knowledge of the field would describe Ms Williams as a nurse.

[79]Mr Grant submits that the regulation of the professionals who come within the scope of SCS is of little relevance and certainly not determinative of the issue under appeal for a number of reasons. I record his submissions virtually verbatim from some of his written submissions.

[80]First, the regulation of the professions is complex and variable – both at any one point in time as between the different professions and over the course of time as regards any one profession - and does not cohere with the scope of SCS. He gives these examples: i) there was no regulation in relation to physiotherapists as at 1948 (when SCS was extended to such professionals); ii) thereafter, there was no prohibition against the use of “physiotherapist” per se; iii) there was no prohibition against the use of the title “health visitor” until 1979 (and “health visitor” was defined in the relevant superannuation provisions); iv) regulation of nurses was initially concerned with the use of the title “registered nurse”. Thereafter it was concerned with “nurse” but subject to certain provisos – in particular in the case of a children’s nurse; v) from 1979, the prohibition was against the false representation of qualifications in nursing, midwifery and health visiting.

[81]Secondly, and as a consequence, it cannot be said that it was the draftsman’s intention to apply SCS only to registered professionals or protected titles. Even if that is not so, if it were only physiotherapists who were in a special position (such that their eligibility to SCS was not determined by registration or qualification), this would undermine the argument. Why, Mr Grant asks, should entitlement to SCS be a function of registration for nurses but not physiotherapists? As to that, I comment that, as explained above, since 1974, it was not possible for a health authority to employ a person as a physiotherapist unless they were registered. On any view, therefore, to fall within Regulation R2 as a physiotherapist, a person would, after that time, have to be registered.

[82]Thirdly, any submission by NHSBSA that each of nurse, midwife, health visitor and physiotherapist means a registered professional with a protected title asks too much of the rather sparse wording in the relevant superannuation provisions. By way of example, had the legislative intention been to reflect the regulatory position, the statutory language of Regulation R2 would not have been “is in pensionable employment as a nurse, physiotherapist, midwife or health visitor”. NHSBSA’s interpretation is to read into the statutory words an additional requirement relating to qualification which is not permissible in accordance with established principles of interpretation. Mr Grant relies in that respect on what Morgan J said in Hughes v Royal London Mutual Insurance Society Ltd

[2016] EWHC 319 (Ch)

at [29] and his citation of earlier authority. The essential point is that the court’s task is interpretative; it must not go beyond that and, in effect, legislate for what Parliament has omitted in cases of mistake. In my view, however, the present case is not one of mistake or omission. The question is what the words “employed as a nurse” mean. If the context of that phrase is such that the reference to “nurse” means only persons with the qualification which a person needs in order to be employed by the NHS as a nurse, then there is no question of reading in words. It is that issue which is central to the present dispute.

[83]Fourthly, and by contrast, if the draftsman of, for instance, the 1937 Act or the 1995 Regulations had intended to limit the scope of entitlement to SCS to registered professionals this could and would have been expressed in the statutory wording.

[84]Fifthly, the fact that “health visitor” was defined in the superannuation provisions (by reference to duties) is inconsistent with the contention that one looks to the relevant regulatory provisions for the answer as to the scope of the professionals potentially eligible for SCS. As to that, I note that there is no definition of “health visitor” in the 1995 Regulations although there is a definition in section 16(3) of the 1937 Act (broadly, a woman appointed by a local authority whose duties include the visiting of women and children in order to give advice about the care of young children and as to the health of expectant and nursing mothers). A health visitor, according to that definition, would not be caring for the sick and would not, on any view, be a nurse. Moreover, since 1972 at the latest, it has not been possible, as explained above, for the NHS to employ a person as a health visitor unless they were certified.

[85]Sixthly, if the superannuation provisions reflected the regulations provisions, one would have expected, as Mr Grant puts it “amendments conditional upon changes to the regulatory regime, for instance, in changing the focus from “registered nurse” to “nurse” to false representation of “qualifications in nursing””.

[86]Seventhly, determining entitlement by registration/protected title is inconsistent with the original focus on arduous roles. I should say immediately that I attach no weight to that submission. As explained in [65ii)] above, I doubt that evidence about the reason for the introduction of special provisions for the relevant classes is admissible at all in construing the provisions of the Scheme prior to the 1995 Regulations. But even if it were, the new focus would be equally admissible in construing the 1995 Regulations.

[87]Eighthly, the NHS Superannuation Branch circulars would have consistently referred to the regulatory regime had the legislative intention been to reflect this regime. I do not agree with that submission. The circulars reflect an administrative approach to the 1995 Regulations which may or may not be correct. That approach cannot effect the correct interpretation.

[88]Ninthly, had the legislative intention been to reflect the regulatory position, this would have been NHSBSA’s case before the Pensions Ombudsman and in the Notice of Appeal. This submission has some forensic attraction. It is, however, frequently the case that an appellant’s case is put in a different way on appeal from the (rejected) case at first instance. The argument may be correct notwithstanding that it was not fully articulated before the Ombudsman. I do not understand Mr Grant to say that the point is not open to NHSBSA on appeal. I therefore propose to deal with the argument in due course.

