LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 9 October 1999 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) dispute with XXX Council (the council).

 

2.                  The Appointed Person found that, whilst there was no question that you were entitled to the early release of your deferred LGPS benefits, the effective date should be 18 December 1998.

 

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 original disagreement you referred to the Appointed Person was whether the council should have granted you early release of your deferred LGPS benefits from 1 July 1997.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether, since ceasing employment on 29 March 1995, Mrs XXX had become incapable by reason of permanent ill-health or infirmity of mind or body of discharging efficiently the duties of the employment she ceased to hold.

 

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations and all the representations and evidence submitted.  Based on the balance of probabilities, he finds that for the purposes of the 1995 regulations, it has not been shown conclusively that at the time Mrs XXX applied for the early release of her deferred LGPS benefits in July 1996 she had become permanently incapable of carrying out efficiently her former duties by reason of ill-health or infirmity of mind or body.  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.

 

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).

 

 

            EVIDENCE RECEIVED

 

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

 

a)                  from you: letters dated 3 August 1999 (with enclosures); and

 

b)                  from the Appointed Person: documents considered by him (listed in the Department’s letter of 27 August 1999).

 

            REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mrs XXX’s date of birth is 4 October 1946;

 

b)                  she was employed by the council as a Deputy Reception Manager;

 

c)                  she was a member of the LGPS;

 

d)                  on 15 November 1993 she began a period of prolonged sickness absence;

 

e)                  she was dismissed from her employment on 29 March 1995 under the council’s sickness code;

 

f)                    in July 1996 Mrs XXX applied to the council for early payment of her deferred benefits on ill-health grounds; and

 

g)                  on 4 June 1997 her application was refused following the advice of the council’s occupational health advisor.

 

3.                  You contend that it is unreasonable for the council to withhold payment of Mrs XXX’s deferred LGPS benefits on ill-health grounds.  You dispute the council’s interpretation of the medical evidence and question their decision not to act on the recommendation of their occupational health advisor in August 1996 that Mrs XXX was permanently unfit.

 

4.                  The Appointed Person determined that "… on a balance of probabilities … it is more likely than not that on 4^th June 1997 you had not become permanently incapable of carrying out your former duties.”.

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time Mrs XXX applied for the early release of her deferred LGPS benefits in July 1996, the 1995 regulations were in force.  The relevant regulation allowing early release of pension benefits on ill-health grounds was regulation D11(2)(b).  The test to be applied then was whether Mrs XXX had become incapable of discharging efficiently the duties of her former employment by reason of permanent ill-health or infirmity of mind or body.  With effect from 28 March 1997 the regulations were amended.  The test from that date, and the one that the Appointed Person considered, is whether Mrs XXX has become permanently incapable of performing efficiently her former duties as a Deputy Reception Manager because of ill-health or infirmity of mind or body.

 

6.                  The Secretary of State has noted all the medical evidence submitted to him comprising: report from Mr XXX, PhD FRCS, Consultant General and Colorectal Surgeon, dated 22 May 1995 and letter dated 4 December 1996; report from Mr XXX, Consultant Gastroentrologist, dated 19 July 1995; report from Dr XXX, Consultant Psychiatrist, dated 18 July 1996; certificate signed by the council’s medical advisor, Dr XXX Occupational Health Physician, dated 15 August 1996, letter dated 20 May 1998 and memorandum dated 3 July 1998; and letters from Mr XXX, Consultant Surgeon, dated 18 April and 9 December 1997, 11 May, 1 June, 9 June, and 30 July 1998.

 

7.                  You question the decision of the council not to act on Dr XXX’s original recommendation that, in August 1996 Mrs XXX had become incapable of discharging the full duties of her previous employment by reason of permanent infirmity of mind or body.  The Secretary of State notes that following Dr XXX’s recommendation, Mr XXX, Head of Human Resources, asked her to consider whether the date of incapacity should have been earlier (e.g. the date Mrs XXX ceased employment with the council).  In light of this, and following a further meeting with Mrs XXX, Dr XXX referred the matter to an independent medical examiner, Mr XXX, Consultant Surgeon.  The Secretary of State notes that Mr XXX considered that further treatment may improve Mrs XXX’s condition, and that based on this Dr XXX advised the council that she now considered there was insufficient evidence that Mrs XXX’s ill-health was permanent.  The council accordingly decided not to grant Mrs XXX early release of her deferred pension benefits on ill-health grounds.  The Secretary of State takes the view that an employer must obtain sufficient medical advice before making a decision regarding whether a member is entitled to the early release of deferred LGPS benefits on the grounds of ill-health.  It is then for the employer to make a decision based on all the information and evidence available to them.  The Secretary of State is satisfied therefore that the council acted reasonably and have fulfilled their requirements under the regulations.

 

8.                  Turning to the question of whether Mrs XXX is permanently incapable of performing efficiently her former duties as a Deputy Reception Manager because of ill-health or infirmity of mind or body, the Secretary of State takes the view that is not disputed that Mrs XXX has suffered from abdominal symptoms for some time.  He also accepts that the medical evidence indicates that in July 1996 Mrs XXX was suffering from a condition which made her incapable of carrying out her former duties efficiently.  However, the question the Secretary of State has to resolve is whether this incapacity was permanent.  He takes the view that the appropriate test of permanent incapacity is whether Mrs XXX’s condition would be unlikely to improve sufficiently for her to perform the duties of her former employment before her normal retirement age when LGPS benefits must, in any case, be paid.  The medical evidence suggests that by July 1998 there had been some recent improvement in her condition.  The Secretary of State notes Dr XXX’s view that Mrs XXX’s prognosis, so far as permanency is concerned, depends on whether this improvement continues, whether she ultimately accepts surgery, and the success of any surgery undertaken.  He also notes Mr XXX’s opinion about surgical intervention and his view that, as help is possible, it would be unreasonable to recommend early retirement.  In the light of all the medical evidence, the Secretary of State concludes that, on the balance of probabilities, Mrs XXX is not suffering from such a condition of ill-health or infirmity of mind or body that by July 1996 she had become incapable of performing her former duties efficiently in the sense outlined above because of permanent ill-health as required by the regulations.  Mrs XXX is not therefore entitled to early release of her deferred LGPS benefits with effect from July 1996.