Local Government Pension Scheme Appeal Determination By The Secretary of State

562 INDEX

Our Ref: LGR 85/19/40

21 May 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 19 February 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person for XXX Council (XXX). The Appointed Person upheld the decision of XXX Council (the council), dated 24 November 1997, that Mr XXX was not entitled to the early payment of his preserved benefits based on the advice of their Occupational Health Physician, Dr XXX, that, “it is likely, despite Mr XXX’s medical condition, that he could undertake the duties of an Assistant City Treasurer as before. I cannot support his application for early release of pension”.

2. The questions for decision: The questions for decision by the Secretary of State are whether:

a) since ceasing employment on 1 March 1987 Mr XXX has become incapable by reason of permanent ill-health or infirmity of mind or body of discharging efficiently the duties of the employment he ceased to hold; or

b) since 28 March 1997 (when the relevant regulation was amended) Mr XXX has become permanently incapable of carrying out efficiently his former 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 might not already have seen were sent to you under cover of the Department’s letter of 1 April 1999.

4. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations and all the medical evidence. Based on the balance of probabilities, he finds that for the purposes of the 1995 regulations, Mr XXX was incapable of discharging efficiently the duties of his former employment by reason of permanent ill-health, and is entitled to the early release of his deferred benefits from 26 February 1996. His decision replaces 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.

5. 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).

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 Pension Manager.

EVIDENCE RECEIVED

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

a) your letter dated 19 February 1999 with enclosures; and

b) from the Appointed Person: letter dated 5 March 1999 with enclosures (listed in the Department’s letter of 1 April 1999).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a) Mr XXX’s date of birth is 15 July 1939;

b) he was employed by the council;

c) he was a member of the local government pension scheme (LGPS);

d) his employment as Assistant City Treasurer ceased on 1 March 1987;

e) on 26 February 1996 Mr XXX applied to XXX for early payment of his preserved benefits on ill-health grounds; and

f) his application was refused following the advice from the council’s Occupational Health Physician.

3. You disagree with the Appointed Person’s interpretation of Mr XXX’s job description, stating that at least 50% of Mr XXX’s job entailed dealing with staff and attending meetings etc. which were of unknown length beforehand. If the job was rearranged to deal with all of those meetings it would remove the core job work. You believe that insufficient weight has been given to the opinions of Mr XXX’s GP. You also state Mr XXX’s concern that no information has been provided by Dr XXX, despite Mr XXX providing him with full written authority to disclose all relevant information.

4. The Appointed Person’s considerations and the evidence he considered are set out in detail in his decision dated 2 October 1998. The Secretary of State notes that the Appointed Person considered whether Mr XXX’s condition was permanent and would continue for the next 20 months. He found that “In my view the correct answer to that question was that it was likely to continue. However, I find that I cannot disagree with Dr XXX’s conclusion that, despite Mr XXX’s medical condition he could undertake the duties of an Assistant County Treasurer as before”.

5. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. At the time Mr XXX applied for the early release of his preserved benefits on 26 February 1996 the 1995 regulations were in force. The relevant regulation allowing early release of pension benefits on ill-health grounds was regulation D11(2)(b). The test to be applied, then, and the one used by the Appointed Person in reaching his decision, was whether Mr XXX was incapable of discharging efficiently the duties of his former employment by reason of permanent ill-health or infirmity of mind or body. With effect from 28 March 1997 the regulations were amended. The test from that date is whether Mr XXX has become permanently incapable of efficiently performing his former duties as Assistant City Treasurer because of ill-health or infirmity of mind or body. In reaching his decision the Secretary of State has considered whichever test is appropriate, according to the date at the time.

6. Having studied the Appointed Person’s decision, the Secretary of State is satisfied that he determined the case using all the medical evidence submitted to him. With regards to your contention that insufficient weight has been given to the opinions of Mr XXX’s GP, the Secretary of State notes Mr XXX’s comments in his letter dated 5 March 1999. No report from the GP has been made available to the Secretary of State other than those considered by the Appointed Person, although the Secretary of State 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.

