SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter received in the Department on 26 April 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Fund.  The Appointed Person upheld the decision of XXX Council (the council) not to award you immediate payment of ill-health retirement benefits from when you ceased employment with the council.

 

2.                  The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the council on 22 December 1998 by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body, and so qualify for the immediate payment of your local government pension scheme (LGPS) benefits.

 

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 under cover of the Department's letter of 11 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 1997 regulations, it has not been shown conclusively that, at the time you ceased employment with the council on 22 December 1998 you were permanently incapable of discharging efficiently the duties of that employment because 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).

 

            EVIDENCE RECEIVED

 

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

 

a)                  from you: letter received on 26 April 1999 (with enclosures); and

 

b)                  from the Appointed Person: letter dated 30 April 1999 (with enclosures).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 12 May 1958;

 

b)                  you were employed by the council as a kerber/flagger;

 

c)                  you were a member of the LGPS;

 

d)                  you had an extended period of sickness absence from September 1997; and

 

e)                  following a capability hearing your employment with the council was terminated on the grounds of capability due to ill-health on 22 December 1998.

 

3.                  You state that on 15 September 1997 you sustained an injury whilst at work which has led to your current incapacity.  You believe that you are not fit to undertake the duties of your employment and therefore entitled to receive immediate payment of your LGPS benefits.  You contend that Dr XXX informed you that you would be unable to do your job, or any job for the foreseeable future.  You also contend that no review of your condition was undertaken by Dr XXX prior to the termination of your employment on 22 December 1998.

 

4.                  The Appointed Person determined that “...XXX Council, has acted in accordance with the rules of the pension scheme in not granting payment of pension benefits to you...” and “In my opinion, Dr XXX is an independent registered medical practitioner, and his opinion is that he can see no medical reason to certify permanent incapacity”.

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time you ceased employment the 1997 regulations were in force. Regulation 27 of the 1997 regulations provides for a member's pension and retirement grant to be paid immediately, with enhancement where applicable, where they cease employment because they are permanently incapable of performing their duties efficiently due to ill-health or infirmity of mind or body.

 

6.                  The Secretary of State notes your contention that no review of your condition was undertaken by Dr XXX prior to the termination of your employment on 22 December 1998.  He notes that you were examined by Dr XXX several times, most recently on 28 July 1998 and that prior to your dismissal the council specifically asked you to submit any contrary medical evidence you wished them to consider.  On 2 October 1998 Mr XXX, Director of Direct Services with the council, wrote to you stating "You have not produced any contrary medical advice and Dr XXX's assessment of your condition is that you are not fit for work but he can see no medical reason to certify permanent incapacity.".  The Secretary of State therefore does not consider that a further review of your condition by Dr XXX was necessary for the council reach a decision.

 

7.                  The Secretary of State notes all the medical evidence provided by the Council's Medical Advisor, Dr XXX, your GP, Dr XXX, and Mr XXX, Consultant Orthopaedic Surgeon.  Taken together this evidence leads him to conclude that you are suffering some pain and discomfort and that this presently makes you incapable of performing your previous duties efficiently and is likely to do so for some time.  The reason for your pain is not clear and although there is some evidence that you have suffered a soft tissue injury and may have degenerative changes to your back, there is no convincing clinical evidence of a seriously significant problem nor one which requires surgical intervention.

 

8.                  The question for the Secretary of State to decide is whether your incapacity is likely to be permanent, i.e. that it is unlikely 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.  Taking into account your age, the medical evidence and that you have not provided any medical evidence to the contrary the Secretary of State takes the view that there is no conclusive medical evidence that at the time you ceased employment with the council on 22 December 1998 you were suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of performing your duties in the sense outlined above as required by the regulations.