860 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 12 September 2000 in which you appeal (under regulation 102 of the 1997regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person for the XXX (the council), in relation to his local government pension scheme (LGPS) dispute with the council.
2. The Appointed Person found that Mr XXX did not satisfy the requirements of the LGPS regulations for the immediate payment of LGPS benefits from 2 August 2000 on the grounds of ill-health.
3. The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the council on 2 August 2000 by reason of being permanently incapable of discharging efficiently the duties of that employment, or any other comparable employment with the council, because of ill-health or infirmity of mind or body, and so qualifies for the immediate payment of his 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 there appear to be different medical opinions and these have not been explained or resolved to his satisfaction. He finds that the council, in deciding that Mr XXX does not qualify for retirement benefits on ill-health grounds, have failed to obtain proper medical advice in accordance with the regulations and have acted in breach of their statutory duty. He has therefore decided to refer the matter back to the council for them to refer all the evidence to an independent registered medical practitioner qualified in occupational health medicine who has not been involved with the previous decisions, as required by the regulations.
5. The Secretary of State’s decision replaces that made by the Appointed Person.
6. The Secretary of State’s 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.
7. 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.
8. This completes 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).
9. The Pensions XXX 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, XXX, SW1V 1RB (telephone 020 7834 9144).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a) from you: letters dated 12 September 2000 (with enclosures) and 30 October 2000;
b) from the Appointed Person: letter dated 6 October 2000 enclosing documents considered by him (list enclosed with the Department’s letter dated 17 October 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 dispute 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 Mr XXX ill-health retirement benefits when his employment was terminated.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Mr XXX’ date of birth is 29 January 1965;
b) he was employed by the Transport Department of the council as a Driver/Escort Loader;
c) his employment was terminated on 2 August 1999 on medical capability grounds;
d) the council refused to grant Mr XXX early payment of his LGPS benefits on 14 July 1999 following the advice of their Occupational Health Physician Dr XXX;
e) following your letter of 19 July 1999 Mr XXX wrote to you on 6 August 1999 informing you that the council would ask the Occupational Health Doctor to review Mr XXX’ medical information; and
f) the council refused to grant Mr XXX early payment of his LGPS benefits on 18 November 1999 following further advice from Dr XXX.
4. You maintain that Mr XXX is entitled to the immediate payment of his LGPS benefits on the grounds of ill-health from 2 August 1999. You consider that there is medical evidence to show that Mr XXX is permanently incapable of performing the duties of his former employment. You contend that the council have not taken into account the full medical reports submitted by Mr XXX and consider that there is a conflict of medical opinion and that the council should have referred the matter to a further independent medical practitioner. You consider that the council dismissed the medical opinion of Mr XXX’ General Practitioner as they considered that no evidence had been submitted to support his opinion, you contend that the Occupational Health Doctor did not make any attempt to obtain clarity or further information from Mr XXX’ General Practitioner. You consider that the Occupational Health Doctor has not given any clear indication as to why she was unable to support Mr XXX’ application for ill-health retirement.
5. The Appointed Person determined that “In the circumstances I regret that I am unable to reach any other conclusion than that the Authority has properly considered the matter with the benefit of appropriate medical advice and that the decision, not to pay preserved benefits is a proper decision in Mr XXX’ case.”.
6. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. He notes that the Appointed Person has erroneously made reference to the 1995 regulations. The 1997 regulations apply to members who were contributing members of the scheme on 1 April 1998. Mr XXX’ employment was terminated on 2 August 1999 and, therefore, it is these regulations to which the Secretary of State has had regard. 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 mind or body. Regulation 97(9) required the council, before making a decision whether Mr XXX was so qualified under regulation 27, to refer the matter to an independent registered medical practitioner qualified in occupational health medicine.
7. The Secretary of State notes that for Mr XXX’ incapacity to be permanent it would have to be unlikely to improve sufficiently for him to discharge efficiently the duties of his former employment, or any other comparable employment with the council, before age 65.
8. The Secretary of State has considered all the medical evidence submitted to him comprising: General Practitioner Dr XXX’s letters dated 21 May 1999 and 10 June 1999; Staff Grade in Psychiatry Dr XXX’s letter dated 16 July 1999; General Practitioner Dr B K XXX letter dated 20 July 1999; and Occupational Health Physician Dr XXX’s letters dated 5 May 1999, 21 May 1999, 26 May 1999, 16 June 1999, 21 July 1999 and 3 November 1999.
