LOCAL GOVERNMENT PENSION APPEAL - MR P XXX

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter dated 26 October 1999 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of XXX (the company), against the decision of Mr XXX, the Appointed Person for XXX Fund, in relation to Mr XXX’s local government pension scheme (LGPS) dispute with the company.

 

2.                  The Appointed Person found that Mr XXX satisfied the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when he ceased employment with the company on 24 April 1999.

 

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 company or the Appointed Person to act outside the provisions of the regulations.  The disagreement that was referred to the Appointed Person was whether the company should have granted Mr XXX ill-health retirement benefits when his employment was terminated.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the company on 24 April 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 his LGPS benefits.

 

5.                  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, Mr XXX did cease employment with the company on 24 April 1999 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.

 

6.                  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 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).

 

8.                  A copy of this letter has been sent to the Appointed Person, the Pension Manager, and Mr XXX (XXX) (the union) and Mr XXX.

 

EVIDENCE RECEIVED

 

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

 

a)                   from you: letters dated 26 October (with enclosures), 4 November, 29 November, 3 December and 9 December 1999 (with enclosure) and 18 January 2000; and

 

b)                  from the Appointed Person: documents considered by him (list enclosed in the Department's letter dated 7 January 2000).

 

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 28 April 1953;

 

b)                  he was employed by the company as a PCV Driver;

 

c)                  he was a member of the LGPS;

 

d)                  in January 1999 the union applied to the company, on behalf of Mr XXX, for immediate payment of ill-health retirement benefits; and

 

e)                  on 16 April 1999 the company informed Mr XXX of their decision that his request for ill-health retirement had been denied and that his employment with the company would be terminated with effect from 24 April 1999 on incapability grounds.

 

3.                  The Secretary of State notes that, whilst you do not contest any of the facts contained within the documents considered by the Appointed Person, you dispute the opinion which arises from them.  You are dissatisfied that you were not given the opportunity to supply evidence and opinion to the Appointed Person in considering Mr XXX’s appeal.  You also maintain that Mr XXX is able to undertake suitable alternative employment, is employed in a job involving lifting and carrying, and is not therefore permanently incapacitated.

 

4.                  Taking first the matter of the company not being given the opportunity to provide evidence to the Appointed Person in support of their original decision, the Secretary of State notes that following Mr XXX’s application, the Appointed Person approached XXX Fund (the administering authority) for documents relating to the company’s original decision.   Regulation 100 of the 1997 regulations makes no specific reference to the information required by the Appointed Person in reaching his decision.  However, the Secretary of State is concerned to note that the Appointed Person did not seek documents and information from the employer in the first instance, bearing in mind that the initial decision was for the scheme employer to reach, not the administering authority.  The Secretary of State accepts that, in consequence, the company were not able to make further representations in support of their case.  However, the Secretary of State is satisfied that the Appointed Person had before him the recent medical evidence available at the time the company took their decision to refuse Mr XXX ill-health retirement benefits which gave rise to the dispute.  It does not appear to him, therefore, that the Appointed Person was deprived of, or unable to take into account, the medical evidence on which the company based their decision and thus on which their case should be founded.  In the circumstances, therefore, he regards the Appointed Person’s failure to inform them, unsatisfactory as it was, more as a matter of protocol between the company and the Appointed Person.  The Secretary of State does not intend to intervene or comment further on this issue.

 

5.                  The Appointed Person determined that "…having reviewed all the medical evidence, Dr. XXX concludes that Mr XXX is permanently incapable of discharging efficiently the duties of his employment because of the continuing ill health.  Further, Dr. XXX is satisfied this was so at the time Mr. XXX was dismissed (i.e. 18^th November, 1998).  On balance, I am satisfied that Mr. XXX satisfied Regulation 27 of the 1997 Regulations and is entitled to ill health retirement.”.

 

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 has not been shown a copy of any letter terminating Mr XXX’s employment.  However, it is clear from the evidence submitted, relating to Mr XXX’s disciplinary interview on 18 November 1998 and subsequent appeals, that Mr XXX was dismissed on grounds of incapability. If, therefore, his incapability is shown to be permanent and due to ill-health, the criteria for immediate payment of retirement benefits would be satisfied. 

 

7.                  The Secretary of State takes the view that for ill-health incapability 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.  The Secretary of State notes that you have now made reference to observations of Mr XXX’s behaviour and allege he is able to undertake suitable alternative employment because he now works as a customer advisor for XXX.  You maintain that this is not commensurate with permanent medical incapacity.  The Secretary of State notes that you have not sought to present any qualified medical evidence or opinion to assess these circumstances against the test required by the regulations and to support your contentions.  Since 20 May 1999 regulation 27 of the 1997 regulations has been amended so that the test for a member ceasing employment must also consider whether he is permanently incapable of carrying out the duties of any other comparable employment with his employing authority.  However, as Mr XXX ceased employment with the company on 24 April 1999, the amended test does not apply to him.  In any case, the Secretary of State does not consider that a different employment with another organisation is the same test as a comparable employment with his employing authority.

 

8.                  The Secretary of State has noted all the medical evidence submitted to him comprising: report from Mr XXX, FRCS, Consultant Orthopaedic Surgeon, dated 26 November 1998; letter from Mr XXX, Consultant Orthopaedic Surgeon, dated 17 December 1998; internal memorandum from Dr XXX, Company Medical Advisor, dated 7 January 1999; and letter from the Appointed Person’s medical advisor, Dr XXX, Consultant/Director of Occupational Health Services, dated 30 July 1999.  The Secretary of State notes that both Mr XXX and Mr XXX identified that Mr XXX was suffering from cervical spondylosis and that it would be difficult for him to return to his duties as a PCV Driver.  He notes that based on these reports, and an examination, the company’s medical advisor, Dr XXX concluded that Mr XXX was “… permanently incapacitated from pursuing his job.”.  He also notes that the Appointed Person’s medical advisor, Dr XXX, who specifically referred to the medical reports from Dr XXX and Mr XXX, concluded that Mr XXX was “… permanently incapable of discharging efficiently the duties of his employment by reasons of ill health …”.  The Secretary of State finds it difficult to endorse your and the Appointed Person’s view that there is conflicting medical evidence regarding Mr XXX’s incapacity.  The medical evidence available to the Secretary of State indicates that when Mr XXX’s employment was terminated he was permanently incapable of undertaking his duties as a PCV Driver on grounds of ill-health, and this condition was permanent.

 

9.                  The Secretary of State concludes therefore that, on the balance of probabilities, at the time he ceased employment with the company on 24 April 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 cease employment on grounds of permanent incapability due to ill-health in the sense required by the regulations and he is therefore entitled to the immediate payment of his LGPS benefits from when he ceased employment with the company.