853 INDEX
LOCAL GOVERNMENT PENSION SCHEME APPEAL
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter dated 16 August 2000 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 (the administering authority), in relation to her local government pension scheme (lgps) dispute with the University of XXX (the university).
2. The Appointed Person found Mr XXX did not satisfy the requirements of the LGPS regulations for immediate payment of LGPS benefits from 31 May 1999 or for the early payment of retirement benefits on the grounds of ill-health.
3. The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the university on 31 May 1999 by reason of being permanently incapable of discharging efficiently the duties of that employment, or any other comparable employment with the university, because of ill-health or infirmity of mind or body, and so qualifies for the immediate payment of her LGPS benefits.
4. Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. He finds that there appear to be conflicting medical opinions based at least in part on an unresolved dispute about Mr XXX’s duties. These issues have not been explained or resolved to his satisfaction. He has therefore decided to refer the matter back to the university. They must resolve with Mr XXX the different views about the nature of the demands in her former post, and then refer all the evidence to a separate, independent registered medical practitioner qualified in occupational health medicine who has not been involved with the previous decisions. Whether Mr XXX is entitled to ill-health retirement benefits will depend upon the reconsideration of her case by the university, once they have obtained the further medical evidence.
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 alter 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. This completes the second stage of the internal resolution dispute procedure. 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 Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7834 9144).
1. The following evidence has been received and taken into account:
a) from you: letters dated 16 August 2000 (with enclosure), 5 October 2000 and facsimile dated 10 October 2000;
b) from the Appointed Person: documents considered by him (list enclosed with the Department’s letter dated 27 September 2000).
THE SECRETARY OF STATE’S POWERS
2. The Secretary of State’s powers under regulation 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 university to act outside the provisions of the regulations. The disagreement you referred to the Appointed Person was whether the university should have granted Mr XXX ill-health retirement benefits when her employment was terminated.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Mr XXX’s date of birth is 4 January 1958;
b) she was employed by the university as a Clerical Assistant in the Accommodation Section of the Campus and Residential Services Division;
c) she was a member of the LGPS;
d) Mr XXX commenced a period of extended sick leave on 12 June 1997;
e) Mr XXX’s employment with the university was terminated on 31 May 1999 on the grounds of medical incapability;
f) you appealed to the Appointed Person on behalf of Mr XXX on 8 November 1999.
4. Mr XXX maintains that she is permanently incapable of discharging efficiently the duties of her former employment because of ill health and therefore qualifies for the payment of her LGPS benefits. She considers there is medical evidence to support her application for ill-health retirement. Mr XXX disputes the accuracy of the risk assessment form, dated 9 November 1998, as she contends that her previous employment did involve working on a VDU for the majority of her working day.
5. The Appointed Person determined that “On the basis of the medical evidence presented, it is my decision that at the present time you do not meet the criteria as set out in Regulation 97(9) and therefore, are not entitled under Regulation 27 or under Regulation 31 to receive an ill-health pension and grant. … This has been a difficult case to consider as there is conflicting medical evidence but on balance I am more persuaded by the medical opinion of Dr XXX than that of Dr XXX who is not, on the evidence before me, a “registered medical practitioner who is qualified in occupational health medicine.” ”
6. The Secretary of State notes that you submitted additional letters to him, dated 22 July 1998 and 2 September 2000, with your facsimile dated 10 October 2000. The Secretary of State does not normally consider such evidence as his role under the regulations is to reconsider the original agreement referred to the Appointed Person. However, in his view this evidence does not materially alter the facts of this case. He notes it appears that the letter dated 22 July 1998 refers to a request from the university and this should have been provided to the appointed person by Ms K Jones following his request for information dated 17 November 1999.
7. The Secretary of State notes that Mr XXX disputes the accuracy of Ms XXX’s risk assessment dated 9 November 1998. He notes that the risk assessment states that “The nature of the work in the Accommodation Office involves dealing with students and answering the telephones which prevents anyone working on a VDU unit for long periods of time.” He notes Mr XXX, in her letter dated 29 December 1998 states that “It was my role to provide a secretarial and typing service for Dr XXX as well as the usual inputting and using of the VDU required in my post as such I operated the VDU vastly more than any other person in the office, in fact virtually all day. There is also no mention in Mrs XXX’s memo of the purchase of telephone headsets which were deliberately bought … specifically to enable work to continue on PC’s … while we dealt with phone calls at the same time. …the office frequently employed students … to help to deal with students entering the office, whilst the remainder of the staff could be at the PC’s inputting information.” The Secretary of State notes that the risk assessment appears to have been written some 17 months after Mr XXX commenced a period of extended sick leave.
8. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view apply. At the time Mr 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 efficiently performing the duties of their former employment, or any comparable employment with the university, due to ill-health or infirmity of mind or body.
