Our Ref: LGR 79/1/1658

Date:   18 FEBRUARY 1998

275        INDEX

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 the XXX Borough Council (“the council ”) not to award you early payment of your preserved benefits on compassionate grounds.

 

2.          The appeal has been conducted by correspondence.  Consideration has been given to your letters dated 17 December 1996, 6 and 20 February, 20 March and 23 April, 13 May and 18 August 1997, 28 January 1998; to the council’s letters dated 10 February, to a copy of a letter from the council to you received in this office on 18 March, 25 March and 6 June 1997; to the XXX County Council’s  (“the county council”) letter dated 11 March 1997; and to all copy documents enclosed with those letters.

 

3.          The Secretary of State takes the view that the question for determination is whether your pension can be put into payment on compassionate grounds.

 

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

 

(a) you were employed by the council as a Senior Environmental Health Officer;

 

    (b) you applied to the council for early retirement on 27 November 1995;

 

(c) you resigned with effect from 30 June 1996;

 

(d) you had reckonable and qualifying service of 39 years 270 days at the time of your    resignation;

 

          (e) on 26 September 1996 you asked the county council to review their decision not to          grant you early retirement; the county council referred this letter to the council;

 

(f) in a letter dated 22 November 1996 the council refused your application for early    payment of your pension benefits on compassionate grounds and upheld their original decision; 

 

          (e) on 17 December 1996 you appealed to the Secretary of State against the council’s decision not to grant you your preserved benefits on compassionate grounds.

 

 

5.       You contend that your letter to the council dated 27 November 1995 stated that you wished to apply for the early release of your pension on compassionate grounds and you fully understood and accepted that you would not be entitled to the addition of added years to your pension. You maintain you were advised that because of the uncertainty between the merger of the council and *** Council, in the event of you retiring or leaving, your post could only be advertised as a temporary one and it was extremely unlikely you could be replaced. You comment that the Chief Personnel Officer indicated that if you wanted to work part-time you would have to find another Environmental Health Officer (EHO) to take up the job share post with you and you were unable to do so. You point out that when you resigned from your post your former position was advertised as a permanent one and that it was filled without any difficulty by a highly qualified applicant. You maintain that the council have failed to address these issues.

         

6         The council state that with the need to justify any early release of pension on the grounds of efficiency of the service, they could not agree that your departure would be for the good of the Authority. Consequently, you were advised that the council was not willing to release you voluntarily and you decided to resign. The council maintain that you have not supplied grounds  by which they might consider release of your pension on compassionate grounds. They further maintain that they were genuinely surprised by the response to the advert for your former post, as there had been a national shortage of EHO’s for years. 

 

7        All the representations and evidence submitted have been considered.  The Secretary of State is required to determine the same question as to your rights under the regulations which were 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 provisions governing entitlement to deferred pension benefits (preserved benefits) are set out in regulation D11 of the 1995 Regulations. As far as material these regulations state the following:

 

“D11.-(1) If a member who ceases to hold a local government employment-

 

(a) is not entitled under regulation D5, D6, D7 or D9 to retirement benefits which are payable immediately on his ceasing to hold that employment; and

 

 

(b) fulfils one of the following requirements, namely-

 

          (i) he has a stationary pension entitlement; or

 

          (ii) he is treated by virtue of regulation K23(2) as having ceased to hold that employment on becoming subject in it to an approved non-local government scheme;

 

then, subject to regulation D13, he becomes entitled in relation to that employment to a standard retirement pension and a standard retirement grant payable from the appropriate date; and in these regulations benefits to which a person becomes entitled under this paragraph by virtue of fulfilling one of the requirements mentioned in paragraph (b) and which have not yet become payable are called "preserved benefits".

 

          (2) For the purposes of paragraph (1) "the appropriate date", in relation to any person,          is his 65th birthday or, if earlier, the earliest of the following-

 

(a) his NRD;

 

(b) any date on which he becomes incapable, by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of the employment he has ceased to hold;

 

(c) any date after he has attained the age of 50 years from which the employing authority determine on compassionate grounds that the benefits are to become payable;

 

(d) in the case of a person who has attained the age of 60 years, has ceased to be employed in local government employment and has duly elected to receive payment from the relevant date, that date.

 

(3) An election under paragraph (2)(d) shall be made by notice in writing to the employing authority given within the period of three months beginning with the relevant         date.

 

(4) In this regulation "relevant date", in relation to any person, means-

 

(a) the date on which he attains the age of 60, or

 

(b) if later, the date of his ceasing to be employed in local government employment.”

 

9.       Since this decision under D11(2)(c) is one at the discretion of the employer the Secretary of State must give regard to regulation J5(2) of the 1995 Regulations which states;“Subject to paragraph (3), the Secretary of State shall not determine any question that fell to be decided by the relevant employer in the exercise of a discretion conferred on them by these regulations.”

 

10.     The Secretary of State therefore dismisses this appeal as he has no power to determine a question which is to be decided by the exercise of a discretion by your former employer.

 

11.     A copy of this letter has been sent to the council and XXX County 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, officers may not discuss or comment on the case further.