[89]Tenthly, had the legislative intention been only to provide SCS to professionals who were registered and/or with protected titles, the NHSBSA would not have granted SCS to Nursing Auxiliaries. Ground 2: erroneous application of Regulation R2 to Ms Williams Ground 2: NHSBSA’s position

Ground 2: erroneous application of Regulation R2 to Ms Williams

[90]NHSBSA’s position on Ground 2 (which inevitably overlaps to some extent with its position on Ground 1) can be summarised as follows: i) The Ombudsman determined that the correct test for determining whether or not Ms Williams was a “nurse” was “whether a person with some knowledge of the field would describe her as a nurse”. He erred in this since he should have asked himself whether she was in fact in pensionable employment as a nurse. This was not a question which he engaged with or provided reasoning upon. ii) The Ombudsman further erred in that he did not go on to apply that test but rather applied a separate test, which was not properly reasoned, namely whether Ms Williams’ role was “analogous to nursing”. By doing so, he implicitly accepted that she was not in fact a “nurse” and his subsequent conclusion that she nevertheless was a “nurse” was illogical and perverse. iii) Even if the Ombudsman’s initially formulated test were correct, the answer should still have been that no person with some knowledge of the field would think that nursery nurses are a species of nurse. There is a clear distinction between the two. Thus: a) The Ombudsman recognised that, “…in the case of the Regulations [‘nurse’] should be given the sense that would normally be applied to it in the healthcare services” ([73] of the Determination). However, his determination failed to engage with the respective definitions of “nurse” and “nursery nurse” in the legislation underpinning those services. These definitions emphasise that “nurse” means a qualified/registered nurse and “nursery nurses” do not fall into this category. If “nurse” in Regulation R2 were given the sense normally applied to it in the healthcare services, a nursery nurse would be excluded. b) The authorities on what is meant by “nursing” lay “stress on the possession of a professional nursing qualification or training” referring to the passage from the judgment of Richards LJ in Slavin set out at [52] above. c) It would be an offence for Ms Williams to describe herself as an adult nurse, mental health nurse, learning disabilities nurse, children’s nurse, general nurse or fever nurse. Mr Sanders places reliance on articles 6 and 44 of the 2001 Order. d) Further, there was no evidence that the Ombudsman’s own test was fulfilled.

[91]The Determination, in Mr Sanders’ submission, in fact appears to recognise the distinction between nurses and nursery nurses because it states that the exclusion of the latter from SCS “might have been a consequence of their usually not being nurses within the general understanding of the word”: see [76]. Having recognised that distinction, there was no proper basis for the Ombudsman’s examination of the individual circumstances of Ms Williams’ case.

Ground 2: Ms Williams’ position

[92]Mr Grant contends that the frequent references to “pensionable employment” in Mr Sanders’ written and oral submissions are a distraction and amount to “boot-straps” argument in that the very question in issue is whether, on a proper interpretation of Regulation R2, and having regard to the duties Ms Williams undertook as an active member of the Scheme (that is to say in pensionable employment), she satisfied the test for “nurse” in that Regulation. If she did, it follows by definition that she was in pensionable employment as a nurse.

[93]He contends that the definitions relied upon in other statutes do not support the propositions advanced by NHSBSA for a number of reasons. i) First, “nurse” and “nursery nurse” are not defined in the 1995 Regulations whether expressly or by reference to other statutory provisions. ii) Secondly, some of the statutory provisions relied upon post-date the Regulations under consideration. iii) Thirdly, Slavin does not assist.

[94]Paragraph i) above is clearly correct; if they had been defined, the present dispute would not have arisen, certainly in its present shape and possibly not at all. I have already dealt with paragraph ii) at [44] above where, in effect, I agree with Mr Grant that the legislation after 1995 is not of assistance.

[95]As to paragraph iii), Mr Grant submits that Slavin is clearly distinguishable and in fact provides no assistance. The central question came down to this, namely the meaning of “nursing” in a particular statutory context. The answer was that domestic or personal care did not amount to nursing and the claimant was not disentitled from Disability Living Allowance.

[96]In contrast with the position in Slavin, Mr Grant contends that the material provided by Ms Williams and her employer (which, he notes, clearly thought that she should be entitled to SCS) all pointed to the fact that she was, employed as, and performed the duties of, a nurse: i) she was in fact employed nursing sick new-borns in the neonatal intensive care unit, working nursing shift hours, and reporting to the Senior Nurse; ii) she held the NNEB qualification to which I have referred and a had undertaken the NHS Course “Nursing care of well and sick babies”; iii) she reported to a Senior Nurse, but so did all nurses on the neo-natal unit.

[97]It is part of Mr Grant’s case that: i) Ms Williams “had qualifications in nursing such that she was entitled to describe herself by the title ‘nurse’”; and ii) for the purposes of section 14 of the Nurses, Midwives and Health Visitors Act 1979, Ms Williams did have qualifications in nursing whereby there was no misrepresentation such that she could take the title of ‘nurse’.

[98]In support, Mr Grant relies on [22] of the Determination which I have quoted at [19].

[99]As to that, Mr Sanders’ position is that the claim that Ms Williams had “qualifications in nursing” has not been made before in these proceedings and is incorrect. I do not think that he is correct in saying that the point is a new one, but even if it were, it is a point which I would allow Mr Grant to run since it has been possible to address the arguments in full.

[100]Mr Sanders relies on the factors which I have identified in [19] and [20] above. Further, he points out that when Ms Williams was first employed on 1 September 1977, the relevant regulatory provisions were to be found in the 1957 Act. As explained above, a person committed an offence if they used the title “nurse” unless registered or enrolled subject to the proviso in relation to “children’s nurse”. And so Mr Sanders submits that, accordingly, she was at that time able to describe herself as a “children’s nurse” or a “nursery nurse”, but she was not able to take or use the name or title of “registered nurse” or any name, title, addition, description, uniform or badge implying registration or recognition as such or to suggest that she was anything other than a children’s nurse.

[101]As to the 1979 Act, Mr Sanders refers to section 14(1)(a), making it an offence falsely to represent the possession of “qualifications in nursing, midwifery or health visiting” as to which see [42] above. To be suitably qualified, a person must have “undergone the training, and passed the examination, required by the Council’s rules for admission to that part of the register”: see section 11(3).

[102]On that basis, Mr Sanders submits that even after the entry into force of the 1979 Act, completion of the NNEB qualification held by Ms Williams and/or the NHS course “Nursing care of well and sick babies” did not entitle her to apply for admission to the register of nurses and was not a “qualification in nursing” whether for the purposes of section 14 or otherwise.

[103]So far as concerns the claim that Ms Williams could have taken the title of “nurse” (as opposed to “nursery nurse”) without committing an offence contrary to section 14, Mr Sanders appears to accept (correctly in my view) that Ms Williams could have called herself a nurse as long as there were no false claims of qualifications or registration with intent to deceive. But as to that, he submits (again correctly in my view) that: i) she could not have described herself as a registered nurse; ii) she could not have worn any uniform or badge worn by registered nurses; and iii) she could not have represented that she possessed a qualification in nursing.

