Group Income Protection - Claim Declined

[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

 

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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.

[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.

[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.

[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.

[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?

[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?

[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.

[sangie5952]

Ah. And that is what we have been asking you for all along.

So they aren't deferring it again - it's an outright refusal because they say you are not ill?

 

I suspected as much, but was thrown by the references to linked periods and deferred payments. If they are claiming you are not ill, then you will need a lot more than a note from the GP!

 

Do you have a specialist or mental health team referral? Anything else more than just the GP. Because, as I said previously, I am afraid that anxiety / stress are very easy to fake.

 

I'm not having a go at you - but stress is the new "bad back". Impossible to prove or disprove, and GPs tend to be less than rigorous in their diagnosis. Having actually told people how to successfully fake stress, I know it's neither difficult nor complicated.

 

I'm going to have to ask. I'm sure that you know what they are talking about. What, exactly, did you tell the rehab advisers? What did you tell them about work? Because that is a big problem.

 

If you are perceived to have an issue with your employer, and/ or to be faking your illness, then there is no reasonable way in which you can exist any support from the employer in this matter.

 

They won't tell the employer the full circumstances, but they'll tell them enough to at least give the employer a very good guess about what L&G know - and this is exactly the sort of thing that they aren't likely to back you up over.

 

I understand. I know how it happens. You get talking and yippy don't stop to think what you are saying. But what did you say?

[sangie5952]

Ps. Please would you go back to my post 14? I asked you a lot of questions and you haven't answered any of them. If you need to, send Honeybee the answers and she'll send them to me.

 

But, and I want to be clear on this in my usual entirely undiplomatic way... there is an issue between you and your employer.

 

Your insurers have picked up on it.

There is no point in telling us anything less than the full truth, because if you don't our advice will be wrong.

 

There is nothing much that you could say that will shock me

. There are loads of lousy employers out there.

There are loads of lousy colleagues out there.

There are even lousy employees.

 

I'm a trade union official, but I don't think anyone has a corner on being right or sensible! I just know, and have thought this for quite some time now, that there is something else going on.

 

I need to know what it is.

The best advice isn't always, or even often, the advice you want.

You are drip feeding information to get the advice you want.

 

Believe me, it might not be the advice you need. P

Please tell us what is going on.

Via site admin if you can't post it here.

 

Then I can figure out a sanitised version of the advice to put here for you. You are obviously in trouble, and we're trying to help.

But that isn't always the help you think you need.

 

Another Ps - I cross posted that last post with Emmzzi.

But I agree with her totally.

She gives great advice, and she's very experienced I'm told.

Which always shows in her advice.

 

You've now got two people telling you there's a problem.

Let us help you fix it.

Even if the fix isn't what you hope for.

[sangie5952]

I haven't had a PM from anyone.

But anyway, I'm not convinced I can really say much more.

A cancer consultant is not a specialist in mental health, and whilst I suspect everyone could go with a general statement that people with cancer would have times of depression or anxiety,

 

I don't think that means the same thing as all depression and anxiety is caused by cancer. It is clinically possible to have two disconnected causes, for two instances of the same general condition. That makes this a dispute on clinical expertise, not employment.

 

However, I may be misreading this, but it appears that you have said some things to the rehab specialist about your employer; and those things you have said appear to cast some negative opinion about how well they have acted towards you. Is that correct?

 

Because if that is the case, then whilst three insurers should not have disclosed the detail about what you said, they are certainly within their rights, whether or not they are correct in their assessment, to tell your employer that they believe the cause of the current complaint is to do with you position at work, not "real sickness". That seems to be the argument you are suggesting they are making.

 

Now that is an employment issue, and it's the reason why the employer isn't going to support any litigation for you. It'd be a rare instance an employer would anyway - precedent on that would be horrendous.

 

But the thing is that you may have made allegations about their lack of support or adjustments which result in a potential liability to them. Basically, if you are saying these things, it's entirely possible you might take legal action against them for those things.

 

They aren't going to take legal action on your behalf when that potentially is a conflict of interest for them as they might have to defend themselves against the very allegations that the insurer alleges you have made. And no court in the land will force them to.

 

I'll be honest. Unless you can come up with a good strategy here, I don't see that you will be able to just return to work. It appears that the relationship with the employer is, at best, not great. And nor is your health

 

. Why do you think any of that is going to change? In which case, and I'd possibly be expecting this as the next step, it is possible that the employer and the insurer might make an offer of a lump sum settlement for your resignation. I've seen that happen often. But it won't be a fortune if they do.

 

Alternatively, I think your only option is the Ombudsman. And you may not win. Or yippy may get nothing more than that settlement at the end of it anyway.

 

You may need to carefully consider whether the eyes of all this is also going to adversely impact on you.

 

If you think that a settlement might be better, you may want to think about what kind of sum you are looking for.

 

But that's all based on a very incomplete understanding of the whole situation.

