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 received in the Department on 22 April 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council.  The Appointed Person upheld the decision of XXX College (the college) 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 1 July 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.

 

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 1 July 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).

 

 

            EVIDENCE RECEIVED

 

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

 

a)                  from you: letter received in the Department on 22 April 1999 (with enclosures) and letter dated 28 May 1999; and

 

b)                  from the Appointed Person: letter dated 4 May 1999 (with enclosures) (listed in the Departments letter of 17 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 29 March 1959;

 

b)                  you were employed by XXX College as a Maintenance Plumber;

 

c)                  you were a member of the LGPS;

 

d)                  your employment ceased on 20 October 1993;

 

e)                  on 1 July 1998 you applied to the college for early payment of your deferred benefits on ill-health grounds; and

 

f)                    your application was refused following the advice from the college’s Occupational Health Physician.

 

3.                  You maintain that subsequent to leaving the college you worked for XXX Council as a Child Care Officer and were medically retired on 29 June 1998.  You contend that the college have refused to grant you early payment of your deferred pension benefits on ill-health grounds despite XXX Council terminating your employment as a Child Care Officer on medical grounds.  Whilst you appreciate that XXX Council terminated your employment as a Child Care Officer due to the job being very stressful and leading to your angina, you maintain that your previous employment as a Maintenance Plumber could also bring about the same type of stress.  You believe that the medical advisor who made the decision to medically retire you from XXX Council (Dr XXX) should have been approached for his comments and that the comments made by your GP, Dr XXX, were not given due consideration by the Appointed Person's medical advisor.

 

4.                  The Appointed Person determined that "... having studied all the available evidence and taken advice from my own medical advisor I find that I agree with the decision taken by XXX College and must turn down your appeal for early payment of your deferred pension benefits on ill health grounds.".

 

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.  To qualify for early payment under these regulations, it must be shown that, at the time you applied for the early release of your deferred LGPS benefits you were permanently incapable of discharging efficiently the duties of a Maintenance Plumber because of ill-health or infirmity of mind or body.

 

6.                  The Secretary of State notes that the college refused to grant you early payment of your deferred pension benefits on ill-health grounds based on the advice of their Occupational Health Physician, Dr XXX, and the advice of Dr XXX, Consultant Physician/Cardiologist.  In his letter dated 22 July 1998, Dr XXX states "I think at worst he has stable angina and unless there is a deterioration in his symptoms his prognosis must be good.  On the other hand I am worried about his gross obesity and I think this in itself is a serious risk to his long term health.".

 

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 11 December 1998, Dr XXX states "It is my view that Mr XXX's main problem is his obesity and that if he got his weight back to a near normal level the likelihood is that he would be fit for unrestricted duties and that his other symptoms would resolve.  It is not my opinion that he is permanently incapable, by reason of ill-health or infirmity of mind or body, of discharging efficiently the duties of the employment he has ceased to hold or that he is permanently incapacitated by such physical or mental infirmity from engaging in any regular full time employment.".

 

8.                  The Secretary of State notes your contention that Dr XXX should have approached Dr XXX of XXX Employee Health Care Unit for his comments.  However, the test that the college, the Appointed Person and the Secretary of State have had to apply is whether, at the time you applied for the early release of your deferred LGPS benefits you were permanently incapable of carrying out efficiently your former duties as a Maintenance Plumber by reason of ill-health or infirmity of mind or body.  The Secretary of State takes the view that the test that Dr XXX would have been asked to consider is whether you were permanently incapable of discharging efficiently your duties as a Child Care Officer because of ill-health or infirmity of mind or body.  He therefore does not consider that the views of Dr XXX would have been relevant to the specific question.  With regard to your contention that Dr XXX did not give due consideration to the comments made by Dr XXX, the Secretary of State notes that in his decision letter, the Appointed Person states that Dr XXX "... had the benefit of Dr XXX' report." and is therefore satisfied that your case was determined using the appropriate medical evidence.

 

9.                  The Secretary of State takes the view that 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 before your normal retirement age when LGPS benefits must, in any case be paid.  Bearing in mind your age and the medical opinion that, "... if you got your weight back to a near normal level the likelihood is that you would be fit for unrestricted duties and that your other symptoms would resolve... ", the Secretary of State concludes that on the balance of probabilities you are not 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 outlined above as required by the regulations.