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)

1.                  I refer to your letter of 29 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 council).

2.                  The Appointed Person found that, on the balance of probabilities, there was no conclusive evidence that you are permanently incapable due to ill-health in the sense required by the LGPS regulations and that you were therefore not entitled to early payment of your preserved benefits.  His decision confirmed the council’s decision.

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 provisions governing the LGPS have been correctly applied in the circumstances.  Like the Appointed Person the Secretary of State has no powers to direct the council to act outside the provisions of the regulations.

4.                  The Secretary of State notes that when you applied to the council for early payment of benefits you did not specifically request them on medical grounds but asked the council to treat your request with compassion.  The regulations permit the council to release benefits early on compassionate grounds if a member with deferred benefits is aged 50 or over.  No evidence has been submitted to the Secretary of State to show whether the council considered this question.  However, it did not form the basis of your appeal to the Appointed Person and the Secretary of State has not therefore considered it.  It is a matter for the council in the first instance.  The Secretary of State has restricted his consideration to health issues which formed the basis of your appeal.

5.                  The question for decision: The question for decision by the Secretary of State is whether, between ceasing employment with the council as a care officer/residential worker on 20 February 1998, and 15 July 1999 when the council refused early release of your deferred benefits you became incapable by reason of permanent ill-health or infirmity of mind or body of discharging efficiently the duties of that employment.

6.                  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     1 December 1999.

7.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that on the balance of probability it has not been conclusively shown that by 15 July 1999 you had become incapable by reason of permanent ill-health or infirmity of mind or body of discharging efficiently the duties of that employment.  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.

8.                  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).

9.                  The Pensions Ombudsman may investigate and determine any maladministrationcomplaint 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: letters dated   29 October and 9 November 1999 (with enclosures);

(b)               from the Appointed Person: list dated 23 November 1999 (with the enclosures copied to you with the department’s letter of 1 December)

(c)               from the council: letter dated  14 January 2000 with enclosures (copies attached).

2.                  You wrote to the Secretary of State on 10 December 1999 and on 1 March 2000 in relation to evidence submitted to the Secretary of State by your GP Dr XXX in a letter dated 10 December 1999.  Dr XXX’s letter relates to your condition up to 10 December 1999.  The Secretary of State can only consider your condition up to 15 July 1999 because your appeal is against the council’s decision to refuse early release of benefits at that date.  Any new medical evidence relating to your condition after 15 July 1999 must first be considered by the council.  For this reason, Dr XXX’s letter of 10 December 1999 and your letters of 10 December 1999 and 1 March 2000 have not been taken into account by the Secretary of State in reaching his decision.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               your date of birth is 28 April 1948;

(b)               until 20 February 1998 you were employed by the council as a care officer/residential worker;

(c)               you subsequently wrote to the council regarding early release of your LGPS contributions; and

(d)               on 15 July 1999 the council refused to release your preserved pension benefits on the advice of Dr XXX.

4.                  Your appeal is against the council’s refusal to release your retirement benefits early on grounds of ill-health.  You maintain that you are suffering from physical and mental ill-health that prevent you from carrying out your former employment.  You do not agree with doctors who concluded that you will, at some time in the future, recover from your ill-health so as to be fit for work; and you maintain it is unlikely that you would be offered employment again.  You question the thoroughness with which the Appointed Person could consider your claim because when he made his decision he did not see your GP’s report.

5.                  The Appointed Person said that your GP’s report did not form part of the evidence submitted to him.  He was advised by XXX, MFOM, a consultant occupational physician.  Mr XXX saw the evidence you submitted to the Appointed Person, Dr XXX’s letters to the council and to your GP.  It is not clear if he saw a copy of the description of your former job with the council.  He found that “on the balance of probabilities, there is no conclusive medical evidence that you are permanently incapable due to ill-health in the sense required by the Regulations and therefore you are not entitled to early payment of your preserved pension benefits.”

