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 10 July 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Ms XXX, the Appointed Person for the XXX Fund, 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 19 September 1998, 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.  Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department's letter of 6 August 1999.

 

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 19 September 1998, 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 10 July 1999 (with enclosures); and

 

b)                  from the Appointed Person: letter dated 22 July 1999 (with enclosures).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 29 December 1945;

 

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

 

c)                  you were a member of the LGPS;

 

d)                  your employment ceased on 20 March 1998 when you resigned;

 

e)                  on 19 September 1998 you applied to the council for early payment of your deferred benefits on ill-health grounds; and

 

f)                    your application was refused based on the advice of the council's Occupational Health Physician.

 

3.                  You consider that the council's decision not to grant you early release of your deferred LGPS benefits is grossly unfair in the circumstances.  You are dissatisfied with the examination conducted by the council's Occupational Health Physician.

 

4.                  The Appointed Person determined that "In order to qualify for early release of your preserved benefits on ill health grounds ... you must be "permanently incapable by reason of ill health or infirmity of mind or body" of discharging efficiently the duties of the employment you previously held with the Council.  The Occupational Health Physician for XXX Council has specifically confirmed that, in his opinion, you do not satisfy this requirement.  Thus, I find that you do not qualify for early payment of your preserved benefits on ill health grounds ...".

 

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.  To qualify for early payment under these regulations it must be shown that, 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 Clerical Assistant because of ill-health or infirmity of mind or body.

 

6.                  The Secretary of State notes that the council refused to grant you early payment of your deferred pension benefits on ill-health grounds based on the advice of their Occupational Health Physician, Dr XXX.  In his letter dated 14 December 1998, Dr XXX states "I took a detailed history Mrs XXX, and also carried out a physical examination.  I have also reviewed the reports of 3 Consultant Neurologists who Mrs XXX has attended over the last 2.5 years ... While accepting that Mrs XXX has significant health difficulties I do not find that these are such as to prevent her from carrying out her (previous) employment ... I do not find grounds for the early release of frozen pension benefits.".

 

7.                  The Secretary of State has carefully considered all the medical evidence consisting of letters from Dr XXX, Dr XXX, and the three Consultant Neurologists Dr XXX, Mr XXX and Dr XXX.  The Secretary of State notes that you have provided no medical evidence to support your application for early payment of your benefits on ill-health grounds.  The Secretary of State accepts that the medical evidence suggests that you are currently experiencing significant health difficulties.  However the appropriate test of permanent incapacity is that your condition is such that you could not efficiently perform the duties of your former employment and that it would not be likely to improve sufficiently for you to do so before your normal retirement age when LGPS benefits must, in any case be paid.  In the Secretary of State's view none of the medical evidence presented to him suggests that this is the case.  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.