LOCAL GOVERNMENT PENSION SCHEME 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 29 March 1999 in which you appealed (under regulation 102 of the 1997 regulations), on behalf of Mrs XXX, against the decisions of XXX (the council) not to award her immediate payment of ill-health retirement benefits when she ceased employment with them.  The council's original decision, dated 14 August 1997, was upheld by Mr XXX, the Appointed Person for the council.  The council have subsequently confirmed their original decision in a letter, dated 4 April 2000, following consideration of later medical evidence.

 

2.                  The council and the Appointed Person found that Mrs XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when she ceased employment with the council.

 

3.                  The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to the Appointed Person under regulation 100.  This regulation refers to a matter relating to the LGPS, which effectively means whether the statutory provisions governing the LGPS have been correctly applied in the circumstances.  The Secretary of State has no powers to direct the council to act outside the provisions of the regulations.  The disagreement Mrs XXX referred to the Appointed Person was whether the council should have granted her ill-health retirement benefits when her employment was terminated on 25 March 1998.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether Mrs XXX ceased employment with the council on 25 March 1998 by reason of being permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body, and so qualifies for the immediate payment of her LGPS benefits.

 

5.                  Secretary of State’s determination: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations.  He finds that for the purposes of the 1995 regulations, and based on the balance of probabilities, it has not been shown conclusively that Mrs XXX ceased employment with the company on 25 March 1998 because she was permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.  She does not, therefore, qualify for the immediate payment of her LGPS benefits with enhancement from that date.  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 determination.  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 and his officials cannot discuss the case further.  The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.

 

6.                  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 020 7233 8080).

 

7.                  The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the local government pension scheme.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).

 

            EVIDENCE RECEIVED

 

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

 

a)                  from you: letters dated 29 March (with enclosures), 25 May, 22 June, 28 June, 24 September and 9 November 1999, and 8 February and 10 March 2000;

 

b)                  from the Appointed Person: papers considered by him in reaching his decision (list enclosed in the Department’s letter of 6 May 1999); and

 

c)                  from the council: letter dated 4 April 2000.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mrs XXX’s date of birth is 11 September 1946;

 

b)                  she was employed by the council from 26 September 1994 as a Driver;

 

c)                  she was a member of the LGPS;

 

d)                  on 17 June 1997 she began a period of extended sickness absence; and

 

e)                  her employment was terminated with effect from 25 March 1998.

 

3.                  You contend that Mrs XXX is permanently unfit to carry out her employment as a driver and that the council never sought to re-deploy her.  You therefore believe that she should receive her pension dated from 22 June 1998, when her dismissal was confirmed following an internal appeal.

 

4.                  The Appointed Person determined not to uphold Mrs XXX’s appeal as he considered that “At the time of the decision made by the Council, the advice of the independent medical advisor, agreed by both parties, was that Mrs XXX was not permanently incapable of discharging efficiently the duties of her employment due to 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 Mrs XXX ceased her employment with the council the 1995 regulations were in force.  Regulation D7 of the 1995 regulations provides for a member's pension and retirement grant to be paid immediately, with enhancement where applicable, where they cease employment by reason of being permanently incapable of discharging their duties efficiently due to ill-health or infirmity of mind or body.  The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for Mrs XXX to perform the duties of her former LGPS employment efficiently before her normal retirement age when LGPS benefits must, in any case, be paid.

 

6.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Mrs XXX’s occupational health record; letter from the council’s occupational health adviser, Dr XXX, dated 8 January 1996; letter from the council’s occupational health adviser, Dr XXX, dated 31 May 1996; letters from the council’s medical adviser, Dr XXX, dated 23 July 1997, 12 November 1997 and 20 March 1998; letters from Dr XXX, Occupational Health Physician, dated 30 March and 14 April 1998; letters from Dr XXX, Consultant Psychiatrist, dated 9 October and 15 December 1998; and letters from Mrs XXX’s GP, Dr XXX, MBBS, LRCP, MRCS, dated 13 October 1997, 23 October 1998 and 26 February 1999.

 

7.                  The Secretary of State notes that on 13 October 1997 Mrs XXX’s GP, Dr XXX, wrote to the council stating “… Mrs XXX ... has suffered from bouts of severe anxiety depression.  I feel it unlikely that she will get back to full health ... I wish to support her application for ill health retirement.”.  He notes that on 12 November 1997 Mrs XXX was examined by the council’s medical advisor, Dr XXX, who concluded “… she has been suffering from anxiety and depression … I would advise that she will be off sick for the foreseeable future with this condition ... on the balance of probabilities I do not consider that Ms XXX is permanently incapable to discharge the duties of her employer.”.  The matter was then referred for an independent medical assessment.  Dr XXX examined Mrs XXX on 27 March 1998 and recommended a referral to a consultant psychiatrist.  It is not clear to the Secretary of State whether Mrs XXX was examined by a consultant psychiatrist at this point, he notes, however, that Dr XXX wrote to Dr XXX on 14 April 1998 stating “… although she is unfit to work, at least for the foreseeable future, she cannot be classified as being permanently unfit.”.  The Secretary of State is satisfied therefore that, at the time the council made their decision, there was no conclusive medical evidence to indicate that Mrs XXX was permanently incapable of performing her duties efficiently.

 

8.                  The Secretary of State notes Mrs XXX submitted further medical evidence to the Appointed Person in support of her appeal.  He notes that Dr XXX, Consultant Psychiatrist, in his letter dated 9 October 1998, states “... I am in no doubt that her illness over the last eighteen months has been genuine, she suffers from a persistent mood disorder and I cannot think that she is in a fit state to work ... I cannot imagine her being able to return to work in the foreseeable future ...”.  Dr XXX also states, in his letter dated 15 December 1998, “… I cannot see her returning to work …”.  In the Secretary of State's view, the "foreseeable future" does not have the same meaning as "permanent" as defined in paragraph five above.  Taking all the medical evidence into account, the Secretary of State takes the view that it is not disputed that Mrs XXX suffers from a depressive condition, which meant she was incapable of work at the time her employment ceased.  However, he does not consider that there is, on the balance of probabilities, conclusive medical evidence to indicate that she is permanently incapable of efficiently carrying out her former duties, in the sense required by the regulations.

 

9.                  The Secretary of State concludes therefore that Mrs XXX did not cease employment on grounds of permanent incapability by reason of ill-health, in the sense required by the regulations, and she is not therefore entitled to the immediate payment of her LGPS benefits from when she ceased employment with the council.