Request

Please provide all plans and documents created on resolving the outstanding remedial pension statement assessment cases. This should include any documents shared on email.

You clarified your request as follows:

The request is for documents and plans which have been shared with any governance committee in the organisation. The request is not for any individual statements, rather the plans presented to provide information to members affected. The request relates to the remedial pension statements – arising from the McCloud judgement.

Response

I can confirm that we do hold the requested information, but this information is exempt under sections 36(2)(b)(ii) and 36(2)(c) of the FOIA.

Section 36(2)(b)(ii) - This is because disclosure would inhibit the free and frank exchange of views for the purposes of deliberation.

Section 36(2)(c) -This is because disclosure would otherwise prejudice the effective conduct of public affairs.

Section 36(2) of the FOIA requires the public authority to consult a relevant qualified person before the exemption is engaged. It further necessitates that the qualified person has the reasonable opinion that the harm referenced would or would be likely to, arise through disclosure. The name of the qualified person in this case is Michael Brodie, NHSBSA CEO.

In the qualified person's opinion, Sections 36(2)(b)(ii) and (c) are engaged.

Section 36 of the FOIA 2000 is a qualified, prejudice-based exemption and is subject to the public interest test. This means that in order for the information to be withheld, the public interest in maintaining the exemption must outweigh the exemption in disclosure.

Public Interest Test:

Considerations in favour of disclosure:

• Promoting accountability and transparency by public authorities for their decisions.

• Promoting accountability in spending of public money.

• Enabling the public and NHS pension members to understand the McCloud remedy.

• Enabling the public and NHS pension members to understand the steps being taken by the NHSBSA in regard to the McCloud remedy.

Considerations against disclosure:

• There is an inherent public interest in allowing free and frank discussion and/or the exchange of views for the purposes of deliberation.

• There is an inherent public interest in maintaining the effective conduct of public affairs

• Disruption or delays to the implementation of the McCloud remedy would be detrimental to individual pension members.

• The NHSBSA has a website dedicated to the McCloud Remedy which provides information in an accessible manner to assist with understanding of the McCloud Remedy

Conclusion:

We recognise that there is a public interest in the disclosure of information which facilitates accountability and transparency of public bodies for decisions taken by them and to enable the public to understand decisions affecting their lives and to contribute to public understanding and participation; however, there is also a public interest in the NHSBSA having the space to have free and frank discussions and/or the exchange of views for the purposes of deliberation without fear of disclosure into the public domain.

There is also the inherent public interest in ensuring the effective conduct of public affairs and the implementation of the McCloud remedy for pension members.

Having undertaken the balancing exercise, we have concluded that the weight afforded to the public interest in maintaining the exemption at this time outweighs the public interest in disclosure.

Please see the following link to view the exemption in full – https://www.legislation.gov.uk/ukpga/2000/36/section/36

Advice and assistance

The NHSBSA has a website dedicated to the McCloud Remedy which provides information to members: https://www.nhsbsa.nhs.uk/public-service-pensions-remedy-mccloud