865      INDEX

LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.      I refer to your letter dated 29 July 2000 in which you appeal against the decision of Mr XXX, the Appointed Person for XXX Council (the council), in relation to your local government pension scheme (LGPS) dispute with 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.

 

3.      The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the council on 31 July 1999 by reason of being permanently incapable of discharging efficiently the duties of your former employment, or any other comparable employment with the council, because of ill-health or infirmity of mind or body.

 

4.      The Secretary of State’s decision: The Secretary of State finds that, based on the balance of probabilities, for the purposes of the 1997 regulations it has not been shown conclusively that you ceased employment with the council on 31 July 1999 because you were permanently incapable of discharging efficiently the duties of your former employment, or any other comparable employment with the council, 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.  His reasons and the regulations he considers apply in this case are set out in the annex to this letter, which forms an integral part of the decision.

 

6.      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 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 concludes the second stage of the internal dispute resolution procedure.  The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties 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: letters dated 29 July 2000 and 17 November 2000;

 

b)   from the Appointed Person: letters dated 27 November 2000 and 18 December 2000 (enclosing copies of the documents considered by him) (copies enclosed with the departments letter dated 20 December 2000).

 

SECRETARY OF STATE’S POWERS

 

2.      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.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)   your date of birth is 12 March 1957;

 

b)   you were employed by the council as Head of Personnel;

 

c)   you were a member of the LGPS;

 

d)   on 23 July 1998 you commenced a period of extended sick leave;

 

e)   your employment with the council was terminated on 31 July 1999 on the grounds of ill-health and continuing absence;

 

f)    the council awarded you deferred benefits; and

 

g)   you appealed against the council’s decision not to award you the immediate payment of your LGPS benefits on the grounds of ill-health from when your employment ceased on 31 July 1999.

 

4.      You maintain that you qualified for the immediate payment of your LGPS benefits from 31 July 1999 on the grounds of ill-health.  You consider that there is evidence to show that you were permanently incapable, due to ill-health, of undertaking your former duties with the council at the time your employment ceased.  You take the view that this has been endorsed by the fact you have been continuously signed off as being unfit for work since 23 July 1998.  You consider that Dr XXX’s assessment on 1 April 1999 was flawed and incomplete as an examination of your heart at that stage may have shown evidence of the problems that resulted in you being hospitalised twelve months later.  You contend Dr XXX’s behaviour was unfairly influenced by information you consider to be inappropriate and inaccurate, which was given to him by the council in their referral dated 17 March 1999.  You consider that Dr XXX cannot be regarded as independent as the council provided him with a copy of their referral to Dr XXX and a copy of Dr XXX’s report.  You state that you consider the council has been guilty of a catalogue of maladministration.

 

5.      The Secretary of State notes that you contend that Dr XXX’s behaviour was unfairly influenced by information you consider to be inappropriate and inaccurate, which was given to him by the council in their referral dated 17 March 1999.  He notes that the council, in their letter dated 23 May 2000, state that they consider that the information was neither inappropriate nor inaccurate.  He considers that no objective evidence has been submitted to him that shows the information was inaccurate and he does not consider it is inappropriate to provide background information of this nature to a medical practitioner.

 

6.      The Secretary of State notes that you contend Dr XXX’s assessment on 1 April 1999 was flawed and incomplete as an examination of your heart at that stage may have shown evidence of the problems that resulted in you being hospitalised twelve months later.  The Secretary of State is neither qualified nor empowered to comment on allegations of possible diagnosis failure by a medical practitioner.  However he takes the view that no objective evidence has been submitted to him which substantiates your contention that Dr XXX’s assessment was flawed and incomplete, insofar as the question he had to address under the terms of the LGPS is concerned, furthermore he notes that the council also referred the matter to Dr XXX.

 

7.      The Secretary of State notes that you consider that Dr XXX cannot be regarded as independent as the council provided him with a copy of their referral to Dr XXX and a copy of Dr XXX’s report.  He notes that it is normal procedure for a medical practitioner to be provided with background information.  This does not, in his view, in any way affect Dr XXX’s independence.  Dr XXX’s role was to independently assess – not to ignore – the medical evidence, which in this case included Dr XXX’s report.

 

8.      The Secretary of State notes that you consider the council have been guilty of a catalogue of maladministration.  He notes that you have not specifically stated what actions you consider amount to maladministration. 

 

9.      The Secretary of State notes that you have submitted further medical evidence dated 31 May 2000.  He notes that this evidence was not provided to the Appointed Person before he made his decision.  The Secretary of State has no power to consider such evidence as his role under the 1997 regulations is to reconsider the original disagreement referred to the Appointed Person.

 

10.  The Secretary of State notes that it appears that you have been awarded incapacity benefit by the DSS.  He takes the view that benefits awarded by the DSS are not conclusive in determining the award of LGPS benefits as the tests to be applied are different.

