864 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter dated 26 September 2000 in which you appeal (under regulation 102 of the 1997 regulations), against the decision of Mr XXX, the Appointed Person for XXX Council (the Council), on behalf of Mrs XXX, 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.
3. The question for decision: The question for decision by the Secretary of State is whether Mrs XXX qualifies for the immediate payment of her LGPS benefits, on the grounds that she ceased employment with the Council by reason of being permanently incapable of discharging efficiently the duties of her employment because of ill-health or infirmity of mind or body.
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. 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 because she was permanently incapable of discharging efficiently the duties of her employment by reason of ill-health or infirmity of mind or body. She does not, therefore, qualify for immediate payment of her LGPS benefits. The Secretary of State’s decision confirms that made by the Appointed Person. 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 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.
5. 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 020 7233 8080).
6. 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 number 020 7834 9144).
SECRETARY OF STATE’S POWERS
1. 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 Mrs XXX referred to the Appointed Person was whether the Council should have granted her ill-health retirement from when she ceased employment with them on 13 May 2000.
2. The following evidence has been received and taken into account:
a) From you: letter dated 26 September 2000 (with enclosures);
b) From Mrs XXX: letter dated 15 November 2000 (with enclosures); and
c) from the Council: Letter dated 3 November 2000 containing documents considered by the Appointed Person (copies sent to Mrs XXX under cover of the Department's letter of 6 November 2000); letter dated 8 December 2000.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Mrs XXX’ date of birth is 7 July 1973;
b) She was employed by the Council as a Financial Assistant;
c) She is a member of the LGPS;
d) In April 1999 she commenced a period of sick leave and did not return to work;
e) Following a referral to their occupational health physician, the Council wrote to Mrs XXX on 8 February 2000 informing her of their decision that they could not release her pension early;
f) Mrs XXX appealed against her employer’s decision in a letter dated 29 February 2000;
g) On 13 May 2000 Mrs XXX ceased employment with the Council;
4. The Appointed Person referred Mrs XXX case to Dr XXX, FRCP, for a second medical opinion. In his decision letter dated 8 June 2000 he stated that ‘You will see from the report that the conclusion is that it is not possible at this stage to certify that you will be permanently unfit until the age of 65 (as required by the Local Government pension Scheme Regulations). I regret, therefore, that I must uphold the original decision not to pay retirement benefits.’
5. You state that you have evidence to establish that Mrs XXX ‘will be incapable of carrying out efficiently her former duties.., that the condition is permanent, and would be sufficiently unable to carry out her former duties until the age of 65 years old.’ You also raise a number of concerns you have about how Mrs XXX’ case was considered.
6. 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 or those of a comparable employment efficiently due to ill-health or infirmity of mind or body. Permanent incapability is defined as meaning, at the least, to age 65.
7. The Secretary of State has noted all the medical evidence submitted to him comprising: letter from Dr XXX dated 25 January 2000, draft report by Dr XXX dated 16 February 2000 and report by Dr XXX dated 5 September 2000; letters from Dr XXX dated 4 February 2000 and 21 March 2000; letter by Dr XXX dated 25 May 2000 and Medical report dated 26 May 2000; letter by XXX, health visitor, dated 30 August 2000; Social Services ‘Carer’s Assessment Form, dated 25 August 2000; Report by Dr XXX entitled ‘What is M.E./CFS?’ dated May 1997, notes for presentation to the All Party Parliamentary Group on ME by Dr XXX, dated 23 November 1999; Research notes by Dr XXX, Medical Director of M.E. association dated February 1997; Letter from Dr XXX regarding guidelines for occupational health physicians, dated 17 October 1997; PubMed document entitled ‘The Prognosis of Chronic Fatigue Syndrome; ALAMA guidelines ‘Ill health retirement – guidelines for occupational health physicians dated 5 September 1996; Report of a joint working group on CFS dated October 1996.
8. The Secretary of State has first noted your contention that, ‘The decision by Dr. XXX not to award ill health retirement benefit was made without Dr. XXX ..... receiving updated medical reports from Dr. XXX at the XXX Foundation.’ The Secretary of State notes, however, a detailed letter from Dr XXX to Dr XXX dated 25 January 2000 confirming a diagnosis of Chronic Fatigue Syndrome, and providing his opinion on possible prognosis for Mrs XXX’ condition. Dr XXX concludes: ‘I hope that this report is of use to you and that its contents are useful in determining her future with the Council.’ The Secretary of State also notes that Dr XXX acknowledged this report in a letter dated 4 February 2000, and confirmed that the diagnosis of Chronic Fatigue Syndrome was not in dispute. He also notes that the Council’s decision letter dated 8 February 2000 followed this interchange between the two doctors. The Secretary of State is satisfied that Dr XXX had considered an up to date medical report from Dr XXX when he made his recommendation to the Council.
