Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR 79/2/368

Date: 26 FEBRUARY 1998

SUPERANNUATION ACT 1972

THE LOCAL GOVERNMENT (DISCRETIONARY PAYMENTS) REGULATIONS 1996 ( “the 1996 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 45(6) of the 1996 regulations against the decision of the XXX Council (“the council”) not to consider him entitled to payment of an annual injury allowance under regulation 34 of the 1996 regulations.

2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 7 September 1996, 6 January and 21 July, 30 July and 4 August 1997; to Dr XXX’ letter of 19 August 1997; to the council’s letters of 29 October 1996, 2 January and 25 April 1997; and to all the copy correspondence enclosed with those letters.

3. The question for determination is whether when Mr XXX ceased to hold employment with the council as a result of a permanent incapacity, it was caused by an injury sustained as a result of anything he was required to do in carrying out his work.

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

(a) Mr XXX is aged 58;

(b) he was employed by the council from 1 April 1976 as a Driver/Gardener within the Department of Leisure & Community Services;

(d) he retired on ill-health grounds on 16 February 1996;

(e) on 7 September 1996 you appealed to the Secretary of State against the council’s decision not to consider awarding Mr XXX an annual injury allowance.

5. Mr XXX maintains that the permanent ill-health which brought about his retirement is attributable to an injury which he claims he sustained whilst in the employment of the council in July 1979. Mr XXX alleges that the injury led him to suffer a hernia. It is further maintained that although an accident report was never completed, Mr XXX has produced evidence, from his former supervisor who was aware of the accident and former colleagues who witnessed the accident. The council state that there is no evidence that an accident occurred, that no proper accident report seems to have been made although Mr XXX was aware of the procedure, that the appellant seems in doubt over the date, that the issue was not raised until some 15-17 years after the alleged injury, and that payment of an injury allowance is not therefore considered relevant.

6. 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 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. The relevant provisions of the 1996 regulations which deal with the question of awarding an annual injury allowance are as follows:

“Regulation 34-(1) if-

(a) as a result of anything he was required to do in carrying out his work a person employed in a relevant employment -

(a) sustains an injury; or

(b) contracts a disease; and

(b) he ceases to be employed in that or any other relevant employment as a result of an incapacity which is likely to be permanent and was caused by the injury or disease,

he shall be entitled to an annual allowance not exceeding 85 percent of his annual rate of remuneration in respect of the employment when he ceased to be employed.”

8. To assist the Secretary of State in reaching a conclusion, Mr XXX underwent an independent medical examination on 8 September 1997 by Mr XXX, Consultant Physician.

9. In his report, copies of which were sent to both the parties, Mr XXX opined that there was no inguinal hernia now and this had presumably been cured by Professor Temple’s surgery on Mr XXX. Mr XXX states that the persisting pain is related to local tenderness known as pubic enthesitis. Mr XXX concluded that the gap between an accident in July 1979 and the occurrence of any symptoms in the 1980's makes it unlikely that Mr XXX’s present symptoms have anything to do with the accident.

10. The Secretary of State has carefully weighed up all the medical evidence and the contentions of the parties. He notes that all parties accept that at the time Mr XXX ceased employment he was incapable of carrying out his duties efficiently by reason of permanent ill-health. However, the Secretary of State notes that little detailed or conclusive evidence has been provided about the injury Mr XXX alleges he sustained in July 1979, and he notes the independent medical examiner’s view that, given the timescale, it is unlikely that Mr XXX’s problems are related to an accident in July 1979. He concludes that, on the balance of probabilities, Mr XXX did not cease his employment with the council because of an incapacity which was caused by an injury or disease as a result of anything he was required to do in carrying out his work in the sense required by regulation 34 of the 1996 regulations.

11. The Secretary of State determines as set out above and dismisses the appeal.

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

13. 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.