602

INDEX

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)

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 Mrs XXX, against the decision of Mr XXX, the Appointed Person for XXX Council, in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).

 

2.                  The Appointed Person upheld the decision of the council not to backdate Mrs XXX’s LGPS benefits from when she ceased employment with XXX Borough Council (the borough council), and that her LGPS benefits should not be enhanced.

 

3.                  It is noted that among Mrs XXX's grounds of appeal is the contention that she had a sickness entitlement to six months full-pay plus six months half-pay before her employment was terminated, but this was not honoured.  Questions about the timing of her termination of employment are not ones the Secretary of State can consider on a pensions appeal since they are employment rather than LGPS issues.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether, when Mrs XXX ceased employment with the borough council she was incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body, and so qualifies for the immediate payment of her LGPS benefits with enhancement.

 

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations, all the representations made, and the medical evidence submitted.  He finds the medical evidence provided is neither clear nor conclusive, and the council have not acted properly in reaching their decision.  The Secretary of State has decided that the council should reconsider the matter in a proper fashion, demonstrating that they investigated and taken full account of the medical issues and addressed the precise requirements of the regulations.  His decision does not require the council to come to a different decision if, after a proper reconsideration, they conclude that Mrs XXX's benefits should not be put into payment before 26 November 1997.

 

6.                  The Secretary of State's decision replaces that made by the Appointed Person.  His 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 application of the regulations 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.

 

7.                  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).

 

8.                  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).

 

9.                  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 17 March 1999 (with enclosures), 5 May 1999 and 4 June 1999 (with enclosures) and fax received in the Department on 19 May 1999;

 

b)                  from the Appointed Person: letters dated 8 April 1999 (with enclosures) (listed in the Department’s letter dated 22 April 1999) and 21 June 1999; and

 

c)                  from Mrs XXX: letter dated 16 May 1999.

 

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 17 October 1951;

 

b)                  in November 1986 she commenced employment with the borough council;

 

c)                  she was a member of the LGPS;

 

d)                  her employment with the borough council ceased on 2 December 1994 on the grounds of capability following a period of sickness absence;

 

e)                  at the time her employment ceased she was employed as an Accounts Assistant;

 

f)                    having taken advice from two independent medical examiners, the borough council declined to award Mrs XXX immediate payment of enhanced LGPS benefits;

 

g)                  in October 1997 Mrs XXX applied to the council for payment of her LGPS benefits enhanced and backdated to 2 December 1994; and

 

h)                  following the advice of Dr XXX, the council’s Occupational Health Adviser, Mrs XXX was awarded early release of her preserved benefits from November 1997.

 

3.                  You contend that when Mrs XXX was examined in 1994 she was incapable of working, but that the doctor was unprepared to make a long term prognosis, possibly because Mrs XXX was still receiving treatment and may have improved.  Mrs XXX also contends that Dr XXX informed her verbally, during his examination on 4 November 1997, that she had suffered permanent ill-health since 1994.  She therefore expected to have her LGPS benefits paid from the time her employment ceased, with enhancement.

 

4.                  The council maintain that they have no power to enhance the pensionable service of a person certified as permanently unfit for work, where that person is no longer in the employment of a local authority.

 

5.                  The Appointed Person dismissed Mrs XXX’s appeal as he found that two independent medical advisers were unable to certify that Mrs XXX was permanently incapacitated at 2 December 1994 and therefore, that she had no entitlement to immediate payment of enhanced pension benefits.

 

6.                  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 employment the 1986 regulations were in force.  Regulation E2(1)(b)(i) of the 1986 regulations makes no reference to any positive act that brings employment to an end either by the employer giving notice or the employee voluntarily resigning.  The test which he must apply in reaching his decision is whether Mrs XXX was suffering from permanent ill-health or infirmity of mind or body so as to be incapable of carrying out efficiently her duties at the time her employment ceased with the borough council.

 

7.                  The regulation governing the early release of deferred benefits in November 1997 was regulation D11(2)(b) of the 1995 regulations.  This required deferred benefits to be paid from any date on which a member became permanently incapable by reason of ill-health of performing their former duties.

 

8.                  The Secretary of State has carefully considered all the evidence, including letters from Dr XXX (Consultant Occupational Physician) dated 23 November 1994 and 7 November 1997 and the letter from Dr XXX dated 6 February 1995.  He has also considered the X-Ray report dated 28 September 1994 (enclosed with your letter of 4 June 1999), although he notes that this was not submitted to the Appointed Person with Mrs XXX's original appeal.

 

9.                  The Secretary of State notes that the borough council asked Dr XXX to examine Mrs XXX in November 1994.  In his letter, dated 23 November 1994, Dr XXX states that “I do not think she will be able to return to work in the near future, however, as she is still on treatment I am unable to recommend that Mrs XXX retire on the grounds of ill health”.  He notes that Dr XXX refers to his letter of 21 October 1994 and that the borough council also refer, in their letter of 1 November 1994, to a letter from their medical advisor "giving his full assessment of Mrs XXX's situation in light of the information received from her own doctor".  This has not been produced in evidence. 

