Baskaran v Financial Services

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 24 January 2019
• Neutral Citation: [2019] IEHC 167
• Court: High Court
• Docket Number: RECORD NO. 2016/149 MCA
• Date: 24 January 2019

IN THE MATTER OF SECTION 57 CL OF THE CENTRAL BANK ACT 1942, (AS INSERTED BY SECTION 16 OF THE CENTRAL BANK AND FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004)

BETWEEN

KANAGARATNAM BASKARAN

APPELLANT

AND

FINANCIAL SERVICES

and

PENSIONS OMBUDSMAN

RESPONDENT

[2019] IEHC 167

RECORD NO. 2016/149 MCA

THE HIGH COURT

Disability benefit – Medical reports – Undisclosed documents – Appellant seeking to appeal from a decision of the respondent – Whether the respondent erred in taking undisclosed documents into account

Facts: The appellant, Mr Baskaran, appealed to the High Court from a decision of the respondent, the Financial Services and Pensions Ombudsman, in relation to a complaint made to the respondent arising out of a decision made by Friends First Life Assurance Ltd to cease making payments to the appellant under an income protection policy he had taken out with Friends First. This appeal was brought pursuant to s. 57CL of the Central Bank Act 1942. The specific arguments raised by the appellant were that: 1) the respondent erred in excluding from consideration four medical reports provided by the appellant after the decision of Friends First to terminate payment of the disability benefit; 2) the respondent erred in relying upon the refusal by the appellant to attend for further orthopaedic and psychiatric assessments; 3) the respondent erred in failing to take proper account of those medical reports that favoured the appellant, and further erred in failing to convene an oral hearing to consider the conflicts on the medical reports; 4) the respondent erred in taking into account undisclosed documents (the reports of the private investigator) and in failing to convene an oral hearing to hear evidence from the private investigator; and 5) the appellant made an error of fact as regards a conclusion formed by Mr O’Brien, a consultant neurosurgeon.

Held by Binchy J that there had been no error of any kind on the part of the respondent in arriving at his conclusions.

Binchy J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Binchy delivered on the 24th day of January, 2019

1 This judgment concerns an appeal of the appellant from a decision of the respondent in relation to a complaint made to the respondent arising out of a decision made by Friends First Life Assurance Limited (‘Friends First’) to cease making payments to the appellant under an income protection policy he had taken out with Friends First (the ‘Policy’). This appeal is brought pursuant to s. 57CL of the Central Bank Act 1942 (as inserted by s. 16 of the Central Bank and Financial Services Authority of Ireland Act 2004) (the ‘Act’).

Background

2 The appellant worked as a manager of a hostel for homeless in Dublin city centre up until March, 2011, when it appears he sustained an injury to his back that left him unfit for work. The Policy provided for payments to be made to the appellant by Friends First, subject to the terms and conditions of the Policy, in the event of his being unable to work owing to disability. The appellant made a claim under the terms of the Policy which was admitted by Friends First. In the ordinary course, the appellant submitted medical reports to support his claim and also attended, at the behest of Friends First, for medical examinations with various consultants nominated by Friends First. The appellant was kept under review and eventually Friends First concluded that in its opinion the appellant was fit for work and notified him of this decision on 8th August, 2014. The appellant appealed that decision in accordance with the provisions for appeal in the Policy, but Friends First rejected this appeal by letter dated 4th August, 2015. In this letter to the appellant Friends First stated, inter alia:-

‘Our Claims Committee in conjunction with our Chief Medical Officer have now carried out a full review of your claim.

They have considered all the medical evidence we previously had on file together with a report from the Functional Capacity Evaluation…along with up-to-date reports from your consultations with Professor McCormack and Mr. O'Brien.

The … FCE confirms that you are fit for the physical demands of your occupation. We provided copies of the FCE to Professor McCormack and Mr. O'Brien and they have both confirmed that you could return to work from a physical perspective…

Following this review our Claims Committee have confirmed, based on the medical evidence available, that they are unable to consider that you are totally unable to follow your normal occupation of hostel manager.’

