Local Government Pension Scheme Appeal Determination By The Secretary of State

276 INDEX Our Ref: LGR 79/2/376

DATE: MARCH 1998

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 under regulation J5 of the 1995 regulations against the decision of XXX ("the council") that you are not entitled to the payment of ill-health retirement benefits with enhancement under regulation D7(1)(b) of the 1995 regulations when your employment was transferred to XXX plc on 1 January 1996.

2. The appeal has been conducted by correspondence. Consideration has been given to your undated letter received on 16 October 1996, to your letters of 25 October and 19 December 1996, 24 and 25 February, 27 and 29 March, 12 May, 12 June, 18 July and 9 September 1997 and 16 January and 16 February 1998; to the council's letters of 13 and 14 November 1996, 4 March and 3 April 1997; and to all the copy correspondence enclosed with those letters.

3.The question for determination is whether when you ceased your local government 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) you are aged 38;

(b) you were employed by the council as a full time gardener;

(d) on 31 December 1994, you were stabbed in your lower back and since then you were on continuous sick leave with a back problem;

(e) on 1 January 1996, your contract of employment was transferred from the council to a private contractor, XXX plc;

(f) on 5 August 1996, due to continued ill-health, you made an application to the council for early payment of retirement benefits on ill-health grounds;

(g) in September 1996, you were seen by Dr XXX, the council’s Medical Advisor, who considered you to be permanently unfit for your former post with the council;

(h) you were awarded early release of your preserved benefits on ill-health grounds without enhancement with effect from August 1996;

(i) in October 1996 you appealed to the Secretary of State on the grounds that you should have been awarded ill-health retirement benefits with enhancement from the date your employment with the council ceased.

5.You maintain that you were incapable of carrying out your former duties efficiently by reason of permanent ill-health prior to your transfer on January 1996. The council maintain that you produced no medical reports prior to your transfer which indicated that you were permanently unfit.

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 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.

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, the employee voluntarily resigning, or transfer of work to another body. 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 duties as a full time gardener. If it is found that such a condition existed, either at the time that your council employment ceased or at an earlier date, it will be necessary to establish that it was permanent in the sense required by the regulations. To qualify for enhancement under schedule D3, the total period of membership must be not less than 5 years.

8.To assist the Secretary of State in reaching a conclusion in this matter, you underwent an independent medical examination on 13 October 1997 by Mr XXX, Consultant Orthopaedic Surgeon.

9.In his report dated 19 December 1997, copies of which were sent to the parties, Mr XXX stated that because of an accident at work on 19 January 1993, you sustained a soft tissue injury to your lumber spine, fractured two ribs and developed a low back pain. He further stated that after the second incident on 31 December 1994, your back pain worsened and you also became mentally stressed. Mr XXX considered that you would be unfit from carrying out many of the heavier duties as required of a gardener and that this condition would have existed on 31 December 1995. He certified that it was unlikely that you would improve sufficiently to be able to resume your former duties before your normal retirement age and the condition was permanent.

10.Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State takes the view that it is more likely than not that on 31December 1995 you were incapable of carrying out your former duties by reason of permanent ill-health. 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.

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.