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)

LOCAL GOVERNMENT PENSION SCHEME (AMENDMENT) REGULATIONS 1997 (the 1997 amendment regulations)

 

1.                  I refer to your letter dated 3 August 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 XXX Council, in relation to his local government pension scheme (LGPS) dispute with XXX (the association).

 

2.                  The Appointed Person could find no grounds to support your view that Mr XXX was permanently incapable at the time he ceased employment with the association.

 

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 association to act outside the provisions of the regulations.  The disagreement you referred to the Appointed Person was whether the association should have granted Mr XXX ill-health retirement when his employment was terminated on 2 March 1998.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the association on 2 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 qualifies for the immediate payment of his LGPS benefits with enhancement, or whether the association’s decision to pay his deferred benefits without enhancement from 3 July 1998 is correct.

 

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.  He finds that for the purposes of the 1995 regulations it has not been shown conclusively that, at the time Mr XXX ceased employment with the association on 2 March 1998 he was permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.  He does not, therefore, qualify for the immediate payment of his LGPS benefits with enhancement from that date.  In this respect, his decision confirms that made by the Appointed Person.  However, the Secretary of State also finds that on 1 May 1998 Mr XXX had become permanently incapable by reason of ill-health or infirmity of mind of carrying out his former duties, and is entitled to payment of his preserved benefits with effect from that date.  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: letters dated 3 August (with enclosures), 7 September, 15 September, 24 September, and 21 October 1999 and fax received in the Department on 29 October 1999; and

 

b)                  from the Appointed Person: documents considered by him (list enclosed in the Department's letter dated 25 August 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 11 March 1950;

 

b)                  he was employed by the association as a Repairs Officer;

 

c)                  he was a member of the LGPS;

 

d)                  he ceased employment with the association on 2 March 1998 on capability grounds due to ill-health;

 

e)                  on 3 July 1998 Mr XXX applied for early release of his deferred LGPS benefits; and

 

f)                    on 19 October 1998 he was granted early release of his deferred LGPS benefits on ill-health grounds with effect from 3 July 1998.

 

3.                  You maintain that Mr XXX’s condition did not deteriorate between the association’s decision to dismiss him on capability grounds and their later decision to grant him early release of his deferred LGPS benefits on the grounds of ill-health.  You believe therefore that Mr XXX should have been granted ill-health retirement when he ceased employment with the association on 2 March 1998.

 

4.                  The Appointed Person determined that “… the matter I have been trying to establish is whether, in hindsight and in the light of subsequent events, you were in fact “permanently incapable” at the time your employment terminated.  In the event I have found nothing which supports this view ... my decision therefore … is that I cannot support your application.”.

 

5.                  The Secretary of State notes with concern that, in their letter of 23 November 1998, the association maintain that Mr XXX’s grievance was based on the decision of Dr XXX and not them as his employer, and that they believed his appeal to be with Occupational Health rather than themselves.  In the Secretary of State’s view this appears to betray a misunderstanding of the statutory requirements of the regulations; it is clear to him that regulations J1 and J3 of the 1995 regulations placed the duty and responsibility on the employing authority to make a decision as to entitlement to benefits, albeit that they are required to refer the matter to the medical practitioner for a decision on specified medical questions.  The Secretary of State is satisfied that the appeal provisions (regulations 100 to 104 of the 1997 regulations) are clear that an appeal must relate to a disagreement with the employing authority.  He notes that the Appointed Person had reached the same conclusion in his letter of 27 April 1999.

 

6.                  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 his employment with the association 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.  Regulation D11(2)(b) provided for the early payment of deferred benefits from any date following cessation of employment on which a member became so permanently incapable.  The 1997 regulations came into effect on 1 April 1998, and regulation 31 required a deferred member to elect to receive immediate payment of deferred benefits on, amongst other grounds, grounds of ill-health.  This part of the 1997 regulations did not apply to Mr XXX as he was not an active member of the scheme on 1 April 1998; his entitlement to deferred benefits is under the 1995 regulations.

