771 INDEX
LOCAL GOVERNMENT PENSION APPEAL - MR XXX
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 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 18 March 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council (the Council), in relation to your local government pension scheme (LGPS) dispute with the Council.
2. The Appointed Person did not uphold your complaint, finding that the Council had exercised its discretion reasonably in deciding to withhold from you the opportunity to buy ‘added years’ of reckonable service to your pension.
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 Secretary of State has no powers to direct the council to act outside the provisions of the regulations. The disagreement you referred to the Appointed Person was whether the Council should have allowed you to purchase ‘added years’ of service to your pension.
4. The questions for decision: The Secretary of State takes the view that there are two questions for decision, which are as follows:
Whether the Council should have allowed you to purchase ‘added years’ of service either;
a) when you enquired after them in a telephone conversation sometime in July 1999; or
b) retrospectively, from when you first applied for them in 1992, following your appeal in a letter dated 23 August 1999.
5. Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. With regard to the first question of whether you ought to have been allowed to purchase added years of reckonable service in 1999, he finds that you were retired and therefore no longer eligible to purchase ‘added years’. With regard to the question of whether the Council were correct in exercising their discretion to deny you to purchase added years in 1992, following your appeal in 1999, the Secretary of State finds that the 1995 regulations do not allow him to determine your appeal. His 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 the 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.
6. 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 020 7233 8080).
7. 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 020 7834 9144).
1. The following evidence has been received and taken into account:
a) From you: letters dated 18 March 2000 (with enclosures); 22 March 2000; 14 April 2000; 16 April 2000; and
b) from the Appointed Person: Documents considered by him (copies sent to you with the Department's letter of 6 April 2000); letter dated 10 April 2000; and
c) from the Council’s Pensions Manager: Letter dated 6 April 2000 (with enclosure).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) Your date of birth is 18 August 1939;
b) you were employed by XXX District Council until you were ‘retired redundant’ some time in 1994 ;
c) you were a member of the LGPS;
d) on 6 July 1992, whilst still a member of the LGPS, you enquired as to whether you could purchase ‘added years’ of service.
e) Following an ‘unsatisfactory’ medical in October 1992, and a statement in writing from you, that you considered there was a ‘strong possibility’ that you would have to retire due to ill-health in the next two years, the Council exercised their discretionary powers not to allow you to purchase added years.
f) Sometime in July 1999 you telephoned the Council and enquired once again about the possibility of purchasing ‘additional years’. On 16 July 1999 the Council wrote back to you, explaining that they had made a previous decision in that regard which had been based on an unsatisfactory medical.
3. You contend that the Council were incorrect not to allow you to purchase additional years of reckonable service. You ‘feel the evaluation of (your) health was not correct and based on lack of investigation.’ You also stated concern to the effect that:
a) Your letter of 6 July 1992 was taken into account and importance placed upon it. You state that: ‘No statements I have made in respect of my health at any time in the past have had any grounding in medical advice or facts.’ ‘Retirement on ill health grounds was never a consideration by either myself or my employing authority.
b) Following and despite your letter of 6 July 1992, the County treasurer stated in his letter that ‘subject to a satisfactory medical examination you may purchase an additional 3 years 74 days reckonable service. You seem to infer from this that the Council considered your letter of 6 July 1992 to be irrelevant at the time.
c) Following your interview with Dr XXX in early October, you went to see your GP on 5 October 1992 and you were recently told that this reading of your blood pressure had not been particularly high, and that you could have resubmitted within 3 months.
d) You were not advised by the Pensions Manager that you could resubmit.
4. The Appointed Person determined that ‘The medical advice received, following your examination, was that your medical condition was unsatisfactory and agreement to the purchase of increased reckonable service was not advisable. As this medical advice endorsed your comment in your letter of 6 July 1992, that “there is a strong possibility I will have to retire due to ill health within the next 2 years”, I am of the opinion that the discretion has been exercised reasonably and there was no further onus on the County Council.’
3. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. He has first considered the regulations for the first question, of whether, in 1999, you were eligible to purchase ‘added years’ of service. At the time of your appeal the 1995 regulations were in force. This is because you were no longer an ‘active member’ when the 1997 regulations were introduced in April 1998. Regulation C9(1) provides for a member to make additional payments to increase membership, subject to certain provisions. The meaning of Member is defined in regulation B1(1)(a) as ‘an employee of a body specified in Part 1 of Schedule B1; or...’
