Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/19/18

September 1998

LOCAL GOVERNMENT PENSION APPEAL

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter of 10 June 1998 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person. The Appointed Person determined that having regard to the medical evidence he was not satisfied that you are permanently incapable of discharging efficiently the duties of your former employment as a bus driver and therefore not entitled to immediate payment of your retirement benefits.

2. The question for determination by the Secretary of State is whether when you ceased employment with XXX Limited (the company) you were permanently incapable of carrying out your duties efficiently because of ill-health, and so qualify for the immediate payment of your local government pension benefits.

3. The Secretary of State has considered all the representations and evidence. The Appointed Person supplied copies of all the documents he had considered to the Secretary of State. The Secretary of State considered that both parties must be aware of the evidence and asked for permission to send copies of all documents to you. The company refused permission for 1 document to be copied to you; this was returned to the Appointed Person and has not, therefore, been taken into account by the Secretary of State in reaching his decision. Copies of all the other documents supplied by the Appointed Person were sent to you under cover of the Departments letter of 27 July 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 which were in force at the time you ceased employment the balance of medical evidence is that you were not permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body when you ceased employment with the company on 5 January 1998. 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 but you may refer the matter to the Pensions Ombudsman or the High Court. Because of this officials may not discuss the case further.

5. 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).

6. The Pensions Ombudsman may also investigate and determine any complaint or 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 number 0171 834 9144).

EVIDENCE RECEIVED

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

a. from XXX: letters dated 10 June and 3 August 1998 with enclosures; and

b. from Mr XXX, on behalf of the Appointed Person, letter dated 13 July 1998 with enclosures (listed in the Department's letter of 27 July 1998).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a. you were employed by the company as a bus driver;

b. your employment with the company was terminated on the grounds of capability with effect from 5 January 1998, after a period of sickness absence; and

c. at the time your employment ceased you were age 62.

3. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. He notes that you have appealed against the decision of the Appointed Person because you have been suffering from hypertension for over fifteen years and that you feel the stresses of the job has contributed to your back problem and increased your hypertension which has given you depression. The only medical evidence you have provided is a copy of a prescription for Dothiepin given to you by your GP on 30 July 1998. You state that these depression drugs have left you very dreary during the day and would like this to be taken into account.

4. The Appointed Person arranged for you to be seen by an independent medical examiner. Mr XXX. saw you on 22 April 1998. In his report to the Appointed Person he stated that in his view you are not permanently incapacitated and he was surprised that you were not keen to return to work. He concluded that you appear to have moderate problems related to your lumbar spine, reasonably well controlled hypertension and, although you may be depressed he would not regard your illness as severe. He noted that at the time of the examination you were taking Enalapril 20 mg. twice daily and Bendrofluazide 2.5 mg. daily for hypertension, and also a non-steroidal inflammatory for your back pain but you were not taking any specific anti-depressive therapy. He opined that with careful help it should be possible to rehabilitate you to a state that you certainly would be able to return to employment with the company.

5. The Secretary of State notes that you believe that the stresses of your former employment as a bus driver have contributed to your back problems and increased your hypertension which have caused your depression. He further notes that with effect from 30 July 1998 you have been prescribed Dothiepin. The Secretary of State has considered all the medical evidence. He notes Mr XXX's view that your illness is not severe and that with careful help you should be able to return to work. The test which he must apply in reaching his decision is whether at the time you ceased employment you were permanently incapable of discharging efficiently the duties of your former employment with the company by reason of ill-health or infirmity of mind or body (regulation D7 of the 1995 regulations). The Secretary of State understands that your LGPS benefits came into payment normally, that is, not on ill-health grounds, on 6 January 1998. He takes the view that in the circumstances of your particular case a reasonable test of permanent incapacity would be that your condition was not likely to improve sufficiently for you to perform the duties of your former employment before the age of 65 when LGPS benefits must be paid. The Secretary of State takes the view on the evidence available to him that there is no conclusive medical evidence that you are suffering from such a condition of ill-health or infirmity that you will be permanently incapable of performing your former duties in the sense outlined above as required by the 1995 regulations.