LOCAL GOVERNMENT PENSION APPEAL

 

Superannuation 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 9 December 1998 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council.  The Appointed Person upheld the decision of XXX Council (the council) not to award you immediate payment of enhanced ill-health retirement benefits from when you ceased employment with them, as he was not satisfied that you were incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body.

 

2.                  The question for decision: The question for decision by the Secretary of State is whether you are entitled to immediate payment of your retirement benefits from when you ceased employment with the council, on the grounds that you ceased employment because you were permanently incapable of efficiently performing your 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 those documents supplied by the Appointed Person which you may not have seen were sent to you under cover of the Department’s letter of 18 February 1999.

 

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 council.  Where evidence becomes available at a later date this should in the first place be referred to the council 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 Dr XXX dated 16 November 1998 has not been taken into account.

 

5.                  Secretary of State’s decision: The Secretary of State, having taken into account the appropriate regulations, finds that for the purposes of the 1995 regulations the balance of evidence is that you did cease employment with the council on 31 July 1997 because you were permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulations which he considers apply in this case are set out in the annex to this letter, which forms an integral part of the 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. Because of this the Secretary of States officials cannot discuss the case further.

 

6.                  The 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 local government pension scheme.  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)                  your letter dated 9 December 1998 with enclosures; and

 

b)                  from the Appointed Person: letter dated 26 January 1999 with enclosures.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 10 December 1946;

 

b)                  you were employed by XXX Council;

 

c)                  you were a member of the local government pension scheme (LGPS);

 

d)                  your employment with the council ceased on 31 July 1997 on the grounds of incapability in respect of your continued absence through sickness; and

 

e)                  at the time your employment ceased you were employed as a Principal Planner.

 

3.                  You contend that the XXX Council Occupational Physician, Dr XXX, accepted the findings of the three medical reports submitted as evidence, that because of your ill-health, “... you will not be able to return to your former employment” and that you have clinically diagnosed stress.  You believe that these two elements provide evidence that you will be permanently incapable of undertaking the duties of that employment by reason of ill-health or infirmity of mind or body.

 

4.                  The Appointed Person found that the requirements of regulation D7(1)(b) of the 1995 regulations were not satisfied, in that you were not incapable of discharging efficiently the duties of your employment by reason of permanent ill-health or infirmity of mind or body.  He took into account the medical evidence submitted by you and the further conclusions of the XXX Council’s Occupational Physician.

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time you ceased employment the 1995 regulations were in force.  The Secretary of State notes that the Appointed Person in reaching his decision considered whether you were incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body.  However, regulation D7 of the 1995 regulations was amended with effect from 28 March 1997 and the test your former employer and the Appointed Person should have applied is whether you ceased employment because you were permanently incapable of efficiently performing your duties as a Principal Planner because of ill-health or infirmity of mind or body.  There are two differences between the original and the amended regulation.  First, the amended regulation requires the incapability, rather than the ill-health, to be permanent.  Secondly, the permanent incapability must be the cause of termination of employment.

 

6.                  The Secretary of State takes the view that it is not disputed that at the time you ceased employment you were suffering from ill-health or infirmity of mind.  Nor is it disputed that your employment was terminated on account of your condition.  The question, therefore the Secretary of State has to decide is whether you were permanently incapable of efficiently performing your duties because of this condition.  The Secretary of State notes that in her report to the Appointed Person, of 19 May 1998, Dr XXX stated the relevance of the Association of Local Authority Medical Advisors (ALAMA) guidelines which advise that, “in most cases of anxiety disorder, ill-health retirement is inappropriate unless specialist psychiatric treatment and job modification have been unsuccessful, and there are features of the illness associated with poor prognosis.  In respect of stress, the guidelines advise that feelings of inability to cope with the pressures of work, should not warrant retirement on the grounds of ill-health per se unless they are associated with mental ill-health which has been unresponsive to specialist psychiatrist treatment”.  However, Dr XXX considers your case to be borderline, she also notes that the three medical reports, from Dr XXX, Dr XXX and Dr XXX, all agree that you will not be able to return to your former employment.  She has also used the test of permanent ill-health or infirmity, rather than the correct test of permanent incapability due to ill-health, and she drew attention to Dr XXX’s opinion that you are not prevented from undertaking alternative work.  On this last point, the Secretary of State notes that the test to be applied is whether you are permanently incapable of the duties of “that” employment, that is, your former job.  Consideration of your ability to perform other jobs, while it may be sound management practice, is not relevant in the application of regulation D7.

   

7.                  Taking all the medical evidence into account, the Secretary of State considers that the medical evidence suggests that you are likely to remain incapable of performing your former duties efficiently because of your ill-health, in that your ill-health would be likely to recur should you seek to do so.  The Secretary of State concludes that, on the balance of probability, you did cease your local government employment by reason of being permanently incapable of efficiently performing your former duties by reason of ill-health or infirmity of mind.