867 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 31 October 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 Council), on behalf of Ms XXX, in relation to her local government pension scheme (LGPS) dispute with the XXX College (the College).
2. The Appointed Person found that Ms XXX did not satisfy either the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits. He also found that Ms XXX’s access to LGPS membership began on 1 August 1997 and that there was no provision for her to make payments to count service back to 1991.
3. The questions for decision: The questions for decision by the Secretary of State are whether:-
a) Ms XXX can make payments to count as membership in the LGPS, for the period she was employed by the XXX (the company) at the College between 9 September 1991 and 1 August 1997; and
b) Ms XXX qualifies for the immediate payment of a LGPS benefit, on the grounds that she ceased employment with the College by reason of being permanently incapable of discharging efficiently the duties of her employment because of ill-health or infirmity of mind or body.
4. Secretary of State’s decision:-
a) With regard to the first question, the Secretary of State finds that the company at the College did not participate in the LGPS, and that therefore, Ms XXX was not eligible for LGPS membership during her period of employment with them. He also finds that there are no provisions in the 1997 regulations, which would allow her to make back dated payments for service with the company, so that it would count as membership in the LGPS.
b) In regard to the second question, the Secretary of State finds that for the purposes of the 1997 regulations, it has not been shown conclusively that Ms XXX ceased employment because she was permanently incapable of discharging efficiently the duties of her employment by reason of ill-health or infirmity of mind or body. However, he also finds that the question of Ms XXX’s entitlement to a benefit on ill-health grounds has not been assessed in the way required by the regulations. His decision is that the college must refer Ms XXX to an independent registered medical practitioner, who is qualified in occupational health medicine, for a medical view as to whether Ms XXX was permanently incapable of efficiently carrying out her former duties by reason of ill-health at the time her employment ceased. If Ms XXX refuses to attend a further appointment, no benefits will be payable.
5. The Secretary of State’s decision upholds that made by the Appointed Person on the first question, and replaces it on the second question. 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. 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. 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 (telephone number 020 7834 9144).
THE SECRETARY OF STATE’S POWERS
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 College should have granted Ms XXX ill-health retirement from when she ceased employment with them following her resignation letter dated 10 January 1999, and whether they should have allowed her to make payments to back date her membership in the LGPS, to include the period that she was employed by the company.
2. The following evidence has been received and taken into account:
a) From you: Letters dated 3 November 2000 (with enclosures), 6 December 2000 (with enclosures) and 11 December 2000 (with enclosures); and
b) from the Council: Letter dated 27 November 2000 containing documents considered by the Appointed Person (copies sent to you under cover of the Department's letter of 30 November 2000) and letter dated 12 December 2000 (with enclosures).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Ms XXX commenced employment with the company at the College on 9 September 1991;
b) She was employed as a part time Nursery Assistant;
c) Her employment was transferred from the company to the College on 1 August 1997;
d) The employment with the College was stated as ‘continuous employment’ in Ms XXX’s contract of employment with the College, which was issued on 25 March 1998;
e) In a letter dated 10 January 1999, Ms XXX wrote a letter of resignation ‘for reasons of ill health;
f) On 17 August 1999, Ms XXX appealed to the Appointed Person, expressing concern that XXX Pensions Service at the Council did ‘not respond to my ill health situation.’
4. In his decision letter dated 31 October 2000, the Appointed Person stated that ‘Although Miss XXX’s employment is deemed as continuous from 9 September 1991 the company did not take part in the LGPS and therefore the earliest date for pension purposes can only be 1 August 1997. This is the date she became an employee of the College. The College took part in the Scheme and Miss XXX was therefore subject to the scheme from that date.’ On the matter of ill-health, the Appointed Person found that ‘The evidence you have provided does point to a severe medical problem but I am not convinced that the prognosis is that Miss XXX’s condition has been determined to be one that will prevent her form resuming similar employment at some time in the future.’
