682 INDEX
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 27 September 1999 (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).
2. The Appointed Person upheld the council’s decision not to back-date your pension benefits. You maintain that at the time of the termination of your employment you were suffering from permanent ill-health which prevented you from carrying out the duties of your employment.
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 provisions governing the LGPS have been correctly applied in the circumstances.
4. The question for decision: The question for decision by the Secretary of State is whether when you ceased to hold employment with the council you were incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body and therefore qualify for early payment of your pension benefits with enhancement from when you ceased employment.
5. The Secretary of State has considered all the representations and evidence. Copies of documents supplied by the Appointed Person were sent to you under cover of the department’s letter of 1 November 1999.
6. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds that it has not been conclusively shown that when you ceased to hold employment with the council you were on the balance of probabilities incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body. You therefore do not qualify for early payment of your pension benefits with enhancement from when you ceased employment. His decision confirms that made by the Appointed Person. The Secretary of State’s reasons and the regulatory provisions which he considers apply in yourcase are set out in the annex to this letter, which forms an integral part of this decision. He is acting judicially and has no power to modify the way the regulatory provisions 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.
7. 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).
8. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any 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).
9. A copy of this letter has been sent to the Appointed Person, to your pension manager and former employer.
1. The following evidence has been received and taken into account:
(a) from you: letters dated 27 September and 12 October 1999 (with enclosures); and
(b) from the Appointed Person: letter dated 25 October (with the enclosures listed in the department’s letter of 1 November).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
(a) you were manager of the Highways DSO of the council’s Direct Services department;
(b) on 26 November 1996 you visited your General Practitioner (GP), Dr XXX, regarding work related stress;
(c) on 4 December 1996 your employment was terminated;
(d) on 24 June 1997 you applied to the council for payment of pension benefits on ill-health grounds;
(e) on 9 July 1997 the council’s occupational health Senior Clinical Medical Officer (OHA), certified you as “permanently incapable of discharging efficiently the duties of your employment by reason of ill-health or infirmity of mind and body”;
(f) the council arranged payment of your pension benefits from 26 August 1997;
(g) on 25 September 1997 you asked the council to pay your pension benefits with enhancement from when your employment was terminated;
(h) on 14 October 1997 the council refused your request but back-dated the payment of your pension benefits to the date of the certificate issued by their OHA;
(i) on 13 November 1997 you asked the council to re-consider their decision and gave details of your GP;
(j) on 9 December 1997 the council informed you they had referred the matter to their OHA;
(k) on 23 January 1998 your GP wrote to the council’s OHA; and
(l) on 22 April 1998 the council confirmed their decision not to back-date payment of your pension benefits to when your employment was terminated.
3. In your appeal to the Secretary of State you explained the circumstances under which your employment was terminated, that you had seen your GP and he had diagnosed you as suffering from anxiety and hypertension and prescribed medication for the symptoms. You confirm this by providing a letter from your GP (this letter was dated 20 September 1999). You point out that the council’s OHA declared you unfit on 8 July 1997 and that your pension benefits were paid from that date whereas all the evidence shows that you were unfit for work prior to the termination of your employment only 7 months previously.
4. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. As far as is relevant to this appeal when your employment was terminated the 1995 regulations provided for early payment of retirement benefits. An annual pension and lump sum was payable where a member ceased employment and was incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body (regulation D7). If their membership period was more than 5 years this was enhanced (Schedule D3). These benefits were also payable, but without enhancement, from any subsequent date they became incapable, by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of the employment they had ceased to hold (regulation D11). With effect from 28 March 1997 the regulations were amended (by the LGPS (Amendment) Regulations 1997) to refer to permanent incapability rather than permanent ill-health.
5. The Secretary of State has considered all the evidence. It is not disputed that on 9 July 1997 you were certified as meeting the requirements of regulation D11 and accordingly entitled to early payment of your deferred benefits on grounds of ill-health. The question for the Secretary of State to consider is whether it has been shown that on the balance of probabilities, you were incapable of efficiently discharging your duties by reason of ill-health on 4 December 1996 when your employment was terminated. The Secretary of State notes that the council has not shown on precisely what medical grounds they established that you met the qualifying criteria of regulation D11 in July 1997 and failed to meet the criteria of regulation D7 on 4 December 1996. It has not been shown that you presented any medical evidence to the council when you first applied for your benefits. However it is clear that in deciding to release your deferred benefits the council acted on the advice of their OHA. They also referred to their OHA the question whether you were entitled to immediate payment of your pension on ill-health grounds from when you ceased employment. In making the decision on 22 April 1998 that you were not so entitled, they had the benefit of your GP’s report to their OHA dated 23 January 1998. There is no record of the OHA’s advice to the council in relation to this report. The Secretary of State notes that your GP’s reports of 23 January 1998 and 20 September 1999 do not address the relevant qualifying criteria of regulation D7, that is whether you were on 4 December 1996 suffering from permanent ill-health which made you incapable of efficiently performing the duties of your former employment. The opinion provided by your GP in his letter of 20 September 1999 was that you reported work-related stress and he diagnosed mild hypertension.
6. Having considered the relevant 1995 regulations and all the evidence the Secretary of State concludes that there is no conclusive medical evidence to show that on the balance of probabilities you were incapable of discharging efficiently the duties of your employment by reason of permanent ill-health or infirmity of mind or body on 4 December 1996. He therefore dismisses your appeal.