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Our Ref: LGR 85/19/109 770 INDEX
1 June 2000 |
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 21 March 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 (the Council), in relation to his local government pension scheme (LGPS) dispute with the Council.
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.
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 Mr XXX ill-health retirement when you requested it on his behalf in your letter of 23 September 1998.
4. The question for decision: The question for decision by the Secretary of State is whether Mr XXX qualifies for the immediate payment of LGPS benefits on the grounds that he ceased employment with the Council by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body.
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. 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 Secretary of State finds that Mr XXX is still employed by the Council, and therefore he did not leave his local government employment by reason of permanent incapability due to ill-health. When Mr XXX’s employment does cease, questions regarding his pension entitlement should be determined at that time with regard to the regulations, assuming his health is still an issue. The only question the Secretary of State can consider 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. Whilst the Secretary of State does not necessarily agree or disagree with the determination made by the Appointed Person regarding Mr XXX’s health in respect of the regulations, he must overturn his decision on the basis that regulation 27 only applies to LGPS members who have left their employment on ill-health grounds, and Mr XXX has not yet ceased his employment with the Council. The Secretary of State 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).