5. In a letter dated 3 November 2000, you appealed to the Secretary of State on behalf of Ms XXX against the Appointed Person’s decision on the grounds that -
i) ‘We argue that my daughter as a part time employee was denied membership of the pension scheme and discriminated against and is therefore entitled to make back contributions for benefits in accordance with recent EEC legislation for part time employees and argue that the above decision is unlawful bearing in mind the date of the claim 31 03 99.’
ii) ‘The prognosis of her condition is that it is likely to be a lifetime condition and she is receiving long term sickness benefit and disability living allowance. Not withstanding any entitlement under EEC legislation...we argue she is entitled to benefits under clause 27[3[a] of the scheme rules by reason of being permanently incapable of discharging efficiently the duties of that employment or any other comparable employment because of ill health.’ ‘Even if her health improves which is very unlikely it is usually impossible for people with an history of epilepsy to be allowed to work with young children.’
iii) ‘We further argue that XXX Pensions Service appear to have ignored the medical and disability evidence provided, made no reference to her consultant Neurologist or GP, and it appears that the medical decision may have been made by the Pensions Schemes Appeals Officer without reference to internal medical advice.’
6. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. At the time Ms XXX 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 meet the criteria laid out in regulation 27(1). This is that they cease employment because they are permanently incapable of performing their duties efficiently due to ill-health or infirmity of mind or body. Permanent incapability is defined as meaning, at the least, to age 65. Regulation 27 (3) applies to a member with at least one year, but less than two years membership, and stipulates that such members will receive a retirement grant, but not a pension, where they qualify for benefits under regulation 27(1), subject to regulation 27(4). Regulation 24(4) has the effect of requiring that either the grant or a return of contributions is paid, whichever is the greater. Regulation 97 (9) states that ‘Before making a decision as to whether a member may be entitled under regulation 27...on the grounds of ill-health, the Scheme employer must obtain a certificate from an independent registered medical practitioner who is qualified in occupational health medicine, as to whether in his opinion the member is permanently incapable of discharging efficiently the duties of the relevant local government employment because of ill-health or infirmity of mind or body.’ The choice of medical practitioner must be approved by the administering authority (regulation 97(10)).
7. The Secretary of State has noted all the medical evidence submitted to him comprising: Medical note signed by Dr XXX dated 24 January 2000.
8. The Secretary of State has first considered your contention that Ms XXX was discriminated against on the basis of her part-time employment status. He notes your assertion that an Employment Tribunal ruling found that Ms XXX’s ‘continuous employment’ began on 9 September 1991 and that, consequently, she should be allowed to make payments to backdate her LGPS membership from that date. The Secretary of State notes that the College have not disputed Ms XXX’s period of continuous employment. Ms XXX’s contract of employment with the College, issued on 25 March 1998, states that –
‘Your employment will commence on 1 August 1997
Your period of continuous employment began on 9 September 1991
It includes your continuous employment with the company.’
The Secretary of State notes from a letter dated 1 August 1997 that this employment contract was the result of a transfer of employment from the company to the College. He further notes that the letter stated that an ‘application for [Ms XXX] to join the Local Government Superannuation Scheme..’ was enclosed. The Secretary of State has also considered Ms XXX’s original contract of employment with the company, issued on 23 January 1992, stating that employment commenced on 9 September 1991. The contract statements include –
‘You are employed by the company, XXX College.
There is no pension provision in this employment.’
The Secretary of State notes from the Appointed Person’s letter to you dated 1 April 2000 that he stated he would investigate the matter of whether the company ‘had any obligations under the Local Government Pension Scheme.’ He further notes from his final decision letter dated 31 October 2000 that he found ‘..the company did not take part in the LGPS.’ He notes that you do not dispute this. The Secretary of State takes the view, therefore, that whilst Ms XXX’s employment may have been considered ‘continuous’ for some purposes, it cannot be so considered for pensions ones. He does not find any evidence of discrimination against Ms XXX on the basis of her part time status: She was invited to join the Scheme, and apparently did so, when she first became employed by an LGPS employer. There are no provisions in the 1997 regulations to allow payments to back date membership in these circumstances.
