Group Income Protection - Claim Declined

[choudaryk]

Hi,

 

Just wondering if anyone can help, my claim for income protection has been declined. I have appealed but couldn't see any reason for the insurers to decline the first place I have been diagnosed with depression. Please see the reasons below:

 

1) They rejected claim without seeking any medical evidence from my doctor

2) They applied a deferred period even though they state it is a linked claim

3) During Rehabilitation Sessions (which turned out to be Claim Assessment Sessions) the specialist was more interested in gathering information to build a predefined conclusion to my absence other than my symptoms

 

I would be grateful if anyone can help with the following:

 

Does my employer have a duty to ensure the claim is assessed fairly

Does my employer have a duty to litigate against the insurer

Can my employer sack me before I get a decision from the Financial Ombudsman

 

Thanks

 

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[honeybee13]

Hello and welcome to CAG. I'm sorry to hear about your problems.

 

 

Can you tell us who the insurer is please and the name of their policy if you know it?

 

 

It's always a problem when the policy belongs to the employer. We've had various threads about the same problem but often people don't come back and tell us what happened. You could try a search of the forum though.

 

 

Best, HB

[choudaryk]

Hi HB and thanks,

 

The insurer is L&G the policy is called GIP. I have searched the forum but can't find anything concrete on the queries I have.

 

Online it does state that the an employment contract has an implied term of trust and confidence which would apply in this scenario if the employer doesn't take reasonable steps to ensure I receive the benefits under the policy, but thats about all I could find.

 

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[honeybee13]

Thank you for the information. L&G aren't the worst out there which is something in your favour.

 

Can you tell us why it's a linked claim please?

 

HB

[sangie5952]

Hi,

 

Just wondering if anyone can help, my claim for income protection has been declined. I have appealed but couldn't see any reason for the insurers to decline the first place I have been diagnosed with depression. Please see the reasons below:

 

1) They rejected claim without seeking any medical evidence from my doctor

2) They applied a deferred period even though they state it is a linked claim

3) During Rehabilitation Sessions (which turned out to be Claim Assessment Sessions) the specialist was more interested in gathering information to build a predefined conclusion to my absence other than my symptoms

 

I would be grateful if anyone can help with the following:

 

Does my employer have a duty to ensure the claim is assessed fairly

Does my employer have a duty to litigate against the insurer

Can my employer sack me before I get a decision from the Financial Ombudsman

 

Thanks

 

Ad

 

No, the employer does not have a duty to ensure the insurer deals with your claim fairly - they could not possibly carry out such a duty.

 

They have no power over the insurer.

An employer has a general duty to assist you with the claim, but that only goes so far as doing things such as providing the onset with paperwork in a timely manner.

 

And making sure that you are provided with information about what the benefits are. They are not in a position to dictate what the insurer decides, however; and they have no expertise or power to decide whether the decision is fair or not.

 

Your employer has no duty to litigate on your behalf.

 

An employer can dismiss anyone at any time.

Whether it is wise to do so is an entirely different matter, and it would depend on the circumstances and possibly contractual details.

 

Without a lot more information nobody could even make a guess at answering this question.

[choudaryk]

Hi Sangie595/Honeybee13

 

its just that Ive been told that a reasonable expectation would be to litigate on the employees behalf, this is to protect an implied term in the contract of employmnet (trust and confidence).

 

Honeybee13, it linked because:

 

1) Thats what it states in the decision letter

2) Because I was off from work for the same illness and returned for 5 weeks and then relapsed

 

So from my limited understanding a continuation of the original claim would have been correct However, they reassessed over a period of 6 months and then declined.

 

Thank You

[sangie5952]

I have no idea who had told you that, but it is incorrect.

 

Trust and confidence in employment has no such meaning; it does not include a duty to litigate on behalf of an employee.

 

The employer has a duty to ensure that you are aware of the conditions and processes associated with the insurance policy; and they must be careful not to state or lead you to believe that you are covered for benefits which you are not, because that would make them potentially liable for the additional benefits promised.

 

But they are in no position to litigate against the insurer for denying you benefits unless the insurer breaks the terms of the contract with the employer.

 

They clearly have not done so. It is the insurers responsibility to determine whether you meet the criteria for cover or not, and any dispute between you and the insurers about that is down to you to resolve.

 

The implied duty of trust and confidence (and it is "implied") relates to things like the employer assuming that you are telling the truth; you expecting them to tell you the truth; imposing changes without consultation... and such like. And it is exceptionally difficult to prove.

 

But in this case there is equally a duty of trust and confidence between an insurer and their client.

