SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (“ the 1986 regulations”)

THE LOCAL GOVERNMENT (DISCRETIONARY PAYMENTS) REGULATIONS 1996 (“the 1996 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 45 of the 1996 regulations against the decision of XXX ("the council") that you are not entitled to payment of an injury allowance under regulation L3 of the 1986 regulations when your employment ceased on 10 March 1996.

2.The appeal has been conducted by correspondence. Consideration has been given to your appeal form dated 25 November 1996, to your letters dated 19 May, a covering note received in this Department on 25 June and 7 July 1997, 6 February and 9 March 1998; to the council's letters of 25 March, 18 July and 21 October 1997, 22 January and a facsimile of 15 April 1998; to Dr XXX’s letter of 17 April 1997; and to all the copy correspondence enclosed with those letters.

3.The question for determination is whether you are entitled to the payment of an injury allowance.

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

(a) you are aged 65;

(b) on 20 October 1986 you were employed by the council as a Senior Clerical Assistant;

(d) on 9 June 1995 you had an accident at work, injuring your lower back;

(e) you commenced sick leave following the accident and did not return to work;

(f) on 10 March 1996 you ceased your employment with the council due to premature retirement;

(g) your application for an injury allowance was refused by the council; and

(h) on 25 November 1996 you appealed to the Secretary of State against the council's decision.

5. You acknowledge that on commencement of your employment with the council you were a registered disabled person suffering with a back complaint. However, you contend that as a result of the accident on 9 June 1995 your back condition deteriorated even further and you feel you should be eligible for an injury allowance. You maintain that whilst on sick leave you received a letter dated 3 January 1996 from XXX, the than Acting Director of Finance, advising that the council wished to reduce staffing numbers and as a consequence there would be a possibility of redundancies. You maintain that you had a telephone conversation with XXX in the Personnel Department and you asked why you had received the letter from XXX as you were on sick leave. You contend that during the conversation you were informed that XXX, Chief Executive of the council was reducing staff, although no ill-health retirements were taking place. You maintain that it was this information that made you decide to cease your employment prematurely, however, you contend you made several attempts to enquire about the possibility to an entitlement for an injury allowance.

6. The council maintain that under a major reorganization of the Directorate of Finance and Corporate Services your post was deleted and in accordance with the council’s procedures you were given the option either to apply for redeployment or to volunteer for premature retirement; it is maintained that you opted for premature retirement. The council state that a decision on your application for premature retirement was withheld because you were absent from work due to the accident on 9 June 1995 and there was a need to obtain more information on your injury. The council comment that on 19 February 1996 you wrote to Mr XXX, the than Acting Director of Finance stating that you would not be sending further medical certificates, and requesting premature retirement. At the council’s discretion you were allowed to retire prematurely, with compensation and a pension from the date of retirement. The council maintain as permanent incapacity was not an issue and it was your intention not to submit further medical certificates, an examination by the council’s Occupational Health Unit was not possible. The council further comment that there is no evidence to support the contention that the injury you sustained whilst in employment was the contributory factor to your cessation of employment and an injury allowance was not considered because you had volunteered for premature retirement. The council decided that both premature retirement and an injury allowance benefit could not be awarded to you.

7. 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 was 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.

L3.- (1) If as a result of an incapacity which is likely to be permanent caused by the injury or disease a person to whom this Part applies ceases to be employed in a relevant employment (.....), he shall be entitled to an annual allowance.

(2) The allowance is to be paid by the relevant body and is to be of such amount as a body may from time to time determine.

9. After due consideration of the facts in this case, the Secretary of State has decided that it is not necessary to hold an independent medical examination to help him reach a conclusion.

10. The Secretary of State has carefully considered all the medical and documentary evidence presented by both parties. He notes that there is no dispute between the parties that the accident in question took place; however, the issue in contention is whether you are entitled to an injury allowance benefit.

11. It is accepted that on 9 June 1995 you sustained an injury to your back and that this was a result of what you were required to do in carrying out your work, as provided by regulation L2. The Secretary of State has therefore had to consider the terms of regulation L3. To satisfy this regulation, your injury would have had to have resulted in a permanent incapacity, and your employment would have had to have been terminated as a result. The Secretary of State notes the council’s view that your incapacity was a pre-existing condition and not caused by the injury. The Secretary of State has not had to resolve this issue to reach his decision, however, because cessation from your employment was not on permanent incapacity grounds but due to premature retirement with compensation as a result of voluntary redundancy. Therefore, the Secretary of State takes the view that you are not entitled to payment of an injury allowance under regulation L3 of the 1986 regulations. The reason why your employment ceased is an employment matter between you and the council and the Secretary of State has no powers to alter it on an appeal about an injury allowance.

12. The Secretary of State determines as set out above and dismisses your appeal.

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

14. 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 but you may refer the matter to the Pensions Ombudsman or to the High Court. Because of this, officials may not discuss the matter further.

15. 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).