861 INDEX
LOCAL GOVERNMENT PENSION SCHEME APPEAL
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986(the 1986 regulations)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997(the 1997 regulations)
1. I refer to your letter dated 4 August 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 the early payment of your deferred LGPS benefits on the grounds of ill-health.
3. The question for decision: The question for decision by the Secretary of State is whether since ceasing your employment with the company on 12 November 1993 you have become 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. 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 at the time you applied for the early release of your deferred LGPS benefits on 5 February 1999 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.
5. The Secretary of State’s decision confirms that made by the Appointed Person.
6. The Secretary of State’s 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 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 resolution disputes procedure. The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties they failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7233 8080).
8. The Pensions Ombudsman may investigate and determine any allegation of maladministration or any complaint 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 number 0207 834 9144).
1. The following evidence has been received and taken into account:
a) from you: letters dated 4 August 2000 (with enclosures), 11 August 2000 (with enclosures), 5 October 2000, 18 October 2000 and 27 October 2000;
b) from the Appointed Person: documents considered by him (list enclosed in the Department’s letter dated 16 October 2000.
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.
3. From the evidence submitted the following points have been noted:
a) your date of birth is 20 May 1953;
b) you were employed by the council as an Area Housing Officer;
c) your employment was terminated on 12 November 1993 by reason of your resignation;
d) you were a member of the LGPS;
e) upon termination of your employment you were awarded deferred LGPS benefits;
f) on 27 June 1997 you applied to the council for the early release of your deferred LGPS benefits on the grounds of ill-health;
g) the council refused to grant early release of your benefits on 9 October 1997;
h) you submitted further medical opinion to the council on 17 November 1997 and requested the early release of your deferred pension benefits;
j) the council refused to grant the early release of your deferred LGPS benefits on 19 December 1997;
k) you requested the early release of your deferred LGPS benefits on 5 February 1999 and the council requested further medical evidence to support your claim from Dr XXX in their letter dated 24 March 1999;
l) the council refused to grant the early release of your deferred LGPS benefits on 4 May 1999;
m) you appealed on 24 July 1999, to the Appointed Person, against the council’s decision not to award you the early payment of your deferred benefits;
n) the Appointed Person decided that you should be referred to an independent Doctor, who was qualified in occupational health medicine, to determine whether you qualified for the early release of your LGPS benefits; and
o) the Appointed Person determined on 21 February 2000 that you did not qualify for early release of benefits on ill-health grounds.
4. You maintain that you are entitled to the early release of your deferred LGPS benefits. You consider that the council has applied the regulations in a strict and inflexible fashion and that your case displays special circumstances that have not been given consideration. You contend that the medical opinion that your condition is curable is incorrect, you also consider that the underlying causes of your illness have not been diagnosed yet. You consider Dr XXX was not independent as he is based in the same area where you were treated for your chronic health problem.
5. The Appointed Person determined that “In order to qualify for the early release of your preserved benefits on ill-health grounds … you must be “permanently incapable by reason of ill-health or infirmity of mind or body” of discharging efficiently the duties of the employment you previously held with XXX Council. The occupational health physician has specifically confirmed that in his opinion, you do not satisfy this requirement. Thus, I find that you do not qualify for early payment of your preserved benefits on ill-health grounds under the Local Government Pension Scheme Regulations 1997 (as amended).”.
6. The Secretary of State notes that you consider your case displays special circumstances and that the council was wrong to apply the regulations in a strict and inflexible manner. The Secretary of State has no power to direct the council to act outside the regulations.
7. The Secretary of State notes your contention that the Occupational Health Physician you were referred to by the council was not independent. He notes that this contention was not included in your original disagreement referred to the Appointed Person. His powers under the regulations are to reconsider the disagreement referred to the Appointed Person. However, he does not accept that because the Occupational Health Physician is based in the same area where you previously received treatment for your health problem he cannot be regarded as independent.
8. 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 the 2 May 1995. When you applied for the early payment of your preserved benefits the 1995 regulations applied to the release of your benefits. (The subsequent 1997 regulations do not apply as 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 an Area Housing Officer because of infirmity of mind or body.
9. The Secretary of State regards the appropriate test of permanent incapability to be that your condition would be unlikely to improve sufficiently for you to be able to perform efficiently your former duties 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: Consultant Chemical Pathologist Dr XXX's letter dated 29 June 1999; Reader in Medicine Dr XXX’s letters dated 22 December 1998, 17 June 1999 and undated letter received by the council on 29 April 1999; Dr XXX’s letter dated 12 November 1997; Dr XXX’s medical report dated 21 August 1997; and Consultant Occupational Physician Dr XXX’ letter dated 10 January 2000.
11. The Secretary of State notes that you requested the release of your deferred LGPS benefits on 5 February 1999. He considers that the previous applications that were made to the council for the early release of your deferred LGPS pension benefits and the subsequent refusals by the council to grant early payment were not the subject of an appeal and he does not intend to comment further on them. Therefore, the question for decision is whether at 5 February 1999 you had become permanently incapable of discharging efficiently the duties of your former employment because of ill-health or infirmity of mind or body, and so qualify for the immediate payment of your LGPS benefits from that date.
12. The Secretary of State takes the view that the medical evidence taken as a whole indicates that you have a thyroid problem. He notes that XXX’s medical report and Dr XXX’s letter refer to your condition in 1997. He does not consider that this information provides contemporaneous evidence for the period that has to be considered. However, he notes that neither XXX nor Dr XXX considered that you were suffering from such a condition that was likely to be permanent.
13. The Secretary of State notes that Dr XXX, in his undated letter received by the council on the 19 April 1999, stated “…although [your] underlying endocrine illness cannot be reversed, it should be possible for us to return [you] to complete endocrine normality and endocrinological cure. From an endocrine viewpoint, a full recovery should be expected.” He also notes that Dr XXX, in his letter dated 10 January 2000, states “On the evidence currently available I would not consider [you] permanently incapable of discharging efficiently the duties of the local government employment [you] ceased to hold in 1993.” The Secretary of State notes that no further medical opinion regarding the permanency of your condition has been submitted to him.
14. The Secretary of State takes the view that you have not provided any conclusive objective medical evidence to support your application for early payment of your benefits on ill-health grounds. The Secretary of State 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 as required by the regulations.