LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 14 December 1998 in which you appeal on behalf of XXX Council (the council), 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 overturned the council’s decision that Mrs XXX was entitled to deferred retirement benefits payable at her normal retirement date (NRD as defined by regulation 25 of the 1997 regulations).  Instead he found that she was entitled to immediate payment of her retirement benefits from when she ceased employment under regulation 27 with enhancement under regulation 28.  The council do not agree that Mrs XXX meets the criteria for immediate payment of her retirement benefits on ill-health grounds from when she ceased employment.

3.                  The question for decision: The question for decision by the Secretary of State is whether Mrs XXX is entitled to immediate payment of retirement benefits from when she ceased employment with the council, on the grounds that she ceased employment because she was permanently incapable of efficiently performing her 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 the council under cover of the department’s letter of 2 February 1999.

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that Mrs XXX is entitled to immediate payment of retirement benefits on ill-health grounds when she ceased employment with the council.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulations which he considers apply in Mrs 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 the council 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).

EVIDENCE RECEIVED

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

(a)               from you: letters dated 14 December 1998 (with enclosures), 20 January and 3 March 1999;

(b)               from the Appointed Person: letter dated 29 December 1999 (with the enclosures listed in the department’s letter of 6 January); and

(c)               from Mr M J XXX: letter dated16 February 1999 (faxed to you on 26 February).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               Mrs XXX’s date of birth is 26 August 1939;

(b)               she was employed by the council as a manager of a home for people with learning disabilities; and

(c)               on 27 April 1998 she was dismissed on grounds of medical incapability.

3.                  The Appointed Person found that Mrs XXX satisfied the requirements of regulation 27 of the 1997 regulations and was entitled to immediate payment of her retirement benefits (from when she left employment) by reason of permanent incapacity.

4.                  The council maintain there is no evidence that Mrs XXX’s condition is permanent.  They feel that such a decision cannot accurately be made until court proceedings against Mrs XXX are complete.  The council argue that at no time prior to the allegations which resulted in her suspension in October 1996 did Mrs XXX indicate that she was suffering from a depressive illness.  They maintain there is no evidence to support Mr XXX’s assertion that she had a previous depressive illness.

5.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  Regulation 27 of the 1997 regulations concern a member’s entitlements when their employment ceases because of permanent incapacity due to ill-health.  The Secretary of State and the Appointed Person have no power under the 1997 regulations to consider whether employment should cease and if so whether ill-health or other grounds are appropriate.  Those are employment decisions rather than pension ones.  Once an employee has left employment with a local authority, an Appointed Person may consider an appeal about whether an ill-health pension and grant are payable under regulation 27 and the Secretary of State may reconsider the dispute on appeal.  In doing so he will take into account whether there is evidence which indicates that employment ceased because the member was permanently incapable (that is, they will not be able to return to their former duties before NRD) of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.

6.                  The Secretary of State has considered all the evidence.  It is not disputed that Mrs XXX’s employment was terminated on 27 April 1998 on the grounds of medical incapacity.  The Secretary of State takes the view therefore that the test to establish Mrs XXX’s entitlement to immediate payment of ill-health retirement benefits is whether she was permanently incapable of efficiently performing her duties as a manager on 27 April 1998 because of her ill-health.  He notes the council’s occupational health consultant, Dr XXX, considered Mrs XXX unfit for work and that there was little prospect of her becoming fit enough to resume work, in his letter to the council dated 13 August 1997.  The Secretary of State also notes that in his report dated 11 November 1998 to the Appointed Person, Mr XXX (consultant surgeon) concluded that Mrs XXX is suffering from depression, and that while the outcome of police actions being taken against her will have a bearing on her long-term mental health, she will never be able to return to her former employment.  In his opinion she is permanently incapacitated.  Mr XXX had access to the records of XXX Trust submitted by Dr XXX, Mrs XXX’s psychiatrist.  Although the council dispute Mr XXX’s view they have produced no medical evidence to refute it nor to support their contentions.

7.                  The Secretary of State takes the view that all the medical evidence firmly indicates that, on the balance of probability, Mrs XXX was permanently incapable of carrying out her duties as a manager on 27 April 1998 by reason of ill-health or infirmity of mind or body.  She ceased employment because of her medical incapacity and therefore concludes that she is entitled to retirement benefits with enhancement from 28 April 1998.