LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 17 March 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of XXX (the company), against the decision of Mr XXX, the Appointed Person for XXX.  The Appointed Person overturned the decision of the company not to award Mr XXX immediate payment of retirement benefits by reason of ill-health when he ceased employment.  He also determined that immediate payment of retirement benefits by reason of ill-health should have been paid with effect from 19 November 1997, the time Mr XXX was placed on the holding register by the company.

 

2.                  The question for decision: The question for decision by the Secretary of State is whether Mr XXX was permanently incapable of discharging efficiently the duties of his employment with the company because of ill-health or infirmity of mind or body, so as to qualify for the immediate payment of his retirement benefits; and, if so, from what date his retirement benefits should be paid.

 

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 (and Mr XXX) under cover of the Department’s letters of 4 May 1999.

 

4.                  The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited to reconsidering the original disagreement, that is, 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 between the company and Mr XXX.  It was open to the company to present all the medical evidence they considered necessary to the Appointed Person before he reached his decision.  There are no provisions in the regulations to review an ill-health pension in payment in the light of later medical evidence.  For this reason the medical report by Dr XXX dated 25 February 1999 has not been taken into account.  With that exception, the Secretary of State has taken into account all the medical evidence and the appropriate regulations.  

 

5.                  Secretary of State’s decision: Based on the balance of probabilities, the Secretary of State finds that for the purposes of the 1997 regulations, Mr XXX was permanently incapable of discharging efficiently the duties of his employment by reason of ill-health or infirmity of mind or body at the time he ceased employment with the company on 18 May 1998 and that he is entitled to payment of his retirement benefits from that date.  His decision upholds that made by the Appointed Person in so far as it relates to Mr XXX's permanent incapability, and replaces it in so far as it relates to the date from which payment of benefits was due.  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 State's 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).

 

8.                  A copy of this letter has been sent to the Appointed Person, the Pension Manager and Mr XXX (XXX)(the union).

 

            EVIDENCE RECEIVED

 

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

 

a)                  from you: letters dated 17 March (with enclosures) and 6 April 1999 (with enclosures) and facsimile received on 12 May 1999; and

 

b)                  from the Appointed Person: letter dated 7 April 1999 (with enclosures).

 

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 1 August 1966;

 

b)                  he was employed by XXX;

 

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

 

d)                  on 19 November 1997 he was placed on the holding register by the company; and

 

e)                  when Mr XXX asked to be removed from the holding register his employment as a bus driver was terminated on 18 May 1998 on the grounds of incapability.

 

3.                  The company contend that Mr XXX is not permanently incapable of undertaking his former duties.  In support, you have submitted medical evidence acquired after the Appointed Person had reached his decision.  The company also maintain that if Mr XXX were granted ill-health retirement, his ill-health pension should be paid from the date he was dismissed on 18 May 1998 and not the date he was placed on his employer's holding register (19 November 1997).

 

4.                  The Appointed Person determined that “...the balance of probability is that the incapacity is likely to be permanent and as I am satisfied Mr XXX was so incapacitated at the date he was placed on the holding register by XXX, I find that he satisfied the definition for the immediate payment of retirement benefits by reason of ill health...”.

 

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 ceased employment on 18 May 1998 the 1997 regulations were in force.  Regulation 27 of the 1997 regulations provides that "Where a member leaves [his] local government employment by reason of being permanently incapable of discharging efficiently [his] duties because of ill-health or infirmity of mind or body, he is entitled to an ill-health pension and grant.".  Regulation 97(9) provides that the employer, before making a decision as to whether a member may be entitled to his benefits on ill-health grounds under regulation 27, must obtain a certificate from an independent registered medical practitioner. 

 

6.                  No evidence has been provided that demonstrates that the company complied with regulation 97(9), before they made the decision to terminate Mr XXX's employment on 18 May 1998 without payment of ill-health benefits.  However, the Secretary of State notes that Mr XXX had previously submitted to the company a letter from Dr XXX (Consultant Psychiatrist).  In his letter, dated 22 October 1997, Dr XXX states that “XXX should not work as a bus driver for the foreseeable future.  He is fit to drive, but he is not fit to drive buses carrying passengers.”.  Based on this evidence the company considered that, whilst Mr XXX was incapable of driving at the time, they did not feel his condition was permanent and placed him on the holding register on 19 November 1997 to “allow a return to full health”.  The Secretary of State also notes that following his dismissal on 18 May 1998, Mr XXX sought the opinion of his GP, Dr XXX.  In his medical letter, dated 19 May 1998, Dr XXX states that “This patient is unfit to drive buses.  This is likely to be a permanent condition”.

 

7.                  The Secretary of State notes that the Appointed Person based his decision on the medical evidence submitted to him and the report of his own medical advisor, Dr XXX, Consultant Occupational Physician.  In his letter, dated 15 July 1998, Dr XXX states that “I concur with the opinions expressed by Dr XXX and Dr XXX and the supporting evidence in his occupational health notes that Mr XXX is unfit to drive a bus.” and “...that at the time he was placed on the ‘Holding Register’ on 19 November 1997 he was permanently incapable of discharging efficiently the duties of his specific employment because of ill-health and he is entitled to an ill-health pension and grant from that date.”.

 

8.                  Taking all the evidence into account, the Secretary of State considers that, based on the medical evidence available to the Appointed Person at the time the decision had to be made, it was right to conclude that Mr XXX was permanently incapable of discharging efficiently the duties of his employment by reason of ill-health or infirmity of mind or body when he was placed on the holding register.  However, the Secretary of State notes that regulation 27 only gives an entitlement to an ill-health pension and grant where a member leaves his employment because of permanent incapability due to ill-health.  The Secretary of State takes the view that Mr XXX's termination of employment was effectively due to his health-related incapability, but because this did not take effect until 18 May 1998, the entitlement cannot start until that date.  The Secretary of State concludes therefore that Mr XXX is entitled to immediate payment of retirement benefits by reason of permanent incapability from the time his employment with the company ceased on 18 May 1998.