806 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 11 May 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Ms XXX, the Appointed Person for the XXX Council (the Council), in relation to your local government pension scheme (LGPS) dispute with the Council.
2. The Appointed Person, in her decision dated 18 April 2000, concluded that ‘I am satisfied, following enquiry, that the Head of Environmental and Regulatory Services had full and proper regard to all matters you raised in support of your application and did not reject the application on purely financial grounds. In these circumstances it is not appropriate for me to refer your application back to the Council for reconsideration.’
3. 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.
4. Secretary of State’s decision: The Secretary of State has decided that the Council have failed to show that they acted properly in deciding not to exercise their discretion to release your benefits on compassionate grounds and that their decision was a reasonable one. The Secretary of State has decided, therefore, that the Council must now reconsider the question of whether they should exercise their discretion to grant you early release of your preserved benefits on compassionate grounds. This should be done in a proper fashion, demonstrating that they have investigated and taken full account of all the issues and addressed the precise requirements of the regulations. His decision does not require the Council to come to a different decision if, after a proper reconsideration, they come to the same conclusion.
5. The Secretary of State therefore upholds your appeal and his decision replaces that made by the Appointed Person.
6. 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.
7. The Secretary of State 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.
8. 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 they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0207 233 8080).
9. The Pensions Ombudsman may investigate and determine any complaint of maladministration any dispute of fact or law made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0207 834 9144).
1. 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.
2. 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 1995 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 or 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.
3. The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations.
4. The following evidence has been received and taken into account:
a) From you: letter dated 11 May 2000 (with enclosure),
b) from the Appointed Person: Letter of 28 June 2000 enclosing documents considered by her (copies of which were sent to you under cover of the Department's letter dated 4 July 2000); letter dated 22 August 2000 (a copy of which was sent to you under cover of the Department’s letter dated 25 August 2000).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
5. From the evidence submitted the following points have been noted:
a) your date of birth is 24 August 1942;
b) you were employed by the Council from 23 March 1964 to 15 June 1973 as a refuse collector, and you were a member of the LGPS;
c) you were unemployed (as at July 1999);
d) in an undated letter, received by the Council on 27 July 1999, you applied to the Council requesting early release of your deferred LGPS benefits due to your and your wife’s poor state of health;
e) on 8 November 1999 the Council informed you that they were not prepared to agree with your request;
f)on 17 November 1999, you appealed against the Council’s decision to the Appointed Person;
g) on 18 April 2000, the Appointed Person wrote to you stating that, in her opinion, in the circumstances of your case it was not appropriate to refer your application back to the Council.
6. 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, in that the Council’s decision was made for purely financial reasons and the facts of your case were not taken fully into consideration.
7. 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 states that preserved benefits may be put into payment at ‘any date after (a deferred member) has attained the age of 50 years from which the employing authority determine on compassionate grounds that the benefits are to become payable.’
8. The Secretary of State has first noted the information available to the Council in making their decision. He notes that XXX, the Council’s pension manager, wrote to you on 28 July 1999 advising you to ‘give as much information (in respect of your request for your deferred contributions) as possible because your former employing department need to carefully consider the circumstances.’ You supplied two medical certificates confirming that you were suffering from glaucoma and that your wife had arthritis in her left ankle and lower back. You also wrote two (undated) letters requesting your deferred contributions and outlining the reasons for your request; notably that your wife’s health made it necessary for you to undertake household tasks and most lifting, and that you were unemployed and suffering from glaucoma. In a letter dated 9 August 1999, the Council’s pension manager confirmed that he had referred the papers that you had supplied to the head of the appropriate department for a decision regarding your request to have the Pension benefits released on compassionate grounds. In the Council’s decision letter dated 8 November 1999, XXX, head of the relevant department stated that ‘I have considered the information you have produced.’ The Secretary of State is satisfied therefore, that the facts of your case, as presented by you, were properly collected and made available to the person responsible for the decision.
9. The Secretary of State has considered the reasons for the Council’s decision, and whether they duly considered the information you produced. He has noted the statement in their decision letter dated 8 November 1999: ‘I have considered the information you have produced. There is no budgetary provision of the early release you seek and the Council is seeking major reductions in annual expenditure within this service. I therefore regret that I am unable to agree to your request.’ The Secretary of State takes the view that the stated reason for the Council’s decision is a purely financial one. It implies that the Council would not pay your LGPS benefits early on compassionate grounds regardless of your circumstances.
10. The Secretary of State has noted the Appointed Person apparently investigated the reasons for the Council’s decision. In her decision letter dated 18 April 2000 she states, ‘In particular, I am satisfied, following enquiry, that the Head of Environmental and Regulatory Services had full and proper regard to all matters you raised in support of your application and did not reject the application on purely financial grounds.’ The Secretary of State investigated the nature of this enquiry, and received a letter written on behalf of the Appointed Person, dated 22 August 2000, stating: ‘It is my understanding that the enquiry made of the Head of Environment and Regulating Services was by telephone.’ The Secretary of State would normally expect such investigations to be conducted in writing, and thereby supported by documentary evidence. He notes that he has not been provided with any such documentation. The Secretary of State is not satisfied, therefore, that the Appointed Person’s enquiry has produced adequate evidence.
11. The Secretary of State finds that, whilst it is clear that the relevant information was requested and provided in order to make an informed decision, it is not clear that it was fully and properly considered. The ordinary duty which the law imposes on a person who is entrusted with a discretionary power is that he should exercise it for the purpose which it is given, giving proper consideration to the matters which are relevant and excluding from consideration matters which are irrelevant. The decision should not be so arbitrary and irrational that no reasonable person would, on the facts of the case, have exercised discretion that way. In the Secretary of State’s view, the council, having asked you to give as much information as possible in support of your case, have failed to show that they gave proper consideration to matters which were relevant. There is no evidence from the Council to indicate that their decision was not based purely on financial grounds, or which shows that and how the compassionate evidence which you provided was considered. The only evidence the Secretary of State has from the Council suggests to him that their decision was based purely on financial grounds. The Secretary of State takes the view, therefore, that the Council have failed to demonstrate that their discretion was properly exercised. He does not consider that their decision was necessarily unreasonable, but they have not given adequate reasons to show that it was not unreasonable. He concludes that they must reconsider your case and demonstrate that they have done so in a proper manner, although his conclusion does not require that they should necessarily change their decision if they reach the same view on a proper reconsideration of the issues.