827            INDEX

 

 

LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.      I refer to your letter of 6 September 2000 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Ms XXX, against the decision of Ms XXX, the Appointed Person for XXX Council (the council), in relation to her local government pension scheme (LGPS) dispute with the council.

 

2.      The Appointed Person was satisfied that the council had exercised their discretion in a reasonable manner and had paid due regard to the documentary evidence submitted to them.

 

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 the death grant to Ms XXX.

 

4.      The Secretary of State’s decision: The Secretary of State finds that the council did not act unreasonably or improperly in deciding to pay the death grant to Ms XXX.

 

5.      The Secretary of State dismisses your appeal.  His decision confirms that made by the appointed person.

 

6.      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 or enter into any further correspondence with you about the decision.  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 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 made or referred in accordance with the Pension Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone 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 you: letters dated 6 September 2000 (with enclosures) and 1 November 2000 (with enclosure); and

 

b)   from the Appointed Person: letter dated 11 October 2000 enclosing documents considered by her (list enclosed with the Department’s letter dated 17 October 2000).

 

SECRETARY OF STATE’S POWERS

 

2.      The Secretary of State’s power 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 had exercised its discretion reasonably in deciding to make payment of a death grant to Ms XXX.

 

3.      It is a matter for the council’s discretion whether or not to make payment of a death grant to a nominated person(s) or to any person appearing to be a relative or descendent 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 the matter should be reconsidered in a proper manner.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)   Mr XXX was employed by the council;

 

b)   a decree absolute was issued on 24 May 1996 legally confirming Mr XXX’s divorce from Mrs XXX;

 

c)   on 2 June 1997 Mr XXX made a Will naming Miss XXX as the beneficiary for his pension rights from the council, including any payments made upon his death;

 

d)   on 29 September 1997 Mr XXX signed a nomination of death grant form naming Ms XXX as the beneficiary;

 

e)   Mr XXX died on 4 January 2000;

 

f)    in January 2000 Ms XXX met with the council asking them to exercise their discretion and award her the death grant in respect of  Mr XXX’s pension;

 

g)   on 24 January 2000 the council wrote to Ms XXX informing her of their decision that the death grant in respect of Mr XXX would be paid to the individual named in his Will;

 

h)   Ms XXX appealed against the council’s decision on 18 February 2000; and

 

j)    on 10 May 2000 Ms XXX changed her name to Ms XXX, completing a change of name deed.

 

5.      Ms XXX maintains that Mr XXX did not intend the death grant to be paid to Miss S XXX, rather he intended the dependant’s pension should be payable to Miss XXX and the death grant should be paid to her as stated in the nomination form dated 29 September 1997.  She maintains Mr XXX did not realise that the death grant was connected to payments made in respect of pension.  She contends that the death grant nomination dated 29 September 1997 post-dates the Will and therefore supersedes any provision relating to the death grant in the Will.  She contends that due to a back injury she is unable to work and that she was therefore financially dependent on Mr XXX and he had stated that he wished her to be financially supported in the event of his death, by the provision of a death grant.

 

6.      The Appointed Person determined that: “…I am satisfied that the County Treasurer exercised his discretion in a reasonable manner and paid due regard to the documentary evidence placed before him.  I am particularly persuaded by the wording of the Will where it states “My pension rights from XXX Council including any payments made upon my death, are to be put into a trust fund for my daughter, Miss XXX.” ”.

 

7.      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, at their absolute discretion, payments to or for the benefit of the member’s nominee or personal representatives or any person appearing to the authority to have been his relative or dependent at any time.

 

8.      The Secretary of State notes that it is not disputed that Miss XXX was a dependent of Mr XXX.    

 

9.      The Secretary of State has carefully considered all the evidence submitted to him. He notes that Mr XXX completed a death grant nomination form dated 29 September 1997 in which he clearly expressed his wish that Ms XXX should be the sole beneficiary in relation to the payment of a death grant.  He notes that Mr XXX did not cancel this nomination.  The form Mr XXX signed is headed “LOCAL GOVERNMENT PENSION SCHEME, XXX PENSION FUND, LUMP SUM DEATH GRANT NOMINATION FORM.”.  The Secretary of State notes that the nomination form was completed by Mr XXX more than three months after he made his Will.  There are no provisions in the 1997 regulations which require a member to provide either a nomination or an expression of wish (the latter being one of the subsequent factors to be taken into account by the relevant authority in deciding how it is to dispose of any death grant payable).  Although the form is headed “nomination” it appears that the council treated it as an expression of wish in exercising their powers of absolute discretion.

 

10.  In considering whether the council’s decision was reasonable, the Secretary of State notes that the ordinary duty which the law imposes on a body which is entrusted with exercising a discretionary power is that they exercise it for the purpose for which it was given, giving proper consideration to matters which are relevant and excluding from consideration matters which are irrelevant.  Their decision must not be so arbitrary or irrational that no reasonable person would, on the facts of the case, have come to it.  And they must not breach the scheme rules.  The Secretary of State’s role is confined to deciding whether the council have acted reasonably and properly within these terms.  It is not a matter for him to consider whether the decision was one which he personally would have taken in the same circumstances.

 

11.  The Secretary of State is satisfied that the council have not breached the scheme rules, and that they have exercised their discretion for its given purpose.  He has considered whether they gave proper consideration to relevant matters and disregarded irrelevant ones.  The facts are that Mr XXX, on 2 June 1997, made a Will naming Miss XXX as the beneficiary for his pension rights from the council, including any payments made upon his death, nominated Ms XXX as the beneficiary to receive a death grant on 29 September 1997 and died on 4 January 2000.  The Secretary of State notes that the council clearly took account of the Will dated 2 June 1997; they decided to pay the death grant to Miss XXX because they considered the Will to be “a legally constituted document as opposed to the nomination form which only requires the authority to have regard to the nomination.”.  The Secretary of State has to decide whether the Will was relevant and whether the council took proper account of the death benefit nomination form.  In the Secretary of State’s view, both were relevant considerations, but he is satisfied that the council properly took both into account in reaching their decision.  It does not appear to him that the council took irrelevant matters into account.

 

12.  The Secretary of State has had to consider whether a decision to pay the death grant to Miss XXX was so arbitrary and irrational that no reasonable person could, on the facts of the case, have come to it.  Effectively the council made a choice between paying the death grant to Mr XXX’s partner and paying it to Mr XXX’s daughter.  The death benefit form dated 29 September 1997 named Miss XXXs (Ms XXX) as nominee.  The Will dated 2 June 1997 clearly states Miss XXX is to be the beneficiary for Mr XXX’s pension rights from the council, including any payments made upon his death.  The Secretary of State notes that the council considered, with the benefit of legal advice, which document took precedence and that they decided that the Will did.  In the Secretary of State’s view it is difficult to draw a conclusion that paying the grant to Miss XXX was in the circumstances so arbitrary and irrational that no reasonable person could have made such a decision.