Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/18/58

August 1998

LOCAL GOVERNMENT PENSION APPEAL

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS (“the 1995 regulations”)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (“the 1997 regulations”)

1. I refer to your letter of 14 May 1998 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person. The Appointed Person determined that XXX Metropolitan Borough Council (the council) had proper regard to the matters raised that they considered your case on its individual merits and that they did exercise their discretion reasonably. He upheld the council’s decision.

2. Like the Appointed Person, the Secretary of State’s role under the 1997 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.

3. The question for determination by the Secretary of State therefore is whether the council exercised their discretion reasonably in deciding not to allow payment of your deferred local government benefits on compassionate grounds.

4. The Secretary of State has considered all the representations and evidence provided. The documents provided by the Appointed Person were listed in the Department’s letter of 5 June 1997. Copies of those documents requested by yourself in your letter of 8 June 1998 were sent to you under cover of the Department’s letter of 16 June 1998. In your letter of 8 June 1998 you asked that copies of letters listed in this letter from the council and OPAS have been obtained and taken into account.

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

6. 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).

7. The Pensions Ombudsman may also investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

8. Information about when your pension benefits are payable can be obtained from the XXX Fund.

EVIDENCE CONSIDERED

1. The following evidence has been received and taken into account:

a. from Mr XXX, letters dated 14 May, 8 and 29 June 1998;

b. from the Appointed Person, letter dated 27 May 1998, with enclosures (listed in the Department’s letter of 5 June 1998); and

c. letters listed in Mr XXX’s letter of 8 June 1998 and provided by the council and OPAS.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2. The Secretary of State considers that 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 believe that you have been discriminated against by both the council and the Appointed Person. In your letter to Mr XXX you explained why you considered your LGPS benefits should be released on compassionate grounds. You explained that:

a. you have lost everything that you own;

b. prior to your arrest you had been considering making an application for early retirement;

c. your arrest and conviction had nothing to do with your local government employment;

d. you will have no home on release, which is said to be when you are about age 63;

e. in prison you have to pay for items such as sugar, milk, coffee, shower gel, vitamins, etc and you are paid £6 a week;

f. you understand that when you move to a long term placement you can buy items from mail order catalogues, book clubs and join “mail order” distance learning courses, if you have the money; and

g. if your lump sum and pension were released you could invest it and have a moderate income in a prison account.

4. The council explain in their letter to the Appointed Person that they consider an application for the early release of LGPS benefits on compassionate grounds on its own merits and take into account the person’s particular circumstances in determining whether or not to exercise their discretion. They further explain that it is not possible for them to state what reasons justify the exercise of the discretion but, for example, the discretion may be exercised in favour of a person who has been obliged to cease work to provide full time care for another person, but they have refused application on grounds of financial difficulties.

5. The Appointed Person in reaching his decision considered the evidence presented by you and the council. He concluded that he was satisfied that the council considered your case on its individual merits and that they had exercised their discretion reasonably. For this reason he was unable to uphold your application.

6. The Secretary of State notes that it is the practice of the council to consider applications for early release of deferred pensions on compassionate grounds on their own merits and takes into account the person’s particular circumstances in determining whether or not to exercise their discretion. He further notes the kind of circumstances in which they may grant early release and those where they have not done so, the latter including cases of financial difficulty.

7. The Secretary of State believes that the council have demonstrated that they considered your application on its merits and taken 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. The Secretary of State concludes that the council have exercised their discretion in a reasonable manner.