 

The insurer expects the client, for example, to tell the truth and submit claims and information in good faith, and the client expects that the insurer is intending to abide by the terms of the contract.

 

Provided the employer believes that the insurer has acted within the terms of the contract, they have no cause for complaint

 

. In order to consider litigation, they would need to demonstrate that the insurer had done something in breach of contract, and beyond their powers

 

. The insurer is the arbiter of whether they consider you meet their criteria or not, not the employer, so there is nothing for them to litigate.

 

The dispute here is between you and the insurers. You disagree with their application of the terms. That is not the same thing as your employer agreeing with you anyway!

 

You cannot reasonably expect, and the law certainly doesn't expect, an entity to litigate a case simply because someone else wants them to. If you wished to pursue this, your first action will have to be to litigate against your employer to force them to litigate on your behalf

 

. I can tell you with absolute certainty that that will cost you an arm and a leg, that you will lose, and that the employer may very well come after you for costs (which will be a much bigger "arm and a leg").

 

The correct path here is the one that has been taken by you. To refer the matter to the Financial Ombudsman. In fact this is actually a better path than going to a court. In a court, the only matter which can be considered is whether any LAW had been broken.

 

Without seeing the details, it's a guess, but I strongly suspect that your will find that no law has been broken. But the Ombudsman is able to consider whether something is FAIR, something a court cannot do. So even if the insurer has not broken a law, and even if they have performed within the terms of their contract, and applied their criteria correctly, it is possible for the FO to determine that the insurer is wrong in what they have done because it isn't fair.

 

Obviously, if you have private legal insurance (which may be included in other insurance) or are a member of a trades union, then you will be able to get legal advice and support yourself. But expecting your employer to provide that service is not reasonable.

[choudaryk]

Thanks Singie595,

 

In terms of employer litigating against insurer I have seen this on various legal sites, just one example below, and this is why I am confused:

 

'If you have a contractual entitlement to Permanent Health Insurance benefit then your employer may be under an implied duty to take ‘all reasonable steps’ to seek to procure the benefits of the policy for you.

 

This principle derives from the overarching implied duty of trust and confidence. In some circumstances, litigation by the employer (on behalf of the employee) against the insurer may be deemed to be a reasonable step depending on the strength of the employee’s case.

 

Don’t forget that you can complain to the Financial Ombudsman about the insurer if it refuses to pay your claim (your employer may offer to support your legal fees although there is no requirement to have legal representation).'

 

co-oplegalservices.co.uk/media-centre/articles-may-aug-2016/income-protection-insurance-explained

 

Additionally I have been told that the insurance contract is between the ensurers and try employer and that contract doesn't allow for 3rd Party Rights.

Thanks for the advice.

[ericsbrother]

they CAN sue on your behalf under certain conditions but no mention is made of any cases that apply so none the wiser about whether your case fits in with that scenario.

 

As for their last bit it means that you cant sue them.

However, you CAN complain to the Insurance Ombudsman

[sangie5952]

"May" and "in some circumstances".

 

Those circumstances, as I have already explained, relate to where the insurer is in breach of their contract with the employer.

 

There is no evidence that this is the case here, and it very seldom happens. No income projection policy guarantees to pay out.

 

The insurer has said that you are not eligible for payment any longer, and unless that is in breach of the contract, then there is nothing they can do.

 

You can complain to the Ombudsman, and, as I have also already explained, that is a better route anyway because in dealing with this the Ombudsman not only considers whether it is legal or not (i.e whether the contract had been breached) but also whether it is fair or not, which is something a court cannot do.

 

You seem to think that suing them is a better option. It isn't. Provided the insurer has operated within the law, then you lose. Full stop.

 

The court doesn't care about fairness.

And I can guarantee you that if it went to court it wouldn't see the light of day for years - the insurers will tie it up in so much legal red tape that you'll have retired by the time it gets to court.

 

This is, in any case, assuming that the employer supports you anyway, which we don't have in play here

 

. Just because you are signed off sick by a doctor does not oblige them to fight your corner.

 

You can no more force the employer to launch legal action on your behalf than you could force me to

 

. In short, the employer has every right to say that they agree with the insurer! It would be a ridiculous state of affairs if someone could be compelled to launch legal action which they did not believe in.

[choudaryk]

Thanks Again,

 

I'm not saying I want to go to court, just trying to get an idea of what the options are.

