741 INDEX
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 your letter dated 21 February 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for the XXX Fund, in relation to your local government pension scheme (LGPS) dispute with XXX Council (the Council).
2. The Appointed Person, in his decision dated 16 February 2000, concluded that in his opinion ‘the matter has been dealt with reasonably having regard to the evidence provided and I must therefore dismiss your appeal.’
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 LGPS, which effectively means whether the statutory provisions governing the LGPS have been correctly applied in the circumstances. The disagreement you referred to the Appointed Person was whether the Council acted reasonably in their decision not to grant you early release of your deferred LGPS benefits on compassionate grounds.
4. Whether or not to release benefits on compassionate grounds is a matter for the Council’s discretion. 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, improperly and, in cases where it has, to determine that the matter should be reconsidered in a proper manner. The Secretary of State has no powers to direct the Council to act outside the provisions of the regulations.
5. The question for decision: The question for decision by the Secretary of State is whether the Council acted unreasonably or improperly in deciding not to pay your deferred LGPS benefits early on compassionate grounds.
6. Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. He finds that the Council have not acted unreasonably in determining their discretionary decision not to release your benefits on compassionate grounds. His decision confirms that made by the Appointed Person. The Secretary of State’s reasons and the regulations he considers apply in this case are set out in the annex to this letter, which forms an integral part of his 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 and his officials cannot discuss the case further. The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.
7. The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0207 233 8080).
8. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0207 834 9144).
1. The following evidence has been received and taken into account:
a) From you: letter dated 21 February 2000 (with enclosures), 8 & 28 March 2000;
b) from the Appointed Person: Letter of 22 March 2000 enclosing documents considered by him (listed in the Department's letter of 22 March 2000);
c) from the Council: Letter dated 10 May 2000 (with enclosures).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) your date of birth is 1 December 1949;
b) you were employed by the Council and you were a member of the LGPS;
c) you were made redundant in 1994;
d) since ceasing employment with the Council you have been in receipt of either incapacity or, at the time of your appeal, unemployment benefit;
e) on 29 November 1999, and then again on 7 January 2000, you applied to the Council requesting early release of your deferred LGPS benefits on compassionate grounds;
f) on 21 January 2000 the Council informed you that they were not prepared to agree with your request;
g) on 2 February 2000, you appealed to the Appointed Person, on the basis that you were not contacted by the Council to provide detailed information, and that the Council did not provide any reasons for their decision;
h) on 8 February 2000, following a request from the AP, the Council wrote a letter providing reasons for their discretionary decision;
i) on 16 February 2000, the Appointed Person wrote to you stating that, in his opinion, the Council had acted reasonably, having regard to the evidence provided.
3. You claim that the Council have not acted reasonably in making their decision not to grant you early release of your LPGS benefits on compassionate grounds, based on the following contentions:
i) The Council did not ask for, or take into account your medical circumstances;
ii) you believe that the fourth paragraph of the Council’s letter indicates that, in addition to Job Seekers Allowance, you were also receiving Incapacity benefit. You state that this was not the case;
iii) the Council were unreasonable in taking into account a redundancy payment made to you in 1994;
iv) the Council were unreasonable in prioritising the long term costs to the fund over your circumstances.
4. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. At the time you applied to the Council for early release of your deferred LGPS benefits the 1995 regulations had superseded the 1986 regulations in respect of members with deferred (preserved) benefits. Regulation D11(2)(c) of the 1995 regulations gave an employing authority the discretion to determine to bring benefits into payment early on compassionate grounds at any time following the member’s 50th birthday.
5. The Secretary of State has first considered the matter of the evidence the Council did not take into account in reaching their decision. The complaint you referred to the Appointed Person was partly based on the fact that you did not believe the Council had all the relevant information about your case. You state ‘What rather surprises me is that as both of my letters (of application, dated 29 November 1999 & 7 January 2000) were very short and did not contain any personal details of my circumstances, I was not contacted, as I expected, to give detailed information.’ The Secretary of State notes that the Appointed Person did not respond directly to this complaint. He did, however, respond to your other related complaint that ‘the letter from XXX does not give any reasons for the refusal to my request.’ The Council’s letter to the Appointed Person dated 8 February 2000 provides the information on which their decision was based. The Secretary of State acknowledges your medical circumstances do not appear to have been considered. However, he also notes that your letters of 29 November 1999 and 7 January 2000 do not suggest that you wish to provide further personal information in support of your application. Both letters are clearly entitled ‘Application for early payment of pension on Hardship Grounds.’ Your only enquiry is contained in you letter of 29 November, and is related to procedure rather than additional information: ‘I should be grateful to learn whether this letter will suffice as an application for the above and if not could you please advise me of the correct procedure.’ The Secretary of State takes the view that the Council did not act unreasonably in treating your letters as a formal application, and consequently in considering your case in the light of the evidence you provided and which they had access to, unless they considered further information was necessary. If you wished for further information, including medical evidence, to be considered, the onus was on you to make the Council aware of this. The Secretary of State is satisfied, therefore, that the Council did not act improperly in not calling for further evidence from you.
6. The Secretary of State has next considered your contention that the Council’s letter of 8 February 2000 erroneously states that, in addition to £51 per week job seekers allowance, you were also in receipt of incapacity benefit. He notes that the second paragraph of the Council’s letter reads: ‘In considering Mr XXX’s request this Authority took into account all relevant factors, Mr XXX’s letters of 29th November 1999, and 7th January 2000 indicated that he was in receipt of Social Security benefits of just over £51 pounds per week.’ The Fourth paragraph states: ‘As well as considering the merits of Mr XXX’s case, including the fact that he was in receipt of Incapacity Benefit....’ He notes, however, that the Council do not say that the incapacity benefit was ‘in addition to’ the Social Security benefits to which they had previously referred. The Secretary of State is satisfied therefore, that the Council’s letter does not imply that they believed you to be in receipt of more than one benefit at any one time.
7. The Secretary of State has also noted your contention that the Council, inappropriately in your view, took into account a redundancy payment made to you in 1994 when considering your request for early release of your LGPS benefits. In their letter of 8 February to the Appointed Person, the Council stated that: ‘What Mr XXX fails to mention in his correspondence is that upon termination of his employment with this Authority in June 1994 he received payments in excess of £20,000.’ The Secretary of State takes the view that it would not be necessarily irrelevant to take such a payment into account in determining whether to agree to early payment on compassionate grounds and he cannot find their reference to this is therefore unreasonable.
8. Finally, the Secretary of State notes your contention that the Council prioritised the long term costs to the fund ‘over the welfare of one of its members.’ The Council stated that ‘consideration was given to the long term costs associated with an early release of Mr XXX’s preserved benefits.’ The Secretary of State takes the view that the Council were entitled to consider the cost to the fund in making a decision whether to agree to release benefits early.
9. The Secretary of State notes that you have provided representations and evidence about your state of health during the course of your appeal. You did not put these to the Council in the first place. There is a provision in the regulations covering the early payment of benefits on ill-health grounds. If you believe you fit the medical criteria, it is open to you to apply to the Council on these grounds.
10. The Secretary of State notes that the Council’s initial decision letter dated 21 January 2000 did not provide reasons for their decision. However, he also notes that the Appointed Person wrote again on 8 February 2000 explaining the factors on which their decision was based and the reasons for it. He finds that the Council did not act unreasonably in determining their discretionary decision not to grant you early release of your LGPS benefits.