LOCAL GOVERNMENT PENSION APPEAL

 

SUPPERANNUATION 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 letters of 30 September 1997 and 16 October 1998 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of XXX, the Appointed Person.

2.                  The Appointed Person dismissed your appeal against the decision of XXX (the company), now known as XXX Limited, not to pay your local government pension scheme (LGPS) benefits on the grounds of incapacity due to permanent ill-health from before 1 February 1997.  Your appeal was for payment from at least the date you applied for benefits in September 1996 or from when you ceased employment on 5 October 1995.

3.                  The question to be decided: This is whether you had become incapable of discharging efficiently the duties of your employment with the company by reason of permanent ill-health or infirmity of mind or body before 1 February 1997, and if so, when.

4.                  The Secretary of State has considered all the representations and evidence.  Copies of all documents supplied by the Appointed Person have been sent to you under cover of the department’s letter of 2 November 1998.

5.                  Secretary of State’s decision: The Secretary of State has decided there is no conclusive evidence that on the balance of probability you were incapable of performing your duties because of permanent ill-health before 1 February 1997.  He therefore dismisses your appeal.

6.                  The Secretary of State’s reasons and the regulationswhich he considers apply in your case are set out in the annex to this letter, which forms an integral part of this decision.  His decision confirms that made by the Appointed Person.  He is acting judicially and has no power to modify the way the regulationsapply to the facts of the case.  Having made his decision he has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court.  Because of this the Secretary of State’s officials cannot discuss the case further.

7.                  This completes the second stage of the internal disputes 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 0171 233 8080).

8.                  The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the LGPS made or referred in accordance with the Pensions Schemes Act 1993.  His address is 11, Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

EVIDENCE RECEIVED

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

(a)               from the Appointed Person: letters dated 22 August, 14 October, 2 and 16 December 1997, and 11 May and 7 August 1998 (with the enclosures listed in the department’s letter of 2 November 1998);

(b)               from you: letters dated 30 September 1997 and 16 October 1998  (with enclosures).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               your date of birth is 18 September 1959;

(b)               you worked for the company as a cash counter/bullion driver;

(c)               on 19 July 1993 you were admitted to hospital with “acute onset and severe vertigo” and you were released on 27 July 1993;

(d)               on 5 October 1995 you were dismissed by the company;

(e)               in September 1996 you applied for payment of deferred benefits on grounds of ill-health;

(f)                 in January 1997 you saw the company’s medical officer; and

(g)               on 1 February 1997 your preserved LGPS benefits were brought into payment early on ill-health grounds.

3.                  The company released your deferred benefits on the advice of their medical officer Dr XXX.  He based his advice on his examination of you, information he received from your specialist, and Dr XXX your General Practitioner (according to his letter to you of 1 November 1996 and the company’s medical section notes supplied to the Appointed Person on 17 December 1997).

4.                  You appealed to the Appointed Person against the company’s decision not to pay you your pension from when you ceased employment.  He sought the advice of XXX, an occupational health physician with XXX Council (administrators of the XXX Fund).  Dr XXX’s view was that you were likely to recover within the foreseeable future and therefore you were not permanently incapable of discharging your former duties as a “cash counter/bullion driver”.  The Appointed Person dismissed your appeal.

5.                  The Secretary of State in reaching his decision had regard to the regulations which, in his view, applied.  To qualify for payment of benefits on ill-health grounds from when you ceased employment you must meet the criteria as provided by regulation D7 of the 1995 regulations at the time.  That means you have to show that when you ceased employment on 5 October 1995 you were incapable of discharging efficiently your duties as a cash counter/bullion driver by reason of permanent ill-health or infirmity of mind or body.  Benefits awarded under regulation D7 are enhanced depending on length of membership in the LGPS.  For release of benefits at any time after you ceased employment you must meet criteria similar to regulation D7 except that these benefits are paid under regulation D11(2)(b) from the date the incapacity became permanent.  Benefits under regulation D11 do not attract enhancement.

6.                  The Secretary of State has considered all the evidence submitted.  In making a decision under regulations 102 and 103 of the 1997 regulations he must look at the original disagreement between yourself and the company in the light of the evidence referred to the Appointed Person.  However, he must also consider the evidence of the Appointed Person’s medical advisor, Dr XXX, that you are likely to recover from your vertigo and are not, therefore, permanently incapable of efficiently discharging your former duties.  The Secretary of State notes that Dr XXX did not have evidence from Dr XXX, consultant ENT surgeon who had previously seen you, but was satisfied that he could rely on Dr XXX’s account of his conclusions.

7.                  There is no disagreement that you are suffering from vertigo.  There is a conflict of medical opinion whether this is a permanent condition.  The question whether it made you incapable of efficiently performing your duties is also an issue to be considered.  The Secretary of State notes that you suffered from vertigo some time before your employment ceased.  Although your GP, Dr XXX maintains that you were certified medically unfit for work from 6 October 1995 (the day after you were dismissed) the Secretary of State does not find there is convincing evidence that you were failing to perform your duties efficiently because of permanent ill-health when you were dismissed.  Furthermore, taking all the medical evidence into account, the Secretary of State does not consider it has been conclusively demonstrated that, on the balance of probabilities, you became incapable of effectively discharging your former duties by reason of permanent ill-health before your benefits were brought into payment on 1 February 1997.