856 INDEX
LOCAL GOVERNMENT PENSION SCHEME APPEAL
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997(the 1997 regulations)
1. I refer to your undated letter received by the Department on 3 July 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council (the administering authority), in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).
2. The Appointed Person found you did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when you ceased employment with the council on 30 June 1998. He found that you do satisfy the requirements of the LGPS regulations for early release of your deferred benefits on ill health grounds from 18 April 2000.
3. The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the council on 30 June 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 qualify for immediate payment of your LGPS benefits.
4. 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 for the purposes of the 1997 regulations you did not cease employment with the council on 30 June 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.
5. The Secretary of State dismisses your appeal. His decision confirms that made by the appointed person.
6. The Secretary of State’s 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 or enter into any further correspondence with you about the decision. The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.
7. This completes the second stage of the internal dispute procedure. 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 020 7233 8080).
8. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7834 9144).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a) from you: undated letter received by the Department on 3 July 2000 and undated letter received by the Department on 24 October 2000 (with enclosure);
b) from the Appointed Person: letters dated 24 July 2000 enclosing documents considered by him (list enclosed with the Department’s letter dated 26 July 2000), 24 August 2000, 10 October 2000, 11 October 2000 (with enclosures)(copied to you with the Department’s letter dated 18 October 2000) and 17 October 2000 (with enclosures)(copied to you with the Department’s letter dated 18 October 2000).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) your date of birth is 10 February 1948;
b) you were employed by the council as a Senior Telephonist/Receptionist from 7 August 1989;
c) you were a member of the LGPS;
d) in September 1997 you commenced a period of extended sickness absence;
e) the council’s medical adviser recommended that you were not permanently incapable of efficiently performing the duties of your employment; and
f) the council terminated your employment on 30 June 1998 on capability grounds;
4. You contend that there is medical evidence to support your claim for ill-health retirement. You consider that the council’s decision not to grant you ill-health retirement was prejudiced by the council’s medical advisor who, you state, did not examine you or request medical evidence, but rather based her recommendations on a brief interview with you.
5. The Appointed Person determined that “There is no conclusive medical evidence to support a finding that at the time your employment with the XXX Council terminated (June 1998) you were permanently incapable of discharging efficiently the duties of your former employment.” He also determined that “…I am advised by Dr XXX that by the time she came to examine you (18 April 2000) you had become, in her opinion, permanently incapable of discharging efficiently the duties of your former employment with the XXX Council. ….This means that from 18 April 2000 you will be entitled to the early release of your accrued pension benefits, which were deferred at the time your employment terminated.”
6. 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 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 former duties efficiently due to ill-health or infirmity of mind or body. Regulation 31 of the 1997 regulations provides for a members pension and retirement grant to be paid if they become permanently incapable of performing their former duties efficiently due to ill-health or infirmity of mind or body.
7. The Secretary of State takes the view that for your 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.
8. The Secretary of State notes that your General Practitioner, Dr XXX submitted an additional letter to him, dated 16 June 2000. The Secretary of State does not normally consider such evidence as his role under the regulations is to reconsider the original agreement referred to the Appointed Person. However, in his view this evidence does not materially alter the facts of this case.
9. The Secretary of State notes that you consider that the decision regarding ill-health was prejudged by the council’s medical advisor who, you state, did not examine you or request medical evidence, but rather based her recommendations on a brief interview with you. He notes that Dr XXX, in her letter dated 3 March 2000, stated “I have received information from two orthopaedic surgeons and [your] GP…”. He takes the view that Dr XXX did consider the opinion of other medical practitioners when she was asked by the council to reconsider your application for ill-health.
10.The Secretary of State has considered all the medical evidence submitted to him comprising; medical report from Consultant Rheumatologist Dr XXX, dated 8 November 1999; medical report form Orthopaedic Surgeon Mr XXX, dated 2 December 1999; letter from your general practitioner Dr XXX, dated 9 November 1999; letters from Occupational Health Department Senior Medical Officer Dr XXX, dated 15 May 1998 and 3 March 2000; and medical report from Occupational Health Physician Dr XXX, dated 16 May 2000.
11.The Secretary of State notes that Dr XXX, in her letter dated 15 May 1998, stated “She states she is unable to cope with reception work at the Town Hall… I’m afraid I still don’t consider this condition “permanent”. He also notes that Dr XXX, in his medical report dated 8 November 1999, stated “Certainly when I last saw this lady on 13 August 1998 she was essentially pain free and in a position to return to work.” The Secretary of State notes that your general practitioner Dr XXX, in his letter dated 9 November 1999, stated “I feel it is most unlikely that [you] will be fit to return to [your] previous occupation and would support [your] application for retirement on the grounds of ill health.” In his further letter, dated 16 June 2000, Dr XXX stated “I feel that, at no time since [your] presentation in September 1997, [have you] been capable of undertaking any form of employment.” He notes that Dr XXX has not specifically stated that he considers that your incapability is likely to be permanent as required by the regulations, although it may be inferred.
12.The Secretary of State notes that Mr XXX, in his medical report dated 2 December 1999, stated “[You were] employed as a Telephonist/Receptionist. This job requires [you] to be sat in one position for long periods of time. This is likely to put some strain on the patellar tendon. However, the general outlook for this condition is one of eventual resolution, therefore it is unlikely that [you] will be permanently disabled.” He notes that Mr XXX’s comments refer to your knee injury. He notes that you suffered an injury to your knee in July 1998 after your employment was terminated. The Secretary of State considers that reference to this injury is therefore not relevant to your application for ill-health retirement, as it does not refer to your medical condition at the time your employment was terminated.
13.The Secretary of State noted that the Appointed Person referred you to Dr XXX for a further medical examination following your appeal to him. He notes that Dr XXX, in her medical report dated 16 May 2000, stated “I would therefore confirm that [you have] become unfit to continue in [your] post as from 18 April 2000 and I feel that [your] various orthopaedic problems make it possible that she will remain permanently unfit to the age of 65.” He notes that the Appointed Person determined “This means from 18 April 2000 you will be entitled to the early release of your accrued pension benefits, which were deferred at the time your employment terminated.” He notes that you do not appeal against this in your appeal to the Secretary of State and that the council, in their letter dated 1 June 2000 stated that “The XXX Council does not intend to appeal against [the Appointed Person’s] decision.” The Secretary of State, therefore, does not intend to comment further on the award of early payment of your deferred LGPS benefits under regulation 31 of the 1997 regulations.
14.The Secretary of State concludes that the weight of medical opinion and evidence does not indicate that, on the balance of probability, at the time you ceased employment with the council you could be regarded as suffering from such a condition of ill-health or infirmity of mind or body that you would be permanently incapable of performing the duties of your former employment efficiently within the meaning of the regulations. You did not therefore cease employment on grounds of permanent incapability because of ill-health in the sense required by the regulations and you are not therefore entitled to the immediate payment of your LGPS benefits from when you ceased employment with the council.