565      INDEX

Our Ref: LGR85/19/39

16 June 1999

 

 
 


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 15 February 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX (the council).  The Appointed Person upheld the council’s decision that you are not entitled to payment of your deferred local government pension scheme benefits on the grounds of ill-health.

 

2.      The question for decision: The question for decision by the Secretary of State is whether since ceasing employment with the council on 31 March 1995 you have become permanently incapable by reason of ill-health or infirmity of mind or body of discharging efficiently the duties of your former employment.

 

3.      The Secretary of State has considered all the representations and evidence.

 

4.      Secretary of State’s decision: The Secretary of State, having taken into account the appropriate regulations, has decided that no conclusive evidence has been produced to show that you are permanently incapable of efficiently discharging your former duties by reason of depression.  He is unable to reach a conclusion whether you are so incapable by reason of any other form of ill-health or infirmity.  He further concludes that the council have not demonstrated that they acted properly in reaching their decision that you are not entitled to early release of ill-health benefits and he has decided that the council must now reconsider your request in a proper fashion taking account of the grounds other than depression which you have raised.  The Secretary of State’s decision replaces that made by the Appointed Person although it confirms it in so far as it relates to depression. The Secretary of State’s reasons and the legislative provisions which 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 legislative provisions apply to the facts of the case.  Having made his decision he has no powers 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.

 

5.      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).

 

6.      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).

 

7.      A copy of this letter has been sent to the Appointed Person and the council.

 

EVIDENCE RECEIVED

 

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

 

a)    from you: letters dated 15 February (with enclosures) and 26 April 1999.

 

b)   from the Appointed Person: letters dated 4 March, 9 April (enclosing a copy of a letter from Dr XXX dated 4 June 1998) and 10 June 1999 (copy enclosed).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)    your date of birth is 17 January 1953;

 

b)   you were employed by the council as an Administrative Assistant - Finance;

 

c)    you were made redundant on 31 March 1995;

 

d)   in 1998 - sometime before 8 May - you applied for early release of retirement benefits on ill-health grounds;

 

e)    you were seen by the council’s Occupational Health Doctor on 22 May 1998;

 

f)     on 10 June 1998 the council refused your request for early release of retirement benefits;

 

g)    you appealed to the Appointed Person who arranged for you to be seen by the Consultant Director of Occupational Health & Safety at XXX NHS Trust on 2 December 1998;

 

h)    on 7 December 1998 the Appointed Person dismissed your appeal.

 

3.    It is not clear on exactly what date you applied for early release of your deferred benefits, but the Secretary of State is satisfied that it fell to be considered under regulation D11(2)(b) of the 1995 regulations.  The test is whether you had become permanently incapable of efficiently discharging the duties of your former employment because of ill-health or infirmity of mind or body.

 

4.    The Secretary of State has considered the contentions and medical evidence submitted to him.  Under regulations 102 and 103 of the 1997 regulations he is required to reconsider the original dispute.  However, he notes that the council have lost your file and there are some papers relating to the original dispute which have not been submitted to him.  These are your letter to the Appointed Person dated 16 June 1998 and your appeal form to him dated 18 June 1998.  Without these, the Secretary of State is unable to tell from the remaining papers what were the precise medical grounds of your original dispute.

 

5.    In your correspondence to the Secretary of State you contend that you were diagnosed by your G.P. on 14 February 1998 as suffering from depression; and that what led to this was pain in your wrists and knuckles caused by arthritis and possible RSI, a frozen right shoulder (from an earlier injury), lower back problems and on going ailments.  You maintain that although your depressive state could eventually be cured, your arthritis/rheumatic condition will only get worse.

 

6.    The medical evidence available to the Secretary of State is:

 

a)    letter dated 8 May 1998 from your G.P. Dr XXX stating that you “were suffering from depression and gout and fractured ankle ... [you are] unwell and cannot manage work.  [You have] a good case to apply for medical retirement”.

 

b)   letter dated 4 June 1998 from Dr XXX, Specialist Registrar, Department of Occupational Health & Safety XXX NHS Trust, stating that he had received a letter from your G.P. and that he had “no evidence that [you] fulfill the criteria for release of pension benefits on the grounds of ill-health”.

 

c)    letter dated 2 December 1998 from Dr XXX, Director/Consultant, Department of Occupational Health & Safety, XXX NHS Healthcare Trust, stating “I could find no evidence of formal depressive illness, although clearly [you are] an unhappy man ... I can not say that [you will] remain in [your] present state of unhappiness until the age of 65 and therefore do not think that [you are] eligible for an early pension.”

 

7.    To decide the question, the Secretary of State has to consider whether you are suffering from ill-health or infirmity of mind or body, whether it makes you incapable of performing your former duties efficiently, and whether your incapability is permanent, that is, whether it will last until your normal retirement age.

 

8.    The Secretary of State does not find the medical evidence helpful or conclusive.  There is disputed evidence that you are suffering from depression, a mention of gout and a fractured ankle, and no evidence relating to your claims of an arthritic/rheumatic condition.  There is no discussion in either the medical evidence or the council’s decision of 10 June 1998, which simply re-iterates the statement by Dr XXX, of the nature of your duties, even though the regulation requires the capability test to be made against the duties of that employment.  The Secretary of State has been given no evidence of what your former duties comprised.  You have referred to certain work activities in your letter of 15 February 1999 but these appear to relate to a different employment.  Nor is there evidence whether your dispute with the council was on the basis of your alleged depression or your alleged arthritic/rheumatic condition.

 

9.     The Secretary of State finds it difficult, therefore, on the evidence available to him, to make a proper evaluation and assessment of whether you are suffering from ill-health or infirmity of mind or body, its nature and extent if it exists, whether it prevents you from efficiently performing your former duties, and whether it is likely to do so permanently.  He does however note that, if you are suffering from depression, you do not contend that it will be permanent.  He also notes that the council appear to have mislaid some evidence which may or may not be material.

 

10. No written evidence or evaluation of the evidence has been provided by the council.  The advice from Dr XXX on which they relied does not explain the medical grounds for his view that you do not fulfil the criteria for early release of pension on ill-health grounds, nor in what way you do not fulfil them.  It is unclear, therefore, how the council arrived at their decision.  In the Secretary of State’s view, there is a lack of evidence that the council considered the medical issues in a proper fashion.  This does not mean that the decision was necessarily wrong, but it has not been justified.  The Secretary of State considers that the council have not demonstrated that they acted properly in making their decision.

 

11. The evidence whether you are suffering from depression is, in the Secretary of State’s view, inconclusive.  Both you and your G.P. maintain that you are; however you accept that your depressive state is not permanent.  The Secretary of State therefore considers it reasonable to conclude that no conclusive evidence has been produced to show that you are permanently incapable of performing your former duties efficiently because of depression.  He is unable to draw any conclusion in relation to the other conditions from which you allege you are suffering.  There is no evidence that the council have considered these; equally because the council have mislaid the papers, there is no evidence whether they were required to do so.  In the circumstances, the Secretary of State concludes that the council must now consider your claims in a proper fashion and reach a decision which satisfactorily demonstrates that it is based on a clear evaluation of relevant evidence.