Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/19/

April 1998

LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to Mr XXX's letter of 30 March 1998 in which he appeals (under regulation J8 of the 1995 regulations), on behalf of Mr XXX, to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person XXX City Council (the council). The Appointed Person upheld the decision of the council not to allow the immediate payment of Mr XXX's local government pension benefits by reason of him being permanently incapable of discharging efficiently the duties of his employment by reason of ill-health or infirmity of mind or body when he ceased employment with the council.

2. The question for determination by the Secretary of State is whether Mr XXX ceased employment with the council by reason of being permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.

3. The Secretary of State has considered all the representations and evidence in Mr XXX's letter and enclosures of 30 March 1998.

4. Secretary of State's determination: The Secretary of State having taken into account the appropriate regulations, finds that for the purposes of the 1995 regulations Mr XXX is not entitled to the immediate payment of his local government pension scheme benefits because he was dismissed from his employment with the council on the grounds of gross misconduct. The regulations considered and reasons for his decision are set out in the annex to this letter which forms an integral part of his determination. His decision confirms that made by the Appointed Person. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it unless instructed to in a judgement by the High Court. Because of this officials may not discuss the case further.

5. This decision is without prejudice to any question whether Mr XXX may be entitled to early payment of deferred benefits under regulation 31(6) of the 1997 regulations. Any such question would be for the council to consider in the first instance under regulation 97.

6. The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

7. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

EVIDENCE RECEIVED

1. The following evidence has been received and taken into account:

a. from Mr XXX, XXX (the union), on behalf of Mr XXX, letter dated 30 March 1998, with enclosures.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2. From the evidence submitted the following relevant points have been noted:

a. Mr XXX was employed by the council;

b. he was a member of the Local Government Pension Scheme; and

c. on 14 April 1997 he was dismissed from his employment with the council on the grounds of gross misconduct.

3. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. Under regulation D7 (as amended with effect from 28 March 1997 by the Local Government Pension Scheme (Amendment) Regulations 1997) early retirement benefits due to ill-health are payable if the member ceases his employment by reason of being permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body. Such permanent incapacity has to be certified by an independent, duly qualified medical practitioner approved by the administering authority (regulation J1(2A)).

4. The Secretary of State notes that Mr XXX was dismissed from his employment with the council on the grounds of gross misconduct. He concludes that Mr XXX's employment did not cease because of permanent incapacity due to ill health, and that he is not therefore entitled to immediate payment of his local government pension scheme benefits under regulation D7.