LOCAL GOVERNMENT PENSION SCHEME APPEAL - DR XXX

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to XXX Solicitors letter of 29 March 2000 in which they appeal (under regulation 102 of the 1997 regulations), on behalf of Dr XXX, against the decision of Mr XXX, the Appointed Person for XXX Council (the council), in relation to her local government pension scheme (LGPS) dispute with them.  This letter has been sent to you on the understanding that you are now acting on behalf of Dr XXX in place of XXX Solicitors.

 

2.                  The Appointed Person was satisfied that the council had exercised its discretion reasonably in determining to pay the death grant to the nominated beneficiary rather than Dr XXX.

 

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 question that XXX Solicitors referred to the Appointed Person was whether the council had exercised its discretion reasonably.

 

4.                  It is a matter for the council’s discretion whether or not to make payment of a death grant to the nominated person(s) or to any person appearing to be a relative or descendant of the deceased.  The Secretary of State will not under the 1997 regulations replace 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.

 

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 the death grant to Dr XXX, and her two sons, XXX and XXX.

 

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 did not act unreasonably or improperly in reaching their decision not to make payment of a death grant to Dr XXX and her two sons.  The Secretary of State's decision confirms that made by the Appointed Person.  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.                  This completes the second stage of the internal dispute 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 020 7233 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 020 7834 9144).

 

9.                  A copy of this letter has been sent to the Appointed Person and the council.

            EVIDENCE RECEIVED

 

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

 

a)                  from XXX Solicitors: letters dated 29 March (with enclosures), 20 April (with enclosure) and 12 May 2000;

 

b)                  from the Appointed Person: documents considered by him in reaching his decision (list enclosed in the Department's letter of 9 May 2000); and

 

c)                  from you: letter dated 18 May 2000 (with enclosure).

 

            REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  on 17 December 1997 Mr XXX completed a nomination for death grant form, naming Mr XXX as the sole beneficiary;

 

b)                 on 27 November 1998 Mr XXX completed a new nomination for death grant form, naming both Mr XXX and Mrs XXX as beneficiaries (and in the event of their deaths Mr  XXX and Mr XXX);

 

c)                  in June 1999 Mr XXX was granted early release of his LGPS benefits on the grounds of ill-health;

 

d)                 Mr XXX died on 27 December 1999;

 

e)                  on 26 January 2000 Dr XXX wrote to the council asking them to exercise their discretion and award her the death grant in respect of her late husband's pension; and

 

f)                   the council's Chief Financial Officer wrote to Dr XXX on 3 February 2000 informing her of his decision that the death grant in respect of her late husband's pension would be paid to the individuals that he had nominated.

 

3.                  Dr XXX maintains that her late husband was mistaken in his assessment of her own resources, and that had he known the true position, he would have made some financial provision for her and the children.  She considers that the council acted unreasonably in ignoring the claims of her and her children in paying the death grant to Mr XXX.

 

4.                  The Appointed Person determined that “I am satisfied that the Chief Financial Officer took into account representations from Dr XXX … I have come to the conclusion that the County Council has exercised its discretion reasonably in determining to pay the death grant to the nominated beneficiary.  The deceased made two separate nominations to Mr XXX; each one is clear in its terms and valid.  I have taken account of your point that the deceased may not have known about Dr XXX's true financial position.  That may or may not be the case.  I have also taken into account your point about the financial difficulties that Dr XXX will find herself in, given the extent of her outgoings.  I do not however feel that these points are sufficiently compelling to require the County Council to disregard the clearly-expressed intent of the deceased that the death grant should be payable to Mr XXX.”.

 

5.                  The Secretary of State notes your request that the details on the appeal form to the Appointed Person should be amended, effectively to substitute XXX’s and XXX’s details for Dr XXX’s as dependants.  The Secretary of State takes the view that the application to the Appointed Person is an historic document referred to and considered by him as the basis of the dispute and it cannot now be altered.  He also notes your comment requesting that the death grant be divided further between the parties in the event that it is decided that XXX and XXX's claims are no than more equal to the nominated persons.  The Secretary of State’s power under the regulations is to reconsider the original disagreement.  Dr XXX’s disagreement was that it was unreasonable of the council to refuse to pay the death grant in her, XXX’s and XXX’s favour.  The question the Secretary of State has to consider is whether the council acted unreasonably, in the light of the information available to them, in paying the death grant in accordance with Mr XXX’s nomination form.

 

6.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  Regulation 38(1) of the 1997 regulations gives an administering authority the power to make payments to or for the benefit of the member's nominee or any person appearing to the authority to have been his relative or dependant at any time.

 

7.                  The Secretary of State notes that on 3 February 1999 the council's Chief Financial Officer wrote to Dr XXX stating “I have determined that the death grant due in respect of your late husband's pension will be paid to the individuals he nominated.”.  The Secretary of State notes that the council did not explain how they reached their decision to Dr XXX.  The Secretary of State does not consider that this makes it necessarily unreasonable but he considers it may have been helpful to explain how they arrived at it.  However, he also notes that the Appointed Person provided a full explanation of the relevant facts that he considered in reaching his decision.

 

8.                  The Secretary of State has carefully considered all the evidence submitted to him.  He notes that Dr XXX considers that her late husband was not fully aware of her financial circumstances when he made his nomination for the death grant due in respect of his pension, and that had he been fully aware he might have nominated her and the children as the main beneficiaries.  He notes that she made this point to the council in her letter of 26 January 2000 to the council, although the points have been enlarged on during the appeal.  The Secretary of State notes that the council have an established procedure concerning the payment of a lump sum death grant and nominations by scheme members.  He further notes that Mr XXX completed two separate death grant nomination forms prior to his retirement on the grounds of ill-health under this procedure, and that in both he clearly expressed his wishes that Mr XXX should be the main beneficiary.  The second of these nomination forms is dated 27 November 1998.  The Secretary of State considers that the council acted in accordance with their procedure.  He finds no evidence that they failed to consider Dr XXX’s representations.  Nor does he find clear evidence that the late Mr XXX’s nomination form did not carry through his intentions, or persuade him that the only reasonable course would have been to set aside that nomination on an assumption that it was not made in possession of the facts and would otherwise have been different.  Therefore he does not find it unreasonable or perverse of the council to have decided to pay the death grant in accordance with the late Mr XXX's explicit instructions.  The Secretary of State finds therefore that the council did not act unreasonably or improperly in reaching their decision not to make payment of a death grant in favour of Dr XXX,  XXX and XXX.  He therefore dismisses your appeal.