316 INDEX
Our Ref: LGR85/18/34
8 April 1998
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
1. I refer to your letter of 24 February 1998 in which you appeal (under regulation J8 of the 1995 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of XXX, the Appointed Person. The Appointed Person decided that XXX County Council in considering your application for the early release of your local government pension benefits (deferred pension) on compassionate grounds had taken into account proper considerations and that the discretion was exercised reasonably.
2. Like the Appointed Person, the Secretary of State’s role under the 1995 regulations is not to overturn a decision where the council have exercised their discretion, but to ensure that the discretion has been exercised reasonably. In cases where this is found not to be the case, he will determine that the matter should be reconsidered by the council in a proper manner. The question for determination by the Secretary of State therefore is whether XXX Council exercised their discretion reasonably in deciding not to allow payment of your deferred local government benefits on compassionate grounds.
3. The Secretary of State has considered all the representations and evidence provided. Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department’s letter of 6 March 1998.
4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations (regulation D11) finds that for the purposes of the 1995 regulations the council have acted reasonably in reaching their decision. The contentions of the parties, regulations considered and reasons for his decision are set out in the annex to this letter which forms an integral part of his determination. His decision confirms that made by the Appointed Person. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it unless instructed to in a judgement by the High Court. Because of this officials may not discuss the case further.
5.The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).
6. 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).
EVIDENCE CONSIDERED
1. The following evidence has been received and taken into account:
a. from Mr XXX: letter dated 24 February 1998 with enclosures and letter dated 15 March 1998; and
b. from the Appointed Person: letter dated 3 March 1998 with enclosures (listed in the Department’s letter of 6 March 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. The Secretary of State considers the appropriate regulation to be considered is D11 of the 1995 regulations. This regulation (D11(2)(c)) gives an employing authority the discretion to bring a pension into payment early on compassionate grounds at any time following the member’s 50th birthday.
3. You contend that your deferred pension should be released on compassionate grounds due to your mother’s ill-health. You believe your application has not been dealt with fairly, sympathetically, or seriously. Since ceasing employment with the council in 1993, when you moved to XXX, you have been unemployed. Soon after moving your mother’s health deteriorated and in 1993 she was diagnosed as having dementia. You note that the council took into account the opinion of your mother’s GP with regard to her life expectancy being one or two years. However, you do not believe anyone can make such a prediction and that your mother could live for another ten years. You refer to what you believe is discrimination by the council between the long-term care of a spouse and the long-term care of a parent. You imply that while you may become free to seek employment in a short while, at your age you may be unlikely to obtain it.
4. The Appointed Person in reaching his decision considered the council’s reasons for not granting early payment of your deferred pension on compassionate grounds. He noted the council took into account their medical adviser’s opinion in relation to your mother’s medical condition and your own age in relation to the age at which you would normally access your retirement benefits.
5. The Secretary of State notes that the practice of the council is usually to consider the early release of deferred pensions on compassionate grounds only in circumstances involving the long term care of a spouse. The council’s medical adviser, Dr XXX, to whom this case was referred, stated that it is usual to consider compassionate retirement only when the long term care of a spouse is involved and rare for the care of a parent. However, Dr XXX sought the views of your mother’s GP before reaching a view. Dr XXX took account of both your mother’s condition and prognosis, and your likely availability to seek further employment. In conclusion he did not think it appropriate to grant the early release of your deferred pension on compassionate grounds.
6. The Secretary of State believes that the council have demonstrated that they considered your application on its merits in the light of their normal practice, that they sought appropriate medical advice and took relevant considerations into account. He takes the view that in reaching their decision the council acted properly, and that the decision they reached was not one which no reasonable person could have reached in the circumstances. He does not consider that the terms in which they informed you of their decision were satisfactorily transparent or reasoned, although he recognises that the council may have been concerned about imparting medical information which you might have found distressing. Nevertheless, he is satisfied that the deficiencies in the way they imparted their decision did not render that decision itself or the way they reached it unreasonable. He concludes that the council have exercised their discretion in a reasonable manner.