Our Ref: LGR 79/2/358

Date:        April 1998

328          INDEX

SUPERANNUATION ACT 1972

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 council") that Mr XXX was not entitled to the payment of ill-health retirement benefits under regulation D7(1)(b) of the 1995 regulations when he ceased his employment on 31 January 1996.

 

2.  The appeal has been conducted by correspondence. Consideration has been given to the appeal form of 30 July 1996; to your letters of 28 October 1996 and 19 March 1997; to the council’s letters of 9 September, 12 November and 6 December 1996; and to all the copy correspondence enclosed with those letters.

 

3.  The question for determination is whether when Mr XXX ceased employment with the council he was incapable of carrying out efficiently his 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 47;

 

(b) on 10 August 1966, he commenced employment with the council as an administrative assistant;

 

(c) on 26 April 1968, he joined in the council’s pension scheme;

 

(d) on 7 November 1995, he commenced his sickness absence and did not return to work;

 

(e) on 31 January 1996, Mr XXX ceased his employment with the council;

 

5.         You appealed to the Secretary of State against the council’s decision not to award Mr XXX immediate payment of ill-health retirement benefits with enhancement from the date he ceased his employment.

 

6.         The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to Mr XXX’ rights under the regulations, which 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 Mr XXX was suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out his former duties as an administrative  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.

 

8.         To assist the Secretary of State in reaching a conclusion in this matter, Mr XXX underwent an independent medical examination on 23 June 1997 by Dr XXX, Consultant Psychiatrist.

 

9.         In his report dated 10 December 1997, copies of which were sent to both the parties, Dr XXX stated that Mr XXX has a major psychiatric illness, he suffers from depression (Affective Disorder) defined as such in ICD 10 classification and this makes him incapable of carrying out efficiently the duties set out in the job description. Dr XXX stated that Mr XXX’ condition existed on 31 January 1996 and in his opinion was not likely to improve sufficiently to enable him to return to work to perform his duties efficiently as he used to prior to his illness.

 

10.       Following Mr XXX’ medical examination with Dr XXX and his subsequent medical report, the council made a number of comments in their letter dated 27 March 1998, a copy of which is enclosed. The Secretary of State has taken note of the points the council made. He notes that the council take issue with some of the statements which Dr XXX reports that Mr XXX made to him. However, he also notes that Dr XXX has reached his conclusion not only on the basis of the history presented to him by Mr XXX but also on his clinical examination. The Secretary of State also has to recognise that Regulation D7(1)(b), as it applied at the time,  makes no reference as to the cause of permanent ill-health or infirmity; he is therefore unable to consider this as a relevant factor. Taking all the medical evidence into account, on the balance of probabilities, the Secretary of State takes the view that it is more likely than not that on 31 January 1996, Mr XXX was incapable of carrying out his former duties efficiently by reason of permanent ill-health or infirmity of mind. He therefore allows the appeal and determines that under the provisions of regulation D7(1)(b) of the 1995 regulations Mr XXX is entitled to an annual retirement pension and lump sum retiring allowance with enhancement under schedule D3.

 

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 on the case further.