 

7.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Mr XXX’s sickness absence record; letter from Miss XXX, Senior Occupational Health Nursing Officer, dated 13 February 1998; and letters from the County Occupational Health Physician, Dr XXX, dated 9 April, 1 May and 9 October 1998 and 7 June 1999.  He notes that you have not provided any specialist medical evidence.

 

8.                  The Secretary of State notes that the association’s decision not to grant Mr XXX ill-health retirement benefits appears to have been based on the advice, dated 13 February 1998, of Miss XXX, Senior Occupational Health Nursing Officer, to whom they referred the matter on 19 December 1997.  Under regulation J1(2A) of the 1995 regulations (as amended by regulation 9 of the 1997 amendment regulations) the association were required to seek the opinion of an independent, duly qualified medical practitioner approved by the appropriate administering authority.  In the Secretary of State’s view, the association were wrong to have referred the matter for Miss XXX’s consideration as he does not consider that, as a senior nursing officer, she was a duly qualified medical practitioner within the meaning of the regulations.  In his view they should at least have made it clear that they required the matter to be referred to Dr XXX, the County Occupational Health Physician.  He is strengthened in this view by Dr XXX’s letter of 9 April 1998.  However, Miss XXX’s letter of 13 February 1998 stated that she had discussed the case with Dr XXX.  He also notes that Dr XXX reviewed the situation in May 1998 and concluded that it was appropriate for the Occupational Health Unit to recommend at the time of the decision that Mr XXX did not suffer from a permanent condition.  He also notes that the Appointed Person sought clarification on the matter from Dr XXX and that in response she stated that, at the time the question of ill-health retirement was being considered, Mr XXX was “well controlled by his medication” and the Senior Nurse did not see any reason why he should not return to work.  Dr XXX also said she did not feel they could state that in January 1998 she would have said that Mr XXX qualified for ill-health retirement if she had seen him.  The Secretary of State takes the view that while the association did not properly ensure that the requirements of the regulations were properly followed, there is sufficient evidence to satisfy him that the medical issues were satisfactorily considered

 

9.                  The Secretary of State accepts that the medical evidence shows that Mr XXX has suffered from mental health problems for some time.  He also accepts that at the time he was dismissed, the medical evidence indicates that Mr XXX was incapable of efficiently performing his duties.  However, the question that the Secretary of State has to decide is whether, at the time the decision had to be made, there was conclusive medical evidence to indicate that Mr XXX’s incapacity was likely to be permanent, i.e. that it is unlikely to improve sufficiently for him to perform the duties of his former employment efficiently before his normal retirement age when LGPS benefits must, in any case be paid.

 

10.              The Secretary of State notes that on 1 May 1998 Dr XXX said that in the past few weeks it had become obvious that Mr XXX’s psychiatric condition was very changeable, and that he had become permanently unfit to return to the job he held previously.  On 9 October 1998 Dr XXX certified that Mr XXX had become permanently incapable of discharging efficiently the duties of his former employment.  In light of her previous opinion the Appointed Person specifically asked Dr XXX to consider, with the benefit of hindsight, whether Mr XXX was “permanently incapable” when he ceased employment with the association.  In reply Dr XXX stated that soon after Mr XXX finished work she understood his mental health problem became much worse.  In January 1998 it was not felt he was incapacitated to such an extent that he could not continue in regular full-time employment; but by May 1998 he had become permanently unfit.

 

11.              You have produced no medical evidence to support your contention that Mr XXX’s condition did not deteriorate after he ceased employment.  The Secretary of State takes the view that the medical evidence indicates that Mr XXX’s condition did deteriorate following the termination of his employment with the association.  He considers that there is no conclusive medical evidence that at the time he ceased employment with the association on 2 March 1998 Mr XXX was suffering from such a condition of ill-health or infirmity of mind or body that he was permanently incapable of performing his duties efficiently.  However, on 1 May 1998 it was clear that he had become so permanently unfit.  The Secretary of State concludes that he was not entitled to enhanced retirement benefits under regulation D7 on ceasing his employment, but he was entitled to early payment of his deferred benefits under regulation D11(2)(b) with effect from 1 May 1998, and not with effect from 3 July 1998.