872 INDEX
LOCAL GOVERNMENT PENSION SCHEME APPEAL
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter dated 16 June 2000 in which you appeal (under regulation 102 of the 1997 regulations) on behalf of XXX Council (the council), against the decision of Mr XXX, the Appointed Person for XXX Council, in relation to his decision concerning the local government pension scheme (LGPS) disagreement referred to him by Mrs XXX . Mrs XXX had appealed to him against the council’s decision not to award her the early payment of her LGPS benefits on the grounds of permanent ill-health from when she ceased employment.
2. The Appointed Person determined that “…I have concluded that I prefer the views of Dr XXX to those of Dr XXX and that so serious and long lasting was her medical condition that Mrs XXX should be granted ill-health retirement. The effect of this decision is that Mrs XXX will be entitled to pension benefits with enhancement with retrospective effect from the date of termination of her employment by the XXX Council, that is to say 3 May 1998.”
3. The question for decision: The question for decision by the Secretary of State is whether Mrs XXX ceased employment with the council on 3 May 1998 by reason of being permanently incapable of discharging effectively 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 from that date.
4. The Secretary of State’s decision: The Secretary of State finds that it has not been shown that Mrs XXX ceased employment with the council on 3 May 1998 because she was permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body. She is not therefore entitled to the immediate payment of LGPS benefits from that date.
5. The Secretary of State’s decision replaces that made by the Appointed Person.
6. The Secretary of State’s reasons and the regulations he considers apply in this case are set out in the annex to this letter, which forms an integral part of the decision.
7. 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 change it and his officials cannot discuss the case further or enter into any further correspondence with you about the decision. The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.
8. The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7233 8080).
9. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law made or referred in accordance with the provisions of the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7834 9144).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a) from you: letters dated 24 July 2000 (with enclosures), 16 June 2000 (with enclosures) and 13 October;
b) from the Appointed Person: documents considered by him (list enclosed with the Department’s letter dated 27 September 2000), facsimile dated 13 October 2000 and letter dated 2 November 2000;
c) from Mrs XXX : letters dated 15 August 2000, two dated 8 October 2000 and 15 November 2000.
THE SECRETARY OF STATES POWERS
2. 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 referred to the Appointed Person was whether the council should have granted Mrs XXX payment of her LGPS benefits on ill-health grounds from 3 May 1998.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence the following points have been noted:
a) Mrs XXX’s date of birth is 6 August 1962;
b) Mrs XXX was employed by the council as a receptionist / clerk in the Housing Benefits section;
c) Mrs XXX commenced a period of extended sickness absence on 1 December 1995;
d) Mrs XXX’s employment was terminated on 3 May 1998 on the grounds of medical incapacity;
e) Mrs XXX’s representative appealed against the council’s decision not to award ill-health retirement on 28 September 1998;
f) the Appointed Person first determined on 24 February 1999 that the council should refer the matter back to the Doctor involved in the first decision and request that he provides a more detailed report and a certificate relating to whether he considered Mrs XXX to be entitled to ill-health retirement benefits;
g) the medical adviser produced a report stating that in his opinion Mrs XXX did not fulfil the requirements of the LGPS regulations for payment of ill-health retirement benefits dated 17 March 1999; and
h) the Appointed Person determined that Mrs XXX was eligible for the payment of ill-health retirement benefits on 31 March 2000.
4. The council contend that:
a) they consider that the appeal made on 28 November 1998 was made out of the statutory time limit and, therefore, the Appointed Person had no authority to hear the appeal;
b) the Appointed Person blames the council for delays in Mrs XXX’s case, the council contend the delays were attributable to the process being unclear, the need to obtain authority to release medical information from Mrs XXX and Mrs XXX’s representative’s delay in responding;
c) they consider the Appointed Person spoke at length to Mrs XXX and her representative, but did not extend the same opportunity to the council or the independent medical practitioner;
d) the Appointed Person has incorrectly defined permanency with regard to regulation 27 of the 1997 regulations;
e) the Appointed Person has determined Mrs XXX’s appeal on the basis of advice offered by Dr XXX who is not qualified in occupational health medicine. The council contend that the Appointed Person should have referred the case to a Doctor who was authorised to make decisions regarding the early release of pension benefits on health grounds;
f) the Appointed Person was incorrect to obtain further medical evidence from Mrs XXX’s General Practitioner, Dr XXX. The council also considers that the evidence obtained should have been made available to Dr XXX. They further contend that the evidence should not be relevant with regard to Mrs XXX’s claim under regulation 27; and
g) there is a danger of setting precedents with regard to Mrs XXX that would undermine the correct determination of a whole range of cases in the council.
