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Our Ref: LGR 58/19/96 759 INDEX 13 June 2000 |
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 2 January 1999 in which you appeal (under regulation 102 of the 1997 regulations), against the decision of Mr XXX, the Appointed Person for XXX Council (the Council), in relation to your local government pension scheme (LGPS) dispute with the Council.
2. The Appointed Person found that you did not satisfy the requirements of the LGPS regulations for early retirement with pension benefits on the grounds of ill health.
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 to act outside the provisions of the regulations.
4. The disagreement you referred to the Appointed Person was whether the Council should have granted you ill-health retirement.
5. The question for decision: The question for decision by the Secretary of State is therefore whether you ceased employment because you are permanently incapable of discharging efficiently the duties of your employment because of ill health or infirmity of mind or body, and so qualify for the immediate payment of LGPS benefits.
6. 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 are permanently incapable of discharging efficiently the duties of your 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.
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).
1. The following evidence has been received and taken into account:
a) from you: Letters dated 2 January 2000 (with enclosures) and 5 February 2000 and;
b) from the Appointed Person: Documents considered by him (copies sent to you under cover of the Department's letter of 3 March 2000).
c) from XXX College: Fax dated 12 June 2000 (with enclosure).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) Your date of birth is 21 October 1953;
b) You were employed by the XXX College as a Cleaner;
c) You are a member of the LGPS;
d) You have had a number of extended absence periods since February 1997 and have not worked since June 1998; and
e) you ceased employment on 17 January 2000.
3. You contend that you should be entitled to early retirement on ill health grounds with benefits on the basis of your continued inability to work.
4. The Appointed Person found no information to question or doubt the medical opinion of the Council’s Medical Adviser, who found that she could not consider you to be permanently unfit for your post.
5. It is noted that at the time you submitted your appeal to the Appointed Person, and also at the time he made his decision, you were still employed by the Council. Regulation 27(1) of the 1997 regulations states: ‘Where a member leaves a local government employment by reason of being permanently incapable of discharging efficiently the duties of that employment or any other comparable employment with his employing authority because of ill-health or infirmity of mind or body, he is entitled to an ill-health pension and grant.’ The only question the Appointed Person can consider in the context of an LGPS appeal, is whether there is an entitlement to pension benefits, and no question of such an entitlement can arise until a member ceases employment. The questions whether and on what grounds to terminate employment are employment, not pensions ones. The Secretary of State therefore considers that at the time the Appointed Person made his decision there was no disagreement he could consider as your employment with the Council had not ceased. However, it is noted that you resigned with effect from 17 January 2000. It is further noted that you have not submitted any additional medical evidence in support of your case. In the particular circumstances of this case, the Secretary of State has decided, therefore, to consider your appeal, as you ceased employment shortly after making your appeal to him.
6. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. At the time of your appeal, 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 employment efficiently before your normal retirement age when LGPS benefits must, in any case, be paid.
7. The Secretary of State has noted all the medical evidence submitted to him comprising: Letters from Dr XXX (16 March 1998, 7 & 30 September 1998, 21 October 1998, 26 January 1999, 8 March 1999, 23 August 1999, 13 September 1999); Letters from Dr XXX (25 September 1998, 3 March 1999, 5 August 1999). He notes that you were seen by Dr XXX, a Consultant Psychiatrist, and XXX, a Community Psychiatric Nurse, though no reports by them have been provided for his consideration. No new medical evidence has been submitted.
8. The Secretary of State takes the view that it is not disputed that at the time of your appeal you were incapable of efficiently performing your duties. However, the question that the Secretary of State has to decide is whether your incapability is likely to be permanent within the meaning of the regulations. While he acknowledges that your GP is pessimistic about the possibility of you returning to work (as of 5 August 1999), he must weigh this view against that of the independent registered medical practitioner Dr XXX, who has stated on 4 occasions between 30 September 1998 and 30 March 1999 that she does not feel able to certify you as permanently incapable as defined in the regulations. On balance, the Secretary of State takes the view that there is no conclusive medical evidence to indicate that, on the balance of probabilities, at the time of your appeal 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. Having considered all the facts and the regulations of the Local Government Pension Scheme in force at the time, the Secretary of State’s decision is not to uphold the appeal.