Our Ref: LGR85/19/5 297 Index
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
1. I refer to your letter of 2 December in which you appeal (under regulation J8 of the 1995 regulations) to the Secretary of State for the Department of the Environment, Transport and the Regions against the decision of XXX, the Appointed Person. The Appointed Person upheld the decision of the XXX Passenger Transport Executive (the executive) not to allow the immediate payment of your local government pension benefits on the grounds of permanent ill-health when you ceased employment with them.
2. The question for determination by the Secretary of State is whether when you ceased employment with the executive you were incapable of carrying out your duties efficiently because of permanent ill-health, and so qualified for the immediate payment of your local government pension benefits.
3. The Secretary of State has considered all the representations and evidence. Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department’s letter of 2 February 1998.
4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that for the purposes of the 1995 regulations the balance of medical evidence is that you were not suffering from permanent ill-health or infirmity of mind or body so that you were incapable of discharging efficiently the duties of that employment at the time you ceased employment with the executive on 4 February 1997. His decision confirms that made by the Appointed Person. The Secretary of State’s reasons and the regulations which he considers apply in your case are set out in the annex to this letter, which forms an integral part of the determination. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it unless instructed to in a judgement by the High Court. Because of this officials may not discuss the case further.
5.The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).
6. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. 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 XXX: letter dated 2 December 1987 and enclosures; and
b. from the Appointed Person: letter dated 2 February 1998 and enclosures (listed in the Department’s letter of 2 February 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
a. you were employed by the executive;
b. in October 1996 Dr XXX, M.D., F.R.C.P., D.T.M.& H consultant physician stated that you were suffering from chronic (post viral) fatigue syndrome and that you have had these problems since a flu like illness in February 1996;
c. at the time you ceased employment you were an Administration Officer in the Prepayments Section of the executive; and
d. your employment with the executive ceased on 4 February 1997 due to your incapability to attend work.
3. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. The Secretary of State notes that you argue that no Doctor is prepared to say that you are permanently ill, but you consider they cannot say this because your condition is indeterminate. You also point out that this would suggest no one suffering from chronic fatigue syndrome has had their local government pension paid early due to this illness. You name an individual who has. You further argue that although it is difficult it is not impossible to make an accurate prognosis of chronic fatigue syndrome. You also point out that you are unable to perform your former job because of your illness. You acknowledge that some sufferers recover, but point out that you have been ill since February 1996 and are sXXX slowly deteriorating.
4. The Secretary of State has considered the medical reports. He notes that in October 1996 Dr XXX, M.D., F.R.C.P., D.T.M.& H consultant physician opined that you were suffering from chronic (post viral) fatigue syndrome and that you have had these problems since a flu like illness in February 1996. The Secretary of State further notes that in March 1997 Dr XXX considered that your were likely to have the illness for a number of years.
5. The Secretary of State notes that the executive referred you to Dr XXX, Clinical Assistant/Staff Medical Officer at the xxx. Dr XXX saw you in January and May 1997. Dr XXX confirmed that you had Chronic Fatigue Syndrome. He confirmed that you were unable to work at that time. He acknowledged that his experience of this condition is not large but leads him to believe that most sufferers recover. He also considered that the specialists that had reported on your condition believed the same. He was unable at that time, May 1997, to confirm that your condition permanently disabled you from your former occupation.
6. The Secretary of State notes that in April 1997 Dr XXX in a letter to XXX, Personnel & Administration Manager, Metro, stated that “As regarding prognosis although this is uncertain as XXX has not really gone through the full gamut of treatment at the moment I would say this is guarded and it is unlikely even after this that he would be able to return to full time work or his previous capacity of employment”. He went on to say that it was not unusual for people with the severity of your symptoms to be symptomatic for 2-3 years after initial onset. He also considered that it would be extremely unlikely that you would be able to return to full time work in the next 1-2 years. It is understood that XXX’ did not approach Dr XXX for this report.
7. The Appointed Person in considering your disagreement with the executive sought the views of Dr XXX, MFOM, Consultant Occupation Physician, Department of Occupational Medicine, XXX’s. In his report Dr XXX refers to a report from Dr XXX dated 13 January 1997. Dr XXX has confirmed that he should have referred to Dr XXX’s report dated 30 January 1997 (a copy of the Appointed Person’s letter confirming this is attached). Dr XXX in his report stated that he found no significant abnormality though you were undoubtedly suffering from a very significant depressive illness. However, he went on say that he would not expect this or a chronic fatigue syndrome to be a permanent condition. He opined that you should not have been awarded ill-health retirement benefits from when your employment was terminated on 4 February 1997.
8. The Secretary of State has considered all the medical evidence. The test which he must apply in reaching his decision is whether you were incapable of discharging efficiently the duties of your former employment with the executive by reason of permanent ill-health or infirmity of mind or body (regulation D7). Taking into account all the medical evidence he considers that the balance of medical opinion, in your case, is that the condition is not permanent in the sense required by the 1995 regulations. That is, your condition is likely to improve sufficiently for you to perform the duties of your former employment before your normal retirement date.