775 INDEX
1) I refer to your letter of 23 June 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of XXX (the council) in relation to your local government pension scheme (LGPS) benefits.
2) You referred your disagreement to the Appointed Person (local referee) for the council. You explained that whilst absent from work due to illness you asked to be considered for retirement through the LGPS, on medical grounds, and that the council decided you did not qualify for medical retirement. You further explained that it had just come to your attention that you may have a right to appeal against the decision. The Appointed Person explained that following the transfer of your employment to the Department of the Environment, Transport and the Regions on 1 October 1999, you became a member of XXX’s (the fund’s) pension scheme. He assumed that you wished to appeal against a decision made by the fund in respect of your pension rights. He explained that you would need to seek information from them. Mr XXX, for the fund, considered that “it may be important even at this stage, to challenge any decision made by the council regarding your qualification for ill-heath retirement benefits.”. He further explained that you could appeal to the Secretary of State.
3) Under regulations 100 and 101 disputes can be referred to the Appointed Person for decision. In the Secretary of State’s view your dispute is with the council as your employer and their Appointed Person was wrong to refer you to the fund. It therefore appears that there has been no first stage decision by the Appointed Person. Where a decision is not made within 3 months of the application (and the Appointed Person has not extended that period) the matter can be referred to the Secretary of State. The Secretary of State has decided that to resolve the matter, without causing unnecessary delay to you, he will treat your letter as a second stage appeal.
4) Rent Officers in employment on 30 September 1999 were transferred, under terms identical to Transfer of Undertakings (Protection of Employment) (TUPE), to the XXX (the agency) on 1 October 1999. The effect of TUPE, is that an employee is regarded as being in continuous employment with no continuity break, even though now employed by another body.
5) 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 effective 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 you ill-health retirement following your application in 1998.
6) The question for decision: The question for decision by the Secretary of State is whether you qualify for the immediate payment of LGPS benefits on the grounds that you ceased employment with the council by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body.
7) 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 has decided that you do not qualify for immediate payment of LGPS benefits, for the following reasons. Regulation 27(1) of the 1997 regulations states “Where a member leaves a local government employment by reason of being permanently incapable of discharging efficiently the duties of that employment or any other comparable employment with his employing authority because of ill-health or infirmity of mind or body, he is entitled to an ill-health pension and grant.”. The Secretary of State notes in your letter of 23 June that “… I was recommended for dismissal on ill-health grounds by Mr XXX. In August 1999 he wrote to DETR seeking their consent to dismiss me and I have had the threat of dismissal hanging over me ever since.”. The Secretary of State finds that although you are no longer employed by the council your employment with them was not terminated on ill-health grounds but you were transferred under TUPE to XXX on 1 October 1999. Therefore you have not left your employment with the council by reason of permanent incapability due to ill-heath and you do not qualify for payment of your LGPS benefits. The questions whether and on what grounds to terminate employment are employment, not pensions ones, and cannot be dealt with in a pension appeal. The only question the Secretary of State can consider is whether there is an entitlement to pension benefits, and no question of such an entitlement can arise until a member ceases their local government employment, which, for the purpose of the LGPS includes your employment with XXX. When your employment does cease, questions regarding your pension entitlement should be determined at that time with regard to the regulations, assuming your health is still an issue.
8) In reaching his decision 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. The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.
9) 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).
10) The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).
11) If you have any questions relating to your employment with XXX they are a matter for them to consider. You may wish to contact them and discuss your employment situation with them.
12) Copies of this letter have been sent to the Appointed Person for the council, Mr XXX (the fund) the council and the Pensions Managers for the council and the fund.