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 of 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, in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).

 

2.      The Appointed Person upheld the council's decision that you are not entitled to the early payment of your deferred LGPS benefits, as he was not satisfied that you were permanently incapable of discharging efficiently the duties of your former employment by reason of ill-health or infirmity of mind or body.

 

3.      The question for decision: The question for decision by the Secretary of State is whether, since ceasing your employment with the council in March 1987 and at the time you applied for early release of your deferred benefits on 22 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.

 

4.      The Secretary of State has considered all the representations and evidence.

 

5.      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 since ceasing your employment with the council in May 1997 and at 12 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 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.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

 

7.      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: letters dated 22 April 1999 (with enclosures) and 25 May 1999 (with enclosures) and fax received in the Department on 2 August 1999;

 

b)                  from the Appointed Person: letter dated 6 May 1999 (with enclosures) (listed in the Departments letter of 13 May 1999); and

 

c)                  from Dr XXX: letter dated 7 June 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 1949;

 

b)                  you were employed by the council as an Income Assistant;

 

c)                  you were a member of the local government superannuation scheme (now LGPS);

 

d)                  your employment ceased on 31 March 1987;

 

e)                  on 22 July 1998 you applied to the council for early payment of your deferred benefits on ill-health grounds; and

 

f)                    your application was refused following the advice of the council’s Medical Advisor.

 

3.                  You are dissatisfied with the Appointed Person's decision as you feel he did not take into account the fact that you have been on incapacity benefit since July 1996.  You contend that Dr XXX refused to explain to you where the criteria for incapacity benefit differs from the criteria for awarding your deferred LGPS benefits on the grounds of ill-health.  In the light of your complaint to the General Medical Council you also maintain that the medical reports written by Dr XXX should not have been taken into account by the council.

 

4.                  The Appointed Person determined that "I have now received Dr XXX's advice ... as you will see, in her view, you are not permanently incapable of discharging the duties of Income Assistant and are not therefore eligible for early access to deferred pension benefits ... In the light of Dr XXX's advice ... I cannot uphold your complaint".

 

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, since ceasing your former employment you have become permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.

 

6.                  The Secretary of State 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 Medical Advisor, Dr J XXX.  He further notes that your appeal to the Appointed Person was based on your concerns regarding Dr XXX's handling of your case and that you have subsequently made a complaint to the General Medical Council regarding this.  In view of your concerns, the Appointed Person sought clarification on the test applied by Dr XXX in determining whether you were entitled to early release of your deferred LGPS benefits and, after receiving a further report from him, decided to seek the opinion of an independent medical examiner, Dr XXX, the County Medical Advisor.  The Secretary of State also notes that Dr XXX concluded that "... in my view, Mr XXX is not permanently incapable of discharging the duties of Income Assistant ...".  The Secretary of State is, therefore, satisfied that the Appointed Person took into account your concerns regarding Dr XXX.

 

7.                  The Secretary of State notes that you have been receiving incapacity benefit since July 1996 and that you feel this was not taken into account by the Appointed Person.  He also notes your contention that Dr XXX "... refused to explain to me where the criteria for incapacity benefit differs from the criteria for awarding pension rights on ill health.".  However, the fact that you are receiving incapacity benefit is not conclusive because the test that the council, the Appointed Person and the Secretary of State have to apply under the regulations is whether, since ceasing your former employment you have become permanently incapable of discharging efficiently the duties of an Income Assistant by reason of ill-health or infirmity of mind or body.

 

8.                  The Secretary of State has considered all the evidence submitted to him.  He notes the comments made by your GP, Dr XXX, those made by Dr XXX and those made by Dr XXX.  He takes the view that there is no conclusive medical evidence that you are permanently incapable of discharging efficiently the duties of an Income Assistant by reason of ill-health or infirmity of mind or body.  The Secretary of State concludes, therefore, 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.