LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter dated 26 August 1999 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 (the council), in relation to her local government pension scheme (LGPS) dispute with the council.

 

2.                  The Appointed Person found that Mrs XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when she ceased employment with the council.

 

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 statutory provisions governing the LGPS have been correctly applied in the circumstances.  The Secretary of State has no powers to direct the council to act outside the provisions of the regulations.  The disagreement you referred to the Appointed Person was whether the council should have granted Mrs XXX ill-health retirement when her employment was terminated on 29 October 1998.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether Mrs XXX ceased employment with the council on 29 October 1998 by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body, and so qualifies for the immediate payment of her LGPS benefits.

 

5.                  Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations.  Based on the balance of probabilities, he finds that for the purposes of the 1997 regulations, it has not been shown conclusively that Mrs XXX ceased employment with the council on 29 October 1998 because she was permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.  His decision confirms that made by the Appointed Person.  The Secretary of State’s 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 decision.  He is acting judicially and has no power to modify the way the regulations apply to the facts of the case.  Having made his decision he has no power to alter it and his officials cannot discuss the case further.  The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.

 

6.                  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).

 

7.                  The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the local government pension scheme.  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 you: letters dated 26 August (with enclosure), 27 September (with enclosure) and 22 November 1999;

 

b)                  from the Appointed Person: documents considered by him (list enclosed in the Department's letter dated 15 September 1999); and

 

c)                   from the council: letter dated 17 November 1999 (with enclosures).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

2.                  From the evidence submitted the following points have been noted:

 

a)                  Mrs XXX’s date of birth is 30 May 1956;

 

b)                  she was employed by the council as an Administrative Assistant in the Social Services Department;

 

c)                  she was a member of the LGPS;

 

d)                  on 12 January 1998 she commenced a period of extended sickness absence;

 

e)                  on 5 October 1998 a request was made to the council’s occupational health unit to consider whether Mrs XXX was eligible for ill-health retirement;

 

f)                    on 6 November 1998 the council informed Mrs XXX of their decision that she did not meet the requirements for ill-health retirement and that her employment with the council was terminated with effect from 29 October 1998 on incapability grounds;

 

g)                  on 25 January 1999 she wrote to the council requesting that her LGPS benefits be paid with enhancement with effect from 29 October 1998; and

 

h)                  on 10 May 1999 the council wrote to Mrs XXX informing her of their decision that she was not entitled to early release of her deferred LGPS benefits on the grounds of ill-health.

 

3.                  You maintain that the information available to the Appointed Person was sufficient to determine that Mrs XXX was permanently incapacitated due to her chronic back condition.

 

4.                  The Appointed Person determined that "… there must be some concrete evidence that your member was permanently unfit to carry out her duties.  Unfortunately, there is no such evidence.  At the time of her dismissal, she was awaiting a further medical examination and the prognosis was uncertain.  The evidence that you have submitted … from her consultant surgeon … clearly states that Mrs XXX is not permanently unfit and will, in due course, return to her normal activities.”.

 

5.                  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 the 1997 regulations were in force.  Regulation 27 of the 1997 regulations provides for a member's pension and retirement grant to be paid immediately, with enhancement where applicable, where they cease employment because they are permanently incapable of performing their duties efficiently due to ill-health or infirmity of mind or body.  The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for Mrs XXX to perform the duties of her former employment efficiently before her normal retirement age when LGPS benefits must, in any case be paid.

 

6.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Mrs XXX’s Occupational Health notes and advice; medical assessment form signed by Dr XXX on 20 January 1998; Disability Living Allowance Medical Report signed by Dr XXX on 8 June 1998; letter from Ms XXX, Health Visitor, dated 5 October 1998; letter from Mr XXX, FRCS (Orth), Consultant Orthopaedic Surgeon, dated 9 October 1998; from Mrs XXX’s GP, Dr XXX, DSS Medical Report dated 28 May 1998, letters dated 5 September and 5 November 1998, and Doctor’s Statement dated 21 September 1998; undated treatment and discharge note signed by Dr XXX, Senior House Officer; letter from Mr XXX, FRCS, Consultant Orthopaedic Surgeon, dated 28 January 1999; and letter from Mr XXX, FRCS, Consultant Orthopaedic Surgeon, dated 18 May 1999.

