LOCAL GOVERNMENT PENSION APPEAL - MR XXX

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter dated 28 October 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of XXX (the company), against the decision of Mr XXX, the Appointed Person for XXX Fund, in relation to Mr XXX’s local government pension scheme (LGPS) dispute with the company.

 

2.                  The Appointed Person found that Mr XXX satisfied the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when he ceased employment with the company on 1 March 1999.

 

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 company or the Appointed Person to act outside the provisions of the regulations.  The disagreement that was referred to the Appointed Person was whether the company should have granted Mr XXX ill-health retirement benefits when his employment was terminated.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether Mr XXX qualifies for the payment of his LGPS benefits because he ceased employment with the company on 1 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, or because he has become so incapable.

 

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.  He finds that for the purposes of the 1997 regulations, Mr XXX did not cease employment with the company on 1 March 1999 by reason of being permanently incapable of discharging efficiently the duties of his employment because of ill-health.  He was not therefore entitled to immediate payment of retirement benefits.  The Secretary of State is, however, satisfied that on 24 August 1999 Mr XXX had become, on the balance of probabilities, permanently incapable of efficiently discharging his former duties, and would therefore be entitled to payment of his deferred LGPS benefits with effect from that date.  The Secretary of State considers that in lodging his appeal, Mr XXX should be regarded as having made the required election to receive those benefits.

 

6.                  The Secretary of State’s decision replaces 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.

 

7.                  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).

 

8.                  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).

 

9.                  A copy of this letter has been sent to the Appointed Person, the Pension Manager, and Mr XXX (XXX) (the union) and Mr XXX.

 

 

EVIDENCE RECEIVED

 

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

 

a)                   from you: letters dated 28 October (with enclosures), 4 November, 29 November (with enclosures), 3 December and 9 December 1999 (with enclosure) and 28 February and 10 March 2000;

 

b)                  from the Appointed Person: documents considered by him (list enclosed in the Department's letter dated 7 January 2000); and

 

c)                   from the union: letter dated 5 May 2000 (with enclosure) (copy enclosed).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mr XXX’s date of birth is 27 December 1942;

 

b)                  he was employed by the company as a PCV Driver;

 

c)                  he was a member of the LGPS;

 

d)                  in October 1998 Mr XXX began a period of extended sickness absence;

 

e)                  on 21 December 1998 the DVLA informed Mr XXX that his PCV licence had been revoked; and

 

f)                    on 1 March 1999 Mr XXX’s employment was terminated on the grounds of capability due to ill-health.

 

3.                  You contend that the medical evidence is clearly divided, but that your evidence indicates that Mr XXX’s incapacity is not proven permanent.  You are also dissatisfied that you were not given the opportunity to supply evidence and opinion to the Appointed Person in considering Mr XXX’s appeal.

 

4.                  Taking first the matter of the company not being given the opportunity to provide evidence to the Appointed Person in support of their original decision, the Secretary of State notes that following Mr XXX’s application, the Appointed Person approached XXX Fund (the administering authority) for documents relating to the company’s original decision.  Regulation 100 of the 1997 regulations makes no specific reference to the information required by the Appointed Person in reaching his decision.  However, the Secretary of State is concerned to note that the Appointed Person did not seek documents and information from the employer in the first instance, bearing in mind that the initial decision was for the scheme employer to reach, not the administering authority.  The Secretary of State accepts that, in consequence, the company were not able to make further representations in support of their case.  However, the Secretary of State is satisfied that the Appointed Person had before him the recent medical evidence available at the time the company took their decision to refuse Mr XXX ill-health retirement benefits which gave rise to the dispute.  It does not appear to him, therefore, that the Appointed Person was deprived of, or unable to take into account, the medical evidence on which the company based their decision and thus on which their case should be founded.  In the circumstances, therefore, he regards the Appointed Person’s failure to inform them, unsatisfactory as it was, more as a matter of protocol between the company and the Appointed Person.  The Secretary of State does not intend to intervene or comment further on this issue.

 

5.                  The Appointed Person determined that "…having reviewed all the medical evidence, Dr. XXX concludes that Mr XXX is permanently incapable of discharging efficiently the duties of his employment because of the continuing ill health.  Further, Dr. XXX is satisfied this was so at the time Mr. XXX was dismissed (i.e. 1^st March, 1999).  On balance, I am satisfied that Mr. XXX satisfied Regulation 27 of the 1997 Regulations and is entitled to ill health retirement.”.

 

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 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, or the duties any other comparable employment with their employing authority, 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 Mr XXX to perform the duties of his former employment efficiently before his normal retirement age when LGPS benefits must, in any case, be paid.  The Secretary of State notes that under regulation 31 of the 1997 regulations a deferred member may elect to receive immediate payment of deferred benefits on, amongst other grounds, grounds of ill-health, that is if a member has become so permanently incapable.

