LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 2 December 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 Mr XXX, the Appointed Person.

2.                  The Appointed Person upheld the decision of XXX Limited (the company) not to pay your local government pension scheme (LGPS) retirement benefits on ill-health grounds from when you ceased employment.

3.                  The question for decision: The question for decision by the Secretary of State is whether you ceased employment by reason of being permanently incapable of discharging efficiently 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 18 January 1999.

5.                  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 you ceased employment by reason of being permanently incapable of discharging efficiently your 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 your 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.

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).

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

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

(a)               from you: letters dated 2 December 1998 and 28 January 1999 (with enclosures);

(b)               from the company: letter dated 8 December 1998; and

(c)               from the Appointed Person: letter dated 23 December 1998 (with the enclosures listed in the department’s letter of 18 January 1999).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               your date of birth is 5 October 1940;

(b)               on 30 April 1984 you commenced employment with the company as a driver/conductor;

(c)               on 30 April 1985 you joined the LGPS;

(d)               on 1 May 1997 the bus you were driving was in a road traffic accident;

(e)               you had subsequent periods of sick absence and from 5 October 1997 you did not return to work;

(f)                 on 9 April 1998 your employment was terminated on the grounds of capability; and

(g)               your normal retirement date (NRD) is 5 October 2005.

3.                  In making their decision to terminate your employment the company sought the view of their medical advisor Dr XXX to discover whether you were permanently incapable of performing your duties and therefore met the criteria for early release of pension benefits on ill-health grounds.  Dr XXX examined you on 17 February 1998.  He was unable to advise that you were permanently incapable on ill-health grounds as some improvement in your condition was expected and he recommended your case be reviewed in 6 - 12 months.

4.                  The Appointed Person’s decision of 18 November 1998 referred to the medical reports of Mr XXX, a consultant surgeon who examined you on 30 September 1998, Mr XXX, a consultant orthopaedic surgeon who examined you on 31 March 1998, Dr XXX, and your GP Dr XXX.  He concluded he was not satisfied that you were permanently incapable of discharging efficiently your former duties as a bus driver by reason of ill-health and therefore you were not entitled to receive payment of retirement benefits.

5.                  In your appeal to the Secretary of State you maintain that you suffered whiplash injury as a result of your accident while driving a company bus and that examinations by doctors found that you will not be able to drive a bus again.

6.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  To qualify for payment of retirement benefits on ill-health grounds from when you ceased employment you must meet the criteria as provided by regulation 27 of the 1997 regulations.  That means you have to show that you ceased employment on 9 April 1998 because you were permanently incapable of discharging efficiently your duties as a bus driver/conductor by reason of ill-health or infirmity of mind or body.  Retirement benefits awarded under regulation 27 are enhanced under regulation 28 depending on length of membership in the LGPS.

7.                  The Secretary of State has considered all the evidence.  He notes that there is no disagreement that when you ceased work on 9 April 1998 you were incapable of performing your duties as a bus driver through ill-health.  As a result of an examination on 31 March 1998 Mr XXX said in his report that the neck injury suffered as a result of your accident exacerbated a pre-existing condition.  He went on to say he expected the symptoms to improve but that it is unlikely that you will be able to regain enough confidence to return to your duties in the future.  Your GP has said you will not be able to return to work in the foreseeable future.  Mr XXX noted some improvement in your condition was expected and said that you should be reviewed in six months to a year for a decision to be made then.  Mr XXX said that a decision on the permanence of your incapacity would depend on your response to treatment.  He noted that you were to undergo further investigations and recommended that the decision should await the results of these and the further opinion of Dr XXX.

8.                  The Secretary of State is satisfied that on the evidence available to him at the time you lodged your appeal there was no conclusive case that you were permanently incapable of performing your duties efficiently as a bus driver by reason of ill-health.  He therefore dismisses your appeal.  However, he notes you may have further medical evidence following your MRI scan and consultation with Mr XXX on 2 February 1999.  If you consider this additional evidence supports your claim you should submit it to the company and ask them to review your case.