Our Ref: LGR 79/2/396
Date: April 1998
326 INDEX
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 on behalf of Mr XXX under regulation J5 of the 1995 regulations against the decision of the XXX Ltd ("the company") that he was not entitled to the payment of ill-health retirement benefits with enhancement under regulation D7(1)(b) of the 1995 regulations when he ceased his employment on 29 April 1996.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 23 January, 25 March, 2 and 23 September and 6 October 1997; to the company's letters of 1 and 8 April, 30 July and 29 September 1997; and to all the copy correspondence enclosed with those letters.
3. The question for determination is whether when Mr XXX ceased his local government employment with the company he was incapable of carrying out efficiently his 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) Mr XXX is aged 42;
(b) he was employed by the company as a bus driver;
(c) on 8 September 1994, he was involved in a road traffic accident and since then he has suffered from back and neck pain;
(d) on 9 September 1994, he commenced his sickness absence and did not return to work;
(e) during his period of sickness, Mr XXX was seen by the company’s Medical Officer on number of occasions, who did not consider him to be permanently unfit for his post with the company;
(f) on 29 April 1996, his employment was terminated;
(g) on 23 January 1997, you appealed to the Secretary of State on the grounds that Mr XXX should have been awarded ill-health retirement benefits with enhancement from the date he ceased his employment.
5. The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to Mr XXX’ rights under the regulations, as was 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 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 Mr XXX was suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out duties as a bus driver. If it is found that such a condition existed, either at the time that his employment with the company 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.
7. To assist the Secretary of State in reaching a conclusion in this matter, Mr XXX underwent an independent medical examination on 4 December 1997 by Mr XXX, Consultant Orthopaedic Surgeon.
8. In his report dated 4 December 1997, copies of which were sent to both the parties on 12 March 1998, Mr XXX considered the medical evidence, a surveillance video provided by the company, and his own examination of Mr XXX. He concluded that since the accident, Mr XXX has been suffering from chronic low back and neck pain which interferes with his day to day life such as when sitting for prolonged periods, stooping, lifting and standing. He is evidently not totally disabled in that he is able to function perfectly on a day to day basis; nonetheless Mr XXX understood that it may well be difficult for him to undertake all the duties necessary to drive a bus. Mr XXX further stated that Mr XXX has attempted to obtain treatment from various medical sources and has been unsuccessful. Mr XXX certified the condition had existed on 29 April 1996 and it is unlikely that Mr XXX would improve sufficiently to be able to resume his former duties as a bus driver before his normal retirement age and that the condition was permanent.
9. 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 29 April 1996, Mr XXX was incapable of carrying out his former duties efficiently by reason of permanent ill-health. He therefore allows his appeal and determines that under the provisions of regulation D7(1)(b) of the 1995 regulations Mr XXX is entitled to an annual retirement pension and lump sum retiring allowance with enhancement under schedule D3.
10. A copy of this letter has been sent to the company.
11. 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.