LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter received on 2 October 1999 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person in relation to your local government pension scheme (LGPS) dispute with XXX (the company).

2. The Appointed Person upheld the company’s decision in that although your ill-health rendered you incapable of fulfilling your contract of employment you were not entitled to immediate payment of retirement benefits on ill-health grounds from when you ceased that employment.

3. The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the company 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 therefore qualify for immediate payment of your retirement benefits.

4. The Secretary of State has considered all the representations and evidence. Copies of documents supplied by the Appointed Person were sent to you under cover of the department’s letter of 24 November 1999.

5. Secretary of State’s decision: The Secretary of State 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 that you ceased employment with the company by reason of being 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 regulatory provisions which he considers apply in yourcase are set out in the annex to this letter, which forms an integral part of this decision. He is acting judicially and has no power to modify the way the regulatory provisions 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.

6. This completes the second stage of the internal disputes resolution procedure. 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).

7. The Pensions Ombudsman may investigate and determine any complaint of maladministrationor any dispute of fact or law in relation to the LGPS made or referred in accordance with the Pensions Schemes Act 1993. 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: letter received on 2 October 1999 (with enclosures) and letter dated 30 November 1999; and

(b) from the Appointed Person: letter dated 19 November 1999 (with the enclosures listed in the department’s letter of 24 November 1999).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a) your date of birth is 19 July 1968;

(b) you were employed by the company as a bus driver;

(d) you have been diagnosed as suffering chronic disc deterioration at L4/5 level;

(e) on 19 January 1999 following further periods of sick leave your employment was terminated on grounds of capability.

3. You appealed to the Appointed Person against the company’s decision not to grant you an ill-health retirement pension. You consider you are entitled to a pension because your condition makes you incapable of driving a bus and you have been dismissed on that account.

4. Having regard to the medical evidence including a report he requested from Mr XXX the Appointed Person concluded he was “not satisfied that you are permanently incapable of discharging efficiently the duties of your former employment as a bus driver” and therefore “not entitled to the immediate payment of pension benefits”.

5. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. Regulation 27 of the 1997 regulations entitles a pensionable employee to receive immediate payment of their retirement benefits if their employment ceases because they are permanently incapable of performing their duties efficiently due to ill-health or infirmity of mind or body. At the time you ceased employment, “permanently incapable” was not defined in the regulations. The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for you to perform the duties of your former employment efficiently before your normal retirement age when LGPS benefits must, in any case be paid. Regulation 97(9) required an LGPS employer, where they were considering whether to grant ill-health retirement benefits under regulation 27, to refer to an independent, duly qualified medical practitioner for a decision whether, at the time the member’s employment ceased, he was on the balance of probabilities permanently incapable of efficiently discharging the duties of his employment.

6. The Secretary of State has considered the evidence. It is not disputed that the council found you to be incapable of performing your duties due to ill-health, and that ill-health was the reason for your dismissal. He notes that this was borne out by the company’s notice of termination letter of 21 January 1999 in that they concluded that “your health rendered you incapable of fulfilling your contract of employment” they “decided to terminate your contract of employment on grounds of capability”. The Secretary of State takes the view therefore that the test remaining was to establish your entitlement to immediate payment of ill-health retirement benefits from when you ceased employment is whether your incapacity was permanent. He notes that after you were examined by Mr XXX the company’s medical advisor. You were later examined by Mr XXX, Consultant Surgeon, at the request of the Appointed Person. Both referred to the report of Mr XXX, the consultant orthopaedic surgeon who was responsible for your treatment. Mr XXX’s report on your condition was produced for Mr XXX and dated 24 February 1999. He found you suffered from “chronic disc degeneration”. He considered your work as a bus driver was “probably the worst possible scenario for this disc.” However, he also advised that “the natural history of disc disease is that things do get better as the degenerate disc starts to heal itself. However, this is a very lengthy process and takes several years for the improvement to become very well established”.

7. Dr XXX’s opinion in his letter of 12 May 1999 was that your “particular problem makes it difficult at the present time to come to a conclusion on permanence … ” but that “there are real chances of recovery”. While he does not refer to the precise wording of regulation 97(9) and his letter does not take the form of a certificate the Secretary of State takes the view that the evidence sufficiently demonstrates that the council properly considered the question whether you are permanently incapable of discharging efficiently the duties of your employment because of ill-health or infirmity of mind or body, so as to qualify for the immediate payment of LGPS benefits. Mr XXX advised that it was not possible at this stage to assert that you are permanently incapacitated.

8. The Secretary of State takes the view that it has not been conclusively shown that when you ceased work your incapacity was permanent in the sense required by the regulations, as explained above. You are not therefore entitled to immediate payment of your retirement benefits. The Secretary of State therefore dismisses your appeal.