[104]In other words, Ms Williams could have used the title “nursery nurse” (which does not imply registration as a nurse or a qualification in nursing), but, according to Mr Sanders, any use of the title “nurse”, particularly within the confines of an NHS hospital, would have risked an unlawful representation that she was registered as a nurse or had a qualification in nursing.

Ground 3: erroneous comparison with nursing auxiliaries Ground 3: NHSBSA’s position

[105]NHSBSA’s case is that the Ombudsman erred in drawing a comparison between Ms Williams’ role and the role of nursing auxiliaries some of whom have been granted SCS: see Determination [77] to [79] in that: i) He wrongly considered that the dispensation allowing (some) nursing auxiliaries (potentially) to be given SCS reflects an acceptance that a Nursing and Midwifery Council qualification is not a prerequisite to being a nurse: Determination [77]. This was an error. A nursing qualification and registration is a necessary condition to being a nurse. However, the issue under Regulation R2 is not just whether the individual is a “nurse” but whether they are “in pensionable employment as a nurse”. For these purposes, a formal nursing qualification is a necessary but not a sufficient condition: a qualified nurse undertaking a management role may not be in pensionable employment as a nurse. This appears to have confused the Ombudsman and led him into error: the fact that not all nurses fall within the class of nurses who are in employment as such, does not mean that the class itself is open to non-nurses. ii) He also asked himself, first, whether Ms Williams’ job description meant she had “as many duties that might be regarded as acting as a nurse” as would a nursing auxiliary and, secondly, whether her role was “more of [a nursing care] role than the nursing auxiliary”: Determination [79-80]. In doing so, he had regard to a legally irrelevant consideration. The dispensation allowing nursing auxiliaries to claim or be recognised as SCS did not flow from an acceptance that they are a species of nurse; rather, it was a matter of policy and practice. Furthermore, the fact that Regulation R2 has been applied to them as a matter of policy and practice cannot change the meaning of the provision itself or warrant a departure from the ordinary principles of statutory construction.

[106]Quite apart from the above, the Ombudsman is criticised for the way he addressed the job description of auxiliary nurses in [28] to [30] of the Determination. In [28], he records that the Employer was asked to provide a copy of the job specification of the most nearly comparable nursing job to that of a Neonatal Nursery Nurse that would qualify for SCS. The result of that request was this:

“In response they sent us the job description for a Nursing Auxiliary within the Women’s and Child Health Directorate, who would potentially work alongside a Nursery Nurse”

. It is recorded in [29] that a nursing auxiliary could be entitled to SCS (which, of course, cannot be taken as acceptance that a nursing auxiliary will always qualify for SCS). Then, in [30], there is a reference to the job summary (“The job summary for a Nursing Auxiliary says that the post holder assists the qualified nurse within the clinical area to provide care and support to children/young people and their families while attending the department….”). There can be no doubt that the reference in [30] to the job summary is to the summary the provision of which by the employer is recorded in [28].

[107]Mr Sanders submits that the Ombudsman was not told by the employer that the job specification was that of a nursing auxiliary who had SCS under Regulation R2. It may be true that there was nothing expressly said by the employer to that effect. The job description was, however, provided according to [28] following a request for the job description of a person who would qualify for SCS. I have not been shown any material which would suggest that the provision of that job description was qualified in any way. The Ombudsman was entitled to consider that the nursing auxiliary working under that job description was treated by NHSBSA as qualifying for SCS. Nonetheless, Mr Sanders contends that a nursing auxiliary is not a species of “nurse” and does not fall within Regulation R2. If that is right, then any reliance placed by the Ombudsman on a comparison of the jobs of a nursery nurse and a nursing auxiliary is misplaced. Mr Sanders relies, additionally, on [79] and [80] as showing a material error:

“79….. I can also see that the job description of a Nursing Auxiliary that Ms Williams’ employer has provided has almost no duties that might be regarded as acting as a nurse. 80. Having taken into account the job descriptions and other evidence, in my view Ms Williams’ role was one of nursing care (indeed it was clearly more of such a role than the Nursing Auxiliary). It was such a role in 1995 and, with some increase in duties later, it was still a nursing role at the time that Ms Williams retired.”

Ground 3: Ms Williams’ position

[108]Mr Grant makes some forensic points concerning NHSBSA’s willingness to have accepted in the past that nursing auxiliaries are entitled to SCS, a willingness which undermines certain of its arguments namely(i) that SCS should apply to “fixed and readily identifiable groups of Scheme member”

(ii) that the fact that Nursery Nurses have historically not been treated as “nurses” for the purposes of Regulation R2 means that they cannot now be and

(iii) reliance upon the cost implication as a reason justifying permission to appeal. These points carry no, or very little, weight in determining a matter of construction (although I should say that I do not consider that the acceptance of nursing auxiliaries for SCS undermines NHSBSA’s argument under (i): if nursing auxiliaries are properly included as a matter of construction, the Scheme remains applicable a fixed and readily identifiable group).

[109]Mr Grant further contends that the Ombudsman was quite entitled to have regard to the position of nursing auxiliaries, as he did at [77] to [80] of the Determination, in considering whether, on an application of the proper test, Ms Williams was a nurse by having regard to what she did, to whom she reported and the like.

[110]He also argues that, in any event, the Ombudsman’s observations about Nursing Auxiliaries were not a necessary part of his findings in that, having concluded that the test was a substantive one on the basis of someone’s role, not job title or qualification, he applied this test and found (as was inevitable given the material before him) that Ms Williams was a nurse for the purposes of the Regulations. He then tested this conclusion by reference to nursing auxiliaries. His conclusion was that Ms Williams’s role was one of nursing care, noting in passing at [80] that “indeed it was clearly more of such a role than the Nursing Auxiliary” [emphasis in original].

