310 INDEX

Our Ref: LG R 79/2/406

DATE: MARCH 1998

SUPERANNUATION ACT 1972

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 is not entitled to the payment of ill-health retirement benefits under regulation D7(1)(b) of the 1995 regulations when he ceased his employment on 26 November 1996.

2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 30 January, 25 February, 30 June and 5 December 1997; to the company’s letters of 20 May, 24 June and 21 July 1997; and to all the copy correspondence enclosed with those letters.

3. The question for determination is whether when Mr XXX ceased 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 54;

(b) on 1 August 1977, he commenced employment with the company as a full time bus driver;

(d) on 26 November 1996, Mr XXX’s employment was terminated on the grounds of capability.

5.You appealed to the Secretary of State against the company's decision not to award Mr XXX immediate payment of ill-health benefits under regulation D7(1)(b) from the date he ceased his employment.

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 company. 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 or the employee voluntarily resigning. 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 efficiently carrying out his former duties. If it is found that such a condition existed, either at the time that 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, Mr XXX underwent an independent medical examination on 8 January 1998 by Mr XXX, Consultant Orthopaedic Surgeon.

9. In his report dated 10 January 1998, copies of which were sent to both parties on 25 February 1998, Mr XXX stated that he would not normally have expected the minor right wrist fracture which Mr XXX sustained in February 1996, to have caused him more than a temporary time off work. He further stated that he has no specific pain around the wrist and has excellent wrist movement. Mr XXX felt that Mr XXX’s right arm symptoms may be related to his old right elbow injury, but he was not sure why this should now start to produce symptoms. Mr XXX considered that Mr XXX may well have some vascular claudication of the right leg but this should not necessarily interfere with bus driving. Mr XXX came to the conclusion that he was not completely convinced that Mr XXX’s symptoms were bad enough to prevent him carrying out the job as a bus driver.

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 26 November 1996, Mr XXX was not incapable of carrying out his former duties by reason of permanent ill health or infirmity of mind or body. He therefore dismisses the appeal.

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