LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 30 July 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person for the XXX Council, in relation to his local government pension scheme (LGPS) dispute with XXX (the company).

 

2.                  The Appointed Person found that Mr XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when he ceased employment with the company.

 

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.  The disagreement you referred to the Appointed Person was whether the company should have granted Mr XXX ill-health retirement when his employment was terminated on 17 December 1998.

 

4.                  The question for decision: The question for decision by the Secretary of State is therefore whether Mr XXX ceased employment with the company on 17 December 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 qualifies for the immediate payment of his LGPS benefits.

 

5.                  Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. Based on the balance of probabilities, he finds that for the purposes of the 1997 regulations, it has not been shown conclusively that Mr XXX ceased employment with the company on 17 December 1998 because he was 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.  His 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 of maladministration or any 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 30 July 1999;

 

b)                  from the Appointed Person: fax received in the Department on 5 August 1999 and documents considered by him (list enclosed in the Department's letter of 24 August 1999); and

 

c)                   from the company: fax received in the Department on 11 October 1999.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mr XXX’s date of birth is 9 April 1948;

 

b)                  he was employed by the company as a PSV Driver;

 

c)                  he was a member of the LGPS;

 

d)                  on 26 May 1998 he commenced a period of extended sickness absence; and

 

e)                  his employment with the company was terminated on 17 December 1998 on grounds of incapability due to his continuing sickness absence.

 

3.                  Mr XXX is claiming that he is entitled to ill-health retirement due to his medical condition.

 

4.                  The Appointed Person determined that “Having studied all the evidence and having taken advice from my own medical advisor … I have formed the view that XXX’s decision not to award ill health retirement benefits was a reasonable one …”.

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time Mr 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.  The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for Mr XXX to perform the duties of his former employment efficiently before his normal retirement age when LGPS benefits must, in any case, be paid.

 

6.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Mr XXX’s Occupational Health notes; letters from Mr XXX’s GP, Dr XXX, dated 10 November 1998 and 6 July 1999 and report dated 8 September 1998; letters from the Appointed Person’s medical advisor Dr XXX, MFOM, Consultant Occupational Physician, dated 6 May and June 1999; and letter from Mr XXX, Consultant Clinical Psychologist, dated 21 May 1999.  He also notes that reference has been made to an Occupational Health report used by the company in considering whether to grant Mr XXX ill-health retirement.  Whilst he has not had sight of this report, the Secretary of State is satisfied that you have had sufficient opportunity to submit comments regarding its contents and conclusions.

 

7.                  The Secretary of State notes that in November 1998 Mr XXX’s GP, Dr XXX, stated “I doubt very much whether Mr XXX will return to being a PSV driver.  This is due to his poor progress and recurrent anxiety over several years.”.  However, the company’s Occupational Health Doctor concluded that Mr XXX was not permanently unfit.  In view of this conflicting medical opinion the Appointed Person referred the matter to his medical examiner, Dr XXX.  Dr XXX acknowledged that Mr XXX suffers with a reactive depressive illness and agreed that he was, at that time of the examination, unfit to be at work.  However, he concluded that he would not expect Mr XXX’s incapacity to be permanent i.e. to last until he reaches normal retirement age.  The Secretary of States notes that you submitted further medical evidence to the Appointed Person (letter from Mr XXX dated 21 May 1999).  However, after considering this new evidence, Dr XXX stated that his opinion remained the same.

 

8.                  The Secretary of State accepts that the medical evidence indicates that Mr XXX has suffered from a reactive depressive illness for a number of years.  He also accepts that at the time he ceased employment Mr XXX was incapable of efficiently performing his duties.  However, the question that the Secretary of State has to decide is whether Mr XXX’s incapability is likely to be permanent within the meaning of the regulations.  While Dr XXX advised that Mr XXX would be unable to return to PSV driving, Mr XXX’s conclusion, which was based on all the medical evidence available to him including that of Dr XXX, was that Mr XXX was not permanently incapable of his duties when his employment was terminated.

 

9.                  The Secretary of State takes the view that there is no conclusive medical evidence that, on the balance of probabilities, at the time he ceased employment with the company on 17 December 1998 Mr XXX was suffering from such a condition of ill-health or infirmity of mind or body that he will be permanently incapable of performing his duties efficiently.  He did not therefore cease employment on grounds of permanent incapability because of ill-health in the sense required by the regulations and he is not therefore entitled to the immediate payment of his LGPS benefits from when he ceased employment with the company.