472      INDEX

Our Ref: LGR 85/19/23

30 November 1998

 

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 letter of 10 September 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 upheld the decision of XXX Limited (the company) that you are not entitled to payment of your local government pension scheme (LGPS) benefits on ill-health grounds from when you ceased employment with the company.

3.                  The question for determination: The question for determination by the Secretary of State is whether when you ceased employment with the company you were permanently incapable of discharging your duties by reason of ill-health or infirmity of mind or body.

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 6 October 1998.

5.                  Secretary of State’s determination: The Secretary of State has taken into account the appropriate regulations.  He finds that for the purposes of the 1995 regulations there is at the present time insufficiently conclusive evidence for him to determine that you ceased employment with the company because you were permanently incapable of discharging efficiently your duties by reason of ill-health or infirmity of mind or body.  He accepts that more conclusive evidence may be available in a few months’ time.  His decision confirms that made by the Appointed Person.  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 determination.  He is acting judicially and has no power to modify the way the regulationsapply 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 to the High Court.  Because of this the Secretary of State’s officials cannot discuss the case further.

6.                  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).

7.                  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: letter dated 28 September 1998 (with the enclosures listed in the department’s letter of 6 October 1998);

(b)               from you: letters dated 10 September (with enclosures) and 4 November 1998; and

(c)               from the company: dated 5 October 1998 (copy enclosed).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               your date of birth is 4 June 1952;

(b)               you were employed by the company as a bus driver from 1987;

(c)               on 9 December 1997 the company sent you notice of termination of your employment on the grounds of capability with effect from the 16 February 1998;

(d)               on 12 January 1998 the Driver Vehicle Licensing Authority wrote to you to revoke your PCV licence with effect from 19 January;

(e)               on 13 January 1998 you were examined by the company’s doctor who said in his report that he found you could not “ ... currently hold a PCV licence because of pain due to ischaemic heart disease ... ” that you were awaiting a triple bypass and that if “ ... the bypass grafting is asymeptomatic ... ” you might be able to re-apply for you PCV licence; and

(f)                 you underwent heart bypass surgery on 16 September 1998.

3.                  You appealed to the Appointed Person against the company’s non payment of your pension.  You were examined by Mr XXX, Ch.M., XXX. (consultant surgeon) on 10 June 1998.  In his report for the AP he found that there was a realistic possibility you would benefit from the heart surgery you were awaiting.  However, he also found that it would be unlikely that you would be able to return to your previous employment but that it was not possible to find that you were permanently disabled on the grounds of ill-health until the conclusion of the planned treatment.  He considered you should be re-assessed 6 months after your heart surgery.

4.                  In his decision the Appointed Person considered medical evidence provided by Mr XXX and the company’s doctor.  He also considered medical reports from Dr XXX, a consultant physician and cardiologist, and Dr XXX your general practitioner.  Having regard to this evidence and your age he was not satisfied, at that time, that you were permanently incapable of discharging efficiently your former duties as a bus driver.  He therefore found you were not entitled to immediate payment of benefits.

5.                  The Secretary of State has carefully considered all the evidence.  In your initial appeal to the Secretary of State you did not provide additional evidence to that seen by the Appointed Person.  In your letter of 4 November you say that you underwent heart surgery on 16 September 1998.  You state that the specialist who performed the operation doubted that you would be fit to drive a PCV again.

6.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  When you ceased employment regulation D7 of the 1995 regulations provided the criteria for an LGPS member to qualify for payment of benefits on ill-health grounds from when he ceased employment.  To meet these criteria it must be shown that you ceased employment on 16 February 1998 because you were permanently incapable of discharging efficiently your duties by reason of ill-health or infirmity of mind or body.  The Secretary of State takes the view that this means there must be evidence to show that, on the balance of probabilities, you will not be able to perform your former duties efficiently before your normal retirement age.  The Secretary of State accepts that there is at least a strong possibility that this is the case.  However he also accepts the view of Dr XXX that to be certain you would need to be re-assessed six months after your heart operation.  He considers that he cannot conclusively decide whether you were permanently incapable of performing your former duties as a bus driver until such a re-assessment has been made.  However, if such a re-assessment next March should confirm that you are permanently incapacitated it is the Secretary of State’s view that your benefits be brought into payment from the date you ceased employment, under regulation D7, with enhancement under schedule 5.  If you wish to present such evidence then, you should do so in the first instance to the company for their consideration.  He therefore dismisses your appeal.