Discussion of Ground 1, 2 and 3

[111]Grounds 1, 2 and 3 are interlinked and, in my view, are best considered together.

[112]I have recorded at [70 iii)] above Mr Grant’s submission that Regulation R2 requires a judgment to be made. If by that Mr Grant means that some person is to be the arbiter of what does and does not qualify as a “nurse” (so that the decision would be open to challenge only if it fell outside the range of reasonable decisions), I do not agree with that submission. There is nothing in Regulation R2 (or anywhere else so far as I am aware) which confers such a judgment-making role on NHSBSA or anyone else. If that had been the intention, I would have expected to see wording referring to a member who “is in pensionable employment as a nurse or any employment which, in the assessment of NHSBSA, is analogous to that of a nurse, physiotherapist, midwife or health visitor” or similar words. It cannot be right, in my judgment, that a person’s qualification for SCS as a person in pensionable employment as a nurse can turn on a question of judgment of that sort. It is in the nature of such a judgment that different persons could reach different conclusions, each of which falls within the range of reasonable conclusions. That is not, I consider, what the 1995 Regulations provide. Instead, there is an objective meaning of the word “nurse” in the context of regulation R2. Ultimately, the meaning, in case of dispute, must be decided as a matter of law by a judicial body, be it the Ombudsman, or the Court or an appellate court. It is true that Regulation U2 provides for the Minister to determine any question under the Regulations as to the rights and liabilities of any person. That, however, does not give the Minister a discretion about whether a member does or does not qualify for SCS, but makes him the decision-maker as to what Regulation R2 means as a matter of law. If he gets it wrong, a complaint can be made to the Ombudsman.

[113]I do not accept as either exhaustive or as mutually exclusive the three basic ways identified by Mr Grant (by job title, job description or job function: see [70] above) in which to identify an individual’s employment in the context of employment within the NHS. I emphasise the context of employment within the NHS because in the present case, the Scheme is a pension scheme for NHS employees and one must ask what it is that makes a person’s employment, within that context, employment as a nurse.

[114]The three basic ways identified by Mr Grant are not exhaustive because professional qualification might also provide a route to the identification of the employment. If that is putting matters too high, professional qualification could form an element in making that identification. Indeed, if a particular qualification is required before a person can describe themselves by a particular title (for instance, persons who currently carry out physiotherapy can only call themselves “physiotherapist” if they hold the required professional qualification), qualification can be seen as an essential aspect of the employment. Even if the use of a title does not require the person using that title to hold a formal qualification, the possession of a formal qualification, in the context of employment within the NHS, is at least a factor in determining whether a person is employed to carry out the function which that title indicates. Thus a person could, at least since 1972, be employed in the NHS as a health visitor only if they were certified. Quite clearly, at least since 1972, a person would fall within Regulation R2 as a health visitor only if they were certified. There is simply no room for the suggestion that an uncertified person carrying out duties analogous to those of a health visitor could qualify for SCS as a health visitor.

[115]By analogy, consider the case of an architect. A person who is not registered under the Architects Act 1997 may not, by virtue of section 20(1), practise or carry on business under any name, style or title containing the word “architect” (it being expressly provided in section 20(6) that a person is not treated as not practising by reason only of his being in the employment of another person). A skilled and experienced, but unqualified, employee of an architect’s practice might be perceived by his employer as capable of carrying out the tasks carried out by junior qualified architects in the practice. To all intents and purposes he would be acting in all respects in the same way as the junior architects, but he would not be able to refer to himself as an architect when dealing with clients (any more than Ibsen’s Master Builder could do so). The employee cannot be said to be “employed as an architect”.

[116]Nor are Mr Grant’s three basic ways mutually exclusive. I see no reason why each of them should not play a part in deciding whether a person is “employed as a nurse” (or indeed as any of the other professionals identified in Regulation R2); nor do I see any reason why professional qualification should not form part of the assessment. The three ways, together with professional qualification, inform each other.

[117]Professional qualification will not, of course, be sufficient by itself to establish “employment as a nurse” since a qualified nurse might be employed as a secretary and would not therefore be “employed as a nurse” within Regulation R2. In contrast, professional qualification will sometimes be necessary: a person can be “employed as a health visitor” only if they are certified (since employment qualifying for membership of the Scheme is employment by a health authority, namely the NHS).

[118]So far as concerns job title, it is normally to be expected that a job title is at least a reflection of the job itself. For example, it is to be expected that a person with the title “hospital porter” will have a job description appropriate to, and carry out the sort of tasks normally assigned to, a hospital porter. The job title “hospital porter” will not carry with it the job description and functions of a car-park attendant. Similarly, a person’s job description and job function will ordinarily reflect each other.

[119]Job title cannot simply be side-lined so that job-function becomes paramount. It is necessary to examine (as I will do in due course) whether a neo-natal nursery nurse is a species of nurse as that word is understood within the NHS.

[120]Job function is certainly an important factor in deciding what the nature of the employment actually is. When answering the question whether a neo-natal nursery nurse is a nurse within the context of employment within an NHS hospital, it is relevant to compare and contrast the functions of the neo-natal nursery nurse and the functions of the persons who are conventionally referred to as nurses in that context. In practice, the typical persons referred to as nurses – that is to say persons employed in a role with a nursing title – are persons who are qualified as nurses. It is relevant (and important) to ask what such persons actually do.

[121]It is also important to consider what a person is employed to do by reference to their contract of employment and their job description. Job function alone is not necessarily enough to establish the nature of the employment. This is demonstrated by the following example. Consider a qualified nurse who is employed in a job with a nursing title and with a job description which is clearly that of a nurse, but who finds that, in practice and in spite of her job description, she is consistently assigned to the most menial of tasks carried out by qualified nurses. Those tasks, viewed in isolation, might not amount to “nursing” on any view. Nonetheless, the individual would, in my view, nonetheless be “employed as a nurse”: in such a case, the job-description and qualification would, in my view, trump the actual job-function as carried out in determining whether the employment was as a nurse within the meaning of Regulation R2.

