Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/19/1

February 1998

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)

1. I refer to your letter of 29 August 1997 in which you appeal (under regulation J10 of the 1995 regulations) to the Secretary of State for Environment, Transport and the Regions against the decision of XXX Council (the council) not to award Mr XXX immediate payment of ill-health benefits with enhancement.

2. The question for determination by the Secretary of State is whether the council applied the 1995 regulations correctly in not awarding Mr XXX immediate payment of ill-health benefits with enhancement when he ceased employment.

3. The Secretary of State has considered all the representations and evidence. Copies of all the evidence supplied by the council have been sent to you.

4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that the council applied the 1995 regulations correctly. The Secretary of State’s reasons and the regulations which he considers apply in your case are set out in the annex to this letter, which forms an integral part of the determination. 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.

EVIDENCE RECEIVED

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

a. from the fund: letters dated 29 August 1997 with enclosures and 20 November 1997; and

b. from the council: letter dated 3 October 1997 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; and

b. he resigned with immediate effect on 17 June 1997.

3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. The Secretary of State notes that Mr XXX resigned from the council with immediate effect on 17 June 1997. He further notes that in his letter of resignation Mr XXX did not give any reason for terminating his employment with the council.

4. Under regulation D7 of the 1995 regulations (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)). The Secretary of State notes that Mr XXX was seen by the council’s consultant occupational health physician who certified, on 10 June 1997, that Mr XXX was incapable of discharging efficiently the duties of his employment by reason of permanent ill-health. The Secretary of State also notes that the consultant occupational health physician recommended ill-health retirement. However, for ill-health retirement benefits to be payable under the amended 1995 regulations a member must cease 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.

5. Whilst there is evidence that Mr XXX was suffering from permanent ill-health the Secretary of State notes that no evidence has been provided to demonstrate that he resigned because his ill-health had made him permanently incapable of carrying out his duties efficiently.

6. The Secretary of State therefore concludes the council have applied the 1995 regulations correctly.