LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1.                  I refer to your letter of 14 May 1999 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision dated 31 March 1999 of Ms XXX, the Appointed Person, 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 LGPS retirement benefits on grounds of permanent ill-health from when you ceased employment with the council.  She found that when you ceased employment it would not have been possible to certify you as incapable of efficiently carrying out your duties due to permanent ill-health.  You maintain that from the evidence you have submitted it is possible to show that you were suffering from permanent ill-health so as to be incapable of efficiently discharging your duties with the council before you ceased employment.

3.                  The question for decision: The question you have asked the Secretary of State to decide is whether when you ceased employment with the council on 31 March 1994 you were incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body, so as to qualify for the immediate payment of your retirement benefits with enhancement.

4.                  Secretary of State’s jurisdiction: The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to the Appointed Person under regulation 100.  This regulation refers to a matter relating to the LGPS, which effectively means whether provisions governing the LGPS have been correctly applied in the circumstances.  The disagreement in this case stems from the council’s decision in their letter of 2 September 1998.  That is the matter re-considered by the Appointed Person and decided by her on 31 March 1999.  The Secretary of State cannot re-consider earlier decisions by the council, by the Appointed Person Mr XXX, or by himself.  The appeal procedures in relation to those decisions have been completed.

5.                  The Secretary of State has considered all the representations and evidence so far as the extent of his jurisdiction permits.  Copies of documents supplied by the Appointed Personhave been sent to you under cover of the department’s letter of 7 June 1999.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  So far as the matter lies within his appeal jurisdiction he finds that when you ceased employment with the council on 31 March 1994, you were not suffering from permanent ill-health so as to be incapable of efficiently discharging your duties.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulatory provisions which he considers apply in yourcase are set out in the annex to this letter, which forms an integral part of this decision.  He is acting judicially and has no power to modify the way the regulatory provisions apply to the facts of the case.  Having considered an appeal and 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 State’s officials cannot discuss the case further.

7.                  This completes the second stage of the internal disputes resolution procedure.  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).

8.                  The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the LGPS made or referred in accordance with the Pensions Schemes Act 1993.  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 14 May 1999 (with enclosures); and

b)      from the Appointed Person: letter dated 25 May (with the enclosures listed in the department’s letter of 7 June).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2.                  From the evidence the Secretary of State has noted the following facts:

 

a)      on 31 March 1994 you ceased employment with the council by reason of voluntary resignation;

b)      on 11 August 1995 the council decided not to put your deferred pension benefits into payment on grounds of ill-health;

c)      on 11 September 1995 you appealed to the Secretary of State against that decision;

d)      on 3 July 1996 the council brought your deferred benefits into payment on ill-health grounds;

e)      on 6 February 1997 the Secretary of State decided that your deferred benefits should be brought into payment on ill-health grounds with effect from 8 November 1994.

3.                  The Secretary of State takes the view that the above facts show the current position in relation to the payment of your retirement benefits: that they have been paid from 8 November 1994 because you had then become incapable by reason of permanent ill-health of efficiently discharging your former duties, under the provisions of regulation E2(6)(a) of the 1986 regulations.  He notes that his decision was final, and that, while you referred the matter to the Pensions Ombudsman, it has not been successfully challenged under the legal processes available.

4.                  The Secretary of State has also noted the following facts:

a)      on 12 January 1998, following advice from the Pensions Ombudsman, you made a formal application to the council for the immediate payment of ill-health retirement benefits with enhancement from the date your employment ceased, under the provisions of regulation E2(1)(b)(i) of the 1986 regulations;

b)      the council referred the matter to their Appointed Person, Mr XXX;

c)      on 31 March 1998 Mr XXX decided that you were not entitled to ill-health retirement benefits;

d)      on 8 January 1999 you appealed to the Secretary of State against Mr XXX’s decision;

e)      on 25 January 1999 the Secretary of State decided he could not reconsider the matter because your appeal was out of time.

5.                              The Secretary of State takes the view that Mr XXX’s decision was taken in the light of the medical evidence available since the Secretary of State’s earlier decision; that you had the opportunity to appeal against his decision and did not make a valid appeal; that Mr XXX’s decision therefore stands in law in relation to the evidence available at the time it was taken and that you cannot now make a valid appeal against it

6.                              The Secretary of State also notes the following facts:

a)      you obtained further medical evidence from your consultant Dr XXX M.D. dated 23 June 1998;

b)      on 16 July 1998 you submitted this to the council and asked them to make a decision on your request for ill-health retirement benefits;

c)      on 2 September 1998 the council decided you were not entitled to such benefits;

d)      on 1 March 1999 you appealed against their decision to the Appointed Person;

e)      on 31 March 1999 the Appointed Person, Ms XXX, dismissed your appeal;

f)        on 14 May 1999 you appealed to the Secretary of State against her decision.

7.                              The basis of your appeal is that you consider that the medical evidence available since you ceased employment with the council shows that your permanent illness began in the latter part of March 1994 while you were still in the council’s employment.  You draw attention to Dr XXX’s letter dated 23 June 1998 which you consider constitutes new evidence.

