684 INDEX Our Ref: LGR 85/18/238
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 10 November 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person in relation to your local government pension scheme (LGPS) dispute with XXX (the council).
2. The Appointed Person decided that the payments you received for election duties could not be included for benefits under the LGPS. You contend that the payments are pensionable.
3. The Secretary of State is empowered under regulations 102 and 103 to reconsider the original disagreement referred to the Appointed Person under regulation 100. This regulation refers to a matter relating to the Scheme, which effectively means whether the provisions governing the LGPS have been properly applied and complied with.
4. The question for decision: Although the substantive question which you have asked the Secretary of State to decide is whether the payments you received in respect of electoral duties are pensionable, he takes the view that he must first consider whether the council’s initial decision and the first stage of the appeals process have been properly carried out in accordance with the regulations.
5. Secretary of State’s decision: The Secretary of State has concluded that the first stage of the disputes resolution procedure was carried out improperly and in contravention of the relevant regulation. He has decided to remit the matter back to the council for them to put to a properly appointed Appointed Person to resolve. The following paragraphs explain the reason for his decision.
6. Points taken into account: The Secretary of State has taken account of your letters of 10 November 1999 (with enclosures), 9 December 1999, and 14 and 19 December 1999 (both with enclosures); and the council’s letter of 30 November 1999 (with enclosures), two letters of 13 December 1999, letters of 20 and 23 December 1999, and e-mail of 24 January 2000.
7. The Secretary of State notes from the last three items listed above (copies enclosed) that the council wished to comment on your letters of 14 and 19 December. The Secretary of State required the council to respond by 14 January 2000. He notes that the council have been unable to do so but accepts that this delay may not be attributable to them in that they have consulted another party. In other circumstances the Secretary of State might wish to allow a longer period in order to ensure that all the evidence has been presented and clarified. However, having fully examined the papers in this case, he is satisfied that while some conflicting representations remain unresolved, further evidence would not alter the conclusions he has reached in this particular case.
8. The Secretary of State has found the following as matters of fact from the evidence submitted:
a) you received fees for undertaking work in connection with elections which were allocated by the Returning Officer from the overall (gross) fees he received;
b) the Pensions Manager, in his letters of 17 and 22 February 1999, decided that the election fees you received were not pensionable and explained why;
c) your appeal against his decision was considered and dismissed by the council’s Appointed Person, the council’s Chief Executive and Director of Finance; and
d) the Appointed Person was also the Returning Officer.
9. Regulations considered: The Secretary of State has considered the regulations governing decisions and appeals. Regulation 97 requires employing or administering authorities as appropriate to decide questions about a person’s rights under the Scheme in the first instance. Regulation 98(1) requires that the decision must be notified in writing and regulation 98(2) requires that any decision that a person is not entitled to a benefit must include the grounds for the decision. Regulations 99 to 105 deal with resolution of disputes. Regulation 99 provides for the appointment of Appointed Persons. Regulation 99(4) states that an application must not be referred to a person who has previously been involved in the subject matter of the disagreement.
10. Secretary of State’s views: The Secretary of State takes the view that the effect of regulations 97 and 98 in your case was that the council had to decide whether payments for election duties were pensionable and notify you in writing. Since this decision would affect your benefits, the Secretary of State would have expected the council to have stated their grounds if they decided that the payments were not pensionable. The Secretary of State is satisfied that the Pension Manager’s letters of 17 and 22 February 1999 demonstrate that they complied with these regulations. However, he notes that further representations have been made, some conflicting, and new evidence presented during the course of the appeal. In his view these ought to have been considered and resolved during the course of the initial decision. However, while it is unsatisfactory that material which one party or the other may regard as fundamental was not presented and considered at the outset, he does not in this case consider it sufficient to conclude that the initial decision process was flawed.
11. The Secretary of State notes that papers have been circulated relating to another appeal case in a different authority. The Secretary of State is unclear how this case came to your attention. No evidence has been provided to indicate that the appellant gave approval to his case being considered. The Secretary of State would emphasise that each case must be considered on its merits in the light of its individual circumstances; consideration of other cases may be inappropriate and not relevant in reaching a decision since circumstances are unlikely be identical in each case. Moreover, public discussion of cases relating to a named individual’s personal circumstances breaches fundamental principles of confidentiality and privacy unless it is clearly shown that it is done with the express consent of the individual concerned.
12. The Secretary of State has next considered the referral of the matter to the Appointed Person. He notes that the Appointed Person was the Returning Officer, and therefore the officer to whom you were directly responsible in relation to the duties for which the status of the payments is disputed. Furthermore, the fees in question were part of the overall fees paid to and distributed by the Appointed Person as Returning Officer. The council state in their letter of 13 December that the Returning Officer completed a statement of the fees he received for his role and that these were treated as pensionable and appropriate contributions were collected. They claim not to know, however, whether the statemented sum was gross or net of the disbursements made to you and other officers engaged in election duties. While the Secretary of State does not necessarily draw such a conclusion in this particular case, it could appear that in such circumstances the Appointed Person might have a pecuniary interest in the decision whether you are entitled to treat the part of the fees you received as pensionable. The Secretary of State concludes that the Appointed Person had clearly previously been involved in the subject matter of the disagreement and both his independence and the appearance of independence were compromised. In his view referral to this Appointed Person was a clear breach of regulation 99(4). The first stage of the disputes resolution procedure has therefore been conducted improperly.
13. The Secretary of State takes the view that the seriously flawed conduct of the first stage of the disputes resolution procedure, with its clear contravention of regulation 99, invalidates that process and the Appointed Person’s decision. In the Secretary of State’s view the substantive question does not arise to be considered by him until the first stage of the procedure under regulations 99 to 101 has been properly conducted, and if a disagreement then remains. He has therefore decided to remit the matter back to the council for them to put to a properly appointed Appointed Person to resolve. His decision replaces that of the Appointed Person.
14. I am required to draw your attention to the Pensions Advisory Service (OPAS) which is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. Their telephone number is 0171 233 8080. The Pensions Ombudsman may investigate and determine any allegation of maladministration or any complaint of fact or law in relation to the LGPS made or referred to him in accordance with the Pensions Schemes Act 1993. His telephone number is 0171 834 9144. He will not, however, investigate any matter until both stages of the internal disputes resolution procedure have been completed. The address of both these organisations is 11 Belgrave Road, London, SW1V 1RB.
15. Copies of this letter has been sent to your Pensions Manager and to the Chief Executive, who is asked to forward a copy to the Appointed Person who it is noted has now left the council’s employment. The Chief Executive is now also required to arrange for your case to be considered by a new, independent, Appointed Person.