[122]Mr Grant has identified the three alleged flaws mentioned at [73] above. He is, I think, there tilting at windmills. i) As to the first suggestion concerning arbitrary outcomes, he relies on a definition of nursery nurse in a particular set of regulations of no relevance to the present case. The argument appears to be that, because Ms Williams was employed as a nursery nurse, an approach based on job title would mean that she was employed in connection with the education of children under 5. But that is a non sequitur. Ms Williams was employed to perform a role appropriate to a person with her qualifications as a Nursery Nurse; she was employed because, quite apart from her personal attributes and her experience, she was a qualified nursery nurse. Whether or not she was employed as a nurse within Regulation R2, she was certainly employed as a Nursery Nurse (as a person with that title and with the qualification); and her own description of her post in her job specification was that of Nursery Nurse on the neonatal unit. ii) I note that the Determination does not actually say what Ms Williams’ job title was, simply recording at [15] that she was worked as a Nursery Nurse in a neonatal intensive care unit. This, it seems to me, illustrates the way in which job title, job description and job function inform each other. Ms Williams was able to obtain the job because she had a qualification as a nursery nurse. Although her title was “Nursery Nurse”, her functions were clearly not solely the educational ones referred to by Mr Grant. In the context of work in a neonatal unit, the scope of her duties would have to be ascertained from her job description and contract of employment. The role of a nursery nurse in a neo-natal unit is no doubt different from the role of a nursery nurse in a different context. But that does not mean that Ms Williams was not in fact employed as a nursery nurse but was employed as something else. The question in issue is whether, by being employed as a nursery nurse in a neo- natal unit, she was also employed as a nurse within the meaning of Regulation R2. On any view, she was not employed as a registered nurse. iii) As to the second and third suggestions concerning an approach based on job- title alone, I do not think that Mr Sanders has ever suggested that job-title by itself is an answer to the problem. Mr Grant is obviously correct to say that a job-title might be changed. That does not detract from the potential relevance of the existing job-titles and professional qualifications as factors in determining whether a person is a nurse. If all that occurs is change in the job- title, there is no change in the substance of the job which involves the same roles and qualifications. If there is a change in roles, then the substance of the changes would need to be assessed to determine whether the employment is still as a nurse within the meaning of Regulation R2.

[123]It is of course the case that a person is not employed as a nurse simply by virtue of(i) being qualified and

(ii) being employed. A qualified nurse might, as already noted, be employed as a receptionist or even a personal assistant to a consultant. The qualification may be useful in carrying out the job; but the nurse is not carrying out any nursing functions and is clearly not employed as a nurse (and that would be so even if they were employed for the non-nursing function only because they had the added experience of a nursing qualification). This example demonstrates the care which must be taken with language. If one were to ask the individual concerned whether they were a nurse the accurate answer would be “Well, I hold a nursing qualification but I do not practice as a nurse”. But if a one-word answer “Yes” or “No” were required, each answer would be as accurate as the other.

[124]However, if one were to ask whether the receptionist or personal assistant was employed as a nurse, the answer would clearly be “No”. This is so whichever of the three (or four) methods of identification of employment, or any combination of them, provides the correct test. Clearly the answer is “No” if Mr Grant’s approach is correct, since the function of the secretary/personal assistant is not nursing. Equally clearly, in my view, it is correct even if no qualification/job title provides the test of whether a person is a nurse. Suppose, for instance, that Regulation R2 had referred to “registered nurse” rather than “nurse”. A person would be employed as a registered nurse if, but only if, both(i) they were in fact registered and

(ii) the job description was appropriate to that of a registered nurse. As to (i), I do not see how it could ever be said that a person was employed as a registered nurse if they were not in fact registered (quite apart from the breach of statutory provisions relating to the use of designated titles). As to (ii), if the job description was that of a secretary or personal assistant, that would not be appropriate to that of a registered nurse exercising her vocation as such. Thus qualification and job description would be relevant to the question whether the individual was employed as a registered nurse. If in fact the individual was allocated menial duties or even told to carry out duties as a personal assistant to a consultant, that would not detract from the fact that they were employed as a registered nurse (although the individual might have cause for complaint). I agree with Mr Grant, however, that job function is relevant, but job function and job description must, in my view, be taken together: actual function may colour, for the purposes of interpretation of Regulation R2, the meaning of the job description. As he acknowledges, job function will have regard to the job description and the extent to which the duties actually undertaken correlate with the description. I would add to that the observation that job description will, in turn, have regard to the qualifications which are required for the functions which are to be performed.

[125]It is important to record that nursery nurses, even those who work in neonatal units, do not have a qualification which is equivalent to that of a registered nurse. They cannot carry out unsupervised all of the tasks which a registered nurse may carry out unsupervised; and there are tasks which the nursery nurse is not permitted to carry out at all, but which the qualified nurse can do. In any case, there can, I think, be no dispute that the level of qualification of a registered nurse is, and always has been, higher than that of a nursery nurse.

[126]There is nothing inherently problematical, therefore, about an interpretation of “in pensionable employment as a nurse” which requires the individual to have a nursing qualification. The question is whether, as a matter of construction, Regulation R2, in referring to a nurse, is referring to a qualified nurse. I do not consider that the use of the words “pensionable employment as [Mr Grant’s emphasis] a nurse” supports an approach that job function is determinative to the exclusion of other factors.

[127]As to Mr Grant’s submission that an individual’s job-title as “nurse” is neither necessary nor sufficient for that individual to fall within the wording of Regulation R2, I agree that it is not necessary. A person who is a registered nurse and who is employed to carry out the duties conventionally carried out by a registered nurse is nonetheless a “nurse” within the meaning of Regulation R2 notwithstanding that their title might, for historic reasons, not be or include the word nurse, for instance there used to be nurses with the title “matron” (although so far as I am aware, that particular title no longer exists).

