LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your notice of appeal dated 17 August XXX 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person for XXX Council (the council), in relation to his local government pension scheme (LGPS) dispute with the council.

 

2.                  The Appointed Person found that Mr XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when he ceased employment with the council.

 

3.                  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 Secretary of State has no powers to direct the council to act outside the provisions of the regulations.  The disagreement you referred to the Appointed Person was whether the council should have granted Mr XXX ill-health retirement when his employment was terminated on 31 October 1998.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the council on 30 October 1998 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 his LGPS benefits.

 

5.                  The Secretary of State has considered all the representations and evidence.

 

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations and all the medical evidence.  Based on the balance of probabilities, he finds that for the purposes of the 1997 regulations, it has not been shown conclusively that Mr XXX ceased employment with the council on 30 October 1998 because he was permanently incapable of discharging efficiently the duties of that employment by reason 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.

 

7.                  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).

 

8.                  The Pensions Ombudsman may investigate and determine any allegation of maladministration or any complaint or 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).

 

9.                  A copy of this letter has been sent to the Appointed Person, the council and the Pension Manager.

 

EVIDENCE RECEIVED

 

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

 

a)                   from you: notice of appeal dated 17 August (with enclosures) and fax received in the Department on 20 August 1999;

 

b)                  from the Appointed Person: documents considered by him (list enclosed in the Department's letter dated 10 September 1999); and

 

c)                   from the council: copy of your former job description (copy enclosed).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mr XXX’s date of birth is 29 August 1955;

 

b)                  he was employed by the council as an Access Bus Driver;

 

c)                  he was a member of the LGPS;

 

d)                  on 29 December 1997 he commenced a period of extended sickness absence; and

 

e)                  he ceased employment with the council on 30 October 1998 on capability grounds due to ill-health.

 

3.                  Mr XXX maintains that he was refused ill-health retirement based on the advice of Mr XXX, even though the views of his GP and Dr XXX were that he should be awarded ill-health retirement.  Mr XXX also points out that he has been assessed as 24% disabled by the Industrial Injuries Disablement Benefit Adjudicating Medical Authority.

 

4.                  The Secretary of State notes Mr XXX’s comments regarding the assessment made by the Industrial Injuries Disablement Benefit Adjudicating Medical Authority.  However, the fact that Mr XXX is receiving Industrial Injuries Disablement Benefit is not conclusive, because the test that the council, the Appointed Person and the Secretary of State have to apply is a different one.  The test required under the regulations is whether Mr XXX ceased employment with the council by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body.

 

5.                  The Appointed Person determined that "Having studied all the available evidence and taken advice from my own medical advisor I find that I agree with the decision taken by XXX and must turn down Mr XXX’s appeal for ill health retirement benefits.”.

 

6.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time Mr 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.  The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for Mr XXX to perform the duties of his former employment efficiently before his normal retirement age when LGPS benefits must, in any case be paid.

 

7.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Mr XXX’s Occupational Health notes; letter from Dr XXX dated 16 February 1998; minutes from the Authority Medical Adviser, Dr XXX, dated 27 February and 28 August 1998; report from Dr XXX dated 14 December 1998; and the letter from the Appointed Person’s medical advisor Mr XXX, Consultant Occupational Physician, dated 21 January 1999.  The Secretary of State notes that both Dr XXX and Dr XXX, having examined Mr XXX, concluded that whilst he was suffering from problems with his shoulder, he was receiving treatment and was expected to make a full recovery.  Dr XXX states, in his minute dated 28 August 1998, that “As his condition will improve he does not meet the terms of the XXX Superannuation Scheme regarding release of pension on ill health grounds.”.

 

8.                  The Secretary of State notes that the Appointed Person obtained the opinion of Mr XXX’s GP as to whether he was permanently incapable of discharging efficiently his former duties because of ill-health.  Dr XXX confirmed that Mr XXX had suffered from problems with his shoulder for some time.  Dr XXX also considered that Mr XXX should be offered medical retirement due to his continuous ill-health.  The Appointed Person then referred the matter to his medical examiner, Mr XXX.  Mr XXX took into account the relevant medical evidence.  Whilst Mr XXX’s examination revealed a minor degree of scoliosis in Mr XXX’s dorsal and lumber spine, he was unable to establish any significant abnormality and stated that he would expect the symptoms to resolve.  He confirmed that Mr XXX was not permanently incapable of discharging efficiently his former duties because of ill-health.

 

9.                  The Secretary of State accepts that the medical evidence, on balance, shows that Mr XXX has suffered from health problems which have made him incapable of efficiently performing his duties.  However, the question that the Secretary of State has to decide is whether Mr XXX’s incapacity is likely to be permanent, i.e. that it is unlikely to improve sufficiently for him to perform the duties of his former employment efficiently before his normal retirement age when LGPS benefits must, in any case be paid.  He has seen no evidence to cause him to over-turn Mr XXX’s conclusion which was based on the medical evidence available to him.  While Dr XXX advised medical retirement, he did so on the basis of Mr XXX’s current condition; he said the prognosis was uncertain but did not conclusively say the condition was permanent.

 

10.              The Secretary of State takes the view that, on the balance of probabilities, there is no conclusive medical evidence that at the time he ceased employment with the council on 30 October 1998 Mr XXX was suffering from such a condition of ill-health or infirmity of mind or body that he will be permanently incapable of performing his duties efficiently.  He did not therefore cease employment on grounds of permanent incapability due to ill-health in the sense required by the regulations and he is not therefore entitled to the immediate payment of his LGPS benefits from when he ceased employment with the council.