 

As for my specific case I can't see where I don't meet the insurers definition of Incapacity in addition rather than continuing the original payments after I had relapsed they for some reason (which doesn't make sense to me) applied a deferred period again however, the decision letter states that they assed it as a linked claim. According to the policy where a claim has stopped and a person returns to work and then goes off again within 52 weeks for the same reason the insurers re-instate the original claim which is described as linked claim.

 

Wouldn't this be a breech of contract?

 

Also in terms of my employer agreeing with the insurers decision surely this would need to be based on material evidence of the case otherwise it would be in the employers interest to simply agree with every case and then to dismiss people.

 

I have been told by a legal firm that but not sure :

 

Onus on employers to pursue their insurer under privacy of contract, because employment contract with employee has been affected through the none payment of this benefit.

 

Thanks

Edited June 2, 2018 by choudaryk

[sangie5952]

If you have a legal firm, why are you asking a bunch of strangers here?

 

Now I have gone off and read the terms of your insurance, and whilst I don't know all the options that may have been taken out, it is apparent that the insurers have either decided that your illness is not the same cause, or that you have exhausted a payment limitation, or that they did not agree that you are incapacitated to the extent of being unable to work. I presume that you have asked them for an explanation - what was the answer?

 

It seems rather unlikely that they would have paid out for a simple depression - according to their terms they would not do so. Which makes sense because many people with depression work.

 

So are they questioning the degree of your incapacity? Most such insurers would not consider paying unless you were entirely unable to undertake work of any kind that could be made available to you by the employer. Has this question arisen?

 

it would seem rather odd, given the terms of a linked illness as described in the terms, that they would say that a relapse of the same illness within 5 weeks is not covered when the terms of 52 weeks are so clear - I would expect, at the very least, for them to have some medical evidence to support their position.

 

And to suggest, as you say, it is linked, but then add the deferment - what explanation have they given for this?

 

Are you absolutely sure that you've read the letter correctly? Is it possible that it says that they assessed it as a linked claim but decided it wasn't? Hence the deferment?

 

And yes, it is entirely possible for an employer to simply decide that they don't disagree with the insurer.

 

But you would then need to prove that they did so unreasonably. If, for example, their insurer says that Joe Bloggs is not unfit for any work, despite what the GP has said, then they are simply stuck in the middle.

 

They aren't doctors.

They have two sets of doctors saying opposing things.

Joe's employer has no obligation to believe Joe rather than the insurer.

Or vice versa.

 

There is a reason why so few of those "potted law" sites on this issue quote case law - because there is precious little of it.

 

There are two reasons for that.

One is because attempting to prove an implied duty to side with an employee and spend what could easily amount to huge amounts of money on a legal case simply because the employee says so is nigh on impossible.

 

If the employer says no, and they will, then your only option is to sue the employer. That case alone will cost you a fortune, and the legal complexity of it will require solicitors and barristers which got will have to pay for.

 

It would be well beyond the capacity of any self litigating person. And it would probably go all the way through appeals is the employer lost, because the implications of an employee winning such a case would have massive ramifications.

 

The second reason is because what case law there is relates very specifically to situations where an employer has, usually accidentally, misrepresented the terms of the policy.

 

So, for example, if they say that you will be paid your full salary, and don't have any exclusions or conditional clauses made clear, it would be considered reasonable for the employer to put right the situation. That is the "implied term" scenario - "the employer implied that you would be paid under any circumstances even though that isn't the case".

 

There is another reason - and that is because if the Ombudsman doesn't uphold your complaint, the chances of any court doing so is negligible. And taking legal action when there is a negligible chance of winning is definitely not a reasonable expectation!

 

The really is that if the Ombudsman does not uphold your argument, then there really isn't anywhere to take this. And the Ombudsman route is by far the fastest and best route.

[choudaryk]

I had access to someone who advised me as a one off.

 

The decision letter states that they have declined this linked claim, it seems that they feel I am off from work for other work related perceived issues.

 

The only evidence they based this on was a handful of rehab session with one of their rehab practitioners who during these calls was more interested in my work situation then my illness, I was under the impression that they were there to help you get better.

 

During the first period they had provided therapy but nothing during the second period. They didn't seek any objective medical evidence for the period after the relapse and simply used the reports from the rehab sessions.

 

This information was used to decline the claim based on what they thought I had implied rather than on what I had said even though any tests they carried out scored me high for sever Anxiety and Depression but this information was never passed to me.

 

Hope that clarifies

[sangie5952]

I think we are missing a fuller picture here. How many periods of sickness, and of what length, have you had? And I know that this can be difficult to pin down, but it seems that they say that the cause is different - so what triggered the first and subsequent attacks? Is mental ill health something that you have experienced for a long time

 

? Since when? And when did the employer first find out about it (in other words, at what point in time did you tell the employer that you were having these problems)? And importantly, are they correct - is this work related or not? There is obviously more to what they have told you about the reasons for refusal than you have said - what have the actually said to you?

