Our Ref: LG R  79/2/301                    279       INDEX

DATE:     February 1998

 

SUPERANNUATION ACT 1972

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 under regulation J5 of the 1995 regulations against the decision of the XXX ("the council”) that you are not entitled to the payment of ill-health retirement benefits under regulation D7(1)(b) of the 1995 regulations when you ceased your employment on 6 August 1995.

 

2.  The appeal has been conducted by correspondence. Consideration has been given to your appeal form dated 10 November 1995; to your letters dated 22 January, 2 June, 6 October and 30 November 1996, 19 January and 25 April 1997; to your GP’s letter dated 14 December 1995; to the council’s letters dated 6 and 23 March, 25 September and 19 November 1996; and to all the copy correspondence enclosed with those letters.

 

3.  The question for determination is whether when you ceased employment with the council you were incapable of carrying out efficiently your duties by reason of permanent ill-health or infirmity of mind or body.

 

4.  From the evidence submitted the following facts have been established;

 

(a) you are aged 63;

 

(b) on 22 June 1987, you commenced working for the council as a social worker;

 

(c) during the course of your work you developed a low back pain

 

(d) on 17 January 1995, you commenced your sickness absence and did not return to work;

 

(e) on 5 June 1995, you were examined by Dr XXX, the council’s Medical Advisor, who considered you to be permanently unfit for the post of social worker and therefore recommended alternative employment with lighter duties;

 

(f) the council offered to find you an alternative job but you declined their offer and handed in your notice with effect from 4 July 1995;

 

(g) on 6 August 1995, you ceased your employment with the council; and

 

(h) your request for ill-health retirement on the grounds of permanent incapacity was refused.

 

5.         You appealed to the Secretary of State against the council's decision not to award you immediate payment of ill-health benefits under regulation D7(1)(b) from the date you ceased your employment.

 

6.         The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to your 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.

 

7.         Regulation D7(1)(b) of the 1995 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 you were suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out duties as a social worker. 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 D3, the total period of membership must be not less than 5 years.

 

8.         To assist the Secretary of State in reaching a conclusion, you underwent an independent medical examination on 15 May 1997 by Mr XXX, Consultant Orthopaedic Surgeon.

 

9.         In his report, copies of which were sent to both parties on 14 October 1997, Mr XXX

stated that during the course of your employment with the council you developed a low back pain and you have some symptoms of a soft tissue problem in the lower back and the right knee. However he felt that you could have entertained the prospect of some alternative employment on a part-time basis.

 

10.       The Secretary of State notes that there is medical evidence from your GP, XXX, which maintains that you have been suffering from spondylosis and osteoarthritis and these conditions had existed before 6 August 1995, the date you ceased your employment with the council. The Secretary of State further notes that there is further evidence from the council’s Medical Advisor, Dr XXX, which confirms that you were permanently medically unfit for the post of social worker before you ceased your employment with the council. In the Secretary of State’s view there is no conflict of medical opinion between you and the council; it was accepted by both parties that you were permanently unfit for the duties of your post as a social worker. This is the correct test against which payment of ill-health benefits with enhancement was to be assessed under the 1995 regulations in force at the time you ceased employment; the ability to perform other duties is not relevant.

 

11.       Taking all the medical evidence into account, the Secretary of State takes the view that on 6 August 1995 you were incapable of carrying out your former duties by reason of permanent ill-health.

 

12.       The Secretary of State allows your appeal and determines that under the provisions of the regulations you are entitled to an annual retirement pension and lump sum with enhancement under schedule D3.

 

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

 

14.       The above constitutes the Secretary of State's determination of this case. It is final and cannot be changed except by a judgement in the High Court. As the Secretary of State's jurisdiction is now at an end, no member of the Department may discuss or comment on the case further.