LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1.                  I refer to your letter of   18 October 1999 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person, in relation to your local government pension scheme (LGPS) dispute with XXX (the company).

2.                  The Appointed Person upheld the company’s decision to not to award you immediate payment of your pension from when your employment was terminated on capability grounds due to ill-health.

3.                  The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the company 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 therefore qualify for immediate payment of your retirement benefits.

4.                  The Secretary of State has considered all the representations and evidence.  Copies of documents supplied by the Appointed Person were sent to you under cover of the department’s letter of 24 November 1999.

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  Based on the balance of probabilities he finds that it has not been shown that you ceased employment with the company by reason of being permanently incapable of discharging efficiently the duties of that employment because 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 regulatory provisions which he considers apply in yourcase are set out in the annex to this letter, which forms an integral part of this decision.  He is acting judicially and has no power to modify the way the regulatory provisions 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.                  This completes the second stage of the internal disputes resolution procedure.  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 LGPS made or referred in accordance with the Pensions Schemes Act 1993.  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: letter dated    18 October 1999 and facsimiles of 26 October and 26 November (with enclosures); and

(b)               from the Appointed Person: letter dated 16 November (with enclosures).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               your date of birth is 19 November 1950;

(b)               from 2 April 1990 you were employed by the company as a bus driver;

(c)               on 22 May 1998 you commenced a period of sickness absence and you did not return to work;

(d)               on 5 January 1999 your employment was terminated on grounds of capability;

(e)               on 19 January 1999 you were examined by Dr XXX the company’s medical advisor; and

(f)                 on 22 April 1999 Dr XXX reported his conclusions to the company.

3.                  You appealed to the Appointed Person against Dr XXX’s decision not to declare you permanently unable to drive.  You contended that medical evidence showed that you cannot drive again for more than 20 minutes, and that DVLC had withdrawn your vocational driving licence on the strength of this evidence.  You maintained that your prescribed treatment is for pain relief and not a cure.  In your appeal to the Secretary of State you further maintain that XXX pension fund appears to have taken no notice of the specialist reports by your two consultant surgeons and judged your case on the reports of their own doctors.

4.                  The Appointed Person found that the medical reports all point to the fact that you suffer from an organic disease in the lumber spine, but in Dr XXX’s opinion there was no evidence to suggest that this problem was permanent.  He concluded that he was not satisfied that you are “permanently incapable of discharging sufficiently the duties of your former employment as a driver”.

5.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  Regulation 27 of the 1997 regulations entitles a member to immediate payment of ill health pension and grant where his employment ceases because he is permanently incapable of performing his duties efficiently due to ill health or infirmity of mind or body. The Secretary of State takes the view that for incapacity to be permanent it would have to be unlikely to improve sufficiently for you to perform the duties of your former employment efficiently before your normal retirement age (65 years old) when LGPS benefits must, in any case be paid.  Regulation 97(9) requires an employer, before deciding whether to grant ill-health retirement benefits under regulation 27, to refer to an independent, registered medical practitioner for an opinion whether the member is permanently incapable of efficiently discharging the duties of his employment because of ill-health.  Under regulation 97(10) the employer is required to have obtained the administering authority’s approval to their choice of registered medical practitioner.

6.                  The Secretary of State has considered all the representations and evidence.  He has first looked at the way the company initially considered the question. In their letter of 12 November 1998 conveying their decision to terminate your employment on grounds of incapability due to ill health, the company did not address the question whether you were entitled to ill-health retirement benefits.  Subsequently, they arranged for you to be examined by their medical adviser, Dr XXX, on 19 January 1999.  Dr XXX’s report of 22 April 1999 post-dated the effective date (5 January 1999) of your termination of employment. No copy of any letter to you from the company informing you of and explaining their decision that you were not entitled to ill-health benefits has been submitted to the Secretary of State.  The company’s letter of 28 May 1999 to Mr XXX at XXX says that Dr XXX informed them in a report dated 22 April 1999 that, as further consultations were likely, he could not find Mr XXX permanently incapacitated from following his employment, as required under the LGPS Regulations. The Secretary of State notes that in your appeal you referred to Dr XXX’s decision.

