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 dated 18 June 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for the XXX, in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).

 

2.                  The Appointed Person determined that you did not meet the criteria for enhanced ill-health benefits under regulation D7 of the 1995 regulations because your employment with the council ceased through transfer to XXX.  You were however entitled under regulation D11 to early release of your deferred LGPS benefits from the day after your employment with XXX terminated.

 

3.                  The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the council on 31 March 1998 by reason of being permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body, and so qualify for the immediate payment of your LGPS benefits with enhancement.

 

4.                  The Secretary of State has considered all the representations and evidence.  Copies of those documents supplied by the Appointed Person which you may not have seen were sent to you under cover of the Department's letter of 2 July 1999.

 

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations and all the medical evidence.  He finds that you did not cease employment with the council on 31 March 1998 by reason of being permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.  You do not, therefore, qualify for the immediate payment of your LGPS benefits with enhancement from that date.  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 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 June (with enclosures), 6 July (with enclosures) and letter received in the Department on 23 August 1999;

 

b)                  from the Appointed Person: letter dated 28 June 1999 (with enclosures); and

 

c)                  from the council: faxes received in the Department on 18 August and 19 August 1999 (copied to you under cover of the Department's letter of 19 August 1999).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 1 March 1949;

 

b)                  you were employed by the council as a Clerical Assistant;

 

c)                  you were a member of the LGPS;

 

d)                  in March 1997 you started sick leave and did not return to work;

 

e)                  on 20 November 1997 the council informed you that they would not grant you ill-health retirement;

 

f)                    you appealed against their decision; and

 

g)                  on 31 March 1998 your employment with the council was terminated because you were transferred with your job to XXX Ltd.

 

3.                  You asked the Secretary of State to direct the council to alter your "reasons for leaving" so that you can receive ill-health pension benefits with enhancement.

 

4.                  The council maintained that you did not meet the medical criteria for ill-health retirement.

 

5.                  The Appointed Person decided that "... Dr XXX is of the opinion that "on the balance of probabilities" you will not recover your health sufficiently to carry out the duties of the job you previously held with [the council] ... Although you were working for [the council] when your appeal was first made, you were transferred to XXX on 1 April 1998 ... Consequently you became entitled to preserved benefits ... These benefits are now payable on ill-health grounds from the day after your employment with XXX terminated.".

 

6.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time you ceased your employment with the council the 1995 regulations were in force.  Regulation D7 of the 1995 regulations provides for a member's pension and retirement XXX to be paid immediately, with enhancement where applicable, where they cease employment by reason of being permanently incapable of discharging their duties efficiently due to ill-health or infirmity of mind or body.

 

7.                  The questions to be decided therefore are whether on 31 March 1998 you were permanently incapable because of ill-health of performing your duties, and whether you ceased your employment as a result.

 

8.                  The Secretary of State takes the view from the medical evidence that you were, on 31 March 1998, suffering from ill-health and he notes that this has not been disputed.  However, before he considers the question as to whether your ill-health at that time made you permanently incapable of performing your duties efficiently, he has first considered the reasons why your employment with the council terminated at that date.

 

9.                  The Secretary of State has to accept that the reason you ceased employment with the council was because they transferred you, as part of an outsourcing of functions, to XXX Ltd.  The Secretary of State has considered whether, since you did no work for and were not paid by XXX, your employment was transferred to them or whether it was simply your post that was transferred.  It is however clear from the papers that both XXX and your union representatives, who earlier acted on your behalf, accepted that your employment did, in fact, transfer to XXX.  The Secretary of State concludes from all the evidence that this was the case.  The Secretary of State has also considered whether the underlying cause of your transfer was your ill-health.  He has however concluded that this was not the case because you were employed in a part of the council's organisation which was outsourced; you were therefore transferred because your job was outsourced as part of a transfer of functions.

 

10.              The Secretary of State notes with some concern that the council transferred an officer who was on continuing long-term sick leave and in respect of whom there was an unresolved question of ill-health retirement which was being investigated by the Appointed Person.  However, the Secretary of State's powers on appeal are limited to considering whether the rules governing the LGPS have been correctly applied.  The reason for the termination of your employment with the council is an employment issue and once it has been established it is not one the Secretary of State has any power to alter in the context of a pensions appeal.

 

11.              Turning to the question of whether you were or have become permanently incapable of performing your duties efficiently, the Secretary of State notes all the medical evidence provided by: Dr XXX, the council's Medical Advisor; Dr XXX, Consultant Occupational Physician; your GP, Dr XXX; Mr XXX, Staff Nurse; and Dr XXX, Consultant Psychiatrist.  He notes that on 15 April 1998, Dr XXX commented, that "... I am of the opinion that the pension regulations for receipt of early pension do not apply on the present medical evidence ... However Mr XXX has been referred to another specialist ... and if further medical information is available then, Mr XXX could reapply for his case to be reconsidered.".  The Secretary of State also notes that on 19 January 1999, when Dr XXX had received further information from two specialists whom you had been seeing, she concluded that on the balance of probabilities you would not recover your health sufficiently to return to your job as a Clerical Assistant.  She said she was "now" able to support your application for ill-health retirement and that your medical problems satisfy the requirements of the pension regulations.  Whilst he notes that neither he or the Appointed Person have had sight of the specialist reports outlined in Dr XXX's letter of 19 January 1999, the Secretary of State is satisfied that you are now permanently incapable of efficiently performing your former duties as a Clerical Assistant.  The Secretary of State notes that the Appointed Person has already decided, on the basis of this evidence, that your deferred benefits should be put into payment early on the grounds of ill-health under regulation D11.  The Secretary of State does not therefore consider that there remains a medical issue for him to resolve.

 

12.              The Secretary of State concludes that you do not qualify for immediate payment of pension with enhancement under regulation D7 from the time your employment with the council ceased because your cessation was not caused by your ill-health and he has accordingly decided that your appeal has to be dismissed.