280 INDEX
Our Ref: LGR 79/2/338
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 Council ("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 21 February 1996.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 29 March, 9 May, 2 and 27 July, 6 August, 7 and 25 September, 9 October and 12 November 1996, 24 January, 7 March and 17 April 1997; to the council’s of 14 and 18 June, 2 August and 18 September 1996; and to all the copy correspondence enclosed with those letters. Your letter of 14 November 1997 and the council’s letter of 1 December 1997 have been noted.
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) your date of birth is 22 February 1936;
(b) you were employed by the council as a Team Assistant in the Personnel Section of an Area Education Office from 11 January 1988;
(c) you first had an operation on your thyroid gland in August 1987;
(d) in August 1994, you commenced a period of sickness absence and in October 1994 you went into hospital for a second thyroid operation;
(e) in August 1995, the council arranged for you to be examined by the council’s Occupational Health Adviser for assessment for early retirement on ill-health grounds;
(f) on the basis of the Occupational Health Adviser’s report the council decided not to grant you ill-health retirement on the grounds of permanent incapacity;
(g) on 21 February 1996, you retired from the council a day before your 60th birthday.
5. You maintain that you have not fully recovered from your second operation and had to resign as your health problems prevented you from working effectively. The council contend that their Occupational Health Adviser did not find you unfit for the full duties of your job and that you did not therefore qualify for early payment of enhanced benefits.
6. You have 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.
7. 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.
8. 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 your duties as a Team Assistant. 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.
9. To assist the Secretary of State in reaching a conclusion, you underwent an independent medical examination on 29 January 1997 by Mr XXX, Consultant Surgeon.
Copies of Mr XXX’s main report and of his supplementary letter of 9 April were sent to both parties on 10 March and 23 April 1997 respectively.
10. In his report, Mr XXX opined that with well-controlled thyroxin and calcium levels after successful thyroid surgery, it was unlikely that you would be suffering from anything other than depression and anxiety. He was unable to say whether this was triggered by the surgery. He therefore came to the conclusion that you are not suffering from a physical condition which rendered you incapable of following your employment as a Team Assistant.
11. To investigate further by another appropriate specialist, the Department arranged for another independent medical examination by Dr XXX, Consultant Psychiatrist, on 23 September 1997. In his report dated 29 September 1997, copies of which were sent to both parties on 12 November 1997, Dr XXX came to the conclusion that you are suffering from a neurasthenic syndrome and the condition had existed on 21 February 1996. He thought it likely this was a depressive illness but could not make a clear diagnosis. Because neurasthenic syndromes are often difficult to treat, Dr XXX considered it unlikely that you would improve sufficiently to be able to resume your former duties before your normal retirement age and he has certified the condition as permanent.
12. Taking the medical evidence into account and based on the balance of probabilities, the Secretary of State accepts that you are not suffering from a permanent physical incapacity, but he takes the view that it is more likely than not on 21 February 1996, you were incapable of carrying out your former duties by reason of permanent ill-health or infirmity of mind. He therefore allows your appeal and determines that under the provisions of regulation D7(1)(b) of the 1995 regulations you are entitled to an annual retirement pension and lump sum retiring allowance 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.