[128]There is more difficulty with his proposition that it is not sufficient. Of course, the use of the word nurse in a composite title (such a nursery nurse) is not sufficient: it is common ground that an ordinary nursery nurse outside the special working environment of the neonatal unit will usually not be seen as a nurse and will not be “employed as a nurse” for the purposes of Regulation R2. This is so even though the role of a person employed as an ordinary nursery nurse is broadly speaking a caring role; and the same applies, I consider, even if that caring role comprises an element of care of sick children. The point can be illuminated by an example. Consider a person who is not a registered nurse but who is employed to carry out certain limited functions, carrying little responsibility, which might sometimes be carried out by a registered nurse. Those functions might be seen as being nursing functions in accordance with the broad dictionary definition of nursing. But that, it seems to me, would not make the individual a nurse. At the very least, and even on Mr Grant’s case, it must surely be that the starting point of an enquiry is to identify the job descriptions and responsibilities of the main cohort of people who are employed as nurses, that is to say, qualified nurses.

[129]Mr Grant places reliance (see [72 iii] above) on what he says is the mischief of Regulation R2 (and before it, section 16 of the 1937 Act), that is to say that the default normal retirement age of 60 was too old for people engaged in certain work. I am not at all sure that that mischief is something which can be taken account of in construing the 1995 Regulations. But even if it is, it gets Mr Grant nowhere because the mischief addressed by the Regulations must surely be that identified by the consultation which took place before the Regulations were made: this is in effect the submission made by NHSBSA reflected in [56 iii)] above. As to that, it appears that the position of neonatal nursery nurses was expressly addressed and the policy that they should not have SCS was continued.

[130]Mr Grant submits (see [72 v)] above) that, if Regulation R2 had been intended to apply only to someone with the requisite title or qualification, the word “nurse” would have been specifically defined and there would have been reference to specific job titles or specific qualifications. I do not agree with that. The draftsman might well have considered that, in the context of employment within the NHS, informed persons would have known of the hierarchy of doctors, nurses and others. In using the word nurse, he meant to refer, on this argument, to persons who are, within that hierarchy, called nurses who, in practice, all hold nursing qualifications.

[131]In addressing what the draftsman meant, it is appropriate to pay regard to the restrictions on the use of the title “nurse” over time and to pay regard to the way in which the other professions mentioned in Regulation R2 are affected (an area which I have considered in some detail in [38]ff above under the heading Qualifications and Names). Although the most important statutory provisions to bear in mind are those in place when the 1995 Regulations were made, previous legislation is not irrelevant since it will colour the understanding of the draftsman in using the words which he did, and previous restrictions on the use of titles will throw light on what a person with some knowledge of the field (to use the words of the Ombudsman in [71] of the Determination) would have understood a nurse to be.

[132]In that context, I draw attention to section 6 of the 1943 Act and section 28 of the 1957 Act, as to which see [41] above. A person could not, whilst those sections were in force, take or use the name or title of nurse unless registered or enrolled, the only relevant exception to that being a children’s nurse, whose position I have referred to at [60] above. A children’s nurse was a person whose avocation was that of caring for children. The exception allowing children’s nurses to use the title “nurse” only applied if the circumstances did not suggest that they were anything other than a children’s nurse. The exception was clearly not designed to permit any person who happened to nurse (in a general sense) sick children to call themselves a nurse: that would lead to the absurd conclusion that a person not registered as a nurse could not take or use the title nurse if they nursed adults but could do so if they nursed children. The policy behind these provisions must have been that the use of the name or title “nurse” would amount to a representation that the individual was qualified.

[133]Accordingly, an individual in Ms Williams’ role could not have taken or been given the title “nurse” because the circumstances would then obviously have been such as to suggest that she was more than a children’s nurse. In contrast, if her title was children’s nurse, or nursery nurse, there would be no breach of section 28. This demonstrates that there were, at that time, distinct employments of individuals entitled to take the name or title of nurse (all of whom would be registered or enrolled) and children’s nurses.

[134]Section 28 was, as already noted, repealed by the 1979 Act. Although the system of regulation of titles was changed (with section 14 of the 1979 Act creating an offence), the fundamental purpose remained, namely that a person should not hold herself out as holding a qualification which she did not in fact possess. An offence was committed only where an intention to deceive was established. [As an aside, I note that, so far as I am aware (and it has not been suggested otherwise), Ms Williams has not ever held herself out as having a nursing qualification, let alone has she done so with an intent to deceive.] The legislation again demonstrates distinct employments of individuals holding certain qualifications and those who do not.

[135]I refer now to Mr Sanders’ submissions at [56viii)] above. As I have deconstructed it, the first part of the submission is that, for a considerable time before 1995, the position has been that a person is only employed in an NHS hospital to carry out the full range of activities which a qualified nurse is able to carry out, and can only be employed in a job with the title “nurse”, if they are in fact qualified as a nurse. The second part of the submission is that, whilst Ms Williams is qualified as a nursery nurse, she is not qualified as a nurse. There are some duties of a qualified nurse that she could not carry out.

[136]I believe both parts of those submissions to be common ground; Mr Grant did not challenge what Mr Sanders says. I proceed in the basis that this is correct, although the Ombudsman made no express finding on either part of the submission and I am not aware of the evidence about this before him.

[137]Given the statutory background in which the 1995 Regulations were drafted, in particular section 6 of the 1943 Act, section 28 of the 1957 Act and section 14 of the 1979 Act (and subsequent re-enactments), and given the context in which the 1995 Regulations were promulgated, I consider that “employment as a nurse” was intended by the draftsman of the 1995 Regulations to capture principally those members of the Scheme who were qualified nurses employed in a nursing job. It is perhaps stating the obvious that members of that class were to be included, but the reason they are included is not simply because of their job function, but also because of their job titles, job descriptions and importantly qualifications. I do not consider that, save perhaps in the most exceptional circumstances, other persons were to be included as members in employment as a nurse, who fulfilled none of the criteria which, in my view, fall to be taken into account namely(i) qualification

(ii) job title and

(iii) job description.

