c)         from Mrs XXX: letter of 10 June 1998 (with enclosure); and

d)         from Dr XXX: copy of letter to Dr XXX dated 17 November 1997.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)         Mrs XXX’s date of birth is 16 August 1951;

b)         on 12 August 1974 she joined the Local Government Superannuation Scheme (now the LGPS);

c)         she was employed as an administrative assistant;

d)         on 19 August 1994 she was examined by Dr XXX a medical advisor with the council’s Department of  Occupational Health and Safety who diagnosed her complaint as almost certainly tenosynovitis;

e)         from 6 October 1994 she was absent from work on sick leave certified as tenosynovitis and did not return;

f)          on 28 November 1994 she wrote to the council concerning a meeting where she was refused ill-health retirement;

g)         on 30 November 1994 she ceased employment with the council after accepting voluntary redundancy terms;

h)         on 28 February 1995 she was examined by Dr XXX, MB, MRCP;

i)          on 8 March 1996 following a medical examination the Department of Social Security Benefits Agency wrote to her confirming her incapacity at the time, she then pursued with you the issue of early payment of LGPS retirement benefits;

j)          on 25 September 1996 she was examined by Mr XXX, consultant orthopaedic surgeon;

k)         on 21 November 1996 you wrote to the council on behalf of Mrs XXX to claim that she should have been retired on ill-health grounds when she ceased work for the council;

l)          on 15 July 1997 you sought to lodge an appeal with the council’s Appointed Person (as then unappointed) on the same grounds;

m)        on 1 December 1997 Dr B XXX a medical adviser commissioned by the council opined that on the balance of probability he did not consider her permanently unfit for her duties; and

n)         on 6 April 1998 you appealed to the Secretary of State on the same grounds because the Appointed Person had failed to make a decision.

3.   The Secretary of State has first considered whether your application was made within time limits. Under regulation 100 of the 1997 regulations an application to the Appointed Person to decide a matter in relation to the LGPS must be made within 6 months of the relevant date or such further period the Appointed Person considers reasonable.  The relevant date is the date of a decision as to a member’s rights under the LGPS or of a failure to make a decision.  Once the Appointed Person makes a decision a further appeal may then be made to the Secretary of State under regulation 102 within 6 months.  Where the Appointed Person fails to make a decision an appeal to the Secretary of State under regulation 102 must be made within 9 months of the application to the Appointed Person.

4.   In this case, although Mrs XXX was made redundant on 30 November 1994, she subsequently pursued the question of ill-health retirement benefits with the council before you formally appealed to the Secretary of State on 16 April 1997. You were advised to submit a formal appeal under the first stage of the IDRP procedure and did so on 15 July 1997.  After the Appointed Person failed to make a decision or send an interim letter as required by the regulations you appealed to the Secretary of State.

5.   If the Appointed Person fails to make a decision under regulation 100 of the 1997 regulations, provided the appellant submits an appeal within 9 months of the original appeal to the Appointed Person the Secretary of State is obliged to consider the appeal under regulation 102.  This entails considering the initial complaint even though it might have been considered out of time by the Appointed Person, although the Secretary of State may conclude it unreasonable to determine an appeal where the appellant has not acted with due diligence.  In this case he takes the view that given the evidence of a continuous, related dispute with the council over an injury allowance as well as the dispute over ill-health retirement benefits, Mrs XXX has pursued her claim in a reasonably timely manner.  Your appeal to the Secretary of State was made within 9 months of your original appeal to the Appointed Person.  The Secretary of State is therefore satisfied that the appeal was not out of time and he can consider it.

6.   The Secretary of State has next considered the substantive issue of Mrs XXX’s claim for immediate payment of retirement benefits on the grounds of permanent ill-health from when she ceased employment.  At that time the relevant regulation was regulation E2(1)(b)(i) of the 1986 regulations.  This says that to qualify for ill-health retirement benefits, Mrs XXX would have had to have been incapable of carrying out her duties efficiently because of permanent ill-health or infirmity of mind or body when she ceased employment.  It does not examine why employment had to cease. 

7.   Mrs XXX contends that she was pressed into accepting voluntary redundancy terms and that she has since obtained expert medical advice that indicates that her condition is permanent.  You maintain that Mrs XXX’s job description does not show the extent of typing duties she was required to carry out and draw attention to an Ergonmist’s Inspection Report of 25 November 1995.  You have submitted medical evidence from Mr XXX and Dr XXX to support your contention that Mrs XXX remains unfit for secretarial duties or any work involving use of the right hand.  You contend that Dr XXX appears not to have sought further medical evidence.

8.   It is not disputed that Mrs XXX was incapable of carrying out her duties due to tenosynovitis when she ceased employment with the council.  The reason for the cessation of employment is a matter between her and her employer and is neither relevant to, nor can be considered on, appeal. It is accepted that Mrs XXX’s former duties required her to undertake keyboard work. The question for the Secretary of State is therefore solely whether it has been shown that on the balance of probability her condition was permanent when she ceased employment, that is that it would not allow her to return to her former duties before her normal retirement date.

9.   The Secretary of State has carefully considered the medical evidence.  Mrs XXX was examined by the council’s OHA, Dr XXX, twice in the months before cessation.  His view was that she was then unfit to undertake her regular duties but he was hopeful that she would respond to treatment and should become fit in the foreseeable future.  The most recent view submitted by the council is that of Dr XXX, who on 1 December 1997 stated that on the balance of probability he did not consider Mrs XXX permanently unfit for her duties.  The Secretary of State notes that his medical opinion contains no supporting discussion of the issues.  It refers to a letter of 17 November from Mrs XXX’s GP Dr XXX, which refers only briefly to tenosynovitis among other medical issues and avoids any commitment about a long-term prognosis. In the Secretary of State’s view the lack of supporting evidence is not particularly helpful or satisfactory, since it does nothing to explain, though it does not of course discredit, Dr XXX’s professional opinion.

10.  Further evidence is contained in the medical reports by Mr XXX and Dr XXX.  There are also DSS/Benefits Agency reports, and a summary of the Ergonomics Inspection Report prepared on 25 November 1995. This points to a number of unsatisfactory working practices when Mrs XXX was working for the council which increased the risk of injury but does not address the issue of whether her condition was permanent.  It did suggest that her work was not the sole cause of her condition.  Dr XXX’s report dated 7 March 1995 concluded that Mrs XXX’s symptoms were at the time of his examination due to adhesions and scar tissue which commonly form as part of the healing process.  He was unconvinced that her work was particularly relevant to the development of her tenosynovitis.  He said that the usual pattern with tenosynovitis was for a gradual improvement, with patients in his experience finding functional restriction and symptoms decreasing, although some symptoms were likely to remain and increase with particular stresses such as keyboard work.  To that extent, repetitive keyboard work was a potential problem were Mrs XXX to perform it in future.  Mr XXX in his report dated 1 October 1996 thought that Mrs XXX’s symptoms would continue and with any return to keyboard work there would be a considerable exacerbation and the pain would recur as severely.

11.  The Secretary of State accepts that these reports suggest that there may be a risk of Mrs XXX’s symptoms recurring if she returned to her former duties.  There is also evidence that her condition is continuing, and although improvement may be expected, symptoms are likely to remain and may be exacerbated under conditions relevant to her former duties.  He believes the long-term prognosis is not entirely conclusive, but taking all the evidence into account, he concludes that on the balance of probability Mrs XXX was, when she ceased employment, incapable of efficiently performing her duties by reason of permanent ill health or infirmity in the sense required by the 1986 regulations.  He accordingly allows the appeal.