365      INDEX

Our Ref: LGR 79/1/1521

 Date:   7  JULY 1998

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (“the 1986 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 on behalf of Mrs XXX under regulation N8 of the 1986 regulations against the decision of the **** Council (“the council”) that she is not entitled to payment of an injury allowance under regulation L4 of the 1986 regulations.

2.                  The appeal has been conducted by correspondence. Consideration has been given to your letters dated 5 March, 1 August, 8 October and 26 November 1996 and a document with a  compliment slip received in this office on 27 August 1996; to the council’s letters dated 5 September and 5 November 1996 and 24 January 1997; and to all the copy correspondence enclosed with those letters.

3.         The question for determination is whether Mrs XXX has sustained an injury or contracted a disease as a result of anything she was required to do in carrying out her work, and  suffered a reduction in her remuneration as a result, so as to entitle her to an injury allowance under regulation L4.

4.         From the evidence submitted the following facts have been established;

            (a) Mrs XXX is aged 61;

(b) she commenced employment with the council on 9 January 1984;

            (c) on 24 October 1991 she sustained an injury to her back during the course of her duties at work;

(d) Mrs XXX commenced a period of sickness absence with a reduction of salary and returned to work on 28 September 1992; 

(e) she applied to the council for the payment of an injury allowance because of the        reduction to her salary, however, her application was refused;

            (f) you appealed to the Secretary of State against the council’s decision not to award Mrs XXX an injury allowance under regulation L4.

5.         You contend that Mrs XXX should qualify for payment of an injury allowance.

6.         It is noted that the council do not dispute that Mrs XXX sustained an injury to her back as a result of anything she was required to do in carrying out her work which resulted in a reduction of her salary. Rather the council contend that they ... “decided not to award Mrs XXX an injury allowance under regulation L4 since the regulation is discretionary, not compulsory, and there are alternative routes of compensation that are open to Mrs XXX to pursue, eg an  employers liability claim, or the Council’s long term compensation scheme (in the event of her retirement).”.

7.         The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to Mrs XXX’s 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.

8.         The relevant provisions of the 1986 regulations which deal with the question of awarding an annual injury allowance are as follows:

"L2.- (1)...... this Part applies to a person employed in a relevant employment if he 

            (a) sustains an injury, or

(b) contracts a disease

as a result of anything he was required to do in carrying out his work.

.

L4.- (1) If as a result of the injury or disease a person to whom this part applies suffers a reduction in his remuneration while he is employed in relevant employment....he shall    be entitled to an allowance while the reduction continues.”

9.         The Secretary of State has carefully considered the evidence presented by both parties and  notes that the council operates an Employer’s Liability and Long Term Compensation Scheme. However, as operators of the Local Government Superannuation Scheme the council are required to consider applications for injury allowance and, where appropriate, to make an award. While the amount of any award would be at the council’s discretion, there is no discretion as to whether or not the council operates the injury allowance system. 

10.       After consideration of the terms of regulation L2(1)(a),(b) and L4, the Secretary of State concludes that Mrs XXX is entitled to payment of an injury allowance under regulation L4, for the period that the loss to her remuneration was sustained that is from 26 April to 27 September 1992.

11.       The Secretary of State determines as set out above and allows the appeal.

12.       A copy of this letter has been sent to the council.

13.       The above constitutes the Secretary of State’s determination of this case. Having made his determination the Secretary of State has no power to alter it unless instructed to by a judgement of the High Court. Because of this, officials may not discuss the matter further.

14.       The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).