5. The Appointed Person determined that “…I have concluded that I prefer the views of Dr XXX to those of Dr XXX and that so serious and long lasting was her medical condition that Mrs XXX should be granted ill-health retirement. The effect of this decision is that Mrs XXX will be entitled to pension benefits with enhancement with retrospective effect from the date of termination of her employment by the … Council, that is to say 3 May 1998.”.
6. The Secretary of State has first disposed of what he regards as some peripheral issues. He notes that the council contends that the appeal to the Appointed Person was out of time and he had no jurisdiction to hear it. The regulations clearly give the Appointed Person discretion to extend the time limit. The Appointed Person explained this power and why he had used it very thoroughly and the Secretary of State considers there is no substance in the point. Nevertheless, it appears to the Secretary of State that it may be helpful to point out that the appeal was in his view very clearly lodged within the six months time limit. The disagreement is about entitlement to an ill-health pension. Such an entitlement can only arise when a member ceases employment, and it is that date when the council effectively made their decision (by awarding deferred benefits) that Mrs XXX was not so entitled. Therefore, the dispute arose at that date – 3 May 1998, and she had until 3 November 1998 to lodge her appeal.
7. The question of allocating blame for the delays is in the Secretary of State’s view immaterial to the appeal. There was no delay by the appellant in lodging her appeal; and since this is the only point which might have affected its validity, further discussion is sterile.
8. The Secretary of State notes that the council’s concerns about the way the Appointed Person conducted some aspects of the appeal. The way an Appointed Person carries out his statutory functions is a matter for him, within the constraints of regulation 99(7) – which is a matter for the administering authority not the council. The Secretary of State has no jurisdiction over the Appointed Person.
9. The Secretary of State notes that the council contends that there is a danger of setting precedents with regard to Mrs XXX that would undermine the correct determination of a whole range of cases in the council. Appeals made under the internal dispute resolution procedure and decisions made under the provisions of the LGPS regulations must be considered individually on the facts of each case. While there must be consistency in the application of the regulations, facts in each case will differ and the decision in a single appeal case cannot be held to be a precedent in relation to other cases.
10. The Secretary of State in reaching his decision on the substantive issue has had regard to the regulations, which, in his view apply. The 1997 regulations apply to members who were contributing members of the LGPS on 1 April 1998. Mrs XXX ceased employment with the council on 3 May 1998 and it is the 1997 regulations which apply. 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. Regulation 97(9) required the council, before making a decision on Mrs XXX ’s entitlement to ill-health retirement benefits, to refer the matter to an independent registered medical practitioner for a certificate stating whether in his opinion she was permanently incapable of efficiently discharging her duties through ill-health.
11. The Secretary of State notes that at the time Mrs XXX ceased employment there was no definition of “permanently” in the regulations. He notes the Appointed Person’s cogently-expressed arguments about the meaning of “permanent”. However, he does not agree with his conclusion. The Secretary of State takes the view that for 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. This interpretation, that permanent means until a member’s normal retirement age, has in his view been well established, and consistently applied in previous appeals cases. Under the 1997 regulations, normal retirement age is 65, though there is a saving in regulation 25 for members who were members of the scheme before the 1997 regulations came into force. The Secretary of State notes that the 1997 regulations were amended in 1999 to define that permanent incapability means incapable until at the earliest the member’s 65th birthday. In his view this amendment was made not to alter, but to clarify, the meaning of “permanent”.