7.                  This history raises two issues which give the Secretary of State cause for concern.  First, it is not clear to him how the company made their decision, or whether you were told how they did so.  It seems questionable whether the company made it clear to you that the regulations require this decision to be made by them and not by their medical adviser. Secondly, the regulations require the company to obtain an opinion about the member’s health and capability from an independent registered medical practitioner approved by the administering authority.  This opinion will inform the company’s decision but it is not a substitute for it.  In your case the company consulted their own company medical adviser and the Secretary of State is not satisfied that such an adviser, on the company’s payroll, can properly be regarded as “independent”; nor is it clear that this choice of practitioner had been approved by the administering authority.  In the circumstances the Secretary of State is not satisfied that the company have demonstrated that their initial decision was properly taken, and in his view they have, at least on the issue of independence, acted in breach of their statutory duty under the regulations.

8.                  Turning to the medical issues, it is not disputed that the company found you to be incapable of performing your duties efficiently due to ill health, and that this was the basis for their decision to terminate your employment on 5 January 1999.  In his view, therefore, the test remaining for him to establish whether you are entitled to immediate payment of ill-health retirement benefits from when you ceased employment is whether your incapacity was permanent at that date.

9.                  The Secretary of State has reviewed the medical evidence in chronological order.  He accepts that it points to you suffering from spinal disease, and that at the time you ceased employment this made you incapable of driving a bus.  He has looked, therefore for evidence about permanence.  On 23 October 1998 Mr XXX, consultant orthopaedic surgeon, said that you “have a discogenic problem and ... a disc prolapse ... need an MRI and a further plan of treatment ... At this moment ... he is not safe to drive and I do not see him going back to work for at least three or four months without evaluation and treatment.”.  In the Secretary of State’s view, this does not suggest that your condition is permanent.  On 8 February 1999, Mr XXX, consultant spinal surgeon, said it “does not appear patient has any likely indication for operative surgical intervention ... orthopaedic assessment with a view to conservative treatment would be most appropriate.”.  Again, this does not demonstrate permanence.  On 17 March 1999 Mr XXX recommended a diagnostic trial and physiotherapy; he said “given that he has multi-level degenerative changes present here some back pain may well continue.”.  He also noted that you were “becoming significantly dysfunctional and it may be difficult to get him back to employment.”.  While the Secretary of State thinks this may be more suggestive of permanence than the previous evidence, he finds that it does not specifically address the issue and is not conclusive.

 

10.              Next, there is the letter from Dr XXX dated 22 April 1999, following his consideration of Mr XXX’s report discussed above.  Dr XXX says “There is some further treatment awaited ... a diagnostic trial ... and subsequent physiotherapy.  I suggest that we await the course of events before making a decision upon him.  I strongly suspect, however, that he will turn out to be entitled to pension benefits.”.  Again this does not directly address permanence, although it may be taken to do so indirectly, since as the company’s medical adviser Dr XXX should have been aware that permanence was a key criterion for entitlement to benefits.  It is not conclusive but in the Secretary of State’s view suggests that it is too early to judge permanence, and that a review should be undertaken following treatment.  The Secretary of State notes that the company appears to have disregarded Dr XXX’s suggestion of a review, and no evidence has been presented to show they explained why or that, if a subsequent review showed you to have become permanently incapable, your benefits could be put into payment from that later date.  Also, the company’s letter of 28 May 1999 may give a misleading impression of what Dr XXX said, by stating that  “he could not find Mr XXX permanently incapacitated”.  In reality, Dr XXX was non-committal on the question of permanence.  In the Secretary of State’s view, this underlines that the company’s approach in reaching their decision was questionable.  However, he accepts that Dr XXX’s inconclusive report does not convincingly demonstrate that you were permanently incapable at that time.

 

11.              Finally, there is the report from Mr XXX, dated 15 September 1999.  He had not seen Dr XXX’s report.  He concluded “Although Mr XXX and Mr XXX agree that Mr XXX does suffer from organic disease in his lumbar spine, I do not regard his present condition as warranting the recognition that his problem is permanent ... he cannot be regarded as permanently incapacitated.”.  In the Secretary of State’s view, this is the only clear and conclusive opinion about permanence in the medical evidence.

12.              The Secretary of State has considered the effect of the decision of the DVLA to revoke your pcv driving licence.  Although you cannot resume the duties of your former employment without this licence and the licence was revoked for medical reasons, the Secretary of State notes that it is not necessarily the case that the DVLA decision is irreversible and that if your health were to improve you could regain the licence.

13.              In the light of the evidence, the Secretary of State concludes that although you ceased work on 5 January 1999 because of incapability due to ill-health caused by a back injury it is not conclusively shown that your incapacity was permanent in the sense required by regulation 27 of the 1997 regulations.  That is, it has not been conclusively shown that you will not recover so as to be able to perform efficiently the duties of your former employment before you reach your normal retirement age.  The Secretary of State therefore dismisses your appeal.