[138]I do not say that it is impossible in theory that a person who is not qualified as a nurse could be in employment as a nurse, but that would be the most exceptional case which, in practice, could not happen. It would require, in my view, the individual concerned to be employed in a post which in practice is occupied by a qualified nurse. I will say a bit more about this when addressing where I think the Ombudsman has gone wrong.

[139]Consideration of the other employments which qualify for SCS support that conclusion, as follows.

[140]So far as midwives are concerned, I have considered the use of the name midwife, and the prohibition on unqualified persons attending a woman in childbirth, at [64] above. I speculate that, in practice, no-one has ever sought to claim to fall within Regulation R2 as a midwife who was not a certified or registered midwife. I would have thought it of the essence of the role of midwife that she would attend a woman in childbirth: I think that I am entitled to proceed on that basis even though there is no finding by the Ombudsman to that effect. The draftsman, when he used the word “midwife” in Regulation R2, must surely have been intending to refer to a person who was permitted to attend a woman in childbirth. There is then no difference between the qualification, the job description and the job function. It does not lend support to an approach based on job function to the exclusion of other considerations.

[141]So far as health visitors are concerned, I have considered their position in [46] and [52] above. At least since 1972 – and thus at the time of commencement of Ms Williams’ employment as a nursery nurse and at the time of the 1995 Regulations – a qualification was required for an employer to employ a person as a health visitor. Again, the draftsman must surely have been intending, in referring to pensionable employment as a health visitor, to refer to a person qualified to be a health visitor.

[142]So far as physiotherapists are concerned, I have considered their position in [62] above. Since the commencement of the 1974 Regulations, the NHS could not employ a person as a physiotherapist unless they were registered. That was the position when the 1995 Regulations were adopted. Again, the draftsman must surely have been intending in referring to pensionable employment as a physiotherapist, to refer to a person qualified to be physiotherapist.

[143]In each of these cases (midwife, health visitor, physiotherapist), an unqualified person could not be employed in the relevant role, that is to say to perform the functions for which qualification was required. It might therefore be argued that the words “in pensionable employment as ….[the relevant role]” are wide enough to catch any person employed in that role, albeit that in practice only qualified persons could, or would, be employed in that role. Thus a person might be a highly experienced physiotherapist – for instance have worked in another country whose qualification is not recognised in the UK – but could not be employed by the NHS as a physiotherapist. As such, he could never fall within Regulation R2, but this would not be because he was not a physiotherapist but because he could not be employed as such. That may be so, but it does not meet the point which I have made in relation to each profession that the draftsman has envisaged a situation in which only qualified persons would ever be entitled to the beneficial treatment afforded by Regulation R2. That lends support to the argument that he intends to treat nurses in the same way. In other words, the argument is that he sees the qualification as part and parcel of being in “pensionable employment as a nurse” just as much as a midwife, health visitor or physiotherapist. Even if there is an exceptional case such as I have mentioned in [138] above, consideration of the position of midwives, health visitors and physiotherapists lends no support to Ms Williams’ case. I reject Mr Grant’s arguments to the contrary.

[144]Although I have not found it necessary to rely on the principle of construction expressed as expressio unius est exclusio alterius, I do not accept Mr Grant’s submission that there is no scope for its application. In the present case, there is a class, namely a class of members of the Scheme. The class of members includes not only nurses, but nursery nurses many of whom, on any view, are not employed as nurses. Even if she is not a nurse, Ms Williams is clearly entitled to benefits by reason of her employment as a nursery nurse. The inclusion in the list of certain members of the Scheme – nurses, midwives, heath visitors and physiotherapists – suggests that other distinct classes – such as nursery nurses – are not included. If a particular sub-set of nursery nurses, namely those working in neonatal units, were intended to be included, it is to be expected that they would have been expressly mentioned. The possible exception which I have identified in [138] above creates, I accept, a tension if the individual concerned is employed because she is a qualified nursery nurse and is given the title nursery nurse in the neonatal unit. But the reality in such a case may be that the individual is not, in fact, employed as a nursery nurse at all but is employed as a nurse. In other words, the title is misleading so that function trumps the title and the qualification.

[145]Another reason for favouring this approach is that, if job function is the overriding criterion, a line has to be drawn between what does and what does not qualify as nursing activity sufficient to result in employment as a nurse. Clearly not every member of the scheme who carries out some nursing activity qualifies as a nurse. An ordinary nursery nurse may, from time to time, conduct clinical activities which, in other environments such as a hospital ward, might be carried out by a nurse; and that might be done in the context of a child who is sick. But that would not be enough to make the employment that of a nurse. Practical application of Regulation R2 suggests that NHSBSA ought to have easily applicable criteria in deciding whether a person qualifies for SCS. An approach based principally on qualification and job description/contractual duties, provides such criteria with perhaps the possibility of qualification for SCS being based on exceptional circumstances.

[146]I do not consider that an approach which is based on an assessment that a job is analogous to nursing can be correct. To put the matter that way has to start with the premise that the job is not nursing (otherwise there would be no need for an analogy). But if the job is not nursing, there is no basis on which to treat Regulation R2 as though it included something which clearly it does not.

[147]If my analysis is correct, then Ms Williams was not employed as a nurse. Rather, she was employed as a nursery nurse which is a distinct employment. Her functions were not, on the facts, such as to bring her within the possible exception which I have mentioned in [138] above. Her role certainly involved functions some of which are ordinarily carried out by nurses, at least nurses in a lower grade of the employment hierarchy. But there is no finding, and no discussion of any evidence, in the Determination which compares Ms Williams’ job with that of a qualified nurse. The nearest one comes to that is found in the letters from the Employer (and provided to the Ombudsman’s office) dated 10 May and 5 August 2013. Those letters show that some of Ms Williams’ functions could properly be described as nursing functions and demonstrate that, in terms of supervision, both Ms Williams and registered band 5 and 6 nurses were subject to supervision. This is insufficient to establish that Ms Williams’ job was, in practical terms, the same as the job of a registered band 5 or 6 nurse.