6.                  In reaching his decision the Secretary of State has had regard to the regulations which, in his view, apply.  As a deferred member of the LGPS the 1995 regulations applied to the early release of retirement benefits.  Regulation D11 allowed immediate payment of retirement benefits if you became, since leaving your local government employment, permanently incapable of discharging efficiently the duties of that employment because of ill-health of infirmity of mind or body.  Therefore the test in your case was whether you had become permanently incapable of discharging efficiently your former duties as a residential care worker because of ill-health; that is, you would not recover so as to be able to perform your duties efficiently before your normal retirement age when your benefits would be paid in any case.  Regulation 97 of the 1997 regulations required an LGPS employer, where they were considering whether to grant ill-health retirement benefits under regulation D11, to refer to an independent, duly qualified medical practitioner for a decision whether, at the time the member’s employment ceased, he was on the balance of probabilities permanently incapable of efficiently discharging the duties of his employment.

7.                  The Secretary of State notes that the council refused your claim on the advice of Dr XXX that you did not fulfil the criteria for ill-health retirement.  The council had asked Dr XXX to provide medical advice on whether you were “permanently incapable of carrying out” the duties of your “previous job or any job due to a medical condition”.  They furnished him with a copy of your job description from when you were employed by the council.  Dr XXX found your main problems to be “poor vision and arthritis”.  He requested the advice of your GP on 20 April 1999.  Dr XXX’s reply of 5 May 1999 confirmed the problems diagnosed by Dr XXX and provided a history of your medical problems and treatment.  Dr XXX also found you “to be hyperlipidaemic” and gave details of its management.  Dr XXX gave his conclusion to the council on 21 May 1999 saying, “I do not believe that at present Mr XXX fulfils the criteria for ill-health retirement”.  The Secretary of State notes the Appointed Person applied the test required by the 1995 regulations.  Dr XXX advised him that you suffered from a reactive depressive illness.  He noted your physical ailments and their treatment.  Dr XXX said that you were “at present unfit for work because of reactive depressive illness” however, “this will not be permanent”.  He therefore found that you were not “permanently incapable by reason of ill-health or infirmity of mind or body of discharging the duties of the employment you ceased to hold”.  He defined permanent as “likely to last to the age of sixty-five”.

8.                  The Secretary of State takes the view that the test to meet the criteria of regulation D11 of the 1995 regulations to qualify for early payment of your pension benefits relies on medical evidence made available to the council to enable them to certify your claim with independent medical advice.  The medical evidence submitted to the council and Appointed Person did not show that at the time you met the criteria.  Your GP’s evidence did not address the question of whether you are capable of pursuing the duties of your employment with the council and his evidence would not have necessarily led the council to decide otherwise.  The Secretary of State notes that Dr XXX does not address the precise wording of regulation 97(9) of the 1997 regulations and his letter does not take the form of a certificate.  However, the Secretary of State takes the view that the evidence sufficiently demonstrates that the council properly considered the question whether you were permanently incapable of discharging efficiently the duties of your employment because of ill-health or infirmity of mind or body, so as to qualify for the immediate payment of LGPS benefits.  Dr XXX found you to be suffering from mental ill-health to the extent that you were presently unfit to work.  However he did not conclude that you were permanently incapable so as not to be able to resume the duties of your former employment before your reached the age of 65.

9.                  In conclusion the Secretary of State takes the view that on balance it was not shown when you applied to the council that you were permanently incapable of discharging efficiently your former duties as a residential care worker because of ill-health in that you would not recover so as to be able to perform your duties efficiently before your normal retirement age.  You do not therefore qualify for early release of retirement benefits on ill health grounds from a date between 20 February 1998 and 15 July 1999.  He therefore dismisses your appeal.

10.              Finally the Secretary of State notes that in their letter of 15 July 1999 the council proposed to charge you for the medical investigation by their doctor.  The need for the council to obtain the opinion of an independent registered medical practitioner in reaching their decision is a statutory requirement of the regulations and therefore a proper charge to the fund.  It is not, in the Secretary of State’s view, appropriate to charge a member for such an examination and report.