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859 INDEX Our Ref: LGR 85/19/131 1 December 2000 |
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 12 July 2000 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mrs XXX against the decision of Ms XXX, the Appointed Person for XXX Council (the Council), in relation to Mrs XXX’s local government pension dispute with the Council.
2. The Appointed Person found that Mrs XXX did not satisfy the requirement of the LGPS regulations for retirement on the grounds of ill health.
3. The question for decision: The question for decision by the Secretary of State is whether Mrs XXX’s employment with the Council ceased because she was permanently incapable of discharging efficiently the duties of that employment, or a comparable one, by reason of ill health or infirmity of mind or XXX, so as to qualify for the immediate payment of her 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, it has not been shown whether Mrs XXX is permanently incapable of discharging efficiently the duties of her former employment, or a comparable one, by reason of ill health or infirmity of mind or XXX. However, he also finds that the Council have taken insufficient steps to establish either conclusively or on the balance of probabilities whether Mrs XXX is so incapable. He has decided they must now submit all the medical evidence, including the latest opinions submitted as part of this appeal, to a further independent registered medical practitioner who is qualified in occupational health medicine, for a clear decision on Mrs XXX’s condition, expressed in the terms explicitly required by the regulations.
5. The Secretary of State’s 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. 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 or enter into any further correspondence with you on the decision. 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 made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB.
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.
2. The following evidence has been received and taken into account:
a) From you: letters dated 12 July 2000 (with enclosures) and 10 August 2000 (with enclosures);
b) from the Appointed Person: letter dated 31 July 2000 containing documents considered by her (copies sent to you under cover of the Department's letter of 3 August 2000); and
c) from the Council: letters dated 8 August 2000 & 14 September 2000 (a copy of which was sent to you under cover of the Department’s letter of 20 September).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Mrs XXX’s date of birth is 25 February 1949;
b) She was employed by the Council as an out of hours Social Worker;
c) She was a member of the LGPS;
d) On 15 December 1998 Mrs XXX started a period of sickness absence;
e) On 11 March 1999, the Council offered an alternative day time social worker post which she turned down;
f) On 31 July 1999 the Council terminated her employment on medical incapability grounds, having taken the advice of their occupational health physician.
4. The Appointed Person first considered the issue of permanent incapability and concluded that ‘There was recognition...by both Dr XXX and Dr XXX that it would not be appropriate for Mrs XXX to return to her substantive post and references were made to an offer of alternatives. I must point out however that from the papers supplied to me, there is no reference by either medical expert, to a permanent incapability to undertake the tasks of the substantive post.’ In examining the issue of comparable employment, the Appointed Person considered that the specific alternative posts offered to Mrs XXX did not constitute comparable employment. However, she also noted the attempts made by the Council to discuss and identify alternative posts, and found that ‘Mrs XXX declined the opportunity to further explore the possibility of comparable employment.’ The Appointed Person also noted that Mrs XXX requested to bring forward her notice period with XXX to take up the temporary post with YYY, and that this was done ‘during the notice period in which the invitation to discuss redeployment with XXX had been made by her previous employer.’ She concluded ‘This serves to confirm my view that Mrs XXX took a course of action, which was an alternative to considering redeployment with her previous employer. In the light of the above, I am unable to uphold Mrs XXX’s complaint.’
5. You contest the decision of the Appointed Person on the grounds that -
i) ‘There is medical opinion supplied by her own GP and by Dr XXX who gave a second opinion for the Council that Mrs XXX is permanently unfit to carry out the duties of her post.
ii) ‘Mrs XXX was employed as an ‘out of hours’ social worker which job involved a senior grade and a 20% supplement to pay. The XXX were unable to offer comparable employment.’
iii) ‘The fact that Mrs XXX was not able to discuss alternative employment with the XXX was due in the main to her medical condition and she should not be prejudiced because of this.’
6. The Secretary of State notes that the Appointed Person made reference to ‘Paragraph D7’ of the Local Government Pension Scheme Regulations 1995 (the 1995 regulations). While members who had ceased contributing before 1 April 1998 are subject to the provisions of the 1995 regulations, contributing members on that day became subject to the 1997 regulations, which came into force on 1 April 1998. Mrs XXX was a contributing member of the LGPS after the 1 April 1998 and it is the 1997 regulations that apply to her and it is these regulations which the Secretary of State has had regard to.
7. Regulation 27 of the 1997 regulations provides for a member's pension and retirement grant to be paid immediately, with enhancement where applicable, where he ceases to hold his local government employment because he is 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 XXX. “Comparable employment” ‘means employment in which, when compared with the member's employment-
(a) the contractual provisions as to capacity either are the same or differ only to an extent that is reasonable given the nature of the member's ill-health or infirmity of mind or XXX; and
(b) the contractual provisions as to place, remuneration, hours of work, holiday entitlement, sickness or injury entitlement and other material terms do not differ substantially from those of the member's employment.’
The Secretary of State notes that for an incapacity to be permanent, regulation 27 requires that it would have to be unlikely to improve sufficiently for a member to perform the duties of his former employment efficiently before the age of 65 years.