7. Having taken careful account of all the medical evidence, the Secretary of State takes the view that it is not disputed that Mr XXX has suffered from medical problems with his bowel for several years. The question for the Secretary of State is whether this ill-health is permanently incapacitating to the extent that he would be unable to carry out his former duties efficiently before his normal retirement age. He therefore has to consider the nature and history of Mr XXX’s condition, whether it is likely to continue or recur until his normal retirement age, and whether during that time it would prevent him carrying out his former duties efficiently. Given Mr XXX’s age and medical history, the Secretary of State thinks it reasonable to conclude that the condition will continue or recur until normal retirement age. That leaves the issue whether it is such as to make him incapable of efficiently performing his former duties.

8. In Mr XXX’s GP’s view in June 1996, his condition significantly interfered with his ability to work uninterrupted for any length of time, and in October 1997 she considered he remained unfit to carry out the full range of his former duties and that his condition was unlikely to improve sufficiently for him to resume full-time work in the foreseeable future. Dr XXX, consultant physician, considered in October 1997 that Mr XXX may well be prone to bouts of sudden faecal incontinence making life difficult in meetings or stressful situations, and this would significantly impede one’s ability to carry out work under such conditions. Mr XXX, consultant surgeon, gave his opinion in December 1996 that Mr XXX was not totally incapacitated nor permanently unfit to undertake employment generally. He did not know exactly what the duties of an Assistant City Treasurer were, but it might be difficult for Mr XXX to undertake a post involving regular attendance at meetings. He considered him able to work part-time but that he was sufficiently medically incapacitated to make it difficult for him to work full-time.

9. The County medical adviser for XXX, Dr XXX, commented in August and September 1996 that while Mr XXX had a chronic medical condition, lots of people had this condition and remained in employment, that he worked in a purely sedentary job with access to toilet facilities and that unless he was totally incapacitated he could be fit to continue with the duties of his post. On the basis of medical reports he concluded in March 1997 that it was likely, despite his medical condition, that he could undertake the duties of an Assistant City Treasurer as before.

10. Under regulation J3 of the 1995 regulations the decision whether Mr XXX was entitled to his pension benefits was for the council and not for XXX to whom the matter had been referred. The council decided in November 1997 not to release Mr XXX’s benefits apparently on the basis of a statement of their occupational health adviser, Dr XXX, that it was likely, despite his medical condition, that Mr XXX could undertake the duties of an Assistant City Treasurer as before. The Secretary of State notes that Dr XXX’s wording was identical to that used 8 months earlier by Dr XXX. He notes that there is no evidence that Dr XXX examined Mr XXX. No written discussion or evaluation of the medical evidence has been provided by the council. It is unclear what medical evidence they or Dr XXX took into account or how they arrived at their decision. In the Secretary of State’s view, there is a lack of evidence that the council considered the medical evidence 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 acted properly in making their decision.

11. The Secretary of State has considered the duties in Mr XXX’s job description. He notes your contention that at least 50% of the job entailed dealing with staff or attending meetings of unknown length, and that rearrangement of the job to deal with these would remove the core activities. He does not consider that the job description supports this contention. He considers that the comments made by the Appointed Person in paragraph 7 of his decision were properly founded on the evidence provided.

12. Nevertheless, taking all the medical evidence and his former duties into account, it is the Secretary of State’s view that on the balance of probabilities Mr XXX’s condition is such as to prevent him carrying out those duties efficiently. He accepts that his incapacity is permanent. The remaining question is when it became so. In the Secretary of State’s view, the medical evidence and history shows Mr XXX’s condition to be of long standing, and it suggests that it was a significant one when Mr XXX initially applied for early release of his benefits. The Secretary of State recognises that much of the medical evidence clarifying the position has accumulated since that date, but he nonetheless concludes, again on the balance of probability, that the requirements of regulation D11(2)(b) were met at that date and therefore that Mr XXX is entitled to the early release of deferred benefits from 26 February 1996.