8.                              The Appointed Person took the view that she could only consider developments since Mr XXX’s decision of 31 March 1998.  The issue for decision was whether on 31 March 1994 it would have been possible for any doctor to have then confirmed you as permanently incapable within the meaning of regulation E2(1)(b)(i) of the 1996 regulations. In her view Dr XXX’s letter could not address this and there was no such confirmation.  She concluded that on 31 March 1994 it was not possible for you to be certified as permanently incapable.

9.                              You accept that it was not apparent at the time you ceased work that your condition was permanent.  You contend that, while the regulation required you to be permanently ill at the time, it did not require that evidence of a permanent illness had to be available at the time; subsequent medical evidence may be taken into account.  You maintain that Dr XXX’s letter of 23 June 1998, together with earlier medical opinions, establishes that your permanent ill-health began before 1 April 1994.

10.                           The Secretary of State has first considered the relevant regulation.  Regulation E2(1)(b)(i) of the 1986 regulations provides that where a member with not less than 2 years service ceases employment and is incapable of discharging efficiently the duties of that employment by reason of permanent ill health, he is entitled to the immediate payment of his retirement benefits, with enhancement in specified circumstances.

11.                           Turning to the substance of your appeal, the Secretary of State has considered  your view about the admissibility of medical evidence post-dating the date of termination.  He accepts that the regulation does not specify that evidence of a permanent illness must be available at the time.  However, the regulations require employing authorities to make decisions about entitlement to benefits when a member ceases his employment.  In the Secretary of State’s view, such a decision, including one on appeal, must reasonably rely on evidence that is broadly contemporaneous, in the light of what is then the current state of medical knowledge.  Apart from the specified appeal procedures, there are no provisions in the 1986 regulations to review an ill-health decision once it has been made.  In the Secretary of State’s view, circumstances would have to be exceptional for it to be relevant to take into account later medical evidence when reaching a decision on the existence of a permanent incapacity at the time employment ceases.

12.                           Turning to the medical issues in your case, the Secretary of State notes that in the representations to which you refer in your appeal, you present arguments against the earlier appeal decisions by himself and by Mr XXX. The Secretary of State notes his appeal decision of 6 February 1997 took into account the medical opinion and evidence presented to him during that appeal.  He also considers it clear that, notwithstanding your view that he did not address regulation E2(1)(b)(i), he did consider the question of the date at which your ill-health had become permanent, and he concluded this to be 8 November 1994.  The Secretary of State also notes that in his appeal decision dated 31 March 1998, Mr XXX considered Dr XXX’s letter of 1 December 1997 and the later opinion of an independent medical adviser, Dr XXX. As the Secretary of State has said above, no valid challenge against these decisions has been upheld and they stand in law.  The Secretary of State now has no jurisdiction to overturn them. His jurisdiction is confined to your disagreement with the council’s decision of 2 September 1998 and the Appointed Person’s decision of 31 March 1999.

13.                           The Secretary of State concludes that the only medical evidence which is now for him to consider in your current appeal is Dr XXX’s letter of 23 June 1998.  The questions are whether the circumstances of your case are so exceptional that it is reasonable to take account of a medical opinion which post-dates your termination of employment by some four years, and whether this opinion contains significant new evidence which demonstrates at the time you ceased employment you were suffering from permanent ill-health within the meaning of the regulations, so as to be incapable of efficiently performing your duties.

14.                           On the first of these questions, the Secretary of State is unconvinced that the circumstances of the case are so exceptional that it is necessary to consider evidence that is so far from contemporaneous with the relevant event, particularly bearing in mind the body of medical evidence which has already been considered in the earlier decisions and appeals.  This earlier evidence did not in the Secretary of State’s view suggest that a decision could only reasonably be made in the light of medical opinion some four years later.  However, the council and the Appointed Person have considered the further opinion of Dr XXX in reaching their decisions and the Secretary of State has accordingly done so too. 

15.                           What Dr XXX says in his letter of 23 June 1998 is that you have been diagnosed with chronic fatigue syndrome (CFS) which was triggered by a viral infection which occurred in late March 1994.  Although not diagnosed as CFS at that date, it became clear that the continuum now understood as CFS began at that time, and would be considered to be the beginning of the CFS condition.

16.                           This opinion does not address directly the specific provision of regulation E2(1)(b)(i) that you must have been incapable of efficiently discharging your duties by reason of permanent ill-health when you ceased your employment.  However, Dr XXX refers to his earlier letter of 7 May 1996. This earlier letter referred to your post with the council and to your ability to return to work in that job, and considered your condition permanent in respect of it.  That letter also stated Dr XXX’s opinion that you first became ill with CFS in March 1994.  In the Secretary of State’s view there is nothing in Dr XXX’s letter 23 June 1998 which adds anything new or different to what he had already stated previously, and which had already been taken into account in earlier decisions.  The Secretary of State concludes that there is no new significant material evidence to show that you were incapable by reason of permanent ill health of efficiently discharging your duties when you ceased employment with the council on 31 March 1994.