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852 INDEX Our Ref: LGR 85/19/128
20 November 2000 |
LOCAL GOVERNMENT PENSION SCHEME APPEAL
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 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 that 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 19 June 1997.
3. The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the council on 19 June 1997 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 the immediate payment of your LGPS benefits.
4. The 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 1995 regulations, it has not been shown conclusively that you ceased employment with the council on 19 June 1997 because you were permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.
5. The Secretary of State’s 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.
6. 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).
1. 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 ill-health retirement rather than deciding to dismiss you on the grounds of incapability on 19 June 1997.
EVIDENCE RECEIVED
2. The following evidence has been received and taken into account:
a) from you: letters dated 4 July 2000 (with enclosure) and 27 July 2000; and
b) from the Appointed Person: letter dated 20 July 2000 enclosing documents considered by him (list enclosed with the Department’s letter dated 24 July 2000).
3. A copy of this letter has been sent to the Appointed Person and the Pensions Manager at the administering authority, a copy has also been sent to the Pensions Liaison Officer at the council.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
4. From the evidence submitted the following points have been noted:
a) your date of birth is 28 February 1937;
b) you were employed by the council as a senior support services officer;
c) you were a member of the LGPS;
d) on 29 October 1993 you commenced a period of extended sick leave; and
e) on 19 June 1997 the council terminated your employment on capability grounds.
5. You maintain that at the time of your dismissal, and since, you have suffered ill-health that prevents you from performing the duties of your former employment and that you should therefore have been granted ill-health retirement. You also state that you consider the Appointed Person did not obtain all the necessary evidence, which you consider he could have obtained, to determine your appeal. You also maintain that XXX Council did not follow their normal medical procedures and that as a consequence their decision to terminate your employment on capability grounds was without foundation. You contend that the council’s medical advisor’s opinion should have been taken into account. You allege the council are being vindictive and that they made false statements to deny you ill-health retirement.
6. 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 you are permanently incapable due to ill health in the sense required by the Regulations and you are not therefore entitled to the immediate payment of ill health retirement benefits.”.
7. The question regarding the council’s decision to terminate your employment on capability grounds is not a pensions question but an employment one. The LGPS regulations are about entitlement to benefit once certain employment conditions are satisfied. They do not themselves apply these conditions. Your complaint that the council’s decision to terminate your employment was without foundation is not therefore a disagreement about a matter in relation to the scheme, and it is not one the Secretary of State can consider on appeal. All the Secretary of State can consider is whether, when your employment was terminated, you were entitled to immediate payment of pension on ill-health grounds.
8. 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 1995 regulations were in force. Regulation D7 of the 1995 regulations, as it applied at the time, provided for a member’s pension and retirement grant to be paid immediately, with an additional period where applicable, where they ceased employment because they were permanently incapable of discharging efficiently their former duties by reason of ill-health or infirmity of mind or body.
9. 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.
10. The Secretary of State has noted all the medical evidence submitted to him comprising: report from Dr XXX, Consultant Occupational Physician, dated 22 March 2000; letter from Dr XXX, Occupational Health Advisor, dated 16 October 1996; report from Dr XXX dated 7 November 1996; and letter from Dr XXX, your General Practitioner, dated 11 December 1996.
11. The Secretary of State notes that Dr XXX, in his report dated 22 March 2000, states “I therefore feel that although [you have] had an illness which at times has been sufficiently severe to preclude [you] being able to work, this is unlikely to cause sufficient permanent disability that [you] would not be able to return to the normal duties of [your] employment.” He further notes that no other opinion on the permanency of your condition has been specifically stated in any of the medical evidence submitted to him. However, he notes that you state, in your appeal to the Appointed Person dated 14 September 1999, “…I was under great stress being involved in prolonged litigation against Leeds C.C. but my own Doctor felt that at the conclusion of this, he felt with time, I would be well enough to return to work.”
12. The Secretary of State notes that you consider the council’s medical advisor, Dr XXX’s views were not taken into account. He notes that Dr XXX states “I explained that when somebody has been off work for three years with a particular problem, especially a psychiatric type problem, then the likelihood is that this person will not return to work in the future.” Dr XXX also states “I did not take a detailed history of this lady’s condition or assess the factors involved in her current illness.” The Secretary of State notes that Dr XXX did not offer an opinion on your health and he considers therefore, that Dr XXX’s comments do not support your case for ill-health retirement.
13. The Secretary of State notes that you have not submitted any medical evidence to support your claim that you are permanently incapable of efficiently performing your previous duties due to ill-health. He notes that the Appointed Person, in his letter dated 30 September 1999, invited you to submit any evidence to support your appeal. He also notes that you contend the Appointed Person did not obtain all the necessary evidence, which you consider he could have obtained, to determine your appeal; however, you do not state what you consider this evidence may be.
14. The Secretary of State concludes therefore that there is no conclusive medical evidence to indicate that, on the balance of probabilities, at the time you ceased employment with the council on 19 June 1997 you were suffering from such a condition of ill-health or infirmity of mind or body that you would be permanently incapable of performing your duties efficiently. You did not therefore cease employment on the 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.