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 13 October 1998 in which you appeal on behalf of Mr XXX (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the outcome of your appeal to Mr XXX, the Appointed Person.

2. On the evidence available to him the Appointed Person could not make a judgement, in the absence of objective medical evidence, whether to confirm or override the decision of XXX Council (the council) not to award Mr XXX immediate payment of his local government pension scheme (LGPS) benefits on ill-health grounds from when he ceased employment.

3. The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to the Appointed Person under regulation 100. This regulation refers to a matter relating to the LGPS, which effectively means whether the LGPS regulations have been correctly applied in the circumstances.

4. The question for decision: The question for decision by the Secretary of State is whether 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.

5. 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 16 December 1998.

6. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds that there is at present 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 your appeal. His decision confirms that made by the Appointed Person. The Secretary of State’s reasons and the regulationswhich he considers apply in this 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 regulationsapply 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. Because of this the Secretary of State’s officials cannot discuss the case further.

7. This completes the second stage of the internal dispute 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).

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 1 December 1998 (with the enclosures listed in the department’s letter of 16 December);

b) from you: letters dated 13 October 1998 (with enclosures) and 18 January 1999; and

c) from the council: letter dated 23 December 1998 (a copy of which was sent to you on 5 January 1999).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a) Mr XXX’ date of birth is 12 August 1942;

b) he worked for the council’s DLO as a clerk;

c) on 8 December 1998 the council terminated his employment on the grounds of incapacity; and

d) under regulation C3(1) of the 1995 regulations his normal retirement age is 60.

3. The Secretary of State has considered all the evidence. There is no dispute that Mr XXX ceased employment because he was incapable of his duties due to ill-health. The test the Secretary of State must apply in reaching his decision is whether Mr XXX was permanently incapable of discharging efficiently the duties of his former employment as a clerk with the council at the time he ceased employment by reason of ill-health or infirmity of mind or body (regulation D7 of the 1995 regulations). The Secretary of State takes the view that this means that there must be sufficient evidence to show that, on the balance of probabilities, Mr XXX will not be able to perform his former duties before his normal retirement age, i.e. by age 60.

4. Mr ’ General Practitioner considered his symptoms typical of angina of a severe degree, and that he is also suffering from hypertension. He did not find him fit enough to work and felt that he should retire on ill-health grounds. He was treating his angina and shared Mr XXX’ own reservations about going to hospital for further investigation of the condition. Dr XXX , a consultant cardiologist, in reports dated 30 September 1997 and 23 March 1998, considered that Mr XXX account of his symptoms was typical of angina pectoris of a severe degree. He felt that further investigation by coronary angiography was warranted. If this led to coronary angioplasty or coronary artery by-pass grafting this would give a major improvement in the physical symptoms. If there were no investigation, he thought it likely that his cardiac symptoms would render him permanently incapable of discharging efficiently the duties of his employment. While Mr XXX could not in his present state properly discharge his job, the absence of objective investigation made the purely cardiac component difficult to quantify. Dr XXX felt there was a major psychological component contributing to Mr XXX disability.

5. The council’s medical advisor, Mr XXX (consultant occupational physician) in his letter of 12 March 1998 to the Appointed Person’s medical advisor Dr XXX reported that he had found that Mr XXX was suffering from mild hypertension which was well controlled but that subsequent medical reports had relied heavily on Mr XXX own description of his symptoms. He felt that Mr XXX work was not physically demanding and that he had no significant medical condition sufficient to impede the performance of his duties. Dr XXX, a consultant occupational physician, advised the Appointed Person on the medical evidence. In seeking advice from Dr XXX he asked for a long term prognosis up to the age of 65. He considered that while Mr XXX’ symptoms were typical of angina pectoris due to ischaemic heart disease, the diagnosis without investigation was presumptive; there was no objective confirmation. His anxiety state seemed to be quiet incapacitating but again it had not been appropriately treated and a prognosis was difficult. He concluded that at present there was insufficient medical evidence to make a judgement that his medical condition would prevent him permanently from undertaking his usual work; permanence of his incapacity had not been established.

6. The Secretary of State takes the view that Mr XXX is not inclined to seek further investigation into his symptoms and is supported in this by his GP. However, he considers that both Dr XXX and Dr XXX are clear in the view that such investigations are necessary to establish objective medical evidence about Mr XXX’ condition and possible treatment. The Secretary of State accepts that in giving his advice Dr XXX may have been considering a prognosis until the age of 65 rather than Mr XXX normal retirement age of 60. In the Secretary of State’s view this does not undermine his view that objective medical evidence was lacking.

7. The Secretary of State takes the view that, given the lack of investigations revealing objective medical evidence, it has not been conclusively shown that, on the balance of probability, Mr XXX was permanently incapable of performing his former duties efficiently by reason of ill-health or infirmity of mind or body on 8 December 1997. He therefore dismisses the appeal.