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Our Ref: LGR 85/19/62 641 INDEX 8 November 1999 |
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 1 July 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 (the company).
2. The Appointed Person found that as you are now in receipt of your deferred LGPS benefits your appeal had been satisfactorily resolved.
3. 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 the statutory provisions governing the LGPS have been correctly applied in the circumstances. The Secretary of State has no powers to direct the company to act outside the provisions of the regulations. Whilst it is not entirely clear to the Secretary of State what disagreement you referred to the Appointed Person, he notes that the Appointed Person considered whether the council should have granted you early retirement on the grounds of ill-health.
4. The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the company on 13 June 1997 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.
5. The Secretary of State has considered all the representations and evidence.
6. 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 you ceased employment with the company on 13 June 1997 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. His decision replaces but does not overturn 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.
7. 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 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).
1. The following evidence has been received and taken into account:
a) from you: letter received in the Department on 1 July (with enclosures), letter dated 26 July (with enclosures) and letter dated 18 October 1999 (with enclosure);
b) from the Appointed Person: letter dated 8 July 1999 (with enclosures) (listed in the Department’s letter of 15 July 1999); and
c) from the company: letter dated 1 October 1999 (with enclosure) (copied to you under cover of the Department's letter of 6 October 1999).
2. From the evidence submitted the following points have been noted:
a) your date of birth is 23 August 1945;
b) you were employed by the company as a Bus Driver;
c) you were a member of the LGPS;
d) on 27 February 1996 you commenced an extended period of sickness absence;
e) you ceased employment with the company on 13 June 1997 on the grounds of continued non attendance at work due to sickness; and
f) on 30 November 1998 the company awarded you early release of your deferred LGPS benefits with effect from 1 February 1998, based on the advice of their medical advisor.
3. You believe that you should receive your full pension with enhancement back dated to the date of your dismissal. You maintain that despite frequent requests you were never examined by the company’s medical officer. You also maintain that there is a “case for mismanagement in the dealing of your pension” as you believe that other drivers have been given early retirement on ill-health grounds.
4. The Secretary of State notes that you claim to have requested a medical examination from the company on several occasions but that this request was denied until 24 November 1998 when you were examined by Dr XXX. However, he notes that you state that you were due to be examined by the company’s medical officer, but that after reading Professor XXX’s report of 19 January 1995 he decided that he would not examine you until after you had had your operation.
5. The Secretary of State notes that you refer to mismanagement by the company in dealing with your pension. However, the Secretary of State has no powers to order redress in the context of a pensions appeal, even if mismanagement or maladministration were proved. He also notes that you refer to other drivers being given early retirement on ill-health grounds, however; comparison with other cases is not in itself a deciding factor, as facts in individual cases may not be identical in all material respects. The appeal can only be determined on the relevant facts.
6. The Appointed Person determined that “… you are now in receipt of your deferred pension from your employer. Therefore, I conclude that the case has been satisfactorily resolved.”.
7. 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 authority the 1995 regulations were in force. Regulation D7 of the 1995 regulations provides for a member's pension and retirement grant 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. The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely 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.
8. It is not clear to the Secretary of State why the Appointed Person concluded in his decision letter that your appeal had been resolved when you were awarded early release of your deferred LGPS benefits. However, he takes the view that, as your benefits were awarded from 1 February 1998 following Dr XXX’s medical examination on 24 November 1998, the question when your permanent incapability had become established was considered as part of your appeal, and your deferred benefits were awarded accordingly. The Secretary of State takes the view that the relevant medical issues have been considered during the appeals process, even though in his view the terms of the Appointed Person’s decision were flawed in that it did not directly address the question he had identified as the basis of your appeal.
9. The Secretary of State has considered all the medical evidence comprising: your occupational health notes; medical reports from XXX, Professor of Orthopaedic Surgery, dated 19 January 1995 and 1 June 1997; letters from your GP, Dr XXX, dated 11 June 1997 and 16 February 1998; and letter from Dr XXX, Clinical Assistant in Occupational Medicine, dated 24 November 1998. Taken together this evidence leads the Secretary of State to conclude that at the time you ceased employment with the company you were incapable of undertaking your duties as a Bus Driver due to the condition of your hips. However, the question that the Secretary of State has to decide is whether, at the time you ceased employment, there was conclusive medical evidence that your incapacity was likely to be permanent, i.e. that it was unlikely 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.
10. The Secretary of State takes the view that whilst both Dr XXX and Professor XXX refer to you being unable to drive at the time they examined you, it appeared at the time you ceased employment that the general medical opinion was that you could be expected to improve sufficiently to return to your duties following your operation. It was not until you were examined by Dr XXX that your incapacity was deemed to be permanent. The Secretary of State takes the view that, on the balance of probabilities, there is no conclusive medical evidence that at the time you ceased employment with the company on 13 June 1997, you were suffering from such a condition of ill-health or infirmity of mind or body that you were permanently incapable of performing your duties efficiently. You did not therefore cease employment on grounds of permanent incapability due to ill-health in the sense required by the regulations and you are not therefore entitled to the immediate payment of your LGPS benefits from when you ceased employment with the company.