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 of 6 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) (formally the local government superannuation scheme) dispute with the XXX (the authority).

 

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 authority.  He was also satisfied that the authority had exercised their discretion reasonably in not awarding early release of his deferred LGPS benefits on compassionate grounds.

 

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

 

4.                  Papers from Mr XXX also refer to payment of pension on compassionate grounds, and the Appointed Person considered this issue.  It does not appear to be part of your submission in that no evidence of the basis of a disagreement has been submitted.  The Secretary of State has therefore not considered the matter.

 

5.                  The Appointed Person raised the matter of pension being put into payment early, following cessation of employment, on ill-health grounds.  Again this did not form part of your submission and there is no evidence of a disagreement.  The Secretary of State has not considered it.

 

6.                  The question for decision: The question for decision by the Secretary of State is therefore whether Mr XXX ceased employment with the authority on 2 February 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;

 

7.                  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, you did not cease employment with the authority on 2 February 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.

 

8.                  The Secretary of State’s decision confirms in part 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.

 

9.                  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).

 

10.              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).

 

11.              Copies of this letter have been sent to Mr XXX, the Appointed Person, the authority and the Pension Manager.

EVIDENCE RECEIVED

 

1.                  The following evidence has been received and taken into account:

 

a)                   from you: letter dated 6 August 1999 and fax received in the Department on 23 August 1999; and

 

b)                  from the Appointed Person: letter dated 3 September 1999 (with enclosures) (list enclosed in the Department's letter of 14 August 1999).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mr XXX’ date of birth is 16 February 1942;

 

b)                  he was employed by the authority as a Scenes of Crime Manager;

 

c)                  he was a member of the LGPS;

 

d)                  his employment with the authority was terminated on 2 February 1998 on grounds of gross misconduct; and

 

e)                  in November 1998 he applied to the authority for early release of his deferred LGPS benefits on compassionate grounds.

 

3.                  You contend that Mr XXX was ill prior to his dismissal and that he is now seriously ill.

 

4.                  The Appointed Person determined that “The decision on the part of XXX to terminate your employment was taken on grounds other than ill health incapability i.e. there was a specific issue which the Police Authority pursed under it’s Disciplinary and Dismissals Procedure.”.  He was also satisfied that the authority had exercised their discretion reasonably in not awarding Mr XXX early release of his deferred LGPS benefits on compassionate grounds.

 

5.                  The Secretary of State notes that you have submitted several documents in evidence to him that were not made available to the Appointed Person.  The Secretary of State would normally expect an appellant and his representatives to present all the evidence which they consider materially supports his case both to the former employer (the authority) in the first instance and to the Appointed Person at stage one of the internal disputes resolution procedure.  The Secretary of State would therefore not normally consider this evidence.  However, he notes that all the documents pre-date the Appointed Person’s decision and takes the view therefore that it would serve no useful purpose to refer them back to the authority to comment on.

 

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 authority 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.

 

7.                  The Secretary of State notes that Mr XXX was dismissed for gross misconduct and that this was upheld on appeal.  He also notes that Mr XXX agreed a financial settlement with the authority in respect of his claim that the dismissal had been unfair.  However, he can find no evidence that his dismissal has been rescinded.  The Secretary of State takes the view therefore that the reason Mr XXX ceased employment with the authority remains because he was dismissed on conduct and discipline grounds.  He must conclude therefore that Mr XXX did not cease employment on grounds of permanent incapability due to 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 authority on 2 February 1998.  The Secretary of State cannot comment further on this matter as the reasons for employment being terminated fall outside his jurisdiction within the context of an LGPS pension appeal.

 

8.                  The Secretary of State notes that the Appointed Person informed Mr XXX of his right to make election for early release of his deferred LGPS benefits on the grounds of permanent incapability because of ill-health.  Whilst his right to make an election is actually covered under regulation D11 of the 1995 regulations, it is not clear to the Secretary of State whether Mr XXX has made such an election.  If he has, then the authority are required, under regulation D11 of the 1995 regulations and regulation 9 of the 1997 (amendment) regulations, to refer the matter to their medical advisor and reach a decision.  The Secretary of State notes that you state that you have been attempting to get a formal response on this matter.  However, any disagreement you may have about this question must be considered by the Appointed Person in the first instance.

 

9.                  The Secretary of State also notes that Mr XXX has referred to the release of his benefits on compassionate grounds.  This did not form part of your grounds of appeal to either the Appointed Person or to the Secretary of State.  The Appointed Person did however look at the question and concluded that the authority had exercised it’s discretion reasonably.  Since no papers indicating the basis of any dispute on the matter have been submitted to the Secretary of State, he takes the view that he has insufficient evidence to consider and the decide the question.