LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter dated 25 June 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mrs XXX, against the decision of Mr XXX, the Appointed Person for XXX, in relation to her local government pension scheme (LGPS) dispute with XXX (the council).

 

2.                  The Appointed Person upheld the decision of the council not to award Mrs XXX immediate payment of ill-health retirement benefits from when she ceased employment with them on 19 May 1999.

 

3.                  The question for decision: The question for decision by the Secretary of State is whether Mrs XXX ceased employment with the council on 19 May 1999 by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body, and so qualifies for the immediate payment of her LGPS benefits.

 

4.                  Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations.  Based on the balance of probabilities, he finds that for the purposes of the 1997 regulations it has not been shown conclusively that, at the time Mrs XXX ceased employment with the council on 19 May 1999 she was permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulations which he considers apply in this case are set out in the annex to this letter, which forms an integral part of the decision.  He 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.

 

5.                  The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve.  Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

 

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

 

            EVIDENCE RECEIVED

 

1.                  The following evidence has been received and taken into account:

 

a)                  from you: letters dated 25 June (with enclosures), 20 August, 24 August, 13 October (with enclosure) and 3 November 1999;

 

b)                  from the Appointed Person: letter dated 29 June 1999; and

 

c)                  from the council: letters dated 31 August, 22 September and 29 October 1999 and faxes received in the Department on 13 August and 17 August 1999.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

2.                  From the evidence submitted the following points have been noted:

 

a)                  Mrs XXX's date of birth is 14 May 1944;

 

b)                  she was employed by the council as a Senior Administrative Officer at XXX School;

 

c)                  she was a member of the LGPS;

 

d)                  on 12 May 1994 she commenced an extended period of sickness absence;

 

e)                  on 27 August 1997 Mrs XXX formally requested ill-health retirement;

 

f)                    on 22 January 1999 the council dismissed her application based on the advice of their medical advisor; and 

 

g)                  her employment with the council was terminated on 19 May 1999.

 

3.                  You are dissatisfied with the Appointed Person's handling of the case, particularly his interpretation of the medical evidence.  You contend that insufficient weight has been given to the opinion of Mr XXX and you maintain that Dr XXX and Mr XXX did not consider the correct test when examining Mrs XXX.  You also feel that the post-1993 job description, submitted by XXX School, does not accurately reflect the work undertaken by Mrs XXX.

 

4.                  The Appointed Person decided that "... given the divergence between XXX's own Occupational Health Advisor's (Dr XXX) previous views and those of Dr XXX's, XXX had to seek further independent advice.  This they did by referral to Dr XXX a Consultant in Orthopaedic Surgery and his opinion is quite categoric i.e. Mrs XXX is not permanently unfit to undertake her duties.  On the basis of that opinion when viewed against the requirements of the pension scheme, XXX could not effect an ill-health retirement in this case.".

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time Mrs XXX ceased employment the 1997 regulations were in force. Regulation 27 of the 1997 regulations provides for a member's pension and retirement grant to be paid immediately, with enhancement where applicable, where they cease employment because they are permanently incapable of performing their duties efficiently due to ill-health or infirmity of mind or body.

 

6.                  Taking first the issue of Mrs XXX’s job description, the Secretary of State notes that the council have approached Mrs XXX’s former employers (XXX School) on several occasions, seeking clarification of the job description provided.  He is also satisfied that you have had every opportunity to provide appropriate evidence to support your contention that Mrs XXX’s job description is incorrect.  In the light of the fact that you have provided no conflicting evidence, the Secretary of State has to accept that the job description provided is a proper reflection of Mrs XXX’s duties.