 

7.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Mr XXX’s occupational health record; internal memorandum from Dr XXX, Company Medical Advisor, dated 24 November 1998; letters from Mr XXX’s GP, Dr XXX, dated 17 December 1998 and 10 February 2000; letter from the DVLA’s medical adviser, Dr XXX, dated 21 December 1998; internal memorandums from Dr XXX, Company Medical Adviser, dated 15 December 1998, 7 January and 14 January 1999; and letters from the Appointed Person’s medical advisor, Dr XXX, Consultant/Director of Occupational Health Services, dated 30 July and 24 August 1999.

 

8.                  The Secretary of State has first considered the additional letter submitted from Mr XXX’s GP, XXX, dated 10 February 2000.  He notes that this evidence refers to Mr XXX’s current state of health and whilst he has considered it, the Secretary of State concludes that it does not significantly add to the medical evidence, nor does it specifically provide evidence directly addressing the questions he must resolve in reaching a decision.

 

9.                  The Secretary of State notes that Dr XXX, in his internal memorandum dated 24 November 1998, states “I have no doubt in my mind that he (Mr XXX) should be regarded as permanently incapable of resuming in the capacity of a driver.  To that end I have written to his General Practitioner to express that view and provided that this is supported I would be in a position to recommend medical retirement in this case.”.  He notes that Mr XXX’s case was then referred to Dr XXX who, in his internal memorandum dated 15 December 1998, states “I have to say that I cannot state that he will not recover between now and his retirement age from this condition and therefore the condition of permanency is not met.”.  Mr XXX’s GP, XXX, provided his opinion in his letter dated 17 December 1998, in which he states “… it appears that he (Mr XXX) is incapable of continuing his job for a long time.  I tend to agree with you to consider him as permanently incapable of work as a driver.”.  However, Dr XXX, in his internal memorandum dated 7 January 1999, states “I now have a report from Mr XXX’s general practitioner in response to Dr XXX’s letter … I have to say there is little in the report which would lead me to change my recommendation to you as stated in my memo of 15.12.98.”.  This view was confirmed by Dr XXX in his internal memorandum, dated 14 January 1999, in which he states “… I do not consider his anxiety/depression as necessarily permanent and equally I do not consider his angina as necessarily permanently incapacitating.”.  The Secretary of State recognises therefore that, at the time Mr XXX ceased his employment with the company, the medical evidence was divided.  He notes that the company acted on Dr XXX’s evidence as this was “the more recent and up to date report”.

 

10.              The Secretary of State has next considered the advice of the Appointed Person’s medical adviser, Dr XXX.  He notes that Dr XXX had a full history of Mr XXX’s medical problems and that he examined him.  He notes that Dr XXX, in his letter dated 30 July 1999, states “… Mr XXX had continuing investigations in progress and the full extent of his medical condition was not known at the time he was dismissed on 1 March 1999.  It was not possible at that time to indicate that he was permanently incapable of discharging efficiently the duties of his employment by reasons of ill health.”.  He notes, however, that Dr XXX also states that he was waiting for the results of tests from Mr XXX’s specialist and that “… it would only be on receipt of this that I would be able to make a further comment to you in relation to whether at this time he is permanently incapable of discharging efficiently the duties of his employment …”.  In his letter dated 24 August 1999, Dr XXX states “… I have now received from Mr XXX’s cardiological specialist some further information … I feel able to indicate to you that he is permanently incapable of discharging efficiently the duties of his employment by reasons of ill health as of this time.”.

 

11.              While accepting that there was conflicting medical opinion, the Secretary of State concludes that, on the balance of probabilities, at the time he ceased employment with the company on 1 March 1999, it was not established sufficiently conclusively that Mr XXX was suffering from such a condition of ill-health or infirmity of mind or body that he would be permanently incapable of performing his duties efficiently.  He did not therefore cease employment on grounds of permanent incapability due to ill-health in the sense required by the regulations and he is accordingly not entitled to the immediate payment of his LGPS benefits from when he ceased employment with the company.  The Secretary of State does consider, however, that later medical evidence has established that he has become permanently incapable of performing his former duties efficiently by reason of ill-health.  The medical evidence indicates that he had become so permanently incapable as from 24 August 1999.  To receive early release of benefits under regulation 31 of the 1997 regulations Mr XXX has to elect to receive them.  In the circumstances of this case, the Secretary of State considers that in lodging his appeal, Mr XXX should be treated as having made such an election.  The Secretary of State has concluded therefore that Mr XXX is entitled to the early release of his deferred LGPS benefits under regulation 31 of the 1997 regulations from 24 August 1999.