3 The appellant had previously made a complaint about Friends First to the respondent in connection with the amount of the disability benefit paid to him by Friends First. While this complaint had resolved, the appellant now wrote to the respondent in relation to the decision of the respondent terminating payments of the benefit altogether, and it appears the respondent treated this as a complaint for the purposes of the Act. The respondent suggested to the parties that the dispute be referred to mediation, and while the appellant was willing to refer the dispute to mediation, Friends First was not willing to do so. Accordingly, the respondent proceeded to investigate the complaint in accordance with the Act.

4 There then followed correspondence between the respondent and the appellant, and the respondent and Friends First. This correspondence continued between 10th August, 2015 and 4th April, 2016, when the respondent issued his decision on the complaint, concluding that: ‘I accept that the Company's decision to refuse the Complainant's appeal was reasonable and was adequately supported by the evidence that was available to it in August, 2015’. It is against that decision which the appellant has appealed. He did so by notice of motion dated 19th April, 2016, in accordance with O. 84C of the Rules of the Superior Courts (‘RSC’). The appellant issued this motion and accompanying grounding affidavit as a lay litigant, although he subsequently engaged the solicitors now representing him in this appeal. The grounds of appeal relied upon by the appellant in his affidavit of 19th April, 2016, are as follows:-

(1) The respondent excluded from his consideration of the complaint four medical reports provided by the appellant that post-dated the decision of Friends First of 4th August 2015;

(2) The respondent unfairly relied upon the refusal by the appellant to attend for further orthopaedic and psychiatric reviews as suggested by Friends First, prior to the determination of the complaint. This was unfair because, the appellant avers, he had been discharged from orthopaedic services at the time, and had been referred to rheumatology and pain specialists. He further avers that he had already been psychologically assessed and was awaiting an appointment in April and May 2016 with a psychiatrist.

5 Following upon the issue of the appellant's motion, the respondent, Mr. Ger Deering delivered a replying affidavit dated 7th July, 2016. In this affidavit Mr. Deering sets out in general terms his functions as Financial Services Ombudsman and summarises the complaints procedure under the Act and as operated by the respondent. He sets out a chronology of events, starting with the first complaint received from the appellant in relation to the quantum of the payment then being paid to him by Friends First, through to the termination of the benefit by Friends First, the complaint of the appellant arising out of that termination, and the decision of the respondent dated 4th April, 2016. As to the merits of the appeal, and the grounds of appeal relied upon by the appellant, the respondent says simply that he rejects any assertion that the decision was arrived at unfairly and avers that he carefully considered the materials and submissions put forward by both parties.

6 The appellant replied to the affidavit of Mr. Deering by further affidavit of 11th July, 2016. In this affidavit, the appellant relies on a number of additional grounds of appeal:-

(1) That the respondent erred in failing to require Friends First to address the conclusions of all medical reports provided to Friends First;

(2) that it was unfair for Friends First to have rejected the proposed mediation of the dispute;

(3) that the respondent should have convened an oral hearing to consider the conflicts of medical evidence of qualified medical professionals. That would have afforded the respondent the opportunity to give adequate weight to the issues raised by the medical professionals;

(4) that there was an obligation on the part of Friends First, under the terms of the Policy, to provide support to the appellant to return to work, and the respondent should have investigated this issue before giving his decision;

(5) the appellant denies ever refusing to attend for medical examination at the request of Friends First;

(6) the respondent failed to consider the various medical reports made available to the respondent in the course of the investigation. The appellant then purports to summarise the conclusions of those various medical reports.

7 The respondent then replied to the last mentioned affidavit in a brief affidavit of his own on 20th July, 2016. He avers that neither the appellant nor Friends First raised the issue of an oral hearing before him at any stage during the investigation, and nor did the appellant raise it as an issue in his original notice of motion and grounding affidavit. He submits therefore that it is now too late for the appellant to raise this issue, and notes that the appellant does not seek to explain why he had not raised the issue previously.

8 Solicitors came on record on behalf of the appellant on 17th February, 2017, and they issued a motion on behalf of the appellant on 24th April, 2017, whereby the appellant seeks leave of the court to rely upon an additional...