Our Ref: LGR 79/2/334
6 March 1998
295 INDEX
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 Mr XXX’s notice of appeal submitted under regulation J5 of the 1995 regulations against the decision of XXX (“the council”) that he is not entitled to the early payment of retirement benefits under regulation D11(2)(b) of the 1995 regulations.
2. The appeal has been conducted by correspondence. Consideration has been given to Mr XXX’s letters of 11 March 1996 and 13 August 1997; to your letters of 15 August and 11 November 1996, 21 January and 9 May, 11 June and 7 August, 29 September and 5, 19 December 1997, 8, 16 January 1998; to the council’s letters of 18 June, correspondence accompanied with a compliment slip received in this office on 12 September, 8 November 1996, 6 February and 29 April, 20 May and 23 September 1997; and to all the copy documents enclosed with those letters.
3. The question for determination is whether since ceasing his employment with the council on 11 September 1992 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 facts have been established;
(a) Mr XXX is aged 53;
(b) Mr XXX was employed by the council from 10 August 1981 until 11 September 1992;
(b) he applied to the council for early payment of his preserved benefits due to ill health on 12 October 1992 and 13 April 1995;
(c) on both occasions Mr XXX’s application was refused as the council’s Occupational Health Physician was of the opinion that he was not permanently unfit for his previous job as a lavatory attendant;
(d) on 11 March 1996 Mr XXX appealed to the Secretary of State against the council's decision not to award him early payment of his pension benefits.
5. 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.
6. In order to satisfy the requirements of regulation D11(2)(b), it must be shown that, since ceasing his employment on 11 September 1992 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.
7. To assist the Secretary of State in reaching a conclusion in this matter, Mr XXX underwent an independent medical examination on 19 August 1997 by Dr XXX, Consultant Psychiatrist.
8. In his report dated 27 August 1997, copies of which were sent to the parties, Dr XXX considered that it was very unlikely that Mr XXX would be able to resume any form of employment which involved physical activity. Dr XXX commented that from Mr XXX’s own account, he was alcohol dependent at the time he ceased his employment in September 1992 but it was not clear the extent to which Mr XXX was depressed at that time. Dr XXX considered that at the time of the examination Mr XXX was suffering from both major depression and alcohol dependence with evidence of cognitive impairment and that he was unfit to carry out his former duties. Dr XXX commented that the prognosis has to be regarded as poor and he thought it is unlikely that Mr XXX would be able to resume any form of employment. Dr XXX concluded that it was difficult to say at what point Mr XXX’s condition reached its present level.
9. Taking all the medical opinions into account and based on the balance of probabilities, the Secretary of State takes the view that since ceasing his employment, Mr XXX has become incapable of performing his former duties by reason of permanent ill-health or infirmity of mind or body. However, there is no conclusive medical evidence prior to Dr XXX’s examination which clearly establishes a date at which Mr XXX’s condition became permanent. The Secretary of State notes Dr XXX’s final comment in his report and considers that Dr XXX’s examination on 19 August 1997 should be taken as the date on which the condition became established as permanent.
10. The Secretary of State therefore allows Mr XXX’s appeal and determines that under the provisions of regulation D11(2)(b) he is entitled to early release of retirement benefits from 19 August 1997.
11. A copy of this letter has been sent to the council.
12. 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 further on this case.