LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 8 February in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX (the council), in relation to your local government pension scheme (LGPS) dispute with the the council.

 

2.                  The Appointed Person found that you did not satisfy the requirements of the LGPS regulations for early release of your deferred retirement benefits on ill-health grounds.

 

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.  The disagreement you referred to the Appointed Person was whether the council should have granted you early release of your preserved LGPS benefits when you requested them on the grounds of ill-health on 31 August 1999.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether, at the time of your appeal, you had become permanently incapable of discharging efficiently the duties of your former 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.  He finds that the council have not properly complied with the regulations in deciding whether you have an entitlement to early payment of benefits on ill-health grounds, in that they did not refer the medical issues to a properly qualified independent registered medical practitioner. He determines that they must now do so and reconsider the matter accordingly. His decision replaces 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 8 February (with enclosures) and 24 February 2000;

 

b)                  from the Appointed Person: letter of 9 March 2000 enclosing documents considered by him (listed in the Department's letter of 13 March 2000).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Your date of birth is 14 May 1944;

 

b)                  you were employed by the council as a Senior Computer Programmer until you were made redundant on 31 July 1988;

 

c)                  you were a member of the LGPS; and

 

d)                  in August 1999 you requested early release of your preserved retirement benefits on the grounds of your ill health.

 

3.                  You contend that your preserved benefits should become payable to you immediately on the grounds of your ill health. You also contend that the officers who have dealt with your case have made prejudicial comments concerning the background notes to your case, in particular that your ‘background notes to the case (were considered) immaterial, sight unseen.’

 

 

4.                  The Appointed Person determined that “… XXX have accurately applied the terms of the pension scheme as they stand and that there is no other material medical evidence currently available which either XXX or its medical adviser has not yet considered. That being so I confirm XXX’s decision not to put your current preserved benefits into payment on grounds of permanent ill-health.’

 

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 1986 regulations were in force.  With effect from 2 May 1995 the 1986 regulations were superseded by the 1995 regulations. The 1995 regulations applied to your application for early release of deferred benefits. Regulation D11 (2)(b) provides for a member's preserved benefits to be paid at ‘any date on which he becomes incapable, by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of the employment he has ceased to hold.’ 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.                  In making their decision whether you had an entitlement to early payment of benefits on ill-health grounds, the council were required to comply with regulation 97 of the 1997 regulations. Regulation 97 (9) and (14) require an authority considering early release of benefits on ill-health grounds to obtain a certificate on the medical question from an independent registered medical practitioner qualified in occupational health medicine (D Occ Med, AFOM, MFOM, FFOM or holding an EEA state equivalent qualification).

 

7.                  The Secretary of State notes that you refer to having passed the DSS ‘all work test as unfit for work’ several times.  However, he takes the view that being in receipt of DSS benefits does not in itself satisfy the specific requirements of the LGPS regulations, as a different test applies.

 

8.                  The Secretary of State notes that you contend that your ‘background notes to the case (were considered) immaterial, sight unseen.’ However, he notes that the Appointed Person referred the matter on the unseen notes back to his medical advisor on 25 November 1999. The medical adviser replied in writing on 24 December: ‘I confirm that having perused the full submission from Mr XXX I have no wish to alter my considered medical opinion about his eligibility for early payment of pension benefits under the local government pension scheme rules.’ The Secretary of State is satisfied therefore that all the medical evidence and background notes to this evidence have been viewed and considered by the Appointed Person.

 

9.                  The Secretary of State has noted all the medical evidence submitted to him comprising:

letter from your G.P., Dr XXX, BS, FFARCS (29 September 1999); and letters from the council’s medical adviser, Dr XXX, GMB, MRCP (14 October 1999, 8 November 1999, 21 December 1999).

 

10.              The Secretary of State notes that your G.P. refers to long standing ear problems and an episode of sciatiza which has settled. He states his “impression” that you suffer from ‘a general debility and seem unable to cope with the stresses and strains of life associated with working for a living’. He thinks it most unlikely that you will be fit to work again in the future. The Secretary of State notes that your G.P.’s “impression” does not seem to amount to a clinical diagnosis of a physical or mental illness, and that he has not suggested that any further investigation or treatment may be appropriate; nor does he appear to give a clinically based prognosis. The Secretary of State is satisfied that the medical adviser Dr XXX took your G.P.’s views into account in reaching his conclusions that on the evidence available to him you could not be considered permanently unfit for further employment on grounds of ill-health. However, the Secretary of State notes that Dr XXX does not appear to have the required qualification in occupational health medicine. The council have not therefore complied with regulation 97 of the 1997 regulations and are not entitled to rely on Dr XXX’s advice. The Secretary of State accordingly determines that the council must now refer the medical question to an appropriately qualified independent medical practitioner and reconsider the matter accordingly.