 

7.                  The Secretary of State notes that in January 1998 Mrs XXX underwent surgery for spondylolisthesis.  He notes that she did not return to work and that she continued to complain of lower back pain.  He also notes that on 5 September 1998 her GP, Dr XXX, wrote to the council stating that, in her opinion, Mrs XXX’s operation had been unsuccessful and that she continued to suffer from low back pain.  Dr XXX also considered that “Further back surgery maybe required.  However, in the meantime her symptoms make returning to work impossible and I cannot see this situation changing for the foreseeable future.”.  The council’s Occupational Health Unit sought the advice of Mrs XXX’s Consultant Orthopaedic Surgeon.  Based on this advice, the Occupational Health Unit concluded on 15 October 1998, that “At this stage, I can advise that she clearly will not be resuming work, even in a office based administrative post for the foreseeable future i.e. six months plus, even if successful treatment is instigated.  As regards to permanent disability however … I would expect in a relatively young person that her condition should be manageable, certainly to the extent in the long term where she should be able to carry out office based admin duties.  For this reason, while she is awaiting further medical input with an aim to dealing with her problem I am unable to make any recommendations about medical retirement until the outcome of this is known.”.

 

8.                  The Secretary of State takes the view therefore that it is not disputed that Mrs XXX has suffered from problems with her lower back for some time and that corrective surgery undertaken in January 1998 failed to resolve her condition.  He also accepts that at the time her employment with the council ceased she was incapable of efficiently performing her duties.  However, the question that the Secretary of State has to decide is whether Mrs XXX’s incapacity is likely to be permanent, i.e. that it is unlikely to improve sufficiently for her to perform the duties of her former employment efficiently before her normal retirement age when LGPS benefits must, in any case be paid.

 

9.                  The Secretary of State notes that in January 1999 Mr XXX, Consultant Orthopaedic Surgeon, confirmed that Mrs XXX’s surgery in January 1998 had failed and that the operation would need repeating.  Mr XXX also considered that following such an operation “… she will take at least eighteen months to recover before she is strong enough and rehabilitated enough to hold down an administrative post.”.  On 25 January, the council’s Occupational Health Physician, Dr XXX stated “Further to our discussion on the 22 January 1999, and in the light of the information that you sent to me, I can reiterate my recommendation of the 15 October 1998, that I am not aware of any objective medical evidence at this stage to indicate that Ms XXX should be permanently disabled, from being able to resume as an Admin Assistant having had the appropriate treatment for her back condition.”.  It appears from the papers that Mrs XXX did then undergo a further operation.  In May 1999 Mr XXX, Consultant Orthopaedic Surgeon, considered that “She has made satisfactory progress following surgery, although it will take a full six months before she is able to return to near normal activities.”.  The Secretary of State notes that Mrs XXX claimed on 23 June 1999 that this operation had been unsuccessful; however, he further notes that she was admitted to hospital again on 8 July 1999 for revision of the spinal surgery, and was discharged on 20 July 1999.

 

10.              The Secretary of State has been provided with no medical evidence regarding the level of success of Mrs XXX’s latest surgery.  However, it is clear to him that the medical evidence available indicates that it would take her some months, possibly eighteen or more, to recover sufficiently to perform her former duties.  The medical evidence does not, in his opinion, show that on the balance of probability recovery is unlikely and that her condition is permanent within the meaning of the regulations.  He concludes therefore that, on the balance of probabilities, there is no conclusive medical evidence that, at the time she ceased employment with the council on 29 October 1998, Mrs XXX was suffering from such a condition of ill-health or infirmity of mind or body that she will be permanently incapable of performing her duties efficiently.  She did not therefore cease employment on grounds of permanent incapability due to ill-health in the sense required by the regulations and she is not therefore entitled to the immediate payment of her LGPS benefits from when she ceased employment with the council.