Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR 85/16/41

March 1999

LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter of 19 February 1999 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions on behalf of Mr XXX against the decision of Mr XXX, the Appointed Person.

2. The Appointed Person upheld the decision of XXX District Council (the council) that Mr XXX is not entitled to payment of the local government pension scheme (LGPS) retirement benefits with enhancement on ill-health grounds under regulation D7 of the 1995 regulations as he did not cease employment directly as a result of being permanently incapable of discharging his duties.

3. The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to the Appointed Person under regulation 100. This regulation refers to a matter relating to the LGPS, which effectively means whether the LGPS regulations have been correctly applied in the circumstances. There are no provisions to award compensation where maladministration is alleged. Like the Appointed Person the Secretary of State has no powers to direct a local authority to act outside the provisions of the regulations.

4. The question for decision: The question for decision by the Secretary of State is whether Mr XXX is entitled to immediate payment of retirement benefits with enhancement from when he ceased employment with the council, on the grounds that he ceased employment on 5 November 1997 under the ill-health provisions of regulation D7 of the 1995 regulations.

5. The Secretary of State has considered all the representations and evidence in your letter of 19 February 1999.

6. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds that Mr XXX is not entitled to immediate payment of retirement benefits with enhancement under regulation D7 from when he ceased employment with the council on 5 November 1997. The Secretary of State notes the evidence that Mr XXX was found to be incapable of discharging efficiently his duties before he was dismissed, that he was awarded retirement benefits by the council on ill-health grounds and that the council revoked this decision. He notes that it is not disputed that Mr XXX was dismissed on grounds of misconduct. Your argument against the Appointed Person’s decision is that the grounds for dismissal should not take precedence over entitlement under regulation D7 of the 1995 regulations (which were in force at the time Mr XXX was dismissed). However, the Secretary of State takes the view that because the council decided to dismiss Mr XXX on the grounds of misconduct they could not then award him retirement benefits under regulation D7. In the Secretary of State’s view, regulation D7 is quite clear that the entitlement to benefits is “where a member ceases ... by reason of ” permanent incapability due to ill-health. Mr XXX ceased by reason of gross misconduct. The Secretary of State takes the view that the grounds for dismissal are an employment issue and are not a matter for consideration in a pension appeal. Furthermore, as he has no appropriate powers of redress he cannot reasonably consider questions of alleged maladministration such as the manner in which and the circumstances surrounding Mr XXX’s dismissal and the way he was informed of his pension entitlements.

7. The Secretary of State’s decision confirms that made by the Appointed Person. He is acting judicially and has no power to modify the way the regulationsapply to the facts of the case. Having made his decision he has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court. Because of this the Secretary of State’s officials cannot discuss the case further.

8. This completes the second stage of the internal disputes resolution procedure. The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

9. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the LGPS made or referred in accordance with the Pensions Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).