685      INDEX

Our Ref: LGR  85/19/73

2 February 2000

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT SUPERANNUATION (AMENDMENT) REGULATIONS 1990 (the 1990 amendment regulations)

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 24 August 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) (formally the local government superannuation scheme) dispute with XXX Council (the council).

 

2.                  The Appointed Person was satisfied that the reckonable value of your membership, used by the council in the calculation of your preserved benefits, was correct.  He found that the reason you ceased employment with the council, whether because of voluntary resignation or constructive dismissal, did not affect your benefits entitlement.  He also found that you were not incapable of any full-time employment and under the Pensions (Increase) Act 1971 your pension benefits cannot be increased before you reached the age of 55.

 

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 council to act outside the provisions of the regulations.  The disagreements you referred to the Appointed Person were:

 

a)                   whether the council had correctly calculated your length of membership (service) in the LGPS; and

 

b)                  whether the council should have awarded you additional years due to ill-health.

 

4.                  The Secretary of State notes that you have not disputed the Appointed Person’s explanation of the method used by the council to calculate your length of membership, that is, you have not disputed a specific fact or point of law or offered evidence to lead the Secretary of State to conclude that you consider the Appointed Person has mis-interpreted the regulations.  You maintain, however, that it is unfair to pro-rata your membership and that you have been mis-led.  The Secretary of State is not able, in the context of a pensions appeal, to consider whether the regulations are fair.  With regard to your claim that you have been misled, even if it could be shown that the council had been guilty of maladministration causing financial loss or injustice, the Secretary of State has no power to award compensation or order redress.

 

5.                  The question for decision: The question for decision by the Secretary of State is therefore, whether there are any provisions under the LGPS regulations for the council to increase the level of your deferred benefits.

 

6.                  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 there are no provisions under the LGPS regulations to award additional years where a deferred pension is put into payment early on the grounds of ill-health.  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.

 

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 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 24 August 1999 (with enclosures); and

 

b)                  from the Appointed Person: letter dated 1 September 1999 (with enclosures) (list enclosed in the Department’s letter of 9 September 1999).

 

            REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  you were employed as a part-time manual worker with the council for the period 4 March 1975 to 11 January 1979;

 

b)                 as you worked less than 30 hours per week you were not eligible to join the LGPS;

 

c)                  on 12 January 1979 your hours increased and you became a member of the LGPS;

 

d)                 during the period 12 January 1979 to 7 October 1979 you paid contributions;

 

e)                  your hours were reduced on 8 October 1979 and you were no longer eligible to pay contributions;

 

f)                   with effect from 16 September 1986 you paid contributions to the LGPS;

 

g)                  on 20 August 1992 you elected to buy back your reckonable service as a part time worker for the periods 4 March 1975 to 11 January 1979 and 8 October 1979 to 31 March 1986;

 

h)                  on 23 June 1995 your employment with the council was terminated and you were given deferred LGPS benefits;

 

i)                    you subsequently took up employment with the XXX Health Authority; and

 

j)                   on 26 March 1999 you were awarded early release of your deferred LGPS benefits on ill-health grounds.

 

3.                  You feel you are being victimised over the council’s decision not to award you additional years, as you believe the medical evidence shows that you are incapable of work due to permanent ill-health.

 

4.                  The Secretary of State has had regard to the regulations which apply to your deferred LGPS benefits.  Under the 1995 regulations there are no provisions which provide for additional years to be awarded where deferred LGPS benefits are paid early on the grounds of ill-health.  The only circumstance in which your pension could be enhanced in this way would be if it was shown that when you left the council’s employment on 23 June 1995 you were incapable of carrying out your duties efficiently because of permanent ill-health.  In the Secretary of State’s view, there is no medical evidence to show that this was the case.  The medical evidence only shows that you were permanently incapable of carrying out your former duties efficiently due to ill-health on 26 March 1999, nearly four years later.

 

5.                  The Secretary of State notes that the Appointed Person considered whether there was any provision for your deferred benefits to be increased under regulation L19 of the 1995 regulations and Section 3 of the Pensions (Increase) Act 1971.  The relevant provisions under Section 3 of the 1971 Act state that a pension shall not be increased if the pensioner is less than 55 years old, unless it is a pension for an employment from which he has been medically retired, or the pension authority are satisfied that the pensioner is disabled by physical or mental infirmity.  You were not medically retired from your employment with the council.  “Disabled by physical or mental infirmity” is defined in the 1971 Act as permanently incapacitated from engaging in any regular full-time employment.

 

6.                  The Secretary of State has considered all the medical evidence comprising: letters from the council’s medical advisor, Dr XXX, MD, Consultant Occupational Physician, dated 16 June 1998 and 13 July 1999.  He notes that Dr XXX supported your application for early release of your deferred LGPS benefits and he takes the view therefore that it is not disputed that you are permanently incapable of performing efficiently your former duties with the council because of ill-health or infirmity of mind or body.  However, the question that must be addressed under the 1971 regulations is whether you are incapable of any full-time employment.  This is a wider test than the one related to a specific job.  You have produced no evidence to show that you are incapable of any regular full-time work.  The only medical evidence available to the Secretary of State is that of Dr XXX.  In his letter dated 13 July 1999, Dr XXX clearly states that he is “… unable to confirm that she is incapable of any regular full-time employment.”.  The Secretary of State has to conclude therefore that there is no conclusive medical evidence to indicate that you are incapable of any regular full-time employment.  You do not qualify therefore for pensions increases on your deferred benefits under the 1971 Act before the age of 55.