LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 27 April 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person for XXX Council.  The Appointed Person upheld the decision of XXX (the company) not to award Mr XXX immediate payment of retirement benefits by reason of ill-health when he ceased employment.

 

2.                  The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the company on 7 April 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 qualifies for the immediate payment of his local government pension scheme (LGPS) benefits.

 

3.                  Secretary of State’s determination: The Secretary of State has taken into account the appropriate regulations and all the representations and 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 Mr XXX ceased employment with the company on 7 April 1998 because he was permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body.  He does not therefore qualify for immediate payment of his retirement benefits.  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.

 

4.                  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).

 

5.                  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 dated 27 April 1999 (with enclosures); and

 

b)                  from the Appointed Person: letter dated 10 May 1999 (with enclosures) (listed in the Departments letter of 21 May 1999).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mr XXX’s date of birth is 22 November 1947;

 

b)                  he was employed by the company from 9 September 1969 as a Bus Driver;

 

c)                  he was a member of the LGPS;

 

d)                  on 7 August 1996 he was involved in serious road traffic accident;

 

e)                  after receiving counselling for post-traumatic stress disorder Mr XXX returned to work on 27 January 1997;

 

f)                    in early February 1997 he experienced several transient ischaemic attacks; 

 

g)                  on 27 May 1997 his group 2 licence was withdrawn for five years by the DVLA;

 

h)                  on 9 June 1997 he was placed on the company's holding register;

 

i)                    on 31 March 1998 he applied to the company for retirement on ill-health grounds;

 

j)                    the company refused his application; and

 

k)                  on 7 April 1998 he resigned from his job.

 

3.                  Mr XXX maintains that his group 2 licence was withdrawn for 5 years due to his medical condition and that "... it would seem highly unlikely I would be able to acquire a licence at 55 years of age ...".  He contends therefore that he is entitled to ill-health retirement due to his medical condition.

 

4.                  The Appointed Person dismissed Mr XXX’s appeal as he considered that “... having taken advice from my own medical advisor and having studied the evidence available I have formed the view that XXX' decision not to award ill health retirement benefits was a reasonable one and I uphold their decision.”.

 

5.                  The Secretary of State has had regard to the regulations which, in his view, apply.  At the time Mr XXX 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 that the Appointed Person based his decision on the advice of his independent medical examiner, Dr XXX, Consultant Occupational Physician.  In his letter dated 7 January 1999, Dr XXX states "Having carefully considered the evidence made available to me and seen and examined Mr XXX, it is my opinion that he is not permanently incapable of discharging efficiently the duties of his employment because of ill-health or infirmity of mind or body and he should not have been retired by reason of ill-health ...".

 

7.                  The Secretary of State notes the medical evidence provided by the Appointed Person's IME, Dr XXX and Dr XXX.  He also notes specifically the letter dated 16 April 1997 from Mr XXX, Consultant Neurologist and Cerebrovascular Physician, in which he states "There is no residual deficit that would make him physically incapable of driving a bus but clearly there are regulatory issues which are a matter between Mr XXX, his employers and the DVLA.".  Taken together this evidence leads the Secretary of State to conclude that at the time Mr XXX applied for ill-health retirement he was incapable of performing his duties as a bus driver due to the withdrawal of his licence on ill-health grounds.

 

8.                  However, the test that the Secretary of State must apply in determining this case is whether Mr XXX's incapacity is likely to be permanent, i.e. that it is unlikely to improve sufficiently for him to perform the duties of his former employment efficiently before his normal retirement age when LGPS benefits must, in any case be paid.  Taking into account Mr XXX's age and the medical evidence the Secretary of State takes the view that on the balance of probabilities when Mr XXX ceased employment with the company on 7 April 1998 he was not suffering from such a condition of ill-health or infirmity of mind or body that he will be permanently incapable of performing his duties in the sense outlined above as required by the regulations.