468      INDEX

Our Ref: LGR 79/2/132

November 1998

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)

 

1.  I am directed by the Secretary of State for the Environment, Transport and the Regions to refer to your notice of appeal submitted on behalf of Mr XXX under regulation N8 of the 1986 regulations against the decision of XXX (the council) that he is not entitled to the early payment of ill-health retirement benefits under regulation E2(6)(a) of the 1986 regulations.

 

2.  The appeal has been conducted by correspondence. Consideration has been given to Mr XXX's letters of 21 July, 28 October, 10 December 1993 and 8 March 1994; to your letters of 2 July 1996, 4 November 1997 and 5 October 1998; to the council's letters of 16 August, 14 September and 6 December 1993; to Mr XXX's letter of 20 August 1996 and a copy of his doctor's medical certificate and the Benefits Agency's letter received in this office on 24 February 1997; and to all the copy correspondence enclosed with those letters.

 

3. The question for determination is whether since ceasing his employment with the XXX the agent on 31 March 1990, Mr XXX has become incapable of carrying out efficiently his former duties by reason of permanent ill-health or infirmity of mind or body.

 

4. From the evidence submitted the following points have been noted;

 

            (a) Mr XXX is aged 42;

 

(b) on 9 September 1974, he commenced employment with the XXX Council and XXX (the agent);

 

(c) on 31 March 1990, Mr XXX's employment with the agent ceased on                                   grounds of  redundancy;

 

            (d) in 1992 and 1993, Mr XXX applied to the council for early payment of                   his preserved benefits on grounds of ill-health, however the applications                                    were refused on both occasions; and

 

            (e) Unison appealed to the Secretary of State against the council's decision.

 

5. The Secretary of State notes Mr XXX's GP, Dr R XXX's comments in her letters dated 3 August and 11 September 1992; that she had been Mr XXX's GP for 11 years and during that time his health had deteriorated to an extent that she considered him to be unfit for work. Dr XXX confirms that in her opinion, Mr XXX’s health has deteriorated since 1990. In particular his anxiety and depression have increased particularly since his fourth mugging. Dr XXX comments that Mr XXX’s impression was that if the agent had continued to exist he would have been retired on medical grounds. Dr XXX concludes that “ I do not see how he could work in his present state of health and do not feel that the prognosis for any of his conditions is good."    

 

6. Dr P XXX, Consultant Staff Physician for the council comments in his report dated 18 May 1992; “ I was unable to establish that Mr XXX was suffering any specific medical problem that would cause him to be permanently unfit for his work as a clerical officer with the former [agent]. I do not doubt his difficulties, but he is not, in my opinion, permanently unfit for clerical duties in local authority employment.” Dr XXX concludes in a further report dated 13 September 1993, “ While accepting that Mr XXX is in less than perfect health, his health does not appear to have changed substantially since he was employed by the [agent] and I can find no clinical evidence to support his claim that he is medically unfit to hold full-time employment as a clerical officer in Local Authority service. In my opinion he remains ineligible for early payment of his deterred pension benefit.”  

 

7. The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to Mr XXX's rights under the regulations, as was decided in the first instance by the council. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.

 

8.  In order to satisfy the requirements of regulation E2(6)(a), it must be shown that, since ceasing his employment with the agent on 31 March 1990 Mr XXX has become incapable, by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of the employment he has ceased to hold.

  

9.  To assist the Secretary of State in reaching a conclusion in this matter, Mr XXX underwent an independent medical examination on 7 October 1996 by Dr XXX, Consultant Physician.

 

10. In his first report dated 14 October 1996, copies of which were sent to the parties, Dr XXX addressed Mr XXX's complaints of Chronic Anxiety, Irritable Bowel Syndrome, Metatarsalgia and Weight Gain. Dr XXX’s general comment was “ I think that the question of Mr XXX’s anxiety state may need a formal assessment by a psychiatrist. I do not feel qualified to assess the impact this may have on his ability to work. Most of Mr XXX’s physical problems are related to obesity and many of these, namely back pain, metatarsalgia and intertrigo would resolve if he could lose weight”.  Dr XXX certified that Mr XXX had no physical condition which would have rendered him incapable of carrying out his duties. However, he did suggest a psychiatric opinion should be sought on Mr XXX’s mental condition. Dr XXX considered that the condition would have existed on 31 March 1990 and that the condition was likely to be permanent. In a subsequent report dated 11 March 1997, Dr XXX suggested “as the chronic anxiety state is the principal inhibition to his ability to continue his work, that a Psychiatric opinion is sought as I do not feel competent to comment on such disorders”. Dr XXX concludes that “ I am in no position to be precise about the date between March 31st 1990 and 4th April 1992 when Mr XXX became unable to work, but I would refer you to the letter from his GP, Dr R XXX, to his union dated 11th September 1992, at which point the GP considered that his health had deteriorated since 1990.”

 

11. Mr XXX declined to attend a second independent medical examination which was arranged with Dr XXX, Consultant Psychiatrist.

 

12. The Secretary of State notes that the parties accept that Mr XXX is suffering from several medical complaints. However, the Secretary of State feels that it is not entirely evident from the medical evidence available whether Mr XXX is permanently incapable of performing his former duties with the agent. The Secretary of State notes that Dr XXX certified that Mr XXX’s medical conditions did exist on cessation of his employment on 31 March 1990, and indeed that his medical conditions were likely to be permanent. However, the Secretary of State considers that the crux of the question is whether Mr XXX’s condition prevented him from carrying out his former duties. Taking Mr XXX’s physical condition first, the Secretary of State notes that Dr XXX has certified in his first report that Mr XXX does not have a condition that would make him incapable of carrying out his former duties. Although Dr XXX was not entirely clear what his duties comprised, the Secretary of State is satisfied that they were clerical and Dr XXX has referred to duties of a light clerical nature in his report. Dr XXX’ view of Mr XXX’s physical condition has not, it would appear, changed in his second report, where he is quite clear that it is Mr XXX’s anxiety state which principally prevents him working. In the Secretary of State’s view, all the medical evidence suggests that Mr XXX does not have a permanent incapacitating physical condition which would prevent him carrying out his former duties.

 

13. Turning to Mr XXX’s mental condition, the Secretary of State feels that as Dr XXX explained that he felt Mr XXX’s mental condition needed to be assessed by a psychiatrist, and as the offer of a further examination was declined by Mr XXX the complete picture of Mr XXX’s medical conditions have not been explored. The onus for this rests with Mr XXX; as matters stand the Secretary of State is not satisfied that Mr XXX has presented convincing medical evidence of a permanently incapacitating mental condition.

 

14. Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State takes the view that it has not been shown conclusively that Mr XXX has since ceasing his employment with the agent on 31 March 1990, become incapable of carrying out his former duties by reason of permanent ill-health or infirmity of mind or body.

 

15. The Secretary of State determines as set out above and therefore dismisses your appeal.

 

16. The above constitutes the Secretary of State's determination of this case. Having made his determination the Secretary of State has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court. Because of this, officials may not discuss the matter further.

 

17. 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).

 

18. A copy of this letter has been sent to the council.