[sangie5952]

Hi Sangie,

 

Just read your response - all of what you have said is correct, how can we look at the settlement side of things? I'm still keen to take it to the ombudsman if it means that my claim is reinstated and I have seen similar cases to mine upheld by them. My health is bad at the moment but the more time I have to get the medical help I need before I return to work the less chance there is of a relapse and this time I want to ensure that I am supported on my return to work and have certain adjustments confirmed as I have been diagnosed with depression and anxiety which from my understanding is protected by law as a disability.

 

I am running out of things I can say to you.

 

You don't, as far as I know, ask for a settlement. You make yourself annoying enough to get offered one! Or that's my experience. I usually do that by asking lots of awkward questions and threatening, or going, to the FO.

 

But my threats usually carry a lot more weight than yours might. That said, I've occasionally helped non union friends (i have a few!) and they've usually been offered a settlement. Eventually.

 

I always suggest caution on "cares you have read". I hear this all the time. The cases usually never say what people think they say. There's a human capacity to read what you want it to say.

 

And I keep saying this... It gets frustrating.... A disability in law can ONLY be determined by a tribunal. Nobody else can decide it. Not a doctor. Not a lawyer. Not ACAS. Not me. We can all guess, but that doesn't make it so, and in my experience doctors make the worst guesses, because they are doctors and know next to nothing about the law!

 

The support and adjustments that you want are not relevant, even if it's a disability. The support and adjustments the employer thinks are reasonable are what you get! And right now the employer is being told that you aren't ill, you are actually just not liking your employer!

 

That gives them a reasonable case to say that what you want is about something other than disability and they don't have to even consider it. Disability is not protected by law. There may be some grounds for some adjustments, but that's it. No protections.

[sangie5952]

Being ill doesn't get you any rights at all. Lots of people are ill. Lots of people have long term illness but aren't disabled.

[sangie5952]

[

You say! Medical specialists for your employers insurers say you are faking it!!!

 

Sorry, but we've exhausted this for now. Without further or more information we are just reiterating the same ground.

 

For example, you really seem to be using a computer quite well just now, so why can't you use one in the office??? It's really simple.

 

The insurers don't believe you and you don't appear to have any real medical evidence to say they are wrong.

 

So this is going to come down to what evidence they have that they are correct. We can't predict that. So you must appeal, go to the FO if you lose, but there isn't really anything else we can say.

[sangie5952]

Ok. I'm sorry. This is going to be blunt.

 

In summary, you have been off sick for the best part of two years. This has had nothing at all to do with cancer - it has always been work related stress and that is the cause that you agreed to.

 

Only half way through this period did you submit a grievance to your employer, relating to events that happened a full year before hand. You then went off sick again, also with work related stress. Your employer appears, from what you have said, to have paid you full pay for the first months of each period of sickness, which is an exceedingly generous sickness policy.

 

You have already been offered a settlement, which you declined because you appeared to believe that your employers insurers were going to pay you full sick pay for the duration

 

. Thereafter the insurer said that your problem is with the employer, which it is, and that isn't sickness in their book. Whether that is right or not is a matter for the FO - but be warned, it possibly is.

 

Your grievance has been partially upheld, but you still haven't gone back to work. There is no prospect of your doing so, so the employer had said that if the insurer declines your claim they will start to dismiss.

 

So here's the plain and simple truth - you were offered a settlement, so they may never offer you another one. You failed to mention that offer when both Emmzzi and I mentioned such things. If they offer again, take it. I'd even suggest asking if that offer is still on the table.

 

Because you are not going back to work. You are not entitled to go back to work on your own terms. Whatever the rights and wrongs here, the employer had acted, in law, quite correctly. And you still cannot go back to work. That is, now, down to you. Your grievance has been dealt with.

 

You obviously can't draw a line under that and move on. So you literally need to move on. With the best will in the world, it happens. I am sure that one day you will look back and think that leaving this employment was the best thing you ever did.

 

But you aren't going to recover now whilst with this employer, and the fact that you still have such severe work related stress is screaming that out loud, no matter what you say about wanting to return. If you wanted to return, and if that was a realistic prospect, you wouldn't be so anxious about work!

 

Two years is too long. What is broken now in that employment relationship is not going to get fixed. The employer knows that. That is why you were offered a settlement. The only person who doesn't appear to know it is you.

 

Go back to the employer, ask nicely if the offer might still be on the table, for you to drop the complaint to the FO and any claims against the employer. If they can both guarantee no further expenses, it might still be on the table. If it is, take it, and get on with your life. Get better, find another job, put this all behind you.

 

I can't give you any better advice than that. With the information I now have, if you are genuinely that sick as a result of all this, then you will never cope with the stress of a tribunal or self- litigating.

 

If you aren't, that insurer is likely to rip your position apart - they are experienced at doing so when they need to. So that's it. You must decide. I can't offer any further or better advice, so I'm out now.