691      INDEX

 

LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1.                  I refer to your letter of 6 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 Police (XXP).

2.                  The Appointed Person upheld XXP’s decision that you did not meet the criteria to entitle you to immediate payment of retirement benefits on ill-health grounds from when you ceased employment with them.

3.                  The question for decision: The question for decision by the Secretary of State is whether you ceased employment with XXP 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, except the documents enclosed with your letter of 8 January 2000, which were returned to you.  Copies of documents supplied by the Appointed Person were sent to you under cover of the Department’s letter of 6 January 2000.

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds that for the purposes of the 1997 regulations it has not been conclusively shown that, on the balance of probabilities, you ceased employment with XXP by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body.  You do not therefore qualify for immediate payment of retirement benefits from the date you ceased employment. 

6.                  The Secretary of State’s decision confirms that made by the Appointed Person. His 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.

7.                  The Secretary of State notes that in his letter to you dated 19 January 2000 the Appointed Person offered to refer the matter back to Dr XXX following the Secretary of State’s decision, provided you submitted further medical evidence which supported your application.  He explained what evidence was required and how the matter would be considered. While, technically, the Secretary of State notes that any new evidence should first be considered by your former employer, XXP, it would be a matter for them and the Appointed Person to decide if they could agree on a suitable arrangement. 

8.                  This completes the second stage of the internal dispute 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 0171 233 8080).

9.                  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 0171 834 9144).

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

(a)               from you: letters received on 6 October 1999 (with enclosures) and 8 January 2000; and

(b)               from the Appointed Person: letter dated 13 December 1999 (with the enclosures listed in the Department’s letter of 6 January 2000).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               your date of birth is 27 April 1955;

(b)               you were employed by XXP as a District Administrative Manager;

(c)               you were on sick leave from November 1997 to September 1998 and again from October 1998; and

(d)               with effect from 1 March 1999 XXP terminated your employment “on the grounds of incapacity through ill-health”.

3.                  You appealed to the Appointed Person for a review of XXP’s decision not to award early retirement on ill-health grounds.

4.                  The Appointed Person dismissed your appeal following advice he received from Dr XXX, a consultant occupational physician, that it was too early to “support an application for permanent disability”.  Dr XXX’s view was that apart from counselling you had not received any other active specialist treatment which she would expect for establishing the permanence of your health problems.

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 pensionable employee to receive immediate payment of their retirement benefits if their employment ceases because they are permanently incapable of performing their duties efficiently due to ill-health or infirmity of mind or body.  At the time you ceased employment, “permanently incapable” was not defined in the regulations.  The Secretary of State takes the view that for an 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 when LGPS benefits must, in any case be paid.  Regulation 97(9) required an LGPS employer, where they were considering whether to XXX ill-health retirement benefits under regulation 27, to obtain a certificate from an independent registered medical practitioner as to whether, in his opinion, the member was permanently incapable of efficiently discharging the duties of their employment by reason of ill-health or infirmity of mind or body.

6.                  The Secretary of State has considered the evidence.  It is not disputed that XXP found you to be incapable of performing your duties due to ill-health, and that this was the reason for your dismissal.  He notes that this was borne out by the company’s notice of termination letter of 19 February 1999.  The Secretary of State takes the view therefore that the test remaining to establish whether you have an entitlement to immediate payment of ill-health retirement benefits from when you ceased employment is whether your incapacity was permanent.

7.                    The Secretary of State has considered the medical evidence submitted comprising letters from Dr XXX , Occupational Health Medical Adviser, dated 21 October 1998; from your Counsellor XXX dated 12 November 1998; two from your GP, Dr XXX dated 27 November 1998 and 1 February 1999; from Dr XXX, XXX Panel doctor, dated 14 December 1998; report from XXX consultant Psychiatrist, dated 21 January 1999; and letter from Dr XXX, Consultant Occupational Physician, dated 23 March 1999.  All this medical evidence was available to the Appointed Person.  You subsequently submitted further medical evidence to the Secretary of State with your letter of 8 January 2000.  As explained to you in the Department’s letters of 11 January and 3 February 2000 this has not been taken into account as new medical evidence should first be considered by your employer, XXP.

