747      INDEX

 

LOCAL GOVERNMENT PENSION SCHEME APPEAL – MR XXX

 

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 dated 12 November 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of XXX Council (the council), against the decision of Mr XXX, the Appointed Person for XXX Council, in relation to Mr XXX’ local government pension scheme (LGPS) dispute with the council.

 

2.                  The Appointed Person found that Mr XXX satisfied the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits with effect from 18 October 1996.

 

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 or the Appointed Person to act outside the provisions of the regulations.  The disagreement that was referred to the Appointed Person was whether the council 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, when Mr XXX ceased his local government employment with the council on 17 October 1996 he was incapable of carrying out efficiently his duties by reason of permanent ill-health or infirmity of mind or body.

 

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 1995 regulations, and based on the balance of probabilities, at the time his employment with the council ceased on 17 October 1996, Mr XXX was incapable of carrying out his duties efficiently by reason of permanent ill-health or infirmity of mind or body.  He is therefore entitled to immediate payment of retirement benefits with enhancement from that date.  The Secretary of State’s 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 12 November (with enclosures), 2 December, and 13 December 1999 (with enclosure), and 17 March 2000 (with enclosure);

 

b)                  from the Appointed Person: documents considered by him (list enclosed in the Department's letter dated 16 March 2000); and

 

c)                   from XXX (the union): letters dated 15 December 1999 (with enclosures), 17 January, 25 January, 4 February, 7 February (with enclosures), 20 March, 22 March, 19 April (with enclosures), 26 April (with enclosures) and 11 May 2000 (with enclosures).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mr XXX’ date of birth is 8 March 1955;

 

b)                  he was employed by the council as Director of Administration and Personnel;

 

c)                  he was a member of the LGPS;

 

d)                  on 17 October 1996 Mr XXX was dismissed from his employment with the council.

 

3.                  You contend that the medical report produced by the council’s medical advisor, Dr XXX, gave adequate information to enable the council to determine that Mr XXX was not incapable of discharging efficiently the duties of his employment by reason of permanent ill-health.  You also maintain that the Appointed Person’s medical advisor, Dr XXX, did not consider the correct test in reaching his decision and that his medical report and certificate were inconclusive.

 

4.                  The Appointed Person determined that “I have received a detailed Psychiatric Report and a Medical Certificate of Incapacity … from Dr XXX, Consultant Psychiatrist … The Psychiatric Report and Medical Certificate leave me in no doubt that when Mr XXX’ employment as Director of Personnel and Administration ceased on 17 October 1996 he was incapable of discharging efficiently the duties of that post by reason of permanent ill-health or infirmity of mind or body.  Consequently, he satisfied the requirements of regulation D7(1) of the Local Government Pension Scheme Regulations 1995 at that time, and is therefore entitled to ill-health retirement benefits payable with effect from 18 October 1996.”.

 

5.                  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 1995 regulations were in force.  Regulation D7(1)(b) of the 1995 regulations provides for a member's pension and retirement grant to be paid immediately, with enhancement where applicable, where it is shown that, at the time they ceased their local government employment, they were suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out efficiently their duties.  If it is found that such a condition existed, either at the time when the member’s employment ceased or at an earlier date, it is necessary to establish that it was permanent in the sense required by the regulations.

 

6.                  The Secretary of State has first considered the additional reports by Dr XXX, dated 8 September 1999 and 13 April 2000, provided by the union with their letter of 26 April 2000.  He notes that this evidence refers to Mr XXX’ state of health in September 1999 and at the present time.  Therefore, 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.

 

7.                  Taking the issue of the Dr XXX’s report, the Secretary of State notes that you consider it gave adequate information to enable the council to determine that Mr XXX was not incapable of discharging efficiently the duties of his employment by reason of permanent ill-health.  He notes that the Appointed Person was provided with a large amount of medical evidence, comprising opinion from: Dr XXX; Mr XXX, Senior II Occupational Therapist, Dr XXX, MB, ChB, MRCGP, DCHDGM; Dr C XXX, MB, BCh, FRCPsych, Consultant Psychiatrist; Ms XXX, BScSRN; and Dr XXX, MB, BS, FRCPsych, Consultant Psychiatrist.  He also notes that the Appointed Person considered that there was a conflict of medical opinion, and therefore referred the matter to an independent medical examiner.  The Secretary of State takes the view therefore that it is not disputed that, at the time the council made their decision, Dr XXX’s report did provide adequate information to enable the council to determine that Mr XXX was not incapable of discharging efficiently the duties of his employment by reason of permanent ill-health.  However, the Secretary of State is also satisfied that, in the light of what he considered to be conflicting medical evidence, the Appointed Person was correct to refer the matter to an independent medical examiner.

 

8.                  The Secretary of State has next considered the advice of the Appointed Person’s medical adviser, Dr XXX.  He notes that Dr XXX was provided with copies of Dr XXX’s report, Dr XXX’s letter of 15 May 1997 and Mr XXX’s letter of 12 August 1997 (with a copy of a mental health assessment).  He also notes that the Appointed Person asked Dr XXX to consider whether Mr XXX satisfied the requirements of the LGPS regulations for the award of ill-health retirement benefits.  Dr XXX, in his report dated 9 July 1999, states “ … it is clear that he was suffering from significant clinical depressive symptoms at the time of his dismissal in October 1996 … In terms of the Pensions Regulations, this case is somewhat difficult.  It is obvious that Mr XXX does not fulfil the criterion “permanently unfit for work” since he is currently able to function at a professional level … On balance, I would say that he would not fulfil the criteria for medical retirement ... ”.  The Appointed Person considered that Dr XXX’s report was not clear and he therefore sought clarification on the specific question of whether Mr XXX was, at the time his employment ceased, incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body.  The Appointed Person also explained that permanent should be interpreted as meaning until, at the earliest, Mr XXX’ 65^th birthday.  Dr XXX then certified that Mr XXX was incapable of discharging efficiently the duties of his employment as Director of Personnel & Administration by reason of permanent ill-health or infirmity of mind or body.  The Secretary of State takes the view therefore that, whilst Dr XXX’s report was inconclusive and it was not clear what specific test he considered, his certificate makes it clear that he was of the opinion that Mr XXX was incapable, at the time his employment ceased on 17 October 1996, of discharging efficiently the duties of his employment as Director of Administration and Personnel by reason of permanent ill-health or infirmity of mind or body.

 

9.                  The Secretary of State concludes therefore that, based on the balance of probabilities, at the time his employment with the council ceased on 17 October 1996, Mr XXX was incapable of carrying out his duties efficiently by reason of permanent ill-health or infirmity of mind or body.  He is therefore entitled to immediate payment of retirement benefits with enhancement from that date.