Our Ref: LGR85/19/19 449 INDEX
4 November 1998
LOCAL GOVERNMENT PENSION APPEAL
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 13 August 1998 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person. The Appointed Person determined that having regard to the medical evidence he was not satisfied that Mr. XXX was permanently incapable of discharging efficiently the duties of his former employment as a Bus Driver and therefore not entitled to immediate payment of his retirement benefits.
2. The question for determination: The question for determination is whether when MXXX ceased employment with XXX Travel Ltd (the company) he was permanently incapable of carrying out his duties efficiently because of ill-health, and so qualifies for the immediate payment of his local government pensions benefits.
3. The Secretary of State has considered all the representations and evidence. Copies of all the documents considered by the Appointed Person have been sent to you under cover of the Department’s letter of 7 September 1998.
4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that for the purposes of the 1995 regulations there is insufficient evidence to determine that MXXX was suffering from ill-health or infirmity of mind or body so that he was permanently incapable of discharging efficiently the duties of his former employment at the time he ceased employment with the company on 11 March 1998. His decision confirms that made by the Appointed Person. The Secretary of State’s reasons and the regulations which he considers apply in MXXX’s case are set out in the annex to this letter, which forms an integral part of the determination. Having made his determination, he has no powers to alter it but MXXX 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.
5. 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. The address is 11 Belgrave Road, London, SE1V 1RB (telephone number 0171 233 8080).
6. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme 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).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a. from XXX, on behalf of XXX; letters dated 13 August and 14 September 1998, with enclosures; and
b. from the Appointed Person: letter dated 25 August 1998 with enclosures (listed in the Department’s letter of 7 September 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a. XXX’s date of birth is 30 April 1947;
b. the Driver and Vehicle Licensing Agency’s Medical Adviser recommended that XXX’s PCV driving entitlement be revoked; this took effect from 9 February 1998; and
c. he was employed by the company as a bus driver until 11 March 1998 when his employment was terminated on the grounds of capability due to ill-health.
3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view apply. No evidence has been provided by XXX that he disagrees with the Appointed Person’s decision. However, since the Appointed Person reached his determination, on 24 June 1998, XXX had an Angiogram. He was an in-patient from 9 to 10 July 1998 and his “GOING HOME FORM”, from the XXX, states, under primary diagnosis, - a. coronary angiogram triple vessel b. in need of coronary artery Bypass Grafts.
4. The Secretary of State has considered all the evidence. The test which he must apply in reaching his decision is whether XXX was permanently incapable of discharging efficiently the duties of his former employment with the company at the time he ceased employment by reason of ill-health or infirmity of mind or body (regulation D7). The Secretary of State takes the view this means there must be sufficient evidence to show that, on the balance of probabilities, XXX will not be able to perform his former duties efficiently before his normal retirement age. The Secretary of State considers that a decision on whether XXX was (or since ceasing employment has become) permanently incapable of performing the duties of his former employment, cannot be made until the outcome of the treatment prescribed, that is coronary artery Bypass Grafts, is known. He does not feel that at this stage a conclusive diagnosis can be made about whether XXX will be able to perform his former duties as a bus driver before his normal retirement age. The Secretary of State therefore dismisses his appeal.