Our Ref: LG R  79/2/360

Date:         FEBRUARY       1998

291      INDEX

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 ("the 1986 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 XXX ("the company") that you are not entitled to the immediate payment of ill-health retirement benefits under regulation E2(1)(b)(i) with enhancement under Schedule 9 of the above regulations, when you ceased your  employment on 25 March  1995.

 

2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 12 August and 6 October 1996, 30 May, 22 and 23 June and 7 August 1997; to Dr XXX’s letter of 22 July 1997;  to the company’s letters of 23 September and 30 October 1996 and 25 June 1997; to XXX Pension Authority’s letter of 17 December 1996; and to all the copy correspondence enclosed with those letters.

 

3.The question for determination is whether when you ceased your employment with the company, 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 59;

 

(b) you were employed by the company as a minibus driver;

 

(c) on 25 March 1995, you ceased employment and a  redundancy payment was made to you;

 

(d) on 12 August 1996, you appealed to the Secretary of State against the company’s decision not to award you immediate payment of ill-health retirement benefits from the date you ceased your employment.

 

5.You contend that at the time your employment ceased, you were suffering from arthritis in your knees, diabetes and depression, and that you should have been paid ill-health retirement benefits as these would be greater than redundancy compensation. The company claim that you accepted redundancy benefits and they did not therefore investigate your medical condition.

 

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 company. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.

 

7. 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 you were suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out efficiently your duties. If it is found that such a condition existed, either at the time that your employment ceased or at an earlier date, it is 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, you underwent an independent medical examination on 28 August 1997 by Mr XXX, Consultant Orthopaedic Surgeon.

 

9. In his report dated 30 October 1997, copies of which were sent to both parties, Mr XXX stated that you have mild medial compartment degenerative changes in your left knee; he expected the rate of degeneration would be slow. The findings would have been similar in March 1995. In addition he stated that you are suffering from type II diabetes, it is well controlled and regular checks have not revealed any of the complications of diabetes, ie visual problems, circulatory problems or diabetic neuropathy. He considered your demeanour was not particularly depressive. He believed that you would be able to undertake the duties of your former job as described, and he came to the conclusion that you have not got any permanent physical or mental condition which would make you incapable of carrying out efficiently your former duties.  

 

10.Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State is satisfied that your physical incapacity at the time you ceased your employment was not such as to render you incapable of carrying out your former duties efficiently. He notes that your GP, Dr XXX, stated in October 1996 that you had suffered from stress and depression since February 1995 and again in May 1997 that you were suffering from depression. However, the Secretary of State notes that no further or more detailed evidence has been produced in relation to your mental state and he takes the view that it has not been convincingly demonstrated that at the time you ceased employment you were suffering from a permanent mental condition such as to make you incapable of efficiently carrying out your former duties. He concludes that it has not been shown that you were suffering from permanent ill-health or infirmity of mind or body at the time you ceased your employment so as to be incapable of carrying out efficiently your former duties in the sense required by the 1986 regulations. 

 

11.Copies of this letter have been sent to the company and to the XXX (Administering Authority).

 

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.