Our Ref: LGR85/18/63 413 INDEX
1 September 1998
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (“the 1997 regulations”)
1. I refer to the undated letter received on 9 June 1998, lodged on your behalf, appealing (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 for XXX XXX Authority (the authority). The Appointed Person upheld the decision of XXX (the company) that you are not permanently incapable of discharging efficiently the duties of your former employment as an Assistant Traffic Supervisor and therefore that you are not entitled to payment of your preserved benefits.
2. The question for determination by the Secretary of State is whether since ceasing employment with the company you have become permanently incapable of carrying out efficiently the duties of your former employment by reason of ill-health or infirmity of mind or body, and so qualify for payment of your preserved benefits.
3. The Secretary of State has considered all the representations and evidence. The Appointed Person supplied copies of all the documents he had considered to the Secretary of State. The Secretary of State considered that both parties must be aware of the evidence and asked for permission to send copies of all documents to you. The company refused permission for 3 documents to be copied to you; these were returned to the Appointed Person and have not, therefore, been taken into account by the Secretary of State in reaching his decision. Copies of all the other documents supplied by the Appointed Person were sent to you under cover of the Department’s letter of 9 July 1998.
4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that on the balance of medical evidence there is not conclusive evidence to show that since ceasing employment with the company on 1 January 1997 you have become permanently incapable, by reason of ill-health or infirmity of mind or body, of discharging efficiently the duties of your former employment. He therefore dismisses your appeal. His decision confirms that of the Appointed Person. The Secretary of State’s reasons and the regulations which he considers apply in your case are set out in the annex to this letter, which forms an integral part of the determination. 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.
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 also investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme.
7. The Secretary of State’s decision does not prevent you from applying at a later date for your benefits to be paid early due to ill-health if you have new or additional medical evidence relating to your illness.
8. A copy of this letter has been sent to the Appointed Person and XXX, Solicitors.
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:-
a. on behalf of Mr XXX: undated letter received on 9 June 1998, with enclosures;
b. from XXX, Solicitors, on behalf of Mr XXX: letter dated 22 July 1998, with enclosure; and
c. from Mr XXX, on behalf of the Appointed Person: letter dated 24 June 1998, with enclosures (listed in the Department’s letter of 9 July 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
a. you are aged 49;
b.you were employed by the company as an Assistant Traffic Supervisor; and
c. your employment with the company was terminated on the grounds of redundancy on 1 January 1997.
3. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. The company arranged for a medical examination by their Medical Adviser, on 7 January 1997, who stated that he did not find you permanently incapacitated from following your employment as an Assistant Traffic Supervisor.
4. The Secretary of State notes that you contend that your illness came about after falling off a bus, whilst working for the company, in August 1995 and that you sustained severe bruising to your back. He notes your contention that up until the time the matter had been referred to the Secretary of State you had been seen by several specialists, doctors and hospitals and that no one has any answers to your present day illness. He further notes that you are in receipt of Incapacity Benefit and have been awarded the high care and high mobility components of Disability Living Allowance.
5. The Appointed Person arranged for you to be seen by an independent medical examiner. Mr XXX Consultant Surgeon, saw you on 22 April 1998. In his report to the Appointed Person he stated that you have a serious problem with your health which has been investigated but has, as yet, been unidentified. He further stated that his inclination is very much towards a psychiatric disorder but it is plain that you are incapable of working as an inspector for the company and at the moment no diagnosis can be attached to your disability. He opined that he can see no prospect of you returning to work in the immediate future but a decision on the permanence or otherwise of your condition must await an accurate diagnosis. For this reason he stated that he would have to withhold his judgement in respect of the likely duration of your problems.
6. On your behalf XXX provided comments on the papers copied to you. You consider there are a number of inaccuracies:
a. in the medical report dated 22 April 1998 by Mr XXX; the sickness record from February 1994 goes through until the 1 January 1997, not August 1996; this is important because it shows that before the accident sickness absences were minimal;
b. the sickness record, referred to by Mr XXX, is incorrect:-
i. it shows an absence from 28.3.94 to 16.4.94 (19 days) as being an absence of 6 weeks 6 days;
ii. you believe you were on sickness absence from 2 August 1995 for approximately 3 months to the middle of November 1995, not as shown 2 August to 19 August 1995; and
c. Mr XXX notes that the last item in your sick record states that you had a cholecystectomy (referred to in XXX letters as cholesectomy) which you did not;
d. you contend that the back pain was the reason you were absent from work from 2 August to 13 November 1995.
7. The Secretary of State has considered all the evidence. He notes that it is not disputed that you have a very serious problem with your health and that there is currently no prospect of you returning to work in the immediate future. The Secretary of State notes the points which you consider are inaccurate in the evidence presented. However, the test which he must apply in reaching his decision is whether since ceasing employment with the company you have become permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body (regulation D11 of the 1997 regulations and 31(6) of the 1997 regulations). The Secretary of State notes that Mr XXX is unable to reach a decision on the permanence or otherwise of your condition until there is an accurate diagnosis. The Secretary of State takes the view that on the medical evidence available to him it is not possible at this stage to determine that you are permanently incapable by reason of ill-health or infirmity or mind or body; that is there is currently no medical evidence which indicates sufficiently conclusively that you are unlikely to improve sufficiently for you to perform the duties of your former employment before your normal retirement date.