8. The Secretary of State has noted all the medical evidence submitted to him comprising: Letters from Dr XXX, occupational health physician, dated 11 February 1999, 18 November 1999; letter from Dr XXX, occupational health physician, dated 11 May 1999; letter from Dr XXX, G.P., dated 24 February 1999; report by Dr XXX, psychiatrist, dated 25 July 2000 & letter by Dr XXX dated 31 July 1999.
9. The Secretary of State has first considered the question about a comparable employment, in relation to which a great deal of evidence has been submitted. He finds much of this to be irrelevant to the particular issue. The Secretary of State accepts it is proper employment practice for the Council to explore alternative employment where staff are suffering ill-health or disability before deciding to terminate their employment. However, for the purposes of the decision on entitlement to benefits, the test is that of ability to efficiently perform comparable employment, and the definition of ‘comparable employment’ in regulation 27 is quite clear. The Secretary of State takes the view that it is only relevant to consider ‘comparable employment’ if such an employment exists within the Council. In this case he is satisfied, for the same reasons as the Appointed Person, that it did not, because the conditions of available alternative employment did not comply with regulation 27(5)(b).
10. The Secretary of State has therefore considered the question whether Mrs XXX was permanently incapable of efficiently performing the duties of her substantive post due to ill-health. He has noted the opinion of Mrs XXX’s G.P., Dr XXX, who stated in her letter dated 24 February 1999 that Mrs XXX is ‘suffering from an anxiety/depressive illness....I think the undue stress of the irregular working hours has precipitated this problem as she has no previous history of any psychiatric disorder. I do feel that it would be inadvisable for her to return to any such position again as I believe that the condition is likely to return. I also feel that if she is redeployed at XXX it would put an undue strain on her, having to travel such a distance on a regular basis to and from work.’ Dr XXX, the Council’s occupational health physician, stated in her letter of 11 February 1999 that Mrs XXX ‘apparently suffers from work related stress.......she indicated to me not only is she not well enough to return to work at the moment, but does not wish to be redeployed, as this would mean continued excessive travelling for her.’ The Council referred Mrs XXX to Dr XXX for a second occupational health medical opinion. He states in his letter of 11 May that ‘At present her ability to carry out the full range of duties is virtually non-existent.....I do not...think that she would be fit to return to the job she has been in and I think this situation is likely to be permanent. I do not, however, think she would be unable to return to work of any kind that XXX Council could offer her.....there is no consideration of possible ill health retirement until these issues have been addressed.....I note the view of Dr XXX relating to the fact that Mrs XXX has had problems with travel from ZZZ to XXX. I am much less certain that this is a major cause of problems.’ On 18 November, Dr XXX wrote to the Council having considered Dr XXX’s report. She interpreted Dr XXX ‘to mean that he is not recommending permanent ill health retirement at the moment,’ and went on to state ‘My recommendation therefore remains that it is more appropriate to terminate her employment on grounds of medical incapability rather than permanent ill health.’ You commissioned a further medical opinion from a psychiatrist, Dr XXX. The Secretary of State does not normally consider evidence that was not available to the Appointed Person; however, in this case it has been exceptionally decided it would be useful to review it because he finds the earlier evidence inconclusive. Dr XXX stated that ‘It is difficult to say whether Mrs XXX is permanently incapable of discharging the duties of that particular employment by reason of permanent ill health or infirmity of XXX or mind. My opinion is that she has served a good slog, become exhausted and cannot face going back....I cannot see how you can take any other view if she has found it so stressful and fears a mental disorder to recur if she returned than that she is “incapable of discharging the duties of that particular employment by reason of permanent ill-health or infirmity of XXX or mind.’
11. The Secretary of State accepts that all four medical practitioners consider that Mrs XXX does not wish to return to her former post, and it is clear that they would not recommend she do so. What is much less clear, however, is whether she is permanently incapable of efficiently performing her former duties because of ill health. Dr XXX expressed an opinion that she will not be fit to return to her job, though that is not necessarily the same thing as saying she is permanently incapable of performing the duties efficiently because of ill-health. He appears to have been quite clear that he was not recommending ill health retirement, but this seemed to be linked to alternative (not necessarily comparable) jobs, which is not the strict criterion for releasing pension. Dr XXX’ recommendation in both her letters is that Mrs XXX’s employment be terminated on medical incapacity, and not on permanent ill health, grounds. But Dr XXX also fails to address the specific requirements of the regulation in so many words in the two letters submitted. The Council report her views elsewhere in terms rather closer to the regulation, but the Secretary of State has not seen such clear evidence direct from her. Dr XXX’s statements appear to the Secretary of State somewhat ambiguous, saying that, on the one hand ‘It is difficult to say whether Mrs XXX is permanently incapable’, and on the other ‘I cannot see how you can take any other view if she has found it so stressful and fears a mental disorder to recur if she returned...’ Dr XXX does not consider it ‘advisable’ for Mrs XXX to return, but does not express an opinion as to permanent incapability on medical grounds.
12. Whilst the Secretary of State finds that there is no conclusive evidence to show that Mrs XXX was suffering from such a condition of ill-health or infirmity of mind or XXX that she would be permanently incapable of efficiently performing her duties, he also finds that the medical evidence fails to address the clear and specific requirements of the regulations directly and unequivocally. The Council must now appoint a further independent registered medical practitioner under the terms of regulation 97 and ensure that they give clear and proper answers.