9. The Secretary of State has next considered the question of Ms XXX’s ill health. With less than two years’ membership, Ms XXX would normally be entitled to a return of contributions and not to pension benefits from the LGPS. However, the effect of regulations 27(3) and (4) mean that if Ms XXX, who had between 1 and 2 years membership, were found to have ceased employment because of permanent incapability due to ill-health, she would be entitled to an ill-health grant instead of a return of contributions, if the grant was greater. The Secretary of State notes that you state ‘The prognosis of [Ms XXX’s] condition is that it is likely to be a lifetime condition and she is receiving long term sickness benefit and disability allowance.’ The medical evidence supplied with your appeal confirms a diagnosis of epilepsy, and advises that Ms XXX should refrain from work for three months. You also supplied a letter from the DSS, dated 28 July 1999, confirming that Ms XXX has been in receipt of disability living allowance. The Appointed Person was not satisfied that the College had considered the medical question following Ms XXX’s resignation and consequently ordered them to appoint an independent medical adviser qualified in occupational health medicine to assess Ms XXX, in his letter dated 10 March 2000. The College stated in their letter dated 11 April 2000 that Ms XXX did not attend the medical appointment organised with their occupational health physician. It appears from your letter of 16 March 2000 that this was because you objected to an appointee of the College carrying out a medical, and also because an independent medical examination had already been performed by a DSS doctor. It appears from the Appointed Person’s letters dated 1 April and 31 October 2000 that, following Ms XXX’s refusal to allow an occupational health physician to examine her, the Appointed Person obtained and considered medical evidence from you himself. He concluded that it did not confirm a prognosis that would ‘prevent [Ms XXX] from resuming similar employment at some time in the future,’ and consequently dismissed Ms XXX’s appeal.
10. The Secretary of State accepts that Ms XXX has been diagnosed with epilepsy, and that she has been assessed by a DSS doctor and found to be entitled to DSS benefits. However, such an award by the DSS does not lead to automatic release of LGPS pension benefits on grounds of ill-health, as the test for entitlement is not the same. Early provision of LGPS pension benefits under regulation 27 statutorily requires a medical assessment by an independent registered medical practitioner who is qualified in occupational health medicine. The requirement for independence should assure the member that the medical advice provided will be based on the medical evidence alone and will not be subject to any other consideration. The medical practitioner must supply a certificate to the Scheme employer stating whether, in their opinion, the member is permanently incapable of efficiently carrying out their duties because of ill health or infirmity of mind or body. The employer can only take a decision as to whether they will release benefits under regulation 27 when they have obtained this medical advice. The Secretary of State finds that no such medical evidence has been obtained, and that, therefore, Ms XXX has not been found to be permanently incapable of her former duties so as to be eligible for benefits under regulation 27.
11. The Secretary of State notes that Ms XXX refused to attend the appointment made for her by the College with the appointed occupational health physician. However, he does not find in the evidence provided to him that it was explained to Ms XXX before the Appointed Person’s decision, that benefits under regulation 27 could not be released without a medical assessment by an independent registered occupational health physician approved by the administering authority. The Secretary of State notes that the Appointed Person made a decision on the grounds of the medical evidence available to him, but he has not been made aware whether the Appointed Person was medically qualified to make such a determination without recourse to an occupational health physician, or that he obtained a certificate as required by the regulations. The Secretary of State’s decision, therefore, is that the College must refer the matter to an independent registered medical practitioner who is qualified in occupational health medicine and approved by the administering authority, to advise as to whether Ms XXX was permanently incapable of efficiently performing her duties on ill-health grounds when she ceased employment with the College. If Ms XXX is found to be permanently incapable under regulation 27 (1), she will be entitled to a retirement grant under regulation 27(3), if it is greater than the return of contributions. If Ms XXX chooses not to attend any appointment she will not be entitled to benefits under regulation 27.