SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter dated 4 May 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Ms XXX, the Appointed Person for the XXX Fund, in relation to your local government pension scheme (LGPS) dispute with the XXX (the council).

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

3. The question for decision: The question for decision by the Secretary of State is whether, at the time you applied for early release of your deferred benefits on 21 November 1998, you had become permanently incapable of carrying out efficiently your former duties as a home help by reason of ill-health or infirmity of mind or body.

4. The Secretary of State has considered all the representations and evidence. Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department’s letter of 6 June 2000.

5. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations and all the medical evidence. Based on the balance of probabilities, he finds that for the purpose of the 1995 regulations, it has not been shown conclusively that at the time you applied for the early release of your deferred LGPS benefits on 21 November 1998 you had become permanently incapable of efficiently carrying out your former duties by reason of ill-health or infirmity of mind or body. You do not therefore qualify for early release of your deferred pension benefits. The Secretary of State’s decision confirms that made by the Appointed Person. His reasons and the regulations that 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 allegation of maladministration or any complaint or dispute of fact made or referred in accordance with the Pension Scheme Act 1993. 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 4 May, 18 May, 30 May and 15 April 2000 (received 20 June 2000); and

b) from the Appointed Person: documents considered by her (list enclosed in the Department’s letter dated 6 June 2000).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a) your date of birth is 23 March 1956;

b) you were employed by the council as a Home Help;

c) you were a member of the LGPS;

d) your employment ceased on 6 November 1992 when you were made redundant;

e) on 30 August 1997 you applied to the council for early payment of your deferred benefits on ill-health grounds, but the council were unable to progress your application because you withdrew your consent for a medical report to be supplied, by your General Practitioner, to the council;

f) on 21 November 1998 you re-applied to the council for early payment of your deferred benefits on ill-health grounds; and

h) your application was refused based upon the advice of the council’s Occupational Health Physician.

3. You maintain that you are entitled to the early release of your deferred LGPS benefits as your General Practitioner has supported your application to be retired early on health grounds. You are dissatisfied with the comments made by Dr XXX and Dr XXX.

4. The Appointed Person determined that “…benefits will be released where a former employee: “becomes permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body”. Your GP’s report does not express a view as to whether or not you are permanently incapable. It simply supports your application. Dr XXX’s report, which was based on reading letters by Dr XXX (your GP), Dr XXX and Dr XXX does not find that you are permanently incapable and in fact suggests that engaging in regular work could be appropriate. Accordingly, I have concluded that I cannot uphold your appeal against the decision of the fund on the 20^th July 1999 not to allow early payment of your preserved benefits.”

5. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. When you ceased employment you were awarded deferred benefits under the 1986 regulations. These were replaced by the 1995 regulations from 2 April 1995. When you applied for early payment of your preserved benefits, the 1995 regulations applied to your benefits. (The subsequent 1997 regulations do not apply because you were not a contributing member of the scheme when they came into force). To qualify for early payment under the 1995 regulations it must be shown that, at the time you applied for the early release of your deferred LGPS benefits you were permanently incapable of discharging efficiently your former duties as a Home Help because of infirmity of mind or body (regulation D11). He regards the appropriate test of permanent incapability to be that your condition would be unlikely to improve sufficiently for you to be able efficiently to perform your former duties before your normal retirement age when LGPS benefits must, in any event be paid.

6. The Secretary of State notes that in your letter of 13 October 1999 to XXX during the first stage of your appeal you asked the Appointed Person to take compassionate grounds into consideration. The Secretary of State is not aware that previously you raised the question of compassionate grounds with the council but, in any case, he notes there are no provisions in the regulations which would allow early payment of your benefits, at your age, on compassionate grounds.

7. The Secretary of State has noted all the medical evidence submitted to him comprising: Occupational Health Physician Dr XXX’s internal memorandum dated 16 September 1997 and internal memorandum dated 17 November 1997, Occupational Health Physician Dr XXX’s internal memorandum dated 11 June 1999, General Practitioner Dr XXX’s medical report dated 7 February 2000 and Consultant Occupational Physician Dr XXX’s letter dated 25 February 2000 and letter dated 12 April 2000.

8. The Secretary of State notes that the council refused to grant you early payment of your deferred pension benefits on ill-health grounds based upon the advice of their Occupational Health Physician, Dr XXX. In his letter dated 11 June 1999, Dr XXX states “A report has now been received from [your] General Practitioner and I do not consider that this constitutes evidence of permanent disability from her being employed in her previous post as a Home Help with the XXX”.

9. The Secretary of State has carefully considered all the medical evidence. He accepts that the medical evidence suggests you are currently experiencing health difficulties. However, the test he has to apply is that of permanent incapability as set out in paragraph 5 above. While your General Practitioner, Dr XXX, supports your application to be retired early on health grounds in his report of 7 February 2000, he does not address this specific test, and, despite being given the opportunity to obtain clarification, you have not supplied any further evidence from Dr XXX. The Secretary of State notes that Dr XXX had the advice of your General Practitioner when he gave his opinion and that Dr XXX’s views also took into account your General Practitioner’s views. In the circumstances he accepts Dr XXX’s and Dr XXX’s conclusions. He regards the appropriate test of permanent incapability to be that your condition would be unlikely to improve sufficiently for you to be able efficiently to perform your former duties before your normal retirement age when LGPS benefits must, in any event, be paid. He concludes that on the balance of probabilities you are not currently suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of performing your former duties efficiently in the sense outlined above as required by the regulations.