Our Ref: LGR 79/2/394
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 ceased on 27th May 1995.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 12 February, 17 March, 8 May, 26 June and 5 November 1997; to the council's letters of 27 March, 4 July and 20 August 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 37;
(b) you were employed by XXX as a Bus Driver;
(c) on 26 March 1994, you were injured in a cycling accident;
(d) following a long period of sick absence your employment was terminated on 27 May 1995;
(e) you applied for ill-health retirement but the Council's Medical Officer did not consider you permanently unfit and turned down your application;
(f) on 16 September 1996, you were awarded early release of your preserved benefits on ill-health grounds, following the submission of medical evidence that was not available at the time your employment ceased;
(g) 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 ceased.
5. You maintain that you were incapable of carrying out your former duties efficiently by reason of permanent ill-health at the time your employment ceased; however, the delay in your being seen by a Consultant following your accident prevented medical evidence to this effect being presented to the council prior to your termination. The council maintain that there was no medical evidence to support the view that your condition be regarded as permanent at the time your employment ceased.
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 bus driver. 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 16 December 1997 by Mr XXX, Consultant Orthopaedic Surgeon.
9. In his report, copies of which were sent to both parties on 20 February 1998, Mr XXX stated that as a result of the cycling accident in which you were involved on 26 March 1994, you are suffering from post whiplash syndrome with cervical spondylosis. He found that, at the time he examined you, you have a physical and mental condition which makes you incapable of carrying out your former duties efficiently. He was not, however, convinced that your condition should have been permanent at the time your employment ceased or was necessarily so. Had you received efficient medical and counselling support your condition might have improved considerably. However, because of the 17 month delay in your being seen by a Consultant and the lack of counselling and psychological support, it is his view that your condition is now likely to be 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 has not been shown that on 27 May 1995 you were incapable of carrying out your former duties efficiently by reason of permanent ill-health. He accepts that your condition has in all probability now become permanent, and he notes that your retirement benefits have accordingly been released early. He therefore determines that you are not entitled to an annual retirement pension and lump sum retiring allowance with enhancement from the time your employment ceased, and he dismisses your appeal.
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.