720 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 4 October 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX, in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).
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 council.
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 disagreement you referred to the Appointed Person was whether the council should have awarded you ill-health retirement when your employment was terminated on 16 March 1999.
4. The question for decision: The question for decision by the Secretary of State is therefore whether you ceased employment with the council on 16 March 1999 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.
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 you ceased employment with the council on 16 March 1999 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. 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 020 7233 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 020 7834 9144).
1. The following evidence has been received and taken into account:
a) from you: letters dated 4 October (with enclosures), 19 October (with enclosure), 17 November 1999 (with enclosures), and 12 January (with enclosure) and 13 February 2000;
b) from the Appointed Person: documents considered by him (copy of Dr XXX’s report sent to you under cover of the Department's letter of 10 November); and
c) from the council: letters dated 29 December 1999 (with enclosure), 24 January, 7 February (with enclosures) and 21 March 2000.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) your date of birth is 21 March 1956;
b) you were employed by the council, from January 1997, as a Deputy Manager in the Social Services Department;
c) you were a member of the LGPS;
d) in September 1997 you commenced a period of extended sickness absence;
e) the council refused to XXX you ill-health retirement benefits on 28 January 1999; and
f) your employment with the council was terminated with effect from 16 March 1999 under the council’s Managing Incapability at Work Procedure.
3. You contend that you have not worked since September 1997 due to an accident suffered at work and that it is unreasonable of the council not to grant you ill-health retirement. You also state that you have been registered disabled under the terms of the Disability Discrimination Act 1995 and that you will be unable to work in a similar occupation due to your disability.
4. The Appointed Person determined that “… the pension scheme regulations require a member to be permanently incapable of carrying out the duties of their post to qualify for ill-health retirement benefits. Permanency in this respect means until the age of 65. Dr XXX has said that at this stage of your illness it is too early to support your application for permanent disability. Consequently, my decision is that you do not satisfy the criteria under the pension regulations and I cannot uphold your appeal.”.
5. 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 LGPS employment efficiently before your normal retirement age when LGPS benefits must, in any case, be paid. Under regulation 97(9) of the 1997 regulations the council were required to seek the opinion of an independent registered medical practitioner approved by the appropriate administering authority, before making a decision whether to award ill-health retirement benefits.
6. The Secretary of State notes that you have been registered disabled under the terms of the Disability Discrimination Act 1995 (the 1995 Act). Whilst he acknowledges that there are specific provisions under the 1995 Act concerning the terms on which persons become members of an occupational pension scheme and the terms on which members of the scheme are treated, he takes the view that being registered disabled under the 1995 Act does not in itself satisfy the specific requirements of the LGPS regulations for ill-health retirement, which require a member to have ceased employment because they are permanently incapable of performing their duties efficiently due to ill-health or infirmity of mind or body.
7. The Secretary of State has noted all the medical evidence submitted to him comprising: report from the council’s Occupational Health Nurse, Ms XXX, dated 20 October 1998; letters from your GP, Dr XXX, dated 30 December 1998 and 30 July 1999; and letter from the Appointed Person’s independent medical advisor, Dr XXX, MB ChB DIH FFOM, Consultant Occupational Physician, dated 30 March 1999. The Secretary of State notes that the council’s decision not to XXX you ill-health retirement benefits appears to have been based on advice from their Occupational Health Unit. It would appear, though it is not clearly stated, that the council were advised by Dr XXX, whom your GP addressed as the council’s Occupational Health Physician and to whom he sent a report on 30 December 1998. However, no report from Dr XXX has been submitted by the council to the Secretary of State and he is therefore unaware of the medical basis for the council’s decision not to award you ill-health retirement benefits. Nor does it appear any such report was made available by the council to the Appointed Person. The Secretary of State therefore takes the view that the council have effectively produced no medical evidence to justify their decision. The only medical evidence in the Secretary of State’s possession which appears to have originated with the council is a health enquiry form report from Ms XXX, Occupational Health Nurse, dated 20 October 1998, which you submitted.
8. As no report from Dr XXX has been submitted, the Secretary of State cannot be satisfied that the council’s decision was a reasonable one and he also cannot verify that Dr XXX can properly be regarded as an “independent” registered medical practitioner within the meaning of regulation 97(9), and, therefore, cannot be assured that the council’s decision was properly taken.
9. However, the Secretary of State notes that the Appointed Person referred the matter to his independent medical advisor, Dr XXX. Dr XXX was aware of your medical and employment history, including the nature of your job with the council which she describes as “managerial and not nursing”. In the Secretary of State’s view this description is borne out by the papers you sent relating to your duties. The Secretary of State takes the view therefore that while the council may not have properly ensured that the requirements of the regulations were followed and have failed to demonstrate that their decision was not unreasonable, it would serve no useful purpose to refer the matter back to them in this instance.
10. The Secretary of State takes the view that it is not disputed that you ceased your employment with the council because you were incapable of efficiently performing your duties due to ill-health. However, the question that the Secretary of State has to decide is whether your incapability is likely to be permanent within the meaning of the regulations. While he acknowledges that your GP considers that you are still unfit for work and that you remain on medication he takes the view that there is no conclusive medical evidence to indicate that, on the balance of probabilities, your incapability is likely to continue until your normal retirement age. Therefore, he concludes that at the time you ceased employment with the council on 16 March 1999 you cannot be regarded as suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of performing your duties efficiently within the meaning of the regulations. You did not therefore cease employment on grounds of permanent incapability because of 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 council.
11. The Secretary of State also notes that you attended an Employment Tribunal hearing in February 2000 against the council’s decision to terminate your employment. It should be noted that the Secretary of State's powers on appeal are limited to considering whether the rules governing the LGPS have been correctly applied. The reason for the termination of your employment with the council is an employment issue and once it has been established it is not one the Secretary of State has any power to alter in the context of a pensions appeal. His decision in relation to your pension appeal has no effect on, nor is it affected by, the Employment Tribunal proceedings.