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 dated 29 March 1999 and received in the Department on 30 March 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 decision of the council that you are not entitled to the early payment of your deferred local government pension scheme (LGPS) benefits.

 

2.                  The question for decision: The question for decision by the Secretary of State is whether, at the time you applied for early release of your deferred benefits on 27 February 1998, you were permanently incapable of carrying out efficiently your 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, Mr XXX and Dr XXX were sent to you under cover of the Department’s letters of 29 April and 27 May 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, it has not been shown conclusively that at the time you applied for the early release of your deferred LGPS benefits on 27 February 1998, you had become permanently incapable of carrying out efficiently your former duties by reason of ill-health or infirmity of mind or body.  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 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)                  from you: letters (with enclosures) dated 29 March and 21 April 1999;

 

b)                  from the Appointed Person: letter (with enclosures) dated 8 April 1999;

 

c)                  from Mr XXX: letter (with enclosures) dated 21 April 1999; and

 

d)                  from Dr XXX: letter (with enclosures) dated 20 May 1999.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 7 May 1963;

 

b)                  you were employed by the council as a Centre Worker;

 

c)                  you were a member of the LGPS;

 

d)                  your employment ceased on 17 January 1997;

 

e)                  on 27 February 1998 you formally applied to the council for early payment of your deferred benefits on ill-health grounds; and

 

f)                    your application was refused following the advice from the council’s Occupational Health Advisor.

 

3.                  You contend that the medical report submitted by your Consultant ENT Surgeon, Mr XXX provided sufficient new medical evidence for the council to award you early release of your deferred LGPS benefits.  You allege that Dr XXX (the council's Occupational Health Advisor) is victimising you.  You also feel concerned about reference being made to your signing of a compromise agreement with the council.

 

4.                  The Appointed Person stated that "In reaching my decision, I have to note the statement of the Council's Occupational Health Adviser and under these circumstances I cannot allow your appeal and agree with the decision made by the Pensions Manager not to award the early payment of your deferred retirement benefits.".

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time you applied for early payment of your preserved pension benefits, the 1995 regulations were in force.  With effect from 28 March 1997, regulation D11(2)(b) of the 1995 regulations requires that the test to be applied is whether, at the time you applied for the early release of your deferred LGPS benefits, you had become permanently incapable of discharging efficiently the duties of a Centre Worker because of ill-health or infirmity of mind or body.

 

6.                  The Secretary of State has first considered the extent of his powers to deal with the question.  He notes that the Appointed Person drew a distinction between the medical advisor's decision about the medical evidence and the council's decision not to make early payment of deferred benefits.  The Appointed Person maintains that he cannot deal with questions about the medical advisor's decision.  He therefore appears not to have considered the medical issues but to have confined his attention to the question whether the council have acted in accordance with the procedure in the LGPS regulations.

 

7.                  In the Secretary of State's view, there is no basis in the regulations for such a distinction in relation to his powers on appeal.  Under regulation 97 of the 1997 regulations a decision whether to award early payment of deferred benefits (regulation D11 of the 1995 regulations) falls to the council.  Regulations 100 and 102 of the 1997 regulations empower the Appointed Person and the Secretary of State respectively to reconsider a disagreement about a matter in relation to the scheme.  The Secretary of State takes the view that when early release of deferred benefits on ill-health grounds is under consideration, the appellant's state of health is a matter in relation to the scheme.  In your case there is a disagreement about this matter, that is, whether you have become permanently incapable of efficiently performing your former duties by reason of ill-health.  The Secretary of State takes the view that the regulations do not in any way fetter his power to consider your state of health; and further that he cannot reasonably and properly reach a decision on the disagreement without considering the medical evidence and opinion.

 

8.                  The Secretary of State has therefore considered all the medical evidence and opinion submitted, comprising that of Dr XXX, Mr XXX and Dr XXX.  He has also taken into account your former job description.  He notes that the council refused to grant you early payment of your deferred pension benefits on ill-health grounds based on the advice of their Occupational Health Advisor, Dr XXX.  In forming her opinion Dr XXX sought the specialist advice of Mr XXX, Consultant ENT Surgeon.  In his letter dated 1 June 1998, Mr XXX states "... increasingly of late hearing aids on either side have produced irritation and otitis externa such that wearing the aids exacerbates the otitis externa so that she is very limited in the length of time she can actually wear a hearing aid.  The otitis externa has been present for at least two years and shows no sign of improving with treatment, if anything it seems to be getting worse.  Although for the time I have been seeing XXX, her hearing has not deteriorated but it is likely to do so as she gets older.".  Based on this report Dr XXX concluded that "I am of the opinion that there is insufficient new medical evidence to justify a ill health retirement in this case.".   

 

9.                  The Secretary of State accepts that it is established that you are profoundly deaf and that this condition will not improve.  He notes Dr XXX's view that it has not deteriorated in recent years, and that this has not been disputed.  In the Secretary of State's view, the evidence suggests that despite this condition, you were able to perform your former duties efficiently with the benefit of hearing aids, and that, with such aids, you would still be able to do so.

 

10.              The Secretary of State also accepts, and it is not disputed, that you have suffered from recurring otitis externa since 1996 and that this condition makes it difficult for you to wear your hearing aids.  Given the nature of your former job, the Secretary of State inclines to the view that it is unlikely that you could efficiently perform your former duties without hearing aids, although no direct evidence has been offered on this score.  However, the appropriate test of permanent incapacity is that your condition would not be likely to improve sufficiently for you to perform the duties of your former employment efficiently before your normal retirement age when LGPS benefits must, in any case, be paid.  The question, therefore, is whether otitis externa is, on the balance of probabilities, more likely than not to make you permanently incapable in the meaning of the regulations.  The Secretary of State notes Mr XXX's view in 1998 that it is not improving and is, if anything, getting worse.  He also notes Dr 's view in 1996 that the infection proved difficult to clear and you were at risk of developing it again, as in fact you did.  He also notes that at the time you ceased employment, Dr XXX considered a long term prognosis difficult to determine because a cochlea implant was being considered, but that Dr XXX's subsequent notes suggest that your GP does not now think you would benefit sufficiently from this.

 

11.              However, while it is clear that you currently suffer from otitis externa, and the evidence suggests that this is continuing, the Secretary of State does not consider that conclusive evidence has been produced to show that this condition will, on the balance of probability, remain or recur for such a period of time, bearing in mind your age, as to make you permanently incapable of efficiently performing your former duties.  The Secretary of State therefore concludes that it has not been conclusively shown that, on the balance of probabilities, you are currently suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of performing your former duties efficiently in the sense required by the regulations.