264                INDEX

Our Ref: LGR 79/2/383

Date:       January   1998

SUPERANNUATION ACT 1972

THE LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (“the 1986 regulations”)

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 Ltd  (“the company ”)  not to award you immediate payment of ill-health retirement benefits under regulation E2(1)(b)(i) with enhancement under Schedule 9 of the 1986 regulations when you ceased your employment on 6 April 1995.

 

2. The appeal has been conducted by correspondence. Consideration has been given to your letters; to your GP Dr XXX’s letter; to the company’s letters; and to all the copy documents enclosed with those letters.

 

3.         The Secretary of State takes the view that the question for determination is whether at the time you ceased your employment with the company you were incapable of carrying out efficiently the duties of that employment 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 39;

 

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

 

(c) you had accumulated 13 years and 268 days reckonable and pensionable service;

 

(d) on 21 April 1994, you commenced your sickness absence and did not return to work;

 

(e) on 6 April 1995, your employment was terminated;

 

            (f) in May 1995, you appealed to the Secretary of State against the company’s decision              not to retire you on grounds of ill-health from the date you ceased your employment.

 

5.       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 which 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.

 

6. Regulation E2(1)(b)(i) of the 1986 regulations makes no reference to any positive act that brings employment to an end. 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 his employment ceased or at an earlier date, it will be necessary to establish that it was permanent in the sense required by the regulations.

 

7. To assist the Secretary of State in reaching a conclusion in this matter, you underwent an independent medical examination on 18 December 1996 by Dr XXX, Consultant Renal Physician.  In his report, Dr XXX opined that you may have left sided renal scarring but it is not sufficient to make you incapable of carrying out your work since it is a generally a painless condition and furthermore your pain does not seem to be related to the kidney and appears to be more musculoskeletal in origin. He felt that you needed further investigation by a Consultant Orthopaedic Surgeon.

 

8.         The Department arranged for another medical examination with Mr M XXX, Consultant Orthopaedic Surgeon. In his report dated 27 June 1997, copies of which were sent to both the parties, Mr XXX opined that you have been suffering from pain in the low back and principally left loin for some time but your spine is clinically and radiologically normal. He also felt that there is some patello-femoral degenerative changes but did not detect evidence of severe arthritis. He stated that you have no major underlying physical disability. He concluded that your physical state as such is quite consistent with you being able to carry out a job without doing yourself any harm or damage.

 

9.         Following the medical examination with Mr XXX and his subsequent medical report, you made the following comments:

 

(a) you are required to take daily medication;

 

(b) you had physiotherapy for your knees and not for loin back pain;

 

(c) your good musculature is a result of your training in several different styles of self-     defence and training with the Parachute Regiment T.A;

 

(d) you are waiting for an appointment for to investigate the headaches and dizziness      from which you suffer;

 

(e) you have not complained of back pain but pain in the region of your left kidney; and

 

(f) you contest Mr XXX’s findings of your medical condition in relation to scarring         on your  kidney or the arthritis.

 

10.       In response, a copy of which is enclosed, Mr XXX accepted the points that you have made but stood by the conclusions he reached in his report.

 

11.       Taking all the medical evidence into account and on the balance of probabilities, the Secretary of State takes the view that it has not been shown that you were suffering from permanent ill-health or infirmity of mind at the time you ceased your employment so as to be incapable of carrying out your duties as a bus driver in the sense required by the 1986 regulations. The Secretary of State therefore dismisses the appeal.

 

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

 

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, officers may not discuss or comment on the case further.