8.                  It appears to the Secretary of State that the independent registered medical practitioner to whom XXP referred your case was Dr XXX, and that his decision, on which it appears theirs’ was based, was given in his letter of 14 December 1998.  Dr XXX therefore had the advice of Dr XXX, XXX, and Dr XXX’s letter of 27 November 1998.  There is no evidence to show that he was asked to consider the subsequent report from Mr XXX or the second letter from Dr XXX, although both were available before XXP took their decision on 19 February 1999 to terminate your employment.  Equally it is unclear from the papers whether you submitted this evidence to XXP.  The Secretary of State takes the view that, if you did so, XXP should have referred it to Dr XXX for consideration before taking their decision.  Any failure to have done so would in his view mean that their decision was not properly taken on the basis of all the available medical evidence.  However, as stated, the papers are unhelpfully unclear on this score.

9.                  It is understood however that both these items were available to Dr XXX to whom the Appointed Person referred for advice.

10.              In considering the question whether your incapability was permanent at the time you ceased employment, the Secretary of State has reviewed the medical evidence in chronological order.  On 21 October 1998, Dr XXX reviewed your treatment and the outcome of your attempted return to work and concluded “there really is little prospect of her getting back to work ... the only sensible option is to consider medical retirement”.  The Secretary of State notes however that his view does not explicitly address the question of “permanence” in the sense outlined above.  Ms XXX reviewed your recent history and symptoms, surmised you were suffering from Prolonged Duress Stress Disorder (PDSD), and concluded “It would appear to be impossible for Anne to return to this work environment”.  The Secretary of State notes that, again, this view does not explicitly address the question of “permanence”.  Dr XXX, on 27 November 1998, reported symptoms of depression and stress-related symptoms, recounted your medication, and concluded “I do not believe she will be able to return to work in the foreseeable future”.  The Secretary of State takes the view that there is a difference between “permanence” in the sense outlined above and the “foreseeable future”, and taking your age into account, he does not conclude that this letter means your incapacity was permanent.

11.               Next, there is the opinion of Dr XXX dated 14 December 1998. His letter referred to the relatively short duration of symptoms, other treatment options not yet explored, and the hope you would improve “in the long term”; he consequently concluded that you did not “satisfy the stringent criteria as laid down by the XXX”.  Dr XXX did not directly refer to “permanence” in his letter (the accompanying certificate may have done so but has not been submitted in evidence), but he does refer to the pension scheme criteria.  The Secretary of State takes the view that, as the XXX Panel Doctor, Dr XXX should have been aware of the permanency test required by the regulations.

12.              Mr XXX’s in his report dated 21 January 1999 concluded you suffered from PDSD, had been unable to work for a year, had not responded to medication, and were no longer capable of performing your duties both now and in the future.  The Secretary of State notes that Mr XXX does not say how far into the future this extends; again, his evidence does not explicitly address the permanency test required by the regulations.  Dr XXX, on 1 February 1999, reported that you continued to suffer from depression and panic episodes and were not really improving despite regular CPN counselling and anti-depressant medication.  Dr XXX concluded “I do not anticipate she will make a complete recovery and in my opinion is likely to remain permanently unfit for work”.  In the Secretary of State’s view, this is a stronger opinion of permanence than that in Dr XXX’s earlier letter.

13.              Finally there is the opinion of Dr XXX.  She stated that the nature of your illness made it very difficult to predict whether you could recover sufficiently to return to your job; this was particularly problematic in view of your relatively youthful age.  She commented that you had been receiving counselling but not any other active specialist treatment which she would expect for establishing permanence, and she thought it too early to support permanent disability on ill-health grounds.

14.              The Secretary of State finds the medical evidence to be in general agreement about your condition, its symptoms and its effect on your present ability to perform your former duties.  However, the evidence does not give a clear and unanimous view whether your incapacity is permanent.  The Secretary of State notes that both Dr XXX and Dr XXX refer to potential treatment that has not been explored, but neither say what such treatment is or what prognosis might follow.  The Secretary of State would normally expect all relevant specialist treatment to be explored before deciding that a condition is permanent.  The Secretary of State considers it is clearly a very close decision as to whether your condition is permanent.  However, taking your age into account, he finds the evidence is not sufficiently conclusive to persuade him that, on the balance of probability, your present ill-health will continue so as to make you incapable of efficiently undertaking your former duties until you reach your normal retirement age.  He therefore concludes you are not entitled to immediate payment of your retirement benefits on grounds of permanent incapability due to ill-health from the date you ceased employment.