 

10.              The Secretary of State also notes that the borough council asked Dr XXX for a second opinion as to whether Mrs XXX had become permanently unfit for work.  In her letter, dated 6 February 1995, Dr XXX states that having taken her medical history, discussed her symptoms, carried out a physical examination and spoken to her GP, her conclusion is that she is not permanently unfit for employment.

 

11.              The Secretary of State notes that, following Dr XXX’s re-examination of Mrs XXX in November 1997, he commented that “It does not appear as if Mrs XXX has made any progress in her medical condition since I last saw her.  She has seen a Specialist over these years and had various forms of treatment which was of little help.  The examination today showed that she still has problems and I feel that she has sufficient medical reasons for me to recommend early retirement on health grounds”.

 

12.              The Secretary of State considers that the medical evidence offered to him is sparse, and no written discussion, analysis or evaluation of the medical evidence by either the borough council or the council in reaching their decisions has been provided.  The specific requirement of the regulation - incapability of carrying out efficiently the duties of the employment due to permanent ill-health - has not been directly addressed; instead, the medical evidence refers rather loosely to “early retirement on ill-health grounds” and “permanently unfit for work/employment”.  However, at the time the borough council took their decision when Mrs XXX ceased employment, it is clear that both Dr XXX and Dr XXX had available and took into account medical evidence from Mrs XXX’s GP, medical history and examinations.  The Secretary of State accepts that the evidence on balance indicated that Mrs XXX was incapable of efficiently performing her duties and was suffering from ill-health.  He also accepts that at the time that decision had to be made in 1994 and when it was confirmed in early 1995, there was no conclusive medical evidence to show that Mrs XXX was incapable due to permanent ill-health.  He notes that Mrs XXX questioned the decision at that time but did not appeal to him against it.  He is concerned to note, however, that in advising her of her appeal rights XXX County Council suggested she might be required to pay the costs of a further independent medical examination.  Appellants were not required to meet the costs of examinations carried out for the Secretary of State.

 

13.              The Secretary of State therefore has to accept the decision taken by the borough council at that time in the light of the medical evidence then available.  That decision is not the subject of this appeal.  This appeal is against the council’s decision in December 1997 to grant early release of Mrs XXX’s deferred benefits with effect from 26 November 1997, rather than to grant enhanced benefits from 2 December 1994 in the light of the later medical evidence.  There is no evidence that the council at that stage considered, in the light of that later medical evidence, whether Mrs XXX did satisfy the criteria for immediate payment of enhanced benefits when she ceased employment.  They simply maintain that they have no power to enhance pensionable service where the individual is no longer in local authority employment.

 

14.              The Secretary of State does not agree with the council’s view that they have no such power; he does not consider the wording of regulation E2(1)(b)(i) precludes the council from reaching a decision under it after employment has ceased.  However, he does consider that the test required under regulation E2(1)(b)(i) has to be applied as at the date employment ceased in the light of then current medical evidence and knowledge; and that a decision properly taken at that time remains the valid decision required by the regulations.  There is no provision for subsequent review and reversal with the benefit of hindsight in the light of later developments.  Nevertheless, he considers there may exceptionally be circumstances justifying a later decision to pay benefits from the date of termination, with enhancement where prescribed, for example where the medical evidence on permanency is not conclusive at the time employment ceases and only becomes so later or a final assessment and judgement is dependent on the outcome of a subsequent test or treatment.

 

15.              The Secretary of State also takes the view that where deferred benefits are brought into payment early under regulation D11(2)(b) of the 1995 regulations, the council must seek to establish the date on which it is reasonable to hold that the incapacity became permanent.

 

16.              It appears that you maintain that Mrs XXX’s case was one where permanency could not be conclusively established at the time but could after subsequent treatment had no effect.  The council do not appear to have considered this question, and whether Mrs XXX’s case was in this respect an exceptional one.  In the Secretary of State’s view, Dr XXX’ medical opinion in 1995 was unequivocal: Mrs XXX was not then permanently unfit for work/employment, though the terms in which this opinion was expressed did not focus directly on the precise terms of the test required under regulation E2(1)(b)(i).  Dr XXX’s opinions are less clear cut; he could not in 1994 recommend ill-health retirement because of ongoing treatment, but in 1997 he conceded that the treatment had been ineffective and he did recommend early ill-health retirement.  He did not suggest that Mrs XXX’s condition had deteriorated meanwhile.  Again, these opinions do not focus on the precise test of the regulation, and the reference to “early retirement” is ambiguous.  The Secretary of State does not find Dr XXX’s opinion clear as to when the permanency of Mrs XXX’s condition should reasonably be taken as having become established, or when it was reasonable to make such a judgement.  Nor, given the scantiness and brevity of the medical evidence presented to him, does the Secretary of State find any clear and conclusive answer to these questions.

 

17.              In the Secretary of State’s view, the council should have addressed these issues and sought necessary expansion and clarification of the medical evidence and opinion so as to ensure their decision was sound.  He concludes that they failed to do so, and that in consequence their decision was not taken properly.  He accordingly decides that they must now reconsider the matter in a proper fashion.