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 ("the council") that Mr XXX is not entitled to the immediate payment of ill-health retirement benefits under regulation D7(1)(b) of the 1995 regulations when his employment ceased on 24 October 1996.

 

2.         The appeal has been conducted by correspondence. Consideration has been given to your letters of 27 February, 12 June, 5 and 26 August, 11 September, 20 October, 13 November  1997 and 17 January, 9 March, 20 April, 18 May, 4 June, 7 August, 10 September, 22 October and 5 November 1998; to the council’s letters of 28 April, 11 July, 15 August 1997 and 2 February 1998; and to all the copy correspondence enclosed with those letters.

 

3.         The question for determination is whether when Mr XXX ceased his former employment with the council, he was 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 points have been noted;

 

            (a) Mr XXX is aged 36;

 

            (b) he was employed by the council as a Refuse Collector on 14 June    1982;

 

            (c) Mr XXX became a contributor member of the Local Government    Superannuation Scheme from 14 June 1983;

 

            (d) on 24 October 1996 Mr XXX’s employment was terminated;

 

            (e) you appealed to the Secretary of State against the council's decision             not to grant Mr XXX ill-health retirement benefits grounds from the       date his employment ceased.

 

5.         You contend that Mr XXX sustained an injury in the course of his duties on 14 March 1995 which made him incapable of efficiently discharging his duties by reason of permanent ill-health or infirmity when he ceased employment. 

 

6.         The council maintain that following advice from Dr XXX, the council’s Medical Adviser, Mr XXX was examined by Dr XXX, a Consultant Rheumatologist, appointed by the council. The council comment that they took all reasonable steps to ensure that a full medical assessment of Mr XXX’s condition was conducted and found no medical evidence that he was incapable of discharging efficiently the duties of his employment by reason of permanent  ill-health or infirmity of body.

 

7.         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 council. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.

 

8.         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 carrying out efficiently his 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.

 

9.         To assist the Secretary of State in reaching a conclusion in this matter, Mr XXX underwent an independent medical examination on 13 June 1998 by Miss XXX, Consultant Orthopaedic Surgeon.

 

10.       In her report, copies of which were sent to the parties on 7 July 1998, Miss XXX reviewed all the medical evidence presented. She stated that, “although physical examination today does not reveal obvious sciatic involvement, Mr XXX still has evidence of left-sided lumbo-sacral back pain”. Miss XXX concluded that “ I am of the opinion that the injury of 14 March 1995 had resulted in Mr XXX being disabled to the extent that he is not able to pursue his original position”. She certified that he had a permanently incapacitating physical condition from before the time he ceased employment with the council.

 

11.       Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State takes the view that on 24 October 1996, Mr XXX was incapable of carrying out his former duties efficiently by reason of permanent ill-health. He therefore allows the 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 effect from 24 October 1996, with enhancement under schedule D3.

 

12.       The above constitutes the Secretary of State's determination of this case. Having made his determination the Secretary of State has no power to alter it unless instructed to by the Pensions Ombudsman or the High Court. Because of this, officials may not discuss the matter further.

 

13.       The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pensions scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).