716      INDEX

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 4 January 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for the XXX, in relation to your local government pension scheme (LGPS) dispute with XXX (the company).

 

2.                  The Appointed Person found that you did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when you ceased employment with the company.

 

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 to act outside the provisions of the regulations.  The disagreement you referred to the Appointed Person was whether the company should have granted you ill-health retirement when your employment was terminated on 4 March 1999.

 

4.                  The question for decision: The question for decision by the Secretary of State is therefore whether you ceased employment with the company on 4 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, and so qualify for the immediate payment of your LGPS benefits.

 

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. Based on the balance of probabilities, he finds that for the purposes of the 1997 regulations, it has not been shown conclusively that you ceased employment with the company on 4 March 1999 because you were permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.  His decision confirms that made by the Appointed Person.  His 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 4 January (with enclosures), 13 January and 25 March 2000; and

 

b)                  from the Appointed Person: documents considered by him (list enclosed in the Department’s letter of 4 February 2000).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 21 November 1946;

 

b)                  you were employed by the company as a PCV Driver;

 

c)                  you were a member of the LGPS;

 

d)                  on 28 October 1998 you commenced a period of extended sickness absence; and

 

e)                  your employment with the company was terminated on 4 March 1999 on capability grounds.

 

3.                  You maintain that although your back condition does not seem severe under normal examination, you cannot sit for prolonged periods, which your job as a bus driver involved.  You maintain that because of your condition the DVLA have permanently revoked your PCV licence.  You also maintain that you suffer from a prostate/bladder disorder and that this was not considered by the Appointed Person in reaching his decision.

 

4.                  The Appointed Person determined that “Based on the report prepared by Mr XXX, my decision is that I am not satisfied that you are permanently incapable of discharging efficiently the duties of your former employment as a bus driver and therefore you are not entitled to the immediate payment of your pension benefits.”.

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time you 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 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 you to perform the duties of your former employment efficiently before your normal retirement age when LGPS benefits must, in any case, be paid.

 

6.                  The Secretary of State notes that you believe your PCV licence has been permanently revoked by the DVLA.  Whilst he acknowledges that the DVLA’s letter of 21 February 1999 does revoke your PCV licence, he notes that they advised you that you may be able to re-apply.  The Secretary of State does not consider therefore that your PCV licence has necessarily been permanently revoked.

 

7.                  The Secretary of State notes that the company made their decision not to grant you ill-health retirement based on the letter, dated 2 April 1999, from their medical adviser, XXX.  Dr XXX advised the company that “He is currently waiting further specialist review for both his problems and I would like to wait for the outcome of these before making a decision on his entitlement to pension benefits.”.  The Secretary of State is concerned to note therefore that the company made their decision in the absence of a specific recommendation from their medical adviser.  Where a medical examiner indicates that he is awaiting further information before making a recommendation regarding entitlement to LGPS benefits, the Secretary of State would normally expect an employer to either postpone making a decision or request that the medical examiner make a recommendation on the medical evidence available.  However, the Secretary of State notes that the Appointed Person referred the matter to his independent medical advisor, Mr XXX, who had access to an additional report from Dr XXX, Orthopaedic and Sports Physician.  The Secretary of State also notes that you maintain your prostate/bladder disorder was not considered by the Appointed Person in reaching his decision.  Whilst he acknowledges that the Appointed Person refers only to your back problem in his decision letter of 23 September 1999, he notes that Mr XXX did consider your bladder problem in his report of 25 August 1999, but stated “.. the problems with his bladder neck have not independently proved to be a major interference with his working duties.”.  The Secretary of State is satisfied therefore that the Appointed Person reached his decision in the light of the appropriate medical evidence and he takes the view therefore that it would serve no useful purpose to refer the matter back to either the Appointed Person or the company in this instance.

 

8.                  The Secretary of State has noted all the medical evidence submitted to him comprising: your sickness absence record; letters from your GP, Dr XXX, dated 18 November 1998 and 17 February 1999; letter from the company’s medical adviser, XXX, dated 2 April 1999; and report from the Appointed Person’s independent medical advisor, Mr XXX, Consultant Surgeon, dated 25 August 1999 and letter dated 8 December 1999.  Taken together, the Secretary of State accepts that the medical evidence shows that you have suffered from problems with your lower back for some time and that you also suffer from a bladder complaint for which you have undergone surgery.  He also accepts that at the time you were dismissed, the medical evidence indicates that you were incapable of efficiently performing your duties.  However, the question that the Secretary of State has to decide is whether, at the time the decision had to be made, there was conclusive medical evidence to indicate that your incapacity was likely to be permanent, i.e. that it is 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.

 

9.                  The Secretary of State notes that you were on sick leave from October 1998 until your employment was terminated in March 1999, suffering from low back pain.  He notes that your GP, Dr XXX, wrote to the company on 18 November 1998, stating “He has had recurrent episodes of back pain since at least 1998 usually making a recovery sufficient for him to return to work.  His back at present is causing a moderate degree of pain and he is unable to sit for long periods of time … In addition to the problem with his back he has had urological difficulties … He is presently awaiting surgery for this which I would expect to give him a full degree of recovery.  I am uncertain at present as to what further treatment he may need for his back … If Mr XXX does recover sufficiently to be able to continue to work it seems likely that he will continue to have episodes of back pain which will result in him losing time from work.”.  The company’s medical adviser, XXX, then wrote back to Dr XXX requesting further information regarding your bladder condition.  Dr XXX, in her letter of 17 February 1999, states “Although Mr XXX’s urinary symptoms have been improved by his bladder neck surgery, his symptoms have not completely resolved and he still suffers from some frequency of micturition.  Obviously this is a particular problem with his present job … I would expect him to continue to have exacerbations of his back pain on a fairly frequent basis … At present, however, it seems probable that he will continue to have problems with his back and also his bladder for the foreseeable future.”.

 

10.              Whilst the Secretary of State notes that Dr XXX considered that you would continue to have problems with your back and bladder for the “foreseeable future” he does not consider that this is conclusive evidence of permanence.  He takes the view therefore, that at the time the decision had to be made, there was no conclusive medical evidence to indicate that you were permanently incapable of performing your former duties efficiently.  The Secretary of State is supported in this view by Mr XXX’s report of 25 August 1999, in which he states “From the history and from my examination, I agree with the findings of Dr XXX and Dr XXX and at this stage it is not in any way possible to say that he is permanently incapacitated.”.  The Secretary of State notes that Mr XXX updated his report, in his letter of 8 December 1999, after he had seen the results of your MRI scan, stating “… I am quite impressed with the degree of disease in this man’s spine as recorded on the report of his MRI taken on 30 October 1999 … Although taken at face value, he report is fairly serious, the are a great number of people pursuing normal activities with similar changes.  I would not wish to modify my view that at this stage Mr XXX is not permanently incapacitated but, if he should reapply in due course, then the findings as indicated on the MRI scan may assume added significance.”.  The Secretary of State notes that Mr XXX refers to other people being able to “pursue normal activities with similar changes”, but this is not relevant to your specific case.  The Secretary of State is satisfied, however, that Mr XXX’s opinion remained the same about the permanence of your incapacity.

 

11.              The Secretary of State concludes therefore that there is no conclusive medical evidence to indicate that, on the balance of probabilities, at the time you ceased employment with the company on 4 March 1999 you were suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of performing your duties efficiently.  You did not therefore cease employment on grounds of permanent incapability because of ill-health in the sense required by the regulations and you are not therefore entitled to the immediate payment of your LGPS benefits from when you ceased employment with the company.