290 INDEX
Our Ref: LG R 79/2/344
DATE: FEBRUARY 1998
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995
regulations”)
1. I am directed by the Secretary of State for the Environment, Transport and the Regions to refer to your notice of appeal submitted under regulation J5 of the 1995 regulations against the decision of XXX ("the council”) that you are not entitled to the payment of ill-health retirement benefits under regulation D7(1)(b) of the 1995 regulations when you ceased your employment on 17 January 1996.
2. The appeal has been conducted by correspondence. Consideration has been given to your appeal form received on 24 May 1996 and to your letter of 10 July 1997; to the council’s letters of 8 September and 16 October 1996, 10 January, 23 April and 1 August 1997; and to all the copy correspondence enclosed with those letters.
3. The question for determination is whether when you ceased employment with the council you were incapable of carrying out efficiently your duties by reason of permanent ill-health or infirmity of mind or body.
4. From the evidence submitted the following facts have been established:
(a) you are aged 34;
(b) on 20 August 1985 you commenced employment as a Contract Inspector with the Civil Engineering and Public Services of the council;
(c) during the course of your work you started suffering from a prolonged depressive reaction associated with alcohol misuse;
(d) on 14 December 1994 you commenced your sickness absence and did not return to work;
(e) you were examined by Dr XXX, the council’s Medical Advisor, who did not consider you to be permanently unfit for the post of a Contract Inspector;
(f) 17 January 1996 your employment was terminated on the grounds of capability;
5.You appealed to the Secretary of State against the council's decision not to award you immediate payment of ill-health benefits under regulation D7(1)(b) from the date you ceased your employment.
6. The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to your rights under the regulations, as fell to be decided in the first instance by the council. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.
7. Regulation D7(1)(b) of the 1995 regulations makes no reference to any positive act that brings employment to an end either by the employer giving notice or the employee voluntarily resigning. It is considered that in order to satisfy the requirements of the regulations it must be shown that you were suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out your former duties. If it is found that such a condition existed, either at the time that employment ceased or at an earlier date, it will be necessary to establish that it was permanent in the sense required by the regulations. To qualify for enhancement under schedule D3, the total period of membership must be not less than 5 years.
8. To assist the Secretary of State in reaching a conclusion, you underwent an independent medical examination on 17 September 1997 by Dr XXX, Consultant Psychiatrist.
9. In his report, copies of which were sent to both parties on 3 November 1997, Dr XXX came to the conclusion that you are suffering from a prolonged adjustment disorder with depressive features, abuse of alcohol and other behavioural problems and that in all likelihood the condition existed on 17 January 1996. Dr XXX considered it unlikely that you would improve sufficiently to be able to resume to your former duties before your normal retirement age and thus regarded the condition as permanent.
10. Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State takes the view that it is more likely than not that on 17 January 1996 you were incapable of carrying out efficiently your former duties by reason of permanent ill health or infirmity of mind or body. He therefore allows your appeal and determines that under the provisions of regulations D7(1)(b) of the 1995 regulations you are entitled to an annual retirement pension and lump sum retiring allowance with under schedule D3.
11. A copy of this letter has been sent to the council.
12. The above constitutes the Secretary of State's determination of this case. It is final and cannot be changed except by a judgement in the High Court. As the Secretary of State's jurisdiction is now at an end, no member of the Department may discuss or comment on the case further.