437 INDEX
Our Ref: LGR 85/19/25
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your appeal (under regulation 102 of the 1997 regulations) dated 28 July 1998 on behalf of XXX 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 Mr XXX was not entitled to payment of his pension on ill-health grounds from the date he ceased employment with the company.
3. The question for determination by the Secretary of State is whether Mr XXX ceased employment by reason of being permanently incapable of discharging efficiently the duties of his employment 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 26 August 1996.
5. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that Mr XXX ceased employment by reason of being permanently incapable of discharging efficiently the duties of his employment by reason of ill-health or infirmity of mind or body. His decision replaces that made by the Appointed Person. The Secretary of State’s reasons and the regulations which he considers apply in Mr XXX’s 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 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 to the High Court. Because of this officials may not discuss the case further.
6. This completes the second stage of the internal disputes resolution procedure.
7. The Occupational 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: letter dated 13 August 1998 (with enclosures);
b) from you: appeal form dated 28 July and letter dated 22 September 1998 (with enclosures); and
c) from XXX Hospitals Trust: letter dated 10 August 1998.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
a) Mr XXX’s date of birth is 29 December 1940;
b) he was employed by the company as a bus driver;
c) from 12 March 1997 he was absent from work due to a heart attack;
d) as a consequence his drivers licence was revoked;
e) on 9 September 1997 he was given notice of dismissal with effect from 18 November 1997 by the company on the grounds he was unable to fulfil his duties; and
f) early payment of his preserved pension on ill-health grounds under regulation D11 of the 1995 regulations was put into effect from 4 June 1998.
3. You appealed to the Appointed Person against the company’s decision not to award Mr XXX his pension with enhanced benefits from the day he ceased employment. The Appointed Person considered the various medical evidence available at the time and records of the company’s deliberations when considering Mr XXX’s dismissal. He found that at the time Mr XXX ceased employment he did not meet the requirements of the relevant regulations in that the medical evidence was that his condition could not then be regarded as permanent.
4. In your appeal to the Secretary of State Mr XXX raised various points about the way the company dealt with his dismissal and their consideration of his illness. He has contested the conclusion that he was not permanently incapable of carrying out his duties. In particular he pointed out that his specialist had not completed his investigation into his medical condition.
5. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. At the time Mr XXX ceased employment regulation D7 of the 1995 regulations permitted payment of pension benefits from the date an LGPS member ceased employment by reason of being permanently incapable of discharging efficiently their duties by reason of ill-health or infirmity of mind and body. If the period of their membership was at least 5 years they were entitled to count an additional period calculated in accordance with Schedule D3 of the 1995 regulations. If a member after they cease employment and before their normal retirement date (NRD) is found to be permanently incapable of discharging their former duties their pension benefits become payable under regulation D11.
6. The Secretary of State has considered all the evidence.
7. It is not disputed that when Mr XXX ceased employment he was incapable of carrying out his duties because he was suffering from ill-health due to a heart condition. The Secretary of State notes that since the Appointed Person’s decision Mr XXX has been found to be permanently incapable of carrying out his former duties due to ill-health and to qualify for benefits under regulation D11 of the 1995 regulations.
8. When considering the medical evidence the Secretary of State notes that Mr XXX was considered by the company not to be permanently incapable of carrying out his duties on the advice the Company Medical Officer Dr XXX. Dr XXX based his opinion on advice received in a letter dated 3 November 1997 from Mr XXX a Consultant Physician who was treating Mr XXX. Mr XXX stated that it was difficult to ascertain whether Mr XXX would return to driving a bus. He said that if treatment brought significant improvement and recovery Mr XXX could regain his bus driver’s licence. However, he also pointed out that without improvement this would not be possible. Mr XXX was invited to write to the Secretary of State by Mr XXX. In this letter dated 10 August 1998 he stated that the chances of Mr XXX “getting back to a level of activity without symptoms or signs of myocardial ischaemia which would allow him to maintain his vocational licence are extremely slim”.
9. Taking into account all the evidence the Secretary of State is satisfied that Mr XXX was incapable of carrying out his duties due to ill-health when he ceased employment on 18 November 1997. He is further satisfied that by 4 June 1998 his condition was permanent. The Secretary of State’s view is that on the balance of probability Mr XXX was permanently incapable of carrying out his duties on grounds of ill-health at the time he ceased employment, although he accepts that this was not clear at the time.
10. The Secretary of State therefore allows your appeal that Mr XXX should receive his LGPS benefits with enhancement provided by Schedule D3 of the 1995 regulations from the date he ceased employment with the company.