|
|
873 INDEX
LOCAL GOVERNMENT PENSION APPEAL
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter dated 27 October 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of ****, the Appointed Person for ****, in relation to your local government pension scheme (LGPS) dispute with ****.
2. The Appointed Person, in his decision dated 21 August 2000, upheld the **** decision that they could not pay you an additional lump sum and reduced pension.
3. The questions for decision: The questions for decision by the Secretary of State are whether **** should have paid you a larger lump sum in lieu of a reduced pension under regulation 59, and whether you have suffered financial loss or injustice as a result of maladministration by the ****.
4. Secretary of State’s decision: The Secretary of State has decided that the *** could not pay you a larger lump sum and reduced pension under regulation 59 from when you retired on the grounds of ill health on 19 May 2000. He also finds that the ***** are guilty of maladministration. However, you have not produced objective evidence to show that you have suffered financial loss or injustice as a result of this. Even where this is shown to be the case, the Secretary of State has no power to award compensation.
5. The Secretary of State therefore dismisses your appeal. His decision confirms that made by the Appointed Person.
6. The Secretary of State’s reasons and the regulations he considers apply in this case are set out in the annex to this letter, which forms an integral part of his decision.
7. The Secretary of State is acting judicially and has no power to modify the way the regulations apply to the facts of the case. Having made his decision he has no power to alter it and his officials cannot discuss the case further. The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.
1. The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to the Appointed Person under regulation 100. This regulation refers to a matter relating to the LGPS, which effectively means whether the statutory provisions governing the LGPS have been correctly applied in the circumstances. The complaint you referred to the Appointed Person was that the ***** supplied you with incorrect figures for your pension benefit entitlement, and that you had agreed to your ill health retirement only on the basis of those figures.
2. The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations.
EVIDENCE RECEIVED
3. The following evidence has been received and taken into account:
a) from you: letter dated 27 October 2000 (with enclosures); and
b) from the Appointed Person: letter dated 4 December 2000 (with the enclosures copied to you with the Department’s letter of 13 December 2000).
4. From the evidence submitted the following relevant points have been noted:
a) You joined the LGPS on 1 April 1986 and left on 6 November 1987 with deferred benefits;
b) On 29 June 1992 you rejoined the scheme;
c) On 18 May 2000 you signed a commutation election form to give up part of your annual pension for a larger lump sum;
d) On 19 May 2000 you ceased employment with *** Council (the Council) on the grounds of permanent incapability due to ill health and you became entitled to immediate payment of your LGPS benefits;
e) On 1 June 2000 the ***** wrote to inform you that you had been given the option to commute part of your annual pension for a larger lump sum in error; and
f) On 20 June 2000 you wrote a letter of complaint against the *****’s decision not to pay you a larger lump sum, which was passed to the Appointed Person.
5. You contend that the ***** have misled and misinformed you, and that they are guilty of maladministration. You also state that the new figures supplied came as a great shock to you and have involved you in a great deal of trauma, and that the ***** have failed to address your situation.
6. The Appointed Person considered the 1997 regulations. He found that you were not entitled to make an election to receive an additional lump sum and reduced pension under regulation 59 because ‘there is a break in your service from 7th November 1987 to 29th June 1992.’ He further found that ‘there are no provisions in the rules governing the LGPS which would allow the **** to pay you an additional lump sum and reduced pension.’
7. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. When you ceased your employment on 19 May 2000 the 1997 regulations were in force. Regulation 59 provides that, where a Class C member has become entitled to immediate payment of their pension, he may make an election for an additional lump sum to be paid in lieu of a reduced pension. Schedule 4, 1(1) stipulates that a Class C member is a member who joined the Scheme before 17 March 1987 and has continued to be a member since before that date.
8. The Secretary of State has considered the regulations. He finds, like the Appointed Person, that you were not eligible to make an election to receive a higher lump sum and reduced annual pension under regulation 59 when you ceased employment, because you did not have continuous active membership in the Scheme from before 17 March 1987. He also notes however, that you do not dispute that Scheme rules have been applied correctly in your case, and that your complaint is one of maladministration.
9. The Secretary of State notes your complaint that the terms offered to you by the ***** Council’s representative on 18 May 2000 were not the same as those which you were given by the ***** on 1 June 2000. He notes that the ***** state in their letter dated 1 June 2000 that ‘Unfortunately you have been given the option to commute part of your pension to make a bigger lump sum in error. This option is only available to members who have continuous pensionable service starting before 17 March 1987. Although you commenced pensionable employment on 25 March 1986 you have a break in your service for the period 7 November 1987 to 29 June 1992. This was overlooked on processing your retirement estimate. I can only apologise for any inconvenience caused by this oversight.’ The Secretary of State takes the view, therefore, that it has not been disputed that the ***** made an administrative error by initially overlooking your break in service and consequently offered you benefits in a form you were not entitled to.
10. The Secretary of State has noted your complaint to the Appointed Person that ‘At the final meeting with my manager from the Council I agreed to Ill Health Retirement based solely on the figures I had received from you [the *****].’ He has considered, therefore, whether the date you ceased your employment was affected by the *****’s mistaken quote. The Secretary of State has noted the Council’s statement in their letter to the Appointed Person dated 4 July that ‘***** felt that the benefit of being able to have a bigger lump sum influenced her decision to retire although I did stress that ill health retirement was a management decision and it was not an option where she had a choice.’ The Secretary of State notes that for a member to cease employment on the grounds of ill-health with immediate entitlement to benefits, the employer must ensure he has been certified by an independent medical practitioner who is qualified in occupational health medicine, that he is permanently incapable of efficiently performing his employment duties. He further notes that pension benefits arising from a cessation of employment on these grounds must be calculated in accordance with the regulations. The Secretary of State takes the view that the decision to terminate your employment was a management decision necessitated by your ill health which was a factor beyond your control. Because your cessation of employment was due to ill health, your employer had to make a decision whether your LGPS benefits should be paid immediately. As your benefits were paid immediately the Secretary of State takes the view that the conditions for them to be paid immediately had been met. This is, in any case, not the subject of your dispute. The benefits which then became payable are set out in statutory regulations and are also non-negotiable. The Secretary of State finds, therefore, that although the ***** supplied incorrect figures of entitlement, this fact should not have had any affect on the timing of your cessation of employment, because it was the Council’s decision to terminate your employment and not one for you to negotiate.
11. The Secretary of State finds, like the Appointed Person, that the ***** could not pay your LGPS benefits in the form you had elected to take them under regulation 59, because due to a break in your service you were not entitled to make such an election. He also finds that the ***** are guilty of maladministration. However, although he notes this came as a great shock to you, and has subjected you to a great deal of distress, he finds that you have not produced objective evidence to show that the error by the ***** led to financial loss or injustice.