9. The Secretary of State notes that for her incapacity to be permanent the regulations require that it would have to be unlikely for Mr XXX to be able to perform the duties of her former employment, or any comparable employment with the university, efficiently until age 65.
10. The Secretary of State notes that “comparable employment” was introduced into the 1997 regulations with effect from 1 April 1999. As Mr XXX’s employment was terminated on 31 May 1999 this amendment does apply to Mr XXX. The amendment applies where a member is seeking to have their benefits paid early due to ill-health after 31 March 1999. He considers any comparable employment with the university must be one that exists within the university and must be one the member can be offered at the time the retirement is being considered. He takes the view that it is not sufficient to determine whether a member is capable of performing the duties of an unavailable or hypothetical employment. The Secretary of State notes that Mr XXX, in his letter dated 14 December 1999, stated “…I reached the conclusion that there [was] no possibility that any alternative employment could be offered to Mr XXX.” The Secretary of State takes the view, therefore, that it is appropriate to consider only Mr XXX’s previous employment when determining whether she is eligible for ill-health retirement.
11. The Secretary of State has noted all the medical evidence submitted to him comprising: Consultant Neurosurgeon, Dr XXX’s letter dated 2 November 1998; General Practitioner Dr XXX’s letter dated 20 May 1999; University Physician Dr XXX’s letter dated 22 July 1998; Consultant Physician and Rheumatologist Dr F XXX’s medical report dated 3 November 1998 and letter dated 20 September 2000; Chief Occupational Physician Dr J XXX’s letters dated 9 December 1998 and 6 April 2000. The Secretary of State notes that the medical evidence taken as a whole indicates that Mr XXX suffers from cervical spondylosis.
12. The Secretary of State notes that Dr XXX, in his letter dated 20 May 1999, stated “As a result of [Mr XXX’s] symptoms, she would be quite unable to discharge the duties of her previous employment and additionally would not be capable of undertaking alternative employment.” He notes that Dr XXX has not stated whether he considers this situation is likely to be permanent. The Secretary of State notes that Dr XXX has not stated whether he considers Mr XXX was capable of performing the duties of her former employment.
13. The Secretary of State notes that Dr XXX, in his medical report dated 2 November 1999, stated “In my opinion Mr XXX is not currently capable of any paid employment. In my opinion I also feel that she will be permanently incapable of returning to a secretarial post which involves sitting using a VDU for a large part of the day. It is highly unlikely that given the severity of her disease in the cervical spine and her other symptoms that any improvement with treatment will enable her to do this. She is therefore permanently incapable of discharging efficiently the duties of her former employment.”
14. The Secretary of State notes that Dr XXX, in his letter, dated 6 April 2000, stated “… Dr XXX’s understanding of what her job entailed appears to be at odds with the Workstation Risk Assessment by XXX, dated 9 November 1998, where she states that “the nature of the work in the Accommodation Office involves dealing with students and answering the telephones which prevents anyone working on a VDU unit for long periods of time” (my emphasis).” In addition, I note that she had an adjustable chair and she could also adjust various elements of her workstation to suit her. In my experience as an Occupational Physician, this is often the ideal type of job to redeploy other employees with various musculoskeletal problems, including neck and back problems, as the VDU use appears to be intermittent, and there appears to be enough variety to take frequent breaks from the VDU station. On the basis of the above points I cannot at this stage state that [Mrs] XXX will be unfit for such work for the next 23 years.” The Secretary of State notes that Dr XXX, in his letter dated 20 September 2000, stated “When I examined [Mr XXX] last year it was my opinion … that she would be unable to undertake any work at a VDU for more than a few minutes at a time.”
15. The Secretary of State believes there is a clear difference of medical opinion about the likelihood whether, on the balance of probabilities, Mr XXX was permanently incapable of discharging efficiently the duties of the employment she ceased to hold on 31 May 1999 because of ill-health. The Secretary of State notes that Dr XXX appears to have based his decision, in part, on the fact that the disputed workstation risk assessment states that employees of the accommodation office do not work on the VDU unit for long periods of time. The dispute over the accuracy of Ms XXX’s workstation risk assessment, dated 9 November 1998, has not been resolved to the satisfaction of the Secretary of State and it appears that it is this that the difference of medical opinion is based upon. He notes Dr XXX has not specifically stated whether he considers that Mr XXX would be capable of performing the duties of her previous employment but has referred to the duties of the employment being suitable for “… other employees with various musculoskeletal problems…”.
16. The Secretary of State concludes that the university must resolve the dispute with Mr XXX about how much VDU work her job entailed. An independent registered medical practitioner qualified in occupational health medicine, who has not been involved in the previous decisions, should then review all the medical evidence, with an examination if necessary, and should answer the specific question: when Mr XXX ceased employment on the grounds of medical incapacity, was she permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body. He has decided to refer the question back to the university for them to put this in hand.