9. The Secretary of State notes that Dr XXX, in her letter dated 5 May 1999, stated “…I am not optimistic that [Mr XXX] will be able to return to work in the near future. Unfortunately I am unable to predict when or if Mr XXX may feel able to return to work. There is no medical evidence that he is permanently unfit.” He notes that Dr XXX considered a report from Mr XXX’ General Practitioner dated 18 February 1999.
10. The Secretary of State notes that Dr XXX, in his letter dated 10 June 1999, stated “…[Mr XXX] has not improved over the past six months and in my opinion is not fit for any work and in my opinion this is permanent.” He notes Dr XXX, in her letter dated 16 June 1999, stated “I have now received another unsolicited letter from Mr XXX’ General Practitioner. The most recent letter is dated 10 June 1999. … I remain of the opinion that there is no medical evidence that Mr XXX is permanently unfit to work as a Driver Escort Loader.”.
11. The council wrote to you on the 14 July 1999 informing you of their decision, based upon the recommendation of Dr XXX, that Mr XXX did not meet the criteria for ill-health retirement.
12. The Secretary of State notes that Dr XXX, in her letter dated 20 July 1999, stated “[Mr XXX] is permanently unfit for [his former employment with the council] because he remains depressed and very anxious, for which he is under a psychiatrist at Ashford Hospital.” He also notes that Dr XXX stated “I believe Mr XXX has got a letter of his diagnosis and prognosis from the consultant psychiatrist.”. The Secretary of State notes that XXX, in her letter dated 16 July 1999, stated “XXX attended my psychiatric clinic on 2nd and 16th July 1999. He suffers from anxiety, depression and will need support and treatment for some time. … He is unable to return to work at present due to his nervous illness.”. He notes that Dr XXX has stated Mr XXX is permanently unfit for his former employment because he remains depressed and very anxious; however he notes that Dr XXX states Mr XXX will need support and treatment for sometime, but does not state that she considers Mr XXX condition is likely to be permanent. He notes that it appears Dr XXX had not seen XXX’s letter of Mr XXX’ “diagnosis and prognosis”.
13. The Secretary of State notes that Mr XXX, in his letter dated 6 August 1999, informed you that the council’s Occupational Health Physician would be asked to review Mr XXX case. He notes that Dr XXX, in her letter dated 3 November 1999, stated “I have discussed with [Mr XXX] his current symptoms, his treatment and undertaken a clinical examination focusing on the symptoms he has described. I have also reviewed all the contents of Mr XXX Occupational Health file including all the evidence submitted by him. I remain of the opinion that there is no medical evidence that Mr XXX is permanently unfit to work as a Driver Escort Loader.”. He also notes that Dr XXX considered letters from Dr XXX (dated 16 July 1999) and Dr XXX (dated 21 May 1999 and 10 June 1999).
14. The Secretary of State believes there is a difference of medical opinion about the likelihood whether, on the balance of probabilities, Mr XXX’ incapacity is permanent within the meaning of the regulations. He considers this has not been explained or resolved to his satisfaction.
15. The Secretary of State does not consider that referring the case back to Dr XXX has done anything to resolve the conflict of medical opinion and he also takes the view that, as Dr XXX had already been involved in the initial decision by the council, she cannot be held to be an “independent registered practitioner” within the meaning of regulation 97(9). Dr XXX is contracted to the council for the purposes of giving Occupational Health advice on its employees and she had already been involved and advised on Mr XXX’ case. Quite simply that is not what is meant by the term “independent” in regulation 97(9). He concludes that an independent registered medical practitioner qualified in occupational health medicine, who has not been involved in the previous decisions, should review all the medical evidence, with an examination if necessary, and that they should answer the specific question: when Mr XXX ceased employment, was he permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body. It should be noted that for Mr XXX’ incapacity to be permanent it would have to be unlikely to improve sufficiently for him to discharge efficiently the duties of his former employment, or any other comparable employment with the council, before age 65. He has decided to refer the question back to the council for them to put this in hand.