12. The Secretary of State notes the Appointed Person considered “permanent” to mean “… permanence must be based on a number of factors: the age of the person claiming the benefit, the long-lasting or chronic, nature of the disorder, the likelihood of recovery in the foreseeable future and expectations of the job market in local government as to the longevity, or duration of the existence of the particular or similar jobs (in other words, if the test is to be by reference to a specific post, it cannot be assumed that a post of such a type would continue until the individual attains retirement age.)”. The Secretary of State therefore considers that the test used by the Appointed Person does not properly reflect the test set out in the regulations at the time Mrs XXX ceased employment.
13. The Secretary of State has noted all the medical evidence submitted to him comprising: Dr M XXX’s medical report dated 26 March 1990; reports dated 1 March 1994 and 24 May 1994 signed by an Occupational Health Nurse; Medical Examination notes, unknown author, dated 11 December 1989 and 24 February 1994; Community Psychiatric Nurse XXX’s letter dated 15 December 1994; XXX Council Occupational Health Service referral form dated 19 January 1996; Senior Occupational Health Nurse Mrs XXX’s reports dated 15 February 1996, 8 March 1996, 4 April 1996, 30 April 1996, 19 July 1996 and letter dated 16 February 1996; Chartered Clinical Psychologist Dr XXX’s letter dated 30 April 1996; General Practitioner Dr XXX’s letters dated 4 March 1996, 9 December 1996 and 23 April 1997; Senior Occupational Health Nursing Adviser Dr XXX’s reports dated 4 June 1996, 11 July 1996, 17 December 1996, 22 April 1997, 29 April 1997, 12 August 1997 and 4 February 1998, letters dated 23 January 1997 and 21 March 1997, medical report dated 17 March 1999 and certificate dated 30 March 1999; General Practitioner Dr XXX’s letter dated 24 February 2000 and medical report dated 4 August 1997; and Consultant Psychiatrist Dr XXX’ medical report dated 27 January 1998.
14. The Secretary of State notes that Dr XXX, in her report dated 27 January 1998, stated “In my opinion requires intensive, skilled and prolonged input from a Consultant Psychiatrist and other members of a multi-discipline team. Although she has failed to respond to appropriate medication in the past, I feel that she may require anti-depressant drugs to lift her mood sufficiently for her to undergo counselling or psychotherapy as part of a treatment package. Her fear of accepting treatment is not unusual for someone with this disorder and worsens the prognosis. In my opinion the duration of her symptoms, which are longer than two years, suggests a somewhat poor prognosis and even if she were to accept intensive treatment, I think this would be prolonged and her recovery may be partial. I do not think, at present, she is fit to work in any capacity and this is likely to continue for the foreseeable future.”. The Secretary of State notes that the precise test to be applied, that is whether Mrs XXX was permanently incapable of performing her duties efficiently due to ill-health or infirmity of mind or body, has not been referred to by Dr XXX. Furthermore Dr XXX does not state that she considers Mrs XXX’s incapability is permanent, rather she states that if Mrs XXX were to accept treatment she thinks this will be prolonged and that her recovery may be partial. He also notes that Dr XXX stated that Mrs XXX was unable to work at the time of the report, 27 January 1998, and that this was likely to continue for the foreseeable future. The Secretary of State does not consider that the foreseeable future amounts to permanent within the meaning of the regulations, given Mrs XXX’s age.
15. The Secretary of State notes that Dr XXX, in his report dated 17 March 1999, stated “Mrs XXX has had problems with ‘stress’ present for the last few years and, during this time, she has managed to return to work with or without treatment and therefore, her condition cannot be regarded as permanent but rather, relapsing. The guide-lines also point out the relatively good prognosis of anxiety and stress related illness if treated appropriately when the symptoms first become apparent. Full treatment has not been instituted yet and therefore the outcome cannot be determined.”. The Secretary of State notes that Dr XXX considered medical evidence from Dr XXX, Dr XXX and Dr XXX when providing his medical opinion.