9. The Secretary of State has also noted Mrs XXX’ concern, expressed in her letter to him dated 15 November 2000, that neither occupational health physician examined her and that, contrary to Dr XXX’s report dated 26 May 2000, she was not given the opportunity to have an appointment with him. He has also noted Mrs XXX’ statement in her letter dated 15 November that ‘I am very angry as I would have gone for an examination.’ The Secretary of State accepts that it is usually the practice for an examination to be undertaken, but there is nothing in the regulations that states such an examination must take place. He takes the view that it is as matter for the medical judgement of the occupational health physician whether such an examination is necessary for the purposes of the test required by the regulations. Whilst the Secretary of State acknowledges that Mrs XXX believes that her case has not been properly considered, he does not find any evidence to show that it has not been. He is satisfied that both Dr XXX and Dr XXX considered appropriate medical evidence in making their decisions, and in the light of the evidence and the facts of the case, it does not appear to him to have been unreasonable for either doctor not to have examined Mrs XXX in person.
10. The Secretary of State has also noted your contention that ‘Dr. XXX.... is a part of the Association of Medical Advisors Working party who formulated the guidelines used by XXX Council, therefore could not be considered as an independent review.’ He further notes that you appear to have questioned the guidance itself: In Dr XXX’s report dated 26 May 2000 he writes ‘The documentation provided includes information from Mrs XXX and from Dr XXX that disputes the basis of the guidelines for occupational physicians on ill health retirement..... While some of these criticisms may be valid, the guidelines were produced to help doctors making judgements in relation to pension scheme ill-health criteria, to do so objectively and based on appropriate medical evidence..’.[however] ‘as they are disputed by Mrs XXX and her medical advisers, I have not referred to them in considering Mrs XXX case.’ The Secretary of State does not consider that Dr XXX’s independence should be brought into question because he was involved in producing guidance, in concert with his medical colleagues, to aid objective and careful consideration of ill health retirement cases. Furthermore, it appears to him from Dr XXX’s report that your concern over the current legitimacy of the guidance was carefully taken into account by Dr XXX in his consideration of Mrs XXX’s case.
11. The Secretary of State has considered the medical evidence. Dr XXX stated in his letter dated 25 January 2000 that ‘..the time course of recovery in people in this condition is highly variable it would be more realistic to anticipate improvement between two and five years, but there is no guarantee improvement will ever occur..’ Dr XXX gave further consideration to Mrs XXX’s prognosis in his draft report, dated 16 February 2000: ‘There is a chance, possibly as much as 25%, that she will be permanently unfit for any kind of employment. What is much more certain is that she will not be fit for any employment within the next two to five years.’ In a letter dated 4 February 2000 Dr XXX stated that while ‘The diagnosis of Chronic Fatigue Syndrome is not in dispute..... On the balance of probability I am not at her age able to certify that her current condition will prevent her working in this or a comparable job until she is 65. Indeed the lack of dissatisfaction about work, her motivation and absence of psychiatric morbidity all point to a reasonable prognosis for the future however long that may be.’ Dr XXX stated in his report dated 26 May 2000 that ‘In the presence of several good prognostic features and few bad ones, with a current duration of less than two years in a 26 year old woman with no background psychiatric problems, it would be extremely difficult to predict that Mrs XXX would be incapacitated by her condition for the next 39 years from undertaking her job as a finance clerk.’
12. The Secretary of State takes the view that it is not disputed that at the time Mrs XXX ceased her employment she was incapable of efficiently performing her duties and that this led directly to the termination of her employment. He acknowledges that she has a debilitating illness and that it is likely that she will not be able to work for a considerable time. However, he takes the view that the medical evidence produced in the course of this appeal does not show that, on the balance of probabilities, Mrs XXX will be permanently incapable of efficiently performing her former duties until the age of 65. She is not, therefore, eligible for early release of her LGPS benefits on ill health grounds at the present time. He would add, however, that both Dr XXX and Dr XXX have suggested that Mrs XXX’ case be reviewed in the future, and that it remains possible for her to apply early payment of her LGPS benefits under regulation 31, at some point in the future, once a definite prognosis about her condition can be made.