533      INDEX

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS (the 1997 regulations)

 

1.      I refer to your letter of 30 September in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, 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 Mr XXX is at the present time permanently incapable of discharging efficiently the duties of his former employment as a Bus Driver and therefore not entitled to immediate payment of his retirement benefits.

 

2.      The question for decision: The question for decision by the Secretary of State is whether Mr XXX is entitled to immediate payment of his retirement benefits from when he ceased employment with the company, on the grounds that he ceased employment because he was permanently incapable of efficiently performing his duties by reason of ill-health or infirmity of mind or body.

 

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 25 November 1998.

 

4.      The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited to reconsidering the disagreement referred to the Appointed Person.  He takes the view that it would be inappropriate for him to consider new medical evidence which became available after the Appointed Person had reached his decision.  This is because this evidence does not form part of the original disagreement with the company.  Where evidence becomes available at a later date this should in the first place be referred to the company for them to reach a decision on.  It is only after they have considered such evidence that there can be a disagreement.  It is only at this stage the Appointed Person, and ultimately the Secretary of State, can become involved.  For this reason the medical report by Mr XXX dated 22 January 1999 has not been taken into account.

 

5.      The Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that at the time of the appeal there was no conclusive evidence to determine that on the balance of probability Mr XXX ceased employment by reason of being permanently incapable of discharging efficiently his duties by reason of ill-health or infirmity of mind or body.  He therefore dismisses Mr XXX’s appeal.  His decision confirms 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 decision.  He is acting judicially and has no power to modify the way the regulations apply to the facts of the case.  Having made his decision he has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court.  You may also, as explained above, refer any new medical evidence to the company for their consideration.  Because of this the Secretary of State’s officials cannot discuss the case further. 

 

6.      This completes the second stage of the internal dispute resolution procedure.  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).

 

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).

 

8.      A copy of this letter has been sent to the Appointed Person and the pension manager.

EVIDENCE RECEIVED

 

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

 

a)         from XXX Ltd, on behalf of Mr XXX, letter dated 30 September 1998; and

 

b)         from Mr XXX, on behalf of the Appointed Person, letter dated 18 November 1998 with enclosures (listed in the Department’s letter of 25 November 1998).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)         Mr XXX’s date of birth is 25 August 1948;

 

b)         he was employed by the company as a bus driver; and

 

c)         his employment was terminated on the grounds of capability with effect from 1 December 1997, after a lengthy period of sickness absence.

 

3.         The Secretary of State notes that you consider that the Appointed Person’s determination is both incorrect in law and in fact.  You maintain that the report of Mr XXX has not been in any part taken into account and that this is a breach of natural justice.  You contend that Mr XXX’s GP considers his present incapacity can be attributed directly to the injuries he sustained while he was employed by the company, that a second report concurs with this and that the report by Mr XXX’s former employer confirms his incapacity albeit that it does not provide full causation.

 

4.         In reaching his decision the Appointed Person took into account medical reports by Dr XXX and Mr XXX.  He found that at the present time (his letter is dated 24 June 1998) he was not satisfied that Mr XXX is permanently incapable of discharging efficiently the duties of his former employment as a Bus Driver and that he was not entitled to immediate payment of his retirement benefits.

 

5.         The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  Regulation D7 of the 1995 regulations concern a member’s entitlements when their employment ceases because of permanent incapacity due to ill-health.  The Secretary of State has considered all the evidence.    He notes that Mr XXX’s employment was termination on the grounds of capability after having a lengthy period of sickness absence.  It is noted from Mr XXX’s sickness record that he commenced this period on 22 July 1997 and did not return to work, and this is shown as a painful left shoulder.  The Secretary of State takes the view therefore that the test to establish Mr XXX’s entitlement to immediate payment of ill-health retirement benefits is whether he was permanently incapable of efficiently performing his duties as a bus driver on 1 December 1997 because of his ill-health.  He notes that Mr XXX examined Mr XXX at the request of the Appointed Person.  He stated that Mr XXX had a history of damage to the left acromio-clavicular joint but in an otherwise fit individual this would not be a source of permanent incapacity and disablement.  However he was concerned with his general condition for which he felt Mr XXX was in need of further assessment from a medical standpoint.  He considered Mr XXX may be harbouring a left renal calculus and have significant liver damage.  He concluded that Mr XXX is quite severely disabled but more as a result of an as yet incompletely diagnosed medical condition rather than a result of his previous alleged accident the shoulder injury.

 

6.         It is noted that you consider Mr XXX’s report has not been taken into account.  Neither you nor the Appointed Person have provided a copy.  However the Secretary of State notes that Mr XXX refers in his report to Mr XXX being seen by Mr XXX in June 1997.  From references made by Mr XXX in his report the Secretary of State concludes that he had a copy of Mr XXX’s report and that in reaching his conclusion he has taken into account Mr XXX’s comments.  It is noted that Mr XXX states that Mr XXX did not anticipate any improvement.  The Secretary of State concludes that although the Appointed Person may not have had sight of this report Mr XXX took it into account and the Appointed Person in turn gave due weight to Mr XXX’s findings.

 

7.         The Secretary of State is satisfied that on the evidence available to him at the time Mr XXX lodged his appeal there was no conclusive case that he was permanently incapable of performing his former duties as a bus driver as a result of the problems he had with his shoulder.  He therefore dismisses Mr XXX’s appeal.  However he notes that while Mr XXX felt it was not possible to assert that Mr XXX was permanently incapacitated and incapable of following his previous employment he found Mr XXX quite severely disabled but more as a result of an as yet incompletely diagnosed medical condition.  If Mr XXX now has any medical evidence about this he may wish to ask his former employer to consider it.