 

Look, there isn't a particularly diplomatic way of putting this, so I'm just going to spit it out.

 

From the very generic and broad information you are giving here, it is coming across as them not believing you about something. And if you don't understand this, you need to - there is nothing at all "objective" about any tests for clinical depression, anxiety or stress (or whatever else it is called).

 

It is very easy to fake it. And unlike physical illness there is no objective test that proves the illness. People do it all the time. And it is very likely that what your are describing as their rehab practitioners are clinical practitioners - in other words, mental health professionals - who have more professional expertise in this area than your GP and have probably spent more time on this with you than any GP could.

 

That doesn't make them right, but it does make their clinical opinions very weighty. And whilst you may think that your work situation was of no relevance, it always has been. What do they think you implied - because you seem to know what they've said?

 

One other question. Going back to your first post, you asked whether your employer can sack you. Why do you think they might? Had something happened to make toy think they would dismiss?

[choudaryk]

Thanks Sangie595,

 

Can I send you the detail over e-mail, I can't use PM as I don't have enough posts. I don't want to post too much detail in an open forum.

 

Thanks

[sangie5952]

I wouldn't normally even give advice by PM because it means that there's no quality control over the advice given, so I'm very uncomfortable about any advice by PM.

 

And definitely I'm not giving out my email address! I wasn't aware that there is a requirement for a lost count to use PM, but perhaps the site team can assist you

 

. If Honeybee or someone else from the site team are ok with advice by PM, I'll make an exception. But not otherwise.

 

You need to understand that the only way that mistakes get picked up, or different opinions expressed, is on the site. And whilst I do this sort of thing for a living, I'd have to point out that nobody can always be right or never make mistakes, myself included.

 

Can I assume you have neither legal insurance nor a trades union?

[dx100uk]

Thanks Sangie595,

 

Can I send you the detail over e-mail, I can't use PM as I don't have enough posts. I don't want to post too much detail in an open forum.

 

Thanks

 

please stop post clocking.

please read our rules

 

if you wish to exchange pers info not for the forum.

you cansent it to a siteteam member by PM and we will fwd it on

as long as the member you intend to send it to is happy for this to happen.

 

ideally you shouldn't give pers details to members as you never really know who they are.

[choudaryk]

Ok sorry I have now read the rules - I'll forward it to a site team member, there isn't any personal information its just that for now I wouldn't want share this amount of detail with everyone.

 

Yes thats correct I am not a member of a union and have very limited legal advice.

 

I will post the final outcome which might be very helpful for others who are in the same situation.

 

Thanks

[honeybee13]

You can PM me if you like and I'll see if an edited version can go on the thread.

 

I don't advise by PM but have spoken to someone who has dealt with this kind of stuff and will post up more questions later.

 

HB

[honeybee13]

Hi, sorry for the delay.

 

It has been suggested to me that you ask your employer for details of the appeals process under the policy.

 

Also has your GP had any contact with L&G to date?

 

Once we know that, the way forward should be clearer.

 

HB

[choudaryk]

Thanks no problem.

 

I am working on my appeal, and the insurer hasn't contacted my GP during this period of absence. I will be asking him to write a letter in support of my illness.

[sangie5952]

Yes, but the dispute does not appear to be about whether you are ill or not. So the GP would need to know exactly what they are saying in order to be able to comment on it. If they are not disputing that you have depression again, but are saying that this has something to do with work, which it previously did not, then their support won't have any impact.

[honeybee13]

Thanks no problem.

 

I am working on my appeal, and the insurer hasn't contacted my GP during this period of absence. I will be asking him to write a letter in support of my illness.

 

 

Hello again.

 

 

Has your employer told you what the policy wording says about appealing L&G's decision? This is what I have been advised that you need.

 

 

HB

[choudaryk]

My employer hasn't provided me with any policy wording ref the appeal and the policy document doesn't mention anything.

 

What the insurer has said is in the decision letter is:

 

'If you disagree with this decision or you realise there is other medical information to assess, you can appeal the decision. We will consider any new or relevant medical information in support of the claim before issuing a final response.'

 

Hope thats what you meant.

 

Thanks

[honeybee13]

That sounds helpful.

 

 

 

If you are in touch with L&G, I still think it's useful to know what the formal appeal process is. They need to spell it out.

 

 

HB