580            INDEX

 

 

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION SCHEME 1986 (the 1986 regulations)

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 6 January 1999 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 not to pay pension increases under the Pensions (Increase) Act 1971 (the 1971 Act) on the deferred benefits brought into payment on ill-health grounds in relation to your former employment with the XXX Council.  He found that although you are permanently incapable of performing your former duties in that employment on ill-health grounds you did not meet the criteria of Section 3 of the 1971 Act.  His view was that that Section 3 required you to be permanently unfit for any regular employment, and he accepted that this was not so in your case.

3.                The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited to reconsidering 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 or not the LGPS regulations have been correctly applied in the circumstances.

4.                The question for decision: The question for decision by the Secretary of State is whether regulation 91 of the 1997 regulations and Section 3 of the Pensions (Increase) Act 1971 applies to the payment of your preserved retirement benefits on ill-health grounds.

5.                The Secretary of State has considered all the representations and evidence.  Copies of documents supplied by the Appointed Person have been sent to you under cover of the department’s letter of 14 December 1998.

6.                Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that regulation 91 of the 1997 regulations and Section 3 of the Pensions (Increase) Act 1971 applies to the payment of your preserved retirement benefits on ill-health grounds.  His decision replaces that made by the Appointed Person.  The Secretary of State’s reasons and the legislative provisions which he considers apply in yourcase are set out in the annex to this letter, which forms an integral part of this 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 LGPSmade or referred in accordance with the Pensions Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

EVIDENCE RECEIVED

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

a)                from you: letters dated 9 November 1998 (with enclosures) and 11 February 1999;

b)               from the Appointed Person: letter dated 30 November 1998 (with the enclosures listed in the department’s letter of 14 December);

c)                from Dr XXX: letter dated 5 January 1999 and enclosures (copied to you on 12 January); and

d)               from the Fund: letter dated 2 February 1999 and enclosures (copied to you on 11 February).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)                your date of birth is 6 February 1947;

b)               you started paying contributions to the local government superannuation scheme (LGSS now known as the LGPS) on 6 February 1965;

c)                on 10 August 1994 your LGSS benefits were preserved on ceasing local government employment with XXX Council;

d)               you subsequently returned to local government employment;

e)                on 1 April 1998 you ceased local government employment with XXX Council on ill-health grounds; and

f)                 on 16 April 1998 the Fund paid your preserved benefits on ill-health grounds.

3.                Your appeal is against the THE FUND decision not to include pensions increases in your retirement benefit payments on the grounds that you are not permanently unfit to engage in any regular full-time employment.  In your appeal you point out that you retired from XXX on grounds of permanent incapacity due to ill-health and that on the same grounds your preserved pension with THE FUND was put into payment.  You contend that in withholding pensions increases and paying you reduced pension and lump sum, THE FUND have failed properly to take account of your medical condition and have acted against the spirit and intent of the legislation and rules.  You suggest that the medical examination by THE FUND’s medical officer Dr XXX was cursory.

4.                The Secretary of State in reaching his decision has had regard to the legislation and regulations which, in his view, apply.  The decision to pay your preserved THE FUND retirement benefits on 16 April 1998 was made under regulation D11(2)(b) of the 1995 regulations as the 1995 regulations were in force when you applied for release of your preserved benefits. To be paid benefits under regulation D11(2)(b) an LGPS member must, since leaving his employment, have become permanently incapable of discharging efficiently his former duties in local government employment (that is the employment where the benefits were acquired) because of ill-health or infirmity of mind or body.

5.                Pensions increases are provided for under section 3 of the 1971 Act.  The relevant provision states that a pension shall not be increased if the pensioner is less than 55 years old, unless it is a pension for an employment from which he has been medically retired, or the pension authority are satisfied that the pensioner is disabled by physical or mental infirmity.  “Disabled by physical or mental infirmity” is defined in the 1971 Act as permanently incapacitated from engaging in any regular full-time employment.

6.                The Secretary of State has considered all the evidence.  It is not disputed that you qualify for payment of your retirement benefits from THE FUND under regulation D11(2)(b) of the 1995 regulations because you are permanently incapable of performing your former duties with XXX because of ill-health or infirmity of mind or body.  The Secretary of State notes that THE FUND were advised by XXX’s medical officer Dr XXX.  On 16 April 1998 Dr XXX signed a form M1 that certified you as permanently incapable of discharging your duties as a training and development manger by reason of ill-health or physical or mental infirmity.  However, he did not certify you as “incapable of any regular full-time employment”.  He later confirmed this view in his letter of 2 June 1998.  THE FUND concluded that because their medical advisor failed to certify you as unfit for “any regular full-time employment” you did not qualify for payment of increases in your pension under the 1971 Act until you reached the age of 55.  The Appointed Person supported the THE FUND decision.

7.                The Secretary of State notes that under regulation D11(2)(b) of the 1995 regulations the test for paying your preserved THE FUND benefits was your ability to perform your XXX job.  The Secretary of State accepts that the evidence shows you to be permanently incapable of doing either that job or your subsequent XXX one.  However, because you were not medically retired from your XXX job, the test to be applied under the 1971 Act in deciding whether you should get pensions increases on your THE FUND pension is whether you are incapable of any regular full-time employment.  This is a wider test than one related to a specific job.  You have produced no medical evidence to show that you are incapable of any regular full-time work.  The only medical evidence available to the Secretary of State is that of Dr XXX, and is clear that he considered this question and concluded that you are not so incapable.  Part A of Form M1 containing Dr XXX’s certification states “Own GP states can only work in a stress free environment”.  While he has not seen a report from your GP the Secretary of State takes the view that this statement does not suggest that in your GP’s view you are incapable of any regular full-time work, only that you cannot work in an environment where you are subject to stress.  In all the circumstances the Secretary of State concludes that it has not been convincingly shown that you are incapable of any regular full-time work.  As you are under 55 years old, you do not therefore qualify for pensions increases on your THE FUND pension under the 1971 Act.  The pension and lump sum should not therefore have been paid at their “current value” at the date they were awarded since a value is calculated to include pensions increases.