[148]If I am wrong in my analysis, then it would follow that job function is the test. This is essentially the approach adopted by the Ombudsman. He identified what he saw as the correct test in [72] of the Determination, namely whether a person with some knowledge of the field would describe Ms Williams as a nurse. Although he focused on Ms Williams, he was there articulating a general test applicable to any employee claiming to be in pensionable employment as a nurse. Mr Grant urges the same test by reference to the question asked by Cohen LJ in Brock v Wollams

[1949] 2KB 388

. That case concerned whether the defendant was a member of the family of the deceased tenant. The question identified by Cohen LJ at the top of p 395 was this: Would an ordinary man, addressing his mind to the question whether Mrs Wollams was a member of the family or not, have answered “yes” or “no”? Substituting a person with some knowledge of the field for the ordinary man, the question is whether that person, addressing his mind the question whether an individual, Ms Williams in the present case, was a nurse, have answered “yes” or “no”.

[149]In fact, that cannot be the right ultimate question on any view. The question for the Ombudsman was not whether a person is a nurse but whether that person is in pensionable employment as a nurse. The secretary or personal assistant considered above is a nurse in one sense but is not in pensionable employment as a nurse. But what is clear is that, if a person cannot be described as a nurse in the first place, that person cannot be in pensionable employment as a nurse.

[150]Even if the Ombudsman’s approach is correct as a matter of principle, it would be wrong in my view to take the dictionary meaning of “nurse” as the starting point, which is what the Ombudsman appears to have done. Although he speaks of a person with some knowledge of the field, he does not explain the attributes of such a person and appears to have ignored – certainly he appears to attach no weight to it – the impact of the fact that Regulation R2 is concerned with nurses who are employed within NHS hospitals with their hierarchy of nursing staff. He has failed, in my view, to take proper account of the context in which Regulation R2 falls to be construed so that his “person with knowledge of the field” gives his answer to the question whether Ms Williams was a nurse without taking proper account of that context. Thus job title and qualifications are ignored or discounted.

[151]For the reasons already given, it would be wrong, in ascertaining the view of the person with some knowledge of the field in the context of employment within the NHS, to ignore the job title and job descriptions and qualifications of the person concerned and to focus exclusively on job function. Taking those factors into account, my conclusion is that such a person would not conclude that Ms Williams was in employment as a nurse within Regulation R2.

[152]The Ombudsman himself acknowledged at [70] of the Determination that there would have been some force in NHSBSA’s case that the “nurse” and “nursery nurse” were mutually exclusive “if the actual test had been whether a person was in a clearly closed set of people that were obviously nurses when others were not”. He rejected that case because “in fact the test has shifted over time and there has been a debate about who was to be included”. This is not a line of reasoning that I can accept. The way in which the Scheme has been administered may reflect changing perceptions of who is deserving of SCS (with a shift in the test in practice applied from arduous duties to qualifications) but this, in my view, is to look at matters in an incorrect way. A person was not a nurse because she carried out arduous duties; rather, she carried out arduous duties because those were duties inherent in what a nurse did. Such duties may have been the reason why nurses were included in SCS in the first place but there is nothing at all in the provisions of the Scheme prior to the 1995 Regulations and nothing in the 1995 Regulations themselves which justifies an interpretation which makes arduous duties either a necessary or sufficient condition for a person to be a nurse, any more than arduous duties are a necessary or sufficient condition for a person to be a midwife, physiotherapist or health visitor.

[153]I do not overlook what the Ombudsman says at [80] of the Determination as to which see [69] above. I do not accept Mr Sanders’ submission that the Ombudsman’s summary of Ms Williams’ position was not a finding of fact. What she said was unchallenged and was, on my reading of [80] of the Determination, evidence on which he relied (although, as I have said, I attach no weight to her statement of her understanding concerning health care workers).

[154]There has been some dispute between Mr Grant and Mr Sanders about the job description for a Nursing Auxiliary referred to by the Ombudsman in [28] of the Determination as I have explained above when recording the parties’ positions in relation to Ground 3. Mr Sanders contends that this was not the job description of a Nursing Auxiliary who was entitled to SCS. Mr Grant contends that this is not how the Determination is to be read and that if anything turns on the point, the matter should be remitted to the Ombudsman to make further findings.

[155]I do not consider that I need to resolve this dispute or to remit the matter to the Ombudsman. This is because the interpretation of Regulation R2 is, at this stage of the dispute resolution process, a matter for me. It is not necessary for me to decide whether Nursing Auxiliaries (and if so which Nursing Auxiliaries) are in employment as nurses for the purposes of Regulation R2. It may be that, applying the approach which I have discussed above, some Nursing Auxiliaries are indeed nurses in that their job descriptions and job functions are the same as those of a qualified nurse. If my reasoning has the result that some Nursing Auxiliaries have received SCS who are not entitled to it, then so be it. But a misapplication of Regulation R2 in relation to such Nursing Auxiliaries is no reason to compound the error by granting SCS to Ms Williams or other nursery nurses working in a neonatal unit. This is essentially the issue raised under Ground 3.

[156]I have not, in my discussion, considered the parties’ submissions concerning Slavin. I have not found the decision of a great deal of assistance in the present case. It certainly does not cause me to alter the conclusion which I have reached; indeed, if anything, it supports Mr Sanders’ case, but I do not rely on it.

Conclusion on Grounds 1 to 3

[157]My conclusion, it can be seen, is that Ms Williams was not in employment as a nurse within the meaning of Regulation R2. NHSBSA’s appeal is therefore allowed.

Ground 4: erroneous award of compensation

[158]In the light of my conclusion on Grounds 1 to 3, Ms Williams clearly has no right to compensation since, on any view, there has been no maladministration. I do not propose to consider the parties’ quite detailed submissions about compensation which are of relevance only if my conclusion on the substantive question is wrong. I would only say that, even if I am wrong, I find it hard to see how NHSBSA has acted in any way inappropriately, oppressively or in a way open to criticism. It would have done no more than take a well-arguable position which, in the event, was incorrect. That is not, in my view, maladministration so that compensation could not be awarded.

Disposition

[159]NHSBSA’s appeal is allowed.