Our Ref: LGR 85/18/110                    477          INDEX

14 December 1998

 

LOCAL GOVERNMENT PENSION APPEAL

 

SUPPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 30 August 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.

2.                  The Appointed Person upheld the decision of XXX (the council) not to release your pension benefits on compassionate grounds.

3.                  The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to the Appointed Person under regulation 100.  This regulation refers to a matter relating to the local government pension scheme (LGPS), which effectively means whether the LGPS regulations have been correctly applied in the circumstances.  Like the Appointed Person, the Secretary of State will not under the 1997 regulations overturn a decision where the council have exercised a discretion.  His role is, rather, to ensure that the discretion has not been exercised unreasonably or improperly and, in cases where it has, to decide that the matter should be reconsidered in a proper manner.

4.                  The question to be decided: The Secretary of State must decide whether the council acted unreasonably or improperly in deciding not to pay your deferred local government benefits early on compassionate grounds.

5.                  The Secretary of State has considered all the representations and evidence.  Copies of all documents supplied by the Appointed Person have been sent to you under cover of the department’s letter of 15 October 1998.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He does not consider that the council’s decision to withhold their discretion to pay your deferred benefits early on compassionate grounds was taken improperly or was one which no reasonable person could come to.  His decision confirms that made by the Appointed Person.  The annex to this letter sets out the Secretary of State’s reasons and thelegislative provisions which he considers apply in your case, and this forms an integral part of his decision.  He is acting judicially and has no power to modify the way the legislative provisions apply to the facts of the case.  Having made his decision 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 the Secretary of State’s officials cannot discuss the case further.

7.                  This completes the second stage of the internal disputes resolution procedure.  The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve.  Their address is 11, Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

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

9.                  A copy of this letter has been sent to the Appointed Person and to your pension manager.

EVIDENCE RECEIVED

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

(a)               from the Appointed Person: letters dated 13 October 1998 (with the enclosures listed in the department’s letter of 15 October); and

(b)               from you: letters dated 30 August, 24 September (with enclosures) and 21 October 1998.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2.                  From the evidence submitted the following relevant points have been noted:

(a)               you are over 50 years old;

(b)               in 1986 you ceased employment with the council;

(c)               in 1992 you ceased employment with a merchant bank and have not worked since; and

(d)               your wife is suffering from a long term illness and has not worked since 1995.

3.                  In reaching his decision the Secretary of State has had regard to the regulations which, in his view, apply.  On 17 and 26 February 1998, when you wrote to the council applying for early release of pension on compassionate grounds, regulation D11(2)(c) of the 1995 regulations applied.  It gave an employing authority the discretion to bring a pension into payment early on compassionate grounds at any time following the member’s 50th birthday.

4.                  When you wrote to the council you requested release of your deferred benefits on compassionate grounds because your personal circumstances had deteriorated.  This was due to your loss of employment in the City in 1992, and lack of success in getting another job, compounded by your wife’s ill-health and the need to give her full time care.  You contend that your case was not properly represented to council members when they made their decision.

5.                  The Secretary of State has considered the representations in your letter of 21 October about the report made to the Council’s Corporate Resources and Personnel and Equalities Committee, in the light of your letters to the council dated 17 and 26 February 1998.  He notes your views but does not accept that the Report misrepresented the content of those letters in any significant way nor that the way your case was presented to Councillors jeopardised its proper consideration.  In particular he believes that the Report fairly represented your wife’s state of health, the long-term prognosis and the need for her to have constant support at home, the last point having been confirmed by the authority’s medical advisor.  The Secretary of State notes that the council considered the circumstances in which they had granted early release of deferred benefits on compassionate grounds.  This was where the person concerned was compelled to cease employment to provide full time long term care of a dependent spouse, and that the nature of the dependency was such that the member was unlikely to be able to return to any employment.  He notes that the council’s report contends that your case was different, and states why, although you disagree with their conclusion.

The Secretary of State notes that you consider that some of the points in the report were irrelevant, misleading or taken out of context.  Nevertheless, the Secretary of State is satisfied that the council have demonstrated that they considered your application on its merits taking into account all the points you raised in your letters to them dated 17 February and 26 February 1998.  He notes that they have set it in the context of earlier cases.  He takes the view that in reaching their decision they acted properly, and that the decision they reached was not one no reasonable person could have reached in the circumstances