4. With regard to the second question of whether the Council should have allowed you to purchase ‘added years’ of service, retrospectively, from when you first applied for them in 1992, following your appeal in a letter dated 23 August 1999, the Secretary of State has considered the 1986 regulations governing the Council’s initial decision, and the 1995 regulations relating to appeals. Regulations C6 (4)(c) of the 1986 regulations, which were in force at the time of your initial request in 1992, confers discretionary powers to administering authorities in determining whether to allow members to purchase added years of membership, by giving them authority to require a medical examination which must be done to ‘their satisfaction.’ Regulation J5 (2) of the 1995 regulations, under which your current appeal falls, states that: ‘Subject to paragraph (3), the Secretary of State shall not determine any question that fell to be decided by the relevant employer in the exercise of a discretion conferred on them by the regulations.’
5. The Secretary of State has first considered the question of whether, in 1999, you were eligible to purchase ‘added years’ of service. He finds that you were not, as eligibility is dependent upon membership of the scheme, which, in turn, is dependent upon employment by an appropriate body. As you were ‘retired redundant’ at the time of your request, you were not a member, and therefore not eligible for such a purchase.
6. The Secretary of State has next considered the question of whether the Council should have allowed you to purchase ‘added years’ of service, retrospectively, from when you first applied for them in 1992, following your appeal in a letter dated 23 August 1999. He finds that, for the purposes of the 1995 regulations, he ‘shall not determine’ cases in which employing authorities have exercised discretionary decisions, where such discretionary authority has been conferred upon them by the regulations. Whilst he acknowledges that the Appointed Person decided to consider your case, the Secretary of State takes the view that neither he, nor the Secretary of State, can determine it.
7. Although the Secretary of State has no power to determine your case, having considered the evidence, he, like the Appointed Person, has decided give his views, and to address your contentions.
8. The Secretary of State has noted your concern that your letter of 6 July 1992 was improperly taken into account. In the letter you stated that ‘I am 53 and there is a strong possibility that I will have to retire due to ill health within the next two years.’ The Secretary of State takes the view that this is in direct contradiction to your statement in your letter of appeal dated 18 March 2000 that ‘Retirement on ill health grounds was never a consideration by either myself or my employing authority..’. It is clear to the Secretary of State that the term ‘strong possibility’ indicates that you were considering the possibility of retiring on ill health at that time, and furthermore, that you felt it probable. Whilst he acknowledges that there is little evidence that your statement had a basis in medical advice or fact, he does consider that it provides an indication of your intent, regardless of the basis of your belief. In view of this, he does not consider the Council unreasonable in taking your own views into consideration.
9. The Secretary of State has also noted that you seem to infer from the County Treasurer’s letter of 6 August 1992, that the Council considered the statement regarding your possible ill health retirement in your letter of 6 July 1992 to be irrelevant. You quote the County Treasurer as stating “subject to a satisfactory medical examination you may purchase an additional 3 years 74 days reckonable service.” The Secretary of State does not regard this statement as having any bearing on the relevance of your letter of 6 July; it is merely a statement of the Council’s intentions with proper regard to the relevant regulations.
10. The Secretary of State has noted your statement that your own Doctor did not consider your blood pressure to have been particularly high from the results of his examination of you, which took place shortly after the examination carried out by Dr XXX. The Secretary of State takes the view that, as this information was not made available to the Council at that time, they could not take it into consideration. Their decision was based on the medical evidence provided by Dr XXX, and his memorandum of 6 October 1992 stated that in his opinion, your ‘medical condition (was) unsatisfactory.’
11. Finally, the Secretary of State has noted your concern that you were not advised by the Pensions Manager that you could resubmit. However, the Secretary of State finds that there is nothing in the regulations which required the Council to advise you of the possibility of resubmitting. Furthermore, given the evidence available to them, from your letter of 6 July and from their own physician’s memorandum, it might reasonably be inferred that they did not anticipate the need to alter their discretionary decision. The Appointed Person considered that there was no further onus on the Council following their decision, and the Secretary of State is in agreement in this regard. He also notes that he has no evidence before him which suggests that you actively disagreed with the Council’s judgement, until you later enquired about purchasing ‘added years’ once again some 7 years later.
12. The Secretary of State has considered the facts of the case. Whilst he finds that, under the regulations, he cannot determine your case, he is willing to comment upon it. He has acknowledged your contentions and concerns and commented upon them. However, he finds, like the Appointed Person, that the Council did not exercise their discretionary powers unreasonably: They took medical advice following a medical examination, and were advised quite clearly that your medical condition was unsatisfactory, and that they consequently should not allow you to purchase any ‘additional service.’