625 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 24 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 you did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when you ceased employment with the company.
3. The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the company on 24 November 1998 by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body, and so qualify for the immediate payment of your LGPS benefits.
4. The Secretary of State has considered all the representations and evidence.
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 1997 regulations, it has not been shown conclusively that you ceased employment with the company on 24 November 1998 because you were permanently incapable of discharging efficiently the duties of that employment 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).
1. The following evidence has been received and taken into account:
a) from you: letters dated 24 July (with enclosures) and 1 October 1999 (with enclosure); and
b) from the Appointed Person: documents considered by him (list enclosed in the Department's letter dated 20 August 1999).
2. From the evidence submitted the following points have been noted:
a) your date of birth is 18 June 1942;
b) you were employed by the company as a PSV driver;
c) you were a member of the LGPS; and
d) you ceased employment with the company on 24 November 1998 on capability grounds due to your ill-health.
3. You maintain that due to the problems with your bowels and your left knee you are unable to undertake your former duties as a PSV driver.
4. The Appointed Person determined that "I have studied all the evidence and taken advice from my own medical advisor who specialises in the field of occupational health. Dr XXX has advised me that he would not expect Mr XXX’s incapacity to be permanent and in his opinion ill health retirement benefits should not have been awarded. I am aware that Mr XXX feels that Dr XXX, in his report, has not taken full account of all his medical conditions. However, Mr XXX has failed to produce any further evidence to support his claims. I have therefore formed the view that XXX decision not to award ill health retirement benefits was a reasonable one …”.
5. The Secretary of State notes with some concern that the company do not appear to have made a proper decision regarding your entitlement to ill-health benefits in the first instance as required by the regulations. He notes that the company informed you, in their letter dated 24 November 1998 terminating your employment, that “… if you wish to pursue a case for ill-health retirement you must do so through the offices of the XXX Council pension office.”. The Secretary of State has checked with the company’s Group Pension Advisor who has stated that no provision exists whereby XXX Council make first instance decisions on behalf of the company. Under regulation 97 of the 1997 regulations a decision whether to award immediate payment of ill-health retirement benefits under regulation 27 of the 1997 regulations falls to the company. In their letter dated 15 January 1999 the company say that your condition was not considered permanent. However, there is no evidence that they considered and informed you of this in the proper way at the proper time. The Secretary of State takes the view therefore that the company failed in their duty under regulation 97.
6. Where a scheme employer has failed to make a proper decision in the first instance, the Secretary of State would normally refer the matter back to them to consider in a proper fashion. However, he notes that the Appointed Person has given full consideration to your appeal, which included seeking the opinion of his own independent medical advisor. The Secretary of State takes the view therefore that it would serve no useful purpose to refer this matter back to the company.
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 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. 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. The Secretary of State has noted all the medical evidence submitted to him comprising: letters from your GP, Dr XXX, dated 27 July and 27 November 1998; your occupational health record; and the letter from the Appointed Person’s medical advisor Dr XXX, Consultant Occupational Physician. The Secretary of State notes that Dr XXX confirmed that you have varicose veins in your right leg and some early arthritic changes to your left knee but in his view these would not affect your ability to drive a bus. He could find no other significant abnormality on physical examination and did not regard you as unfit for work. The Secretary of State notes your GP’s views in July and November 1998 that you were at that stage unfit for work, but these do no directly address the question whether your incapacity was likely to be permanent. The Secretary of State is satisfied that in reaching his conclusion Dr XXX had taken into account your GP’s views and all the medical evidence available to him. Your GP also raised the question whether you were mentally fit for work, but you have produced no conclusive evidence, nor made any case, that you are permanently incapacitated by reason of mental infirmity. 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 24 November 1998 you were suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of performing your duties. 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 on 24 November 1998.