LOCAL GOVERNMENT PENSION APPEAL - MR 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 MrXXX, the Appointed Person for XXX Fund, in relation to Mr XXX’ 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 4 January 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 on 4 January 1999.

 

4.                  The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the company on 4 January 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 4 January 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 020 7233 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 020 7834 9144).

 

8.                  A copy of this letter has been sent to the Appointed Person, the Pension Manager, and Mr XXX (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 (with enclosure) and 9 December 1999, and 18 January, 28 February, 10 March, 5 May and 22 May 2000;

 

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

 

c)                   from XXX (the union): letter dated 24 May 2000 (copy enclosed).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  Mr XXX' date of birth is 6 December 1945;

 

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

 

c)                  he was a member of the LGPS;

 

d)                  in January 1998 Mr XXX began a period of extended sickness absence;

 

e)                  he returned to work in September 1998 carrying out alternative duties as a Data Collector; and

 

f)                    on 4 January 1999 Mr XXX' employment was terminated on the grounds of capability due to ill-health.

 

3.                  You contend that Mr XXX is not incapacitated for medical reasons, but that due to his personality he finds the job difficult.  You are also dissatisfied that you were not given the opportunity to supply evidence and opinion to the Appointed Person in considering Mr XXX' appeal.

 

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' 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 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, with the apparent exception of notes from Dr XXX dated 2 June 1998 and Dr XXX dated 24 November 1998, and a copy of a letter from Mr XXX’ GP dated 7 July 1998.  It is noted that the company have not submitted these documents to the Secretary of State.  Their views on Dr XXX and Dr XXX are, however, recorded in the evidence considered by the Appointed Person and in that made available by the company to the Secretary of State.  Given the nature of their views, it does not appear to the Secretary of State 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 was presumably 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. 17.12.98).  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, or the duties of any other comparable employment with their employing authority, 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 notes that Mr XXX was employed as a PCV Driver.  However, he notes from the evidence provided that Mr XXX appears to have undertaken the duties of a data collector after he returned to work in September 1998.  The Secretary of State has therefore had to consider the specific job that Mr XXX was dismissed from.  Having put this issue to both parties, the Secretary of State notes that, whilst it is agreed that Mr XXX did undertake the duties of a data collector for a period after he returned to work in September 1998, he was undertaking the duties of a PCV driver at time he was dismissed.  The Secretary of State has therefore considered your appeal on the basis that Mr XXX was a PCV Driver.

 

8.                  The Secretary of State notes that there is no dispute that the company terminated Mr XXX’ employment on incapability grounds.  The dispute, and thus the question, for the Secretary of State to address, therefore, is whether that incapability was permanent and due to ill-health or infirmity of mind or body.

 

9.                  The Secretary of State has noted all the medical evidence submitted to him comprising: Mr XXX' occupational health record; internal memorandum from Dr XXX, Company Medical Adviser, dated 4 February 1999; and letter from the Appointed Person’s medical advisor, Dr XXX, Consultant/Director of Occupational Health Services, dated 30 July 1999.

 

10.              The Secretary of State notes that during Mr XXX' extended period of sickness absence he attended counselling sessions complaining of depression and anxiety.  He notes, however, that none of the counselling reports specifically refer to Mr XXX’ condition as being permanent.  He notes that in February 1999, the company's medical adviser, Dr XXX, examined Mr XXX to consider the question of ill-health retirement.  In his internal memorandum, dated 4 February 1999, Dr XXX states “I cannot categorically state that his condition is permanent, at the age of 53 he has 12 years before he would retire in the normal course of events and it is not entirely without the bounds of possibility that he could improve.  The probability, however, is that he will never regain the confidence to drive a PCV.”.

 

11.              The Secretary of State has next considered the opinion of the Appointed Person's medical advisor, Dr XXX.  He notes that Dr XXX clarified Mr XXX’ medical history and that he examined him.  In his letter dated 30 July 1999, Dr XXX states “Mr XXX described a 2½ year history of anxiety and depression.  He has seen a specialist and been treated with appropriate medication, but assessment confirms that he continues to have significant anxiety with depressive features.  These have not responded to appropriate treatment … After assessment I consider this gentleman does not have the robustness of psychological health to continue work as a PCV driver.  The depth of evidence was not available at the time of his dismissal, but at the time of my assessment I can confirm that on the balance of probabilities I consider Mr. XXX permanently incapable of discharging efficiently the duties of his employment, namely PCV driver, and that this permanent incapacity is by reason of ill health.”.

 

12.              The Secretary of State further notes the evidence in the memorandum dated 4 February 1999 to Dr XXX.  This refers to “a note from the previous CMO, Dr XXX, dated 2 June 1998, stating that she considered Mr XXX permanently unfit to drive a PCV for ‘medical reasons’ without explaining the detail …” and “ a note from Dr XXX dated 24 November 1998 stating he considers it reasonable to regard Mr XXX as being permanently incapable of working in a PCV driving capacity.”.  The memorandum also refers to a letter dated 7 July 1998 from Mr XXX’ GP stating “he might well be able to go back to some form of driving” but “threatening contact with the public is something he would not be able to cope with”.

 

13.              The Secretary of State notes that the company have not submitted this medical document in evidence.  He finds that the view of Mr XXX’ GP, as it has been reported, is insufficiently clear to draw a firm conclusion as to Mr XXX’ capability, its permanence, and his health.  However, the Secretary of State concludes that both Dr XXX and Dr XXX considered in 1998 that Mr XXX was permanently incapable.  He further notes that there is no evidence to show that the full import of their medical views was available to Dr XXX when he concluded that “the depth of evidence was not available at the time of [Mr XXX’] dismissal”, although he accepts that this medical view was not available to Dr XXX when he reached his conclusion.  The Secretary of State finds Dr XXX’s view in turn to be cautiously expressed, and he is far from clear that Dr XXX confidently considered that, on the balance of probability, Mr XXX will again become capable of PCV driving.  Indeed, he rather shows the opposite conclusion; that is, it appears to him that Dr XXX’s view is that, on the balance of probabilities, Mr XXX is unlikely to become so capable.  It is clear to the Secretary of State that Dr XXX found Mr XXX to be permanently incapable when he saw him on 23 July 1999, some six and a half months after he ceased employment.

 

14.              The Secretary of State has next considered the state of Mr XXX’ health.  The medical notes indicate that Mr XXX was suffering from “anxiety/depression” and “blood pressure”.  Dr XXX is reported as referring to “medical reasons” (unspecified) giving rise to Mr XXX’ permanent unfitness.  Dr XXX confirms “significant anxiety with depressive features”, unsatisfactorily controlled blood pressure and lack of “robustness of psychological health” and he is satisfied that Mr XXX’ permanent incapacity is due to ill-health.  The Secretary of State can find nothing in the remaining medical evidence to infer that Mr XXX’ is not suffering from ill-health.  However, he notes Mr XXX’s contentions, on behalf of the company, that Mr XXX is regarded as not capable “simply because he no longer wishes to or enjoys meeting people” and that this is not a “medical incapacity”; also that he is “not … incapacitated for medical reasons, but due to his personality he finds the job difficult”.  So far as the Secretary of State is aware these contentions have not been made by anyone in the company with relevant medical qualifications, experience or expertise.  The Secretary of State can find no medical basis for the company’s assertions but belied by the medical evidence.

 

15.              In all the circumstances, the Secretary of State concludes that, on the balance of probabilities, at the time he ceased employment with the company on 4 January 1999, 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.