LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.      I refer to Ms XXX's letter of 18 May 1999 in which she appeals (under regulation 102 of the 1997 regulations), on behalf of XXX Ltd (the company), against the decision of Mr XXX, the Appointed Person for XXX Council, in relation to Mrs XXX's local government pension scheme (LGPS) dispute with the company.

 

2.      The Appointed Person found that Mrs XXX did meet the criteria for ill-health retirement as set out in regulation 27 of the 1997 regulations.  He therefore upheld Mrs XXX’s appeal that she should have been awarded early retirement on medical grounds.

 

3.      The question for decision - The question for decision by the Secretary of State is whether Mrs XXX is entitled to immediate payment of her retirement benefits from when she ceased employment with the company, on the grounds that she ceased employment on 30 November 1998 by reason of being permanently incapable of discharging efficiently the duties of her employment because 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 determination: 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 1997 regulations, Mrs XXX did cease employment with the company on 30 November 1998, by reason of being permanently incapable of discharging efficiently the duties of her employment because 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 determination.  He is acting judicially and has no power to modify the application of the regulations 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 18 May 1999 (with enclosures) and 7 June 1999 (with enclosures); and

 

b)                  from the Appointed Person: letter dated 4 June 1999 (with enclosures) (as listed in the Department's letter of 14 June 1999).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mrs XXX’s date of birth is 28 May 1949;

 

b)                  she was employed by the company as Head Cook in a nursing home;

 

c)                  she was a member of the LGPS;

 

d)                  in October 1997 she commenced a period of extended sick leave;

 

e)                  on 4 May 1998 (following a meeting with you) Mrs XXX confirmed that she was applying for ill-health retirement;

 

f)                    the company refused her application based on the advice of Mr XXX, Consultant Orthopaedic Surgeon, and XXX; and

 

g)                  when Mrs XXX did not respond to the company's proposals (as detailed in your letter dated 13 November 1998) her contract of employment was terminated with effect from 30 November 1998.

 

3.                  You contend that Mrs XXX should not be awarded early retirement on medical grounds as both Mr XXX and XXX agree that her symptoms are not consistent with a severe, permanent disability.

 

4.                  The Appointed Person upheld Mrs XXX’s appeal as he considered that “On the evidence before me I am satisfied that you are permanently incapable of discharging efficiently the duties of the relevant local government employment because of ill health or infirmity of mind or body.".  He further concluded that she satisfied the LGPS regulations in that she left her employment by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body.

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time Mrs 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 in considering Mrs XXX's application for retirement on ill-health grounds the company sought the advice of Mr D XXX, Consultant Orthopaedic and Trauma Surgeon.  He also notes that, at the request of the XXX Fund, Mrs XXX was examined by Dr XXX (XXX), Consultant Orthopaedic Physician.

 

7.                  The Secretary of State notes that Dr XXX, in his letter dated 11 August 1998, states "With the information available I do not think that Mrs XXX will be able to carry out the duties of a cook again, nor do I feel this is a job that could be reasonably adjusted ...".  He also notes that you sought clarification in this matter and that in Dr XXX's absence, Dr XXX, Occupational Physician, concluded that Mrs XXX was "... permanently incapable of working as a cook but is not permanently incapacitated from working in some other (clerical) position.".

 

8.                  The Secretary of State notes the report from Mr XXX dated 8 October 1998 in which he concluded that "... at the present time she reports that she is still undergoing assessment in the Orthopaedic Clinic at XXX Hospital ... whilst her condition is still being assessed and whilst she may possibly be receiving further treatment ... I am unclear as to why at the same time she is applying for retirement on permanent ill health grounds ... I do not think her present symptoms and physical findings are consistent with a severe permanent disability and, therefore, at the present time I would conclude that she is not eligible to have her retirement sanctioned on ill health grounds.".

 

9.                  The Secretary of State notes that in your letter to Mrs XXX, dated 13 November 1998, you state that "The XXX report does state that your current health does not allow you to work as a Cook.  However, the report prepared by Mr XXX makes no reference to this whatsoever ... both reports did not in the Company's opinion indicate that you suffered from a permanent disability, thus allowing you to retire from this Company on ill health grounds.".  The Secretary of State notes that both the company and Mr XXX appear to have considered whether Mrs XXX was suffering from a permanent disability.  However, at the time Mrs XXX sought early retirement on ill-health grounds the test that applied, and the test applied by Dr XXX, was whether she was permanently incapable of performing her duties as Head Cook efficiently due to ill-health or infirmity of mind or body.  The Secretary of State also notes Mr XXX's comments that Mrs XXX's condition was still being assessed and that she may have been receiving further treatment.  The Secretary of State notes that the company did not seek clarification from Mr XXX particularly on the correct test that should have been applied, even though they had done so with XXX.

 

10.              Taking all the evidence into account, the Secretary of State concludes, therefore, that there is medical evidence confirming that Mrs XXX was permanently incapable of discharging efficiently her duties as Head Cook because of ill-health or infirmity of mind or body on 1 September 1998.  This is, in the Secretary of State's view the correct test to be applied in considering whether her LGPS benefits were payable as a result of ill-health or infirmity of mind or body.  Furthermore, because the company chose not to ask Mr XXX to consider this test, there is no evidence to show what his view would have been.  The Secretary of State takes the view, therefore, that as the correct test was applied before Mrs XXX ceased employment and, bearing in mind that the company offered her "less physically demanding employment" as an option rather than her employment being terminated, there is evidence that her employment ceased because of her ill-health.  The Secretary of State concludes that Mrs XXX is entitled to payment of her retirement benefits with enhancement because she is permanently incapable of discharging efficiently her duties as Head Cook because of ill-health or infirmity of mind or body.