768 INDEX
LOCAL GOVERNMENT PENSION APPEAL - MR XXX
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 12 January 2000 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person for XXX Council, in relation to Mr XXX’s local government pension scheme (LGPS) dispute with XXX(the Company).
2. The Appointed Person found that Mr XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when he ceased employment with the Company on 15 April 1999.
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 Mr XXX referred to the Appointed Person was whether the Company should have granted him ill-health retirement when his employment was terminated.
4. The question for decision: The question for decision by the Secretary of State is, therefore, whether Mr XXX ceased employment with the Company on 15 April 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 qualifies for the immediate payment of 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 Mr XXX ceased employment with the Company because he 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.
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.
1. The following evidence has been received and taken into account:
a) From XXX: Letters dated 12 January 2000 (with enclosures), 7 February 2000 (with enclosures), 2 March 2000; 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 28 February 2000); and
c) from the Pension fund: Fax dated 20 January 2000 (with enclosures),
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) Mr XXX’s date of birth is 5 January 1947;
b) he was employed by the Company as a PSV driver;
c) he was a member of the LGPS;
d) he commenced a period of extended absence from 2 December 1998; and
e) his employment with the Company was terminated on 14 April 1999 on the grounds of incapability.
3. Mr XXX contends that his pension should become payable with effect from the date he was dismissed by the Company, and that he should in consequence receive the added years service which would have been payable had he been retired on the grounds of ill-health.
4. The Appointed Person determined that: ‘....... having studied all the available evidence and having taken advice from my own medical advisor who specialises in the field of occupational health I have formed the view that, on the balance of probabilities, there is no conclusive medical evidence that Mr XXX is permanently incapable due to ill health in the sense required by the Regulations and he is not therefore entitled to the immediate payment of ill health retirement benefits.’
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 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. In addition to the medical evidence considered by the Appointed Person, the Secretary of State has noted the additional evidence you provided: a letter from Dr XXX dated 2 December 1999. The Secretary of State does not normally consider evidence that was not available to the Appointed Person in making his decision, as the Secretary of State’s role under the regulations is to reconsider the original disagreement. However, he accepts that this evidence refers to a period prior to the Appointed Person reaching his decision. He has therefore had regard to it, but concludes that it does not add any new issues to the medical evidence available to the Appointed Person, nor does it specifically provide evidence directly addressing the questions the Secretary of State must resolve in reaching a decision.
7. The Secretary of State acknowledges that the DVLA have revoked your PCV licence for medical reasons and that this makes it impossible, at present, to perform your former duties as a PSV driver. He also acknowledges that, somewhat exceptionally, they did not invite you to reapply in their letter of 17 September 1999. However, he also notes that, in the light of this evidence the Appointed Person referred the matter back to his medical adviser who stated in his letter of 29 October 1999: ‘I have studied the additional evidence submitted on Mr XXX’s behalf. It remains my opinion that Mr XXX’s incapacity is not a permanent one and I would expect his symptoms to resolve with the passage of time.’ Furthermore, the Secretary of State also notes that Dr XXX, medical adviser for the DVLA, did not rule out the possibility of Mr XXX reapplying for his licence. In his letter dated 17 September 1999 he stated: ‘You would be able to reapply for your vocational licence when your doctor can confirm that your condition has improved and remains stable.’ The Secretary of State does not consider therefore, that Mr XXX’s PCV licence has necessarily been permanently revoked.
8. The Secretary of State has taken account of all the medical evidence submitted to him comprising: Bupa Medical report for XXX on Fitness to return to work dated 13 January 1999; letters from Dr XXX dated 30 March 1999, 18 November 1999, 2 December 1999; letter from XXX, dated 14 October 1999; letters from the DVLA and Dr XXX dated 17 September 1999; letters from XXX dated 14 July 1999, 29 October 1999; letter from Dr XXX, dated 23 June 1999.
9. The Secretary of State takes the view that it is not disputed that at the time Mr XXX ceased his employment with the Company he was suffering from serious headaches that made it unsafe for him to drive a PSV, and ultimately led to his termination of employment with XXX and to his PCV licence being revoked by the DVLA. He has noted the comments and concerns of his GP, Dr XXX, who stated in her letter of 18 November 1999 that: ‘This patient is incapacitated by severe headaches which prevent him driving.’ ‘Prognosis not known but he has suffered from this severe type of headache since 12.8.98 and I think should be regarded as unfit to drive permanently.’ However, whilst the Secretary of State acknowledges that Dr XXX has implied that Mr XXX’s incapability should be regarded as permanent, he is not persuaded that this opinion is conclusive, given that Dr XXX states in the same sentence ‘Prognosis not known.’ He also notes that in Dr XXX’s most recent letter of 2 December 1999 she states that: ‘The headache is, I think, genuine, severe and we are still looking for a diagnosis.’ The Secretary of State takes the view that, without a definitive diagnosis or prognosis, the medical evidence is not sufficiently conclusive to satisfy the condition of permanency as required by the regulations.
10. The Secretary of State has also noted that the Appointed Person, in his letter of 9 December 1999, states that he referred the additional evidence of Dr XXX for ‘further advice from (his) own medical adviser,’ and states that: ‘I am satisfied that in giving me his opinion my own medical advisor had taken account of these views and all the medical evidence available to him’. The medical advisor stated in his letter of 29 October 1999 that: ‘It remains my opinion that Mr XXX’s incapacity is not a permanent one and I would expect his symptoms to resolve with the passage of time. It remains my opinion that he should not have been retired on the grounds of ill health with the immediate payment of an early retirement benefit when his employment was terminated by XXX on the 15 April 1999.’
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 Mr XXX ceased employment with the Company on 15 April 1999, he was suffering from such a condition of ill-health or infirmity of mind or body that he would be permanently incapable of performing his duties efficiently. Mr XXX did not, therefore, cease employment on grounds of permanent incapability because of ill-health in the sense required by the regulations, and consequently he is not entitled to the immediate payment of his LGPS benefits from when he ceased employment with the Company.