Our Ref: LGR85/19/22
12 November 1998
458 INDEX
LOCAL GOVERNMENT PENSION APPEAL
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 11 September 1998 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mrs XXX, against the decision of Mr XXX, the Appointed Person for XXX Council. Mrs XXX asked the Appointed Person to consider the reasons for her termination of employment with XXX Council (the council) and whether she was entitled to all benefits and enhancements under the Local Government Pension Scheme as from the 6 March 1998. The Appointed Person determined that her disagreement with the council had not been made within the relevant period and that there were insufficient extenuating circumstances to extend this period.
2. The Secretary of State’s powers are limited to reconsidering the original disagreement referred to the Appointed Person.
3. The questions for determination are: The questions for determination by the Secretary of State are whether:
a. Mrs XXX’s employment was terminated on grounds of ill-health; and
b. her local government benefits should be paid under Regulation D7 - that is whether when she ceased employment with the council on 6 March 1996 she was incapable of carrying out her duties efficiently because of permanent ill-health, and so qualify for the immediate payment of her local government pension benefits.
4. The Secretary of State has considered all the representations and evidence.
5. 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 as they were in force at the time:
a. disputes about why, when and how an employee’s employment was terminated, are not matters he can decide as they are not issues relating to the local government pension scheme, but employment issues; and
b. the balance of medical evidence indicates that Mrs XXX was suffering from permanent ill-health or infirmity of mind or body so that she was incapable of discharging efficiently the duties of her former employment at the time she ceased employment with the council on 6 March 1996. Mrs XXX is therefore entitled to payment of her local government pension scheme benefits from 7 March 1996 under the terms of regulation D7.
The Secretary of State’s decision replaces that of the Appointed Person’s of 30 March 1998. His reasons and the regulations which he considers apply in this case are set out in the annex to this letter, which forms an integral part of the determination. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it but you may refer the matter to the Pensions Ombudsman or the High Court. Because of this, the Secretary of State’s officials cannot discuss the case further.
6. 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, SW1V 1RB (telephone number 0171 233 8080).
7. 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 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 Mrs XXX; letters dated 11 September and 22 October 1998, with enclosures;
b. from the Appointed Person; letter dated 23 September 1998, with enclosures (listed in the Department’s letter of 15 October 1998); and
c. from the council; letter dated 21 September 1998, with enclosures and copies of letter received on October 1998 (listed in the Department’s letter of 15 October 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence received the following relevant points have been noted:
a. Mrs XXX ceased her employment with the council on 6 March 1996 following extended sick leave;
b. on 5 August 1997 the Appointed Person (XXX) determined that Mrs XXX’s deferred local government pension scheme (LGPS) benefits should be paid early due to ill-health; and
c. Mrs XXX’s benefits were paid with effect from 25 November 1996 under regulation D11 of the 1995 regulations.
3. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. At the time Mrs XXX ceased employment regulation D7 made no reference as to why employment ceased. It is considered that in order to satisfy the requirements of D7 is must be shown that Mrs XXX was suffering from permanent ill-health or infirmity of mind or body so as to be incapable of carrying out her former duties at the time she ceased employment. He notes the council’s contention that regulations D7 and D11 of the 1995 regulations are mutually exclusive. The Secretary of State agrees that benefits cannot be paid under both regulations. He does not agree that where benefits are paid under regulation D11 consideration cannot be given to regulation D7. This is because the tests that apply are different.
4. At the time Mrs XXX ceased employment the test the Secretary of State has to apply in reaching his decision is whether she was incapable of discharging efficiently the duties of her former employment with the council by reason of permanent ill-health or infirmity of mind or body. He notes that the Appointed Person determined that with effect from 25 November 1996 Mrs XXX’s benefits should be paid under regulation D11. The Appointed Person reached his decision on the medical evidence available to the council and “in particular the letter from the council’s medical advisor Dr XXX dated 25 November 1996 and Dr XXX’s report dated 14 June 1996". The Secretary of State notes that Mr XXX, in his report of 14 June 1996, opined that a very guarded prognosis must be given for recovery. On 25 November 1996 Dr XXX stated “It is now two years since her accident and I don’t think there has been any significant improvement over the past year”. He further stated that “I ... regard XXX’s disability as permanent and I would consider that she is totally and permanently incapable of resuming work.”.
5. The Secretary of State considers that the balance of medical evidence indicates that there had not been any significant change in Mrs XXX’s condition in the 8 months after she ceased employment. As the Appointed Person determined that Mrs XXX’s condition justified payment of her LGPS benefit under regulation D11 from 25 November 1996 the Secretary of State has no option but to conclude that her benefits should be paid from 7 March 1996 under the terms of regulation D7.