535      INDEX

 

LOCAL GOVERNMENT PENSION APPEAL

 

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.       I refer to your letter received by the Department on 5 January 1999 in which you appeal as the representative of the late Mr XXX (under regulation 102 and 103 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 found that i) he had no jurisdiction to determine issues of alleged maladministration and ii) he was not satisfied that the death grant is included within the expression “benefits payable in respect of the person” in paragraph 19 of Schedule D5.

 

2.       The questions for decision:  The questions for decision are whether:

 

i) your father was misinformed by XXX (the council) concerning the potential level of the death grant; and

 

ii) the death grant should have been taken into account when deciding whether the widow’s benefits should have been calculated under “combined” or “separate” benefits.

 

3.       The Secretary of State has considered all the representations and evidence.  Copies of all the documents supplied by the Appointed Person were sent to you under cover of the Department’s letter of 3 February 1999.

 

4.       Secretary of State’s decision:  The Secretary of State having taken into account the appropriate regulations finds;

 

i) disagreements concerning the information supplied by the council are not matters he can reasonably consider as he has no appropriate powers of redress; and

 

ii) the death grant is not a spouse’s benefits and therefore cannot be taken into account in calculating whether the spouse’s benefit should be “combined” or “separate” benefits where there is spouse’s benefit from more than one employment to be paid.  He therefore dismiss your appeal.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulations which he considers apply in this case 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 regulations 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.

 

5.       This completes the second stage of the internal dispute resolution procedure.  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 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).

 

7.       A copy of this letter has been sent to the Appointed Person and the Pensions Manager.

 

 

 

EVIDENCE RECEIVED

 

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

 

a)       from you: undated letter received in the Department on 5 January 1999 with enclosures;

 

b)       from the Appointed Person: letter dated 26 January 1999 with enclosures (copied to you under cover of the Department’s letter dated 3 February 1999).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)       Mr XXX was employed by XXX Borough Council until his employment ceased in 1995, and was a member of the local government pension scheme (LGPS);

 

b)       on 6 September 1995 he commenced employment with the council and became a member of the LGPS;

 

c)       he elected to keep his benefits in the LGPS with the council separate from those with XXX Borough Council;

 

d)       he died while in the service of the council;

 

e)       a death grant became payable; and

 

f)         his widow became entitled to spouse’s benefits.

 

3.       The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time Mr XXX died the 1995 regulations applied.

 

4.       With regard to the question of whether your late father was misinformed concerning the potential level of the death grant the Secretary of State takes the view that the council may only pay the level of death grant specified under the regulations, whether or not they have previously given information to suggest it will be at a different level.  Alleged maladministration is not a matter he can reasonably consider as he has no appropriate powers of redress, and he therefore dismisses this part of your appeal.

 

5.       The Secretary of State has next considered whether the death grant should have been taken into account when deciding whether Mr XXX’s widow’s benefits should have been calculated under “combined” or “separate” benefits.  Part E of the 1995 regulations sets out the provisions with regard to the payment of a death grant in relation to certain re-employed pensioners; it is subject to Parts III and IV of Schedule D5 (regulation E6).  Part F of the 1995 regulations sets out the entitlement and the amount of a spouse’s benefits. Any death grant payment where a member dies, is not reliant on whether or not survivor benefits are to be paid to a spouse.  Furthermore there is no requirement for the payment of the death grant to be made to the spouse.  The Secretary of State concludes therefore that the death grant does not form part of survivor benefits.  In this case therefore payment of a death grant is not relevant in deciding whether Mr XXX’s widow’s benefit should be treated as separate or combined under Schedule D5.  The Secretary of State therefore dismisses this part of your appeal.