 

11.  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 discharging efficiently the duties of their former employment, or any other comparable employment with the council, because of ill-health or infirmity of body or mind.  Regulation 97(9) required the council, before deciding whether you might be entitled under regulation 27, to obtain a certificate from an independent registered medical practitioner who is qualified in occupational health medicine, stating his opinion whether you were permanently incapable of discharging efficiently the duties of the relevant local government employment because of ill-health or infirmity of mind or body.

 

12.  The Secretary of State notes that for your incapacity to be permanent regulation 27 provides that it would have to be unlikely to improve sufficiently for you to efficiently discharge the duties of your former employment, or any other comparable employment with the council, before age 65.

 

13.  The Secretary of State has noted all the medical evidence submitted to him comprising: General Practitioner Dr XXX’s letter dated 3 February 1999 and medical reports dated 9 October 1998 and 2 March 1999; Senior Occupational Health Physician Dr XXX’s medical report dated 12 April 1999; and Consultant Occupational Physician Dr XXX’s medical report dated 21 June 1999.

 

14.  The Secretary of State has not been provided with a copy of the council’s decision not to award you payment of your LGPS benefits on the grounds of ill-health following the termination of your employment on 31 July 1999.  It would appear their decision followed the advice of Dr XXX in his medical report dated 21 June 1999.

 

15.  The Secretary of State notes that Dr XXX, in his medical report dated 9 October 1998 stated “The Prognosis is likely to be for a full recovery particularly in view of the fact [you have] no previous history of depression.”.  He notes that Dr XXX, in his subsequent medical report, dated 2 March 1999, stated “[Your] prognosis when I wrote the report in October 1998 was that [you were] likely to make a full recovery and I felt that [you] would be able to affect [your] normal duties.  [You have] made progress since that time having had medication, regularly seen a psychiatrist as well as receiving supportive psychotherapy to try to resolve [your] problems.  I felt that progress was being made but it has now become apparent that [your] return to work would be in at least unsupportive environment and possibly even hostile environment.  Even if [you were] to have made a reasonable recovery and [were] considering a return to work I feel that the working environment would lead to a further deterioration in [your] condition.”.  The Secretary of State notes that it appears Dr XXX has based his opinion on an alleged management problem.  He notes that the appropriate test is whether you ceased employment because you are permanently incapable of discharging efficiently the duties of your former employment, or any other comparable employment with the council, because of ill-health or infirmity of body or mind.

 

16.  The Secretary of State notes that Dr XXX, in his letter dated 12 April 1999, stated “In my opinion [you do] suffer with anxiety/depression for which [you are] receiving the appropriate treatment under Consultant care and [you] should make sufficient recovery to be fit for work (see G.P.’s comments also).  This condition is not permanent and it can’t be considered for permanent incapacity on one hand and on [the] other hand it is obvious that [you] will keep sending Med3 from [your] G.P. who has responded to [the council’s] correspondence declaring him permanently unfit.  I don’t think it is appropriate for me to sign a certificate of permanent incapacity.”. 

 

17.  The Secretary of State notes that the council referred you to Dr XXX for a second opinion.  He notes that Dr XXX, in his medical report dated 21 June 1999, stated “In my opinion [you are] unfit to return to work due to reactive depression and anxiety.  [Your] condition is treatable and it is unlikely that [you] will remain unfit for [your] job or similar work until [your] normal age of retirement.  I understand [your] concerns about the difficulties that [you] will now have in finding another similar post but these are primarily managerial and not medical.  I do not believe therefore that a Certificate of Permanent Incapacity should be issued in this case.”.  The Secretary of State notes that Dr XXX considered copies of medical evidence from Dr XXX and Dr XXX.

 

18.  The Secretary of State take the view that the medical evidence suggests that you suffer from depression and anxiety.  He also accepts that at the time you ceased employment the medical evidence indicates that you were incapable of efficiently discharging your former duties.  However, the question which has to be decided is whether your incapacity was likely to be permanent within the meaning of the regulations, that is, that it, at the time you ceased employment, would be unlikely to improve sufficiently for you to be able to discharge efficiently the duties of your former employment, or any other comparable employment with the council, before you reach age 65.

 

19.  The Secretary of State concludes that, on the balance of probabilities, the medical evidence taken as a whole does not show that you ceased employment on 31 July 1999 because you were suffering from such a condition of ill-health or infirmity of mind or body that you were permanently incapable of discharging efficiently the duties of your former employment, or any other comparable employment with the council, in the sense outlined above as required by the regulations.  However, if you believe you have medical evidence to show that you subsequently became so incapable, it is open to you to submit that evidence to the council and elect to receive your benefits early under regulation 31.  The council, in reaching a decision whether you are entitled under the provisions of regulation 31, must refer the medical question to an independent registered medical practitioner qualified in occupational health for a medical certificate.