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 12 May 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 found that you did not satisfy the requirements of the LGPS regulations for early release of your deferred benefits on ill-health grounds.

 

3.                  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 5 February 1999, you were 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 at the time you applied for the early release of your deferred LGPS benefits on 5 February 1999, 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.  Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

 

7.                  The Pensions Ombudsman may investigate and determine any allegation of maladministration or 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 12 May 1999 (with enclosures);

 

b)                  from the Appointed Person: letter dated 25 May 1999 (with enclosures) (listed in the Department's letter of 17 May 1999); and

 

c)                  from the council: fax copy of your original application for early release of your deferred LGPS benefits received in the Department on 27 July 1999.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 23 March 1949;

 

b)                  you were employed by the council as the Managing Director of XXX;

 

c)                  you were a member of the LGPS;

 

d)                  your employment ceased in October 1988;

 

e)                  on 5 February 1999 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 from the council's medical advisor.

 

3.                  You maintain that due to your medical condition you could not fulfil your former duties as a Managing Director, and therefore are entitled to early release of your deferred LGPS benefits.  You question the accuracy and impartiality of the original medical decision and you are dissatisfied with the Appointed Person's handling of your case.

 

4.                  The Appointed Person determined that "As the Medical Officer to the XXX Council has indicated that you are not permanently unfit, I regret that I must determine your appeal be refused.".

 

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.  The Secretary of State notes that the Appointed Person in reaching his decision considered whether you were incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body.  However, regulation D11 of the 1995 regulations was amended with effect from 28 March 1997 and the test the Appointed Person should have applied is whether, 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 Managing Director because of ill-health or infirmity of mind or body.

 

6.                  The Secretary of State notes your comments regarding the original medical decision and the Appointed Person's handling of your case.  The Secretary of State notes that the council referred the matter to their medical advisor Dr XXX.  Dr XXX referred to your former occupation as a PSV driver, when you were in fact a Managing Director.  However, the Secretary of State also notes that the Appointed Person consulted Dr XXX again specifically about the different job.  Dr XXX's opinion remained the same. The Secretary of State concludes from this that the basis of the council's initial decision was flawed but that Dr XXX has now considered the question properly in relation to your circumstances.

 

7.                  The Secretary of State also notes that the Appointed Person appears to have confined his attention to Dr XXX's opinion and he implies that he has no power other than to accept that opinion.  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, all medical evidence which has been submitted relating to the appellant's state of health, has to be considered.  The Secretary of State takes the view that the regulations do not in any way fetter his power to re-assess the opinion of the council's medical officer in the light of all the medical evidence and to reach a different conclusion if justified.  In his view he cannot reasonably and properly reach a decision on the disagreement without considering afresh all the medical evidence and opinion submitted.

 

8.                  The medical evidence available to the council, the Appointed Person and the Secretary of State was the letter of 12 March 1999 which you forwarded from your GP, Dr XXX and the views of the council's medical advisor, Dr XXX, in his letters dated 24 February and 8 April 1999.  The Secretary of State notes that your GP stated that considering your occupation you are unfit to continue in your employment.  The Secretary of State takes this to mean that your GP considers you are incapable of doing your then current job, which was that of a PSV driver.  However, this is not the test that has to be applied under the 1995 regulations.  The correct test is whether you are permanently incapable of efficiently doing your former local authority job, which was not as a PSV driver, but as a Managing Director.  Neither your former job nor the question of permanence have been directly addressed by your GP.  While you claim that your former job would be too stressful for you to carry out now, you have provided no medical evidence to support this.  The council's medical advisor has concluded that you are not permanently incapable of performing your previous duties as a Managing Director.  This was clarified in his letter of 8 April 1999.  In the circumstances, the Secretary of State has to conclude that you have provided no medical evidence which is sufficient to override the opinion of the council's medical advisor.  It is noted that in your letter of 12 May 1999 you have referred to medical details from both your GP and the XXX Hospital; however it would appear that you did not provide these in evidence to the council or to the Appointed Person, although you gave the Secretary of State the authority to examine them.  The Secretary of State cannot take into account new medical evidence that has not been considered by the council or the Appointed Person as this does not form part of the original dispute which is what he is required to reconsider.  If you believe that you have further medical evidence which supports your case you should present it to the council so that they may consider your application afresh.

 

9.                  Having taken careful account of all the medical evidence, the Secretary of State takes the view that it is not disputed that you have suffered from medical problems with your bowel for several years.  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.  On the basis of the medical evidence put to him the Secretary of State concludes that on the balance of probabilities you are not 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 outlined above as required by the regulations.