Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LG R 79/2/300

Date: 16 November 1998

463 INDEX

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 ("the 1986 regulations")

THE LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“ the 1995 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 J5 of the 1995 regulations against the decision of XXX Council ("the city council") that he is not entitled to the immediate payment of ill-health retirement benefits under regulation E2(1)(b)(i) of the 1986 regulations when his employment ceased on 24 April 1992.

2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 13 November 1995 and 9 February, 10 April, 1 November 1996 and 6 January, 10 February, 17 April, 2 May, 10 July, 28 August, 22 October 1997 and 15 January, 12 February, 30 March, 10 June and 15 September 1998; to XXX Council’s letter of 14 June 1996; to the city council's letters of 10 July 1996 and 11 February, 14 August 1997; and to all the copy correspondence enclosed with those letters.

3. The question for determination is whether when Mr XXX ceased his former employment with the council, he was incapable of carrying out efficiently the duties of that employment 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 49;

(b) on 2 June 1980, he commenced his local government employment with the

council as a Pavior;

(d) on 28 November 1991, he commenced a period of sickness absence suffering from dyspepsia and abdominal pains;

(e) Mr XXX did not return to work following his sickness absence;

(f) on 24 April 1992, Mr XXX ceased his employment due to redundancy;

(g) on 15 May 1995, Mr XXX applied to XXX County Council for his preserved benefits to be put into payment early due to ill-health;

(h) on 23 June 1995, Dr XXX, XXX County Council’s Occupational Health Physician certified that Mr XXX was incapable of discharging efficiently the duties of his former employment with the council;

(i) following Dr XXX’s certification Mr XXX’s preserved benefits were brought into payment from 23 June 1995;

(j) you appealed to the Secretary of State on the grounds that Mr XXX should have been awarded ill-health retirement benefits from the date he ceased his employment on 24 April 1992.

5. You maintain that Mr XXX was suffering from ill-health prior to the time he ceased his employment and that he should therefore have ceased his employment due to ill-health retirement and not on redundancy grounds.

6. The city council maintain that Mr XXX was absent from work from 28 November 1991, he “was referred to the Staff Medical Officer in February 1992. The Medical Officers report stated that all investigations were clear although he was still waiting to see another Specialist and if he had not returned to work within 12 weeks Mr XXX should be referred back for a further review. Following receipt of this report Mr XXX was seen by the Principal Contracts Manager, Mr XXX and the Senior Administrative/Personnel Officer Mr XXX to discuss the findings of the report. During the discussion Mr XXX made no reference to any problems he was experiencing with his back, which he later claimed was the reason why he should have been dismissed on health grounds. During this period because of a reduction in work allocated to the Highways Division it was necessary to reduce the workforce. Initially Highways employees over the age 55 were offered the opportunity to accept early retirement or to take voluntary redundancy. Despite a number of employees choosing one of the options there was still a need to reduce the workforce further and under arrangements agreed by the council the remaining redundancies were selected on the basis of performance and/or reliability/attendance. Unfortunately Mr XXX fell into the latter category”.

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 fell to be 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. Regulation E2(1)(b)(i) of the 1986 regulations makes no reference to any positive act that brings employment to an end either by the employer giving notice or the employee voluntarily resigning. It is considered that in order to satisfy the requirements of the regulations it must be shown that Mr XXX was suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out efficiently his duties. If it is found that such a condition existed, either at the time that employment ceased or at an earlier date, it will be necessary to establish that it was permanent in the sense required by the regulations. To qualify for enhancement under schedule 9, the total period of membership must be not less than 5 years as required by regulation E3(12)(c).

9. To assist the Secretary of State in reaching a conclusion in this matter, Mr XXX underwent an independent medical examination on 17 April 1998 by Mr XXX, Consultant Orthopaedic Surgeon.

10. In his report dated 2 June 1998, copies of which were sent to the parties, Mr XXX stated that, “It is quite obvious from the history, clinical examination and the x-rays that the cause of his back pain is degenerative changes at his lumbosacral junction. The rest of the spine seems to be only with minimal changes. Mr XXX was almost 43 years old at the time he was made redundant. Even at that time he had significant changes, according to the notes available to me, at his lumbosacral junction which prevented him from working. He has in the meantime been seen by an Orthopaedic Surgeon with interest in spinal surgery who has quite agreed with the present finding.

In my opinion his back pain, which has been of long standing, is a direct result of his being involved in heavy manual work. He does not have a generalised osteoarthritis but rather it is localised to his lumbo sacral region which would be in keeping with the nature of his job. Therefore, in answer to question 2a) he does have a physical condition of lumbosacral degenerative changes which would make him incapable of carrying out efficiently the duties surrounding the job description.

2b) It is a lumbosacral degenerative disc disease with superimposed osteoarthritis changes at this level.

2c) The condition did exist before 24 April 1992.

2d) It was permanent at that date, that is it is irreversible nor is it likely to improve sufficiently before he needs to reach the age of 65 years to became capable of carrying out those duties as set out in his job description efficiently. Finally these degenerative changes are going to become worse as time goes by and may eventually spread to the higher levels in his lumbar spine. He is advised to undergo physiotherapy and muscle conditioning exercises which may make him comfortable but will not make any difference to the natural cause of the lumbosacral degeneration”.

11. The Secretary of State notes the city council’s contention that Mr XXX did not make mention of his back pain at the time of his meeting with Mr XXX and Mr XXX, and that it was only at a later date that Mr XXX claimed that it was the reason he should have been dismissed on ill-health grounds. However, the Secretary of State accepts that Mr XXX has made it quite clear in his report that Mr XXX’s condition pre-existed his cessation from work with the city council and that the condition was permanent.

12. Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State takes the view that on 24 April 1992, Mr XXX was incapable of carrying out his former duties efficiently by reason of permanent ill-health. He therefore allows the appeal and determines that under the provisions of regulation E2(1)(b)(i) of the 1986 regulations Mr XXX is entitled to an annual retirement pension and lump sum retiring allowance with enhancement under schedule 9.

13. 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 unless instructed to by the Pensions Ombudsman or the High Court. Because of this, officials may not discuss the matter further.

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