LOCAL GOVERNMENT PENSION APPEAL

 

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

 

 

1.                  I refer to your letter of 17December 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Ms XXX, against the decision of Mr XXX, the Appointed Person for XXX Council, in relation to her local government pension scheme (LGPS) dispute with the XXX Association (the Association).

 

2.                  The Appointed Person found that Ms XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when she ceased employment with the Association on 12 October 1998.

 

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 Association to act outside the provisions of the regulations.  The disagreement Ms XXX referred to the Appointed Person was whether the Association should have granted her ill-health retirement when her employment was terminated on 12 October 1998.

 

4.                  The question for decision: The question for decision by the Secretary of State is, therefore, whether Ms XXX ceased employment with the Association on 12 October 1998 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 qualifies for the immediate payment of her 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 Ms XXX ceased employment with the Association on 12 October 1998 because she was 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 XXX: Letters dated 17 December 1999 (with enclosures), February 3 and 7, and 10 March 2000 (with enclosures); and

 

b)                  from the Appointed Person: documents considered by him (copy of Mr XXX’s report sent to you under cover of the Department's letter of 29 February 2000); and

 

c)                   from the XXX: Letter of 4 April 2000.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Ms XXX’s date of birth is 27 September 1949;

 

b)                  she was employed by the Association as a Finance Assistant;

 

c)                  she was a member of the LGPS;

 

d)         she had a number of extended absence periods between 15 December 1997 and 21 September 1998; and

 

e)         her employment with the Association was terminated on 12 October 1998 under their  Managing Sickness Absence Procedure.

 

3.                  Ms XXX contends that her pension should become payable with effect from the date she was dismissed by the Association, and that she should in consequence receive the added years service which would have been payable had she been retired on the grounds of ill-health.

 

4.                  The Appointed Person determined that: ‘Applying the key criteria, I am of the opinion that the incapacity could not be permanent prior to the dismissal given the periods over which the complainant attended work.’ ‘Having considered all the facts and the regulations of the Local Government Pension Scheme in force at the time it is my decision not to uphold the complaint.’

 

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

 

6.                  The Secretary of State notes that you have submitted a letter from the XXX dated 25 March 1997. He infers from this that XXX offered early retirement on medical grounds, and that it appears Ms XXX declined. The Secretary of State notes that XXX appear to have made this offer ‘with no financial liability to the XXX Superannuation Scheme.’ He finds this letter confusing. At that time, the 1995 regulations were in force. Regulation D7 states that:         

‘where a member who ceases to hold a local government employment­-

(b) is incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body,

he is entitled-

(i)     to a standard retirement pension, and

(ii)   to a standard retirement grant,

which are payable immediately on his ceasing to hold that employment.’

 

If Ms XXX satisfied the capability and permanent ill health criteria at that time, she would have been entitled to her LGPS benefits had she ceased employment. She could not have been refused payment of retirement benefits if she met the criteria, and equally could not have qualified for retirement benefits if she did not meet the criteria. It appears that there was no intention to pay Ms XXX’s retirement benefits and in the event Ms XXX did not cease her employment. The Secretary of State considers in the circumstances that the reference to “early retirement “ is meaningless and misleading, and he finds the letter to be unreliable and inconclusive as evidence in relation to Ms XXX’s capability and ill-health at that time in relation to her current appeal. As stated above this has to be considered under the 1997 regulations, where the test to be applied is whether she ceased employment because of permanent incapability of performing the duties of that employment due to ill-health at 12 October 1998.

 

7.                  The Secretary of State notes that the DSS awarded Ms XXX incapacity benefit from 13 October 1998. However, the fact that she has been in receipt of incapacity benefit does not automatically entitle her to retirement on ill-health grounds, as the specific test under the Regulations is different.

 

8.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Letter from Dr XXX (23 April 1992); letter from XXX Healthcare, adviser to XXX (4 November 1996); letters from Dr X (1 & 30 April 1998, 22 September 1998, 1 December 1998 & 23 June 1999); letter from Dr XXX (17 November 1998).

 

9.                  The Secretary of State notes that the Association made their decision not to grant Ms XXX ill-health retirement based on the letter, dated 17 November 1998, from their medical adviser, Dr XXX. Dr XXX advised the Association that “I will write to her General Practitioner for a medical report.’  The Secretary of State is concerned to note therefore that the Association made their decision while their medical adviser had made only a preliminary decision based on incomplete evidence.  Where a medical examiner indicates that he is awaiting further information, the Secretary of State would normally expect an employer to postpone making a decision until the medical examiner was able to give a fully considered opinion.  However, the Secretary of State also notes that Dr XXX was sent Dr XXX’s medical report of 1 December 1998, and this does not appear to have caused him to alter his opinion.  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 that it would serve no useful purpose to refer the matter back to either the Appointed Person or the Association in this instance.

 

10.               The Secretary of State takes the view that it is not disputed that at the time Ms XXX ceased her employment with the Association she was suffering from a number of medical problems that left her incapable of efficiently performing her duties. He has noted the comments and concerns of her GP, Dr XXX, who stated in his report of 1 December 1998 that ‘..a pattern seems to have been fixed over some time and I would expect her to continue to have problems with headache, dizziness and neck pain.’ He is also aware that Dr XXX stated on 23 June 1999: ‘Ms XXX ..is quite severely limited by her symptoms and I strongly support her application for retirement on medical grounds.’ He also accepts that Dr XXX said on 22 September 1998 that he would certainly support her seeking retirement on medical grounds, when in previous reports in April 1998 he appeared satisfied of her fitness to return to work. 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 Ms XXX’s incapacity was likely to be permanent within the meaning of the regulations, i.e. that it would be unlikely to improve sufficiently for her to perform the duties of her former employment efficiently before her normal retirement age when LGPS benefits must, in any case be paid. Whilst Ms XXX’s GP is clearly sympathetic in regard of her situation, his reports do not address the specific tests required by the regulations, nor provide conclusive medical evidence as to the permanence of her incapacity at 12 October 1998. Furthermore, the Association’s occupational health adviser, Dr XXX, found on 17 November 1998 that: ‘On today’s evidence I think that there is every possibility that with treatment she could regain normal health and be able to return to gainful employment.’  The Secretary of State accepts that “gainful employment” is not the strict criterion; the proper test is efficient performance of the duties. However, he has regard to the term “regain normal health” which he considers is a reasonable measure that an individual is fit enough to perform their duties efficiently.  There is no indication that Ms XXX’s duties as a Finance Assistant intrinsically required more than “normal health” for them to be performed efficiently. Dr XXX also requested and received Dr XXX’s report dated 1 December 1998, and this does not appear to have altered his medical opinion as to the permanency of Ms XXX’s incapacity. Nor can the Secretary of State find, in the detailed analysis and history of Ms XXX’s condition in Dr XXX’s report, a definitive view about permanent incapability that addresses the strict requirements of the regulations.

 

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 Ms XXX ceased employment with the Association on 12 October 1998, she was suffering from such a condition of ill-health or infirmity of mind or body that she would be permanently incapable of performing her duties efficiently.  Ms XXX did not, therefore, cease employment on grounds of permanent incapability because of ill-health in the sense required by the regulations, and consequently she is not entitled to the immediate payment of her LGPS benefits from when she ceased employment with the Association.