16. The Secretary of State notes that Dr XXX, in her report dated 4 August 1997, stated “I feel that at the present time there is no prospect of [Mrs XXX’s] return to work, mainly due to her agoraphobia and her anxiety/depression. It will take some time before she is rehabilitated from these problems and so it will be probably best for her to take retirement on grounds of ill health and, when she recovers, seek employment in a different capacity.”. He infers that Dr XXX, at the time of the report, believed that Mrs XXX would recover. He notes that Dr XXX subsequently, in her letter dated 24 February 2000, stated “I saw Mrs XXX in the surgery on 8.1.1998 and again on 9.3.1998. On both these occasions I confirm that her condition remained unchanged from when I first saw her on 4.7.1997… In view of this I confirm that she was in February 1998 permanently incapable of discharging efficiently the duties of employment in Local Government because of infirmity of mind.”. He notes that Dr XXX’s later report is not contemporaneous with Mrs XXX’s termination of employment but post-dates it by a considerable margin. He notes that, despite Dr XXX seeing Mrs XXX in January and March 1998, no such view appears to have been expressed by Dr XXX at the time, or certainly none appears to have been submitted in evidence.
17. The Secretary of State notes that Dr XXX, in his letter dated 9 December 1996, stated “…I can confirm that I now feel that [Mrs XXX] is a suitable candidate for ill-health retirement.”. The Secretary of State notes that Dr XXX does not specifically state that he considers Mrs XXX’s condition is permanent nor does he address the specific requirements of the LGPS regulations for the release of pension on the grounds of ill-health. He notes that Dr XXX wrote to Dr XXX to seek clarification of the reasoning behind Dr XXX’s statement, but it appears Mrs XXX instructed Dr XXX not to reply.
18. The Secretary of State notes that the Appointed Person stated “I have concluded that I prefer the views of Dr XXX to those of Dr XXX and that so serious and long lasting was her medical condition that Mrs XXX should be granted ill-health retirement.”. He notes that Dr XXX does not refer to the test whether Mrs XXX was suffering from a condition which made her permanently incapable of performing her former duties efficiently due to ill-health or infirmity of mind or body nor does she state that she considers Mrs XXX’s condition is permanent.
19. The Secretary of State takes the view that a decision on entitlement to ill-health retirement benefits must normally be made on broadly contemporaneous medical evidence, in the light of medical knowledge and opinion at the time. He notes that no other contemporaneous medical opinion has been submitted to him that specifically states whether Mrs XXX’s incapability was permanent at the time she ceased employment within the meaning of regulation 27. He believes that the medical evidence at the time and taken as a whole shows that Mrs XXX was incapable of performing the duties of her previous employment at the time she ceased employment, but that her incapability could not then be said to have been established as permanent.
20. The Secretary of State notes that regulation 97(9) required the council to refer the matter to an independent registered medical practitioner to inform their decision whether to give ill-health retirement benefits. He does not consider that they complied with this requirement. They relied on the views of Dr XXX who was their medical adviser and who had previously been involved in the case. In the Secretary of State’s view, this is not what is meant by “independent”.
21. The Secretary of State has considered whether, in the light of this failure, he should refer the matter back to the council for them to seek an opinion from such a practitioner. However, this would significantly prolong an already long-running appeal and in his view would serve no useful purpose. This is because he considers that, at the time the decision had to be made in 1998, there was no really conflicting medical evidence; the contemporaneous evidence did not in his view indicate that permanent incapability was established. Had there been such evidence he would have expected the Appointed Person to have referred it to an independent medical adviser. The Secretary of State has therefore not considered it necessary to refer the medical evidence to an independent medical adviser. He concludes that at the time Mrs XXX ceased employment with the council on 3 May 1998 she could not be regarded as suffering from such a condition of ill-health or infirmity of mind or body that she would be permanently incapable of performing the duties of her former employment efficiently within the meaning of the regulations. Mrs XXX did not therefore cease employment on such grounds and was not therefore entitled to the immediate payment of her LGPS benefits from when she ceased employment with the council.
22. Finally, the Secretary of State notes that the medical evidence indicated that it would be some time before Mrs XXX is rehabilitated. Furthermore he notes that full treatment had not been instituted and that the outcome could not be determined. He notes Dr XXX’s more recently expressed opinion given in February 2000. If Mrs XXX believes, in the light of this, that events have now moved on sufficiently for permanent incapability to be established, it is open for her to apply to the council to elect to receive her benefits early under regulation 31(6). The council must then consider the matter afresh and properly refer it to an independent medical practitioner qualified in occupational health medicine.