Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/19/D

13 November 1998

LOCAL GOVERNMENT PENSION APPEAL

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter of 2 November 1998 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State, on behalf of Miss XXX, following Mr XXX’s determination of 13 June 1998. Mr XXX, who was the Appointed Person, found that Miss XXX had resigned her employment. As her employment was not terminated through her being permanently incapable of discharging the duties of her employment as a consequence of ill-health or infirmity she is not eligible to be awarded ill-health retirement benefits. He explained that deferred benefits could be paid prematurely under regulation D11(2)(b) of the 1995 regulations.

2. The questions for determination: The questions for determination by the Secretary of State are whether:

a. Miss XXX ceased employment with the XXX (the brigade) because she was permanently incapable of carrying out her former duties by reason of ill-health or infirmity of mind or body; and

b. since ceasing employment with the brigade Miss XXX has become permanently incapable of carrying out her former duties by reason of ill-health or infirmity of mind or body.

3. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that:

a. His powers under regulations 102 and 103 of the 1997 regulations are limited, like the Appointed Person’s, to whether the appropriate local government pension scheme regulations have been correctly applied in the given circumstances. Miss XXX ceased employment because she resigned voluntarily, and not on ill-health grounds. Therefore regulation D7 does not apply to her. Questions relating to employment issues, such as why, when and how employees terminate their employment, are not matters he can decide as they are not issues relating to the local government pension scheme; and

b. His powers under regulations 102 and 103 are limited to reconsidering disagreements which have been referred to the Appointed Person. As the matter has not been referred to the Appointed Person the Secretary of State has no powers to consider it.

Sub-paragraph a. confirms the Appointed Person’s 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 determination he has no power to alter it but you may refer the matter to the Pensions Ombudsman or the High Court. Because of this, the Secretary of State’s officials cannot discuss the case further.

4. This completes the second stage of the internal disputes resolution procedure. The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. The address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

5. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme made or in accordance with the Pensions Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

6. A copy of this letter has been sent to the Appointed Person.