 

7.                  The Secretary of State notes your contention that insufficient weight has been given to the opinion of Mr XXX, Director of Accident and Emergency Services and Consultant Hand Surgeon.  Mr XXX concluded that Mrs XXX "... will not be able to return to her previous work ...".  The Secretary of State notes the comments made by Dr XXX that Mr XXX "... is a National Health Service consultant in accident and emergency.  As such it is unclear why Mr XXX has been chosen to provide an opinion.".  However, he also notes Dr XXX's further comments that "As Mrs XXX had provided a medical opinion from Mr XXX which conflicted with the opinion I had received from Dr XXX I advised the Council to obtain the opinion of a suitably qualified specialist.".  The Secretary of State is satisfied therefore that Mr XXX's opinion was fully considered by Dr XXX and the council in making their decision to refer the matter to Mr M XXX, Consultant in Orthopaedic Surgery.

 

8.                  The Secretary of State notes your contention that neither Dr XXX, Consultant Physician & Rheumatologist, nor Mr XXX considered whether Mrs XXX was permanently incapable of discharging efficiently the duties of the relevant employment because of ill-health of infirmity of mind or body.  He notes that Dr XXX makes no reference to Mrs XXX’s employment as a Senior Administrative Officer, and that it is not clear when he made his hand written comment, on his letter of 25 April 1995, that "I do not think she is permanently unfit for her work".  The Secretary of State also notes that Mr XXX makes no reference to the correct test.  However, when the matter was referred to Mr XXX, the Secretary of State notes that he had access to Mrs XXXs' job description and that Dr XXX specifically asked him to "... provide an opinion on the balance of probabilities as to whether he considered Mrs XXX should be fit to return to work as a Senior Administration Officer in a school before reaching the age of sixty.".  The Secretary of State takes the view, therefore, that whilst Mr XXX did not use the exact wording as set out in the regulations, he did effectively consider whether Mrs XXX was permanently incapable of discharging efficiently her duties as a Senior Administrative Officer.

 

9.                  The Secretary of State is satisfied therefore that the council have properly applied the requirements of the pensions regulations as they relate to whether Mrs XXX is entitled to an ill-health pension on ceasing employment.  It should be noted that the Secretary of State does not have any power to order redress or award compensation even if it were shown that maladministration had occurred leading to financial loss or injustice

 

10.              Turning to the medical question, the Secretary of State has noted all the medical evidence submitted to him comprising: report from Mr XXX, MD, FRCS, Director of Accident and Emergency Services and Consultant Hand Surgeon, dated 7 September 1994 and letters dated 8 May 1996, 11 August 1997 and 11 May 1998; report from Dr XXX, Consultant Physician & Rheumatologist, dated 29 December 1994 and letters dated 14 March, 24 March and 25 April 1995; letter from Mr XXX, FRCS, Consultant in Orthopaedic Surgery, dated 31 March 1998 and reports dated 6 February and 9 October 1998; and memorandum from the council's medical advisor, Dr XXX, MB BS DRCOG FRIPHH, Occupational Health Physician, dated 15 December 1998 and letter dated 9 March 1999.  Taken together this evidence leads him to conclude that Mrs XXX is suffering from some pain and discomfort in her hands and cervical spine.  There is evidence to suggest that this may be due to tenosynovitis and there is also some weight of evidence to suggest that she has constitutional osteo-artritic changes and age-related degenerative changes.  It is clear to the Secretary of State that there is a conflict of medical opinion whether Mrs XXX’s condition makes her permanently incapable of efficiently performing her duties.  The Secretary of State does not underestimate the opinion of Dr XXX.  However, he considers that the opinion of Mr XXX has been given while taking account of that of Dr XXX.  Based on the balance of probabilities, the Secretary of State does not find that the medical evidence on balance conclusively shows that Mrs XXX's condition makes her permanently incapable of performing efficiently her duties as a Senior Administrative Officer, not withstanding the opinion of Dr XXX.

 

11.              The Secretary of State concludes, therefore, that there is no conclusive medical evidence that at the time she ceased employment with the council on 19 May 1999 Mrs XXX was suffering from such a condition of ill-health or infirmity of mind or body that she is permanently incapable of performing her duties in the sense outlined above as required by the regulations.