LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 3 April 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX County Council (the county council), in relation to your local government pension scheme (LGPS) dispute with XXX District Council (the council).

 

2.                  The Appointed Person determined that your application was made outside the six month time limit and he therefore rejected your application.  He did, however, review the circumstances of your case and felt that the council had exercised their discretion reasonably in accordance with their policy for such matters.

 

3.                  The Secretary of State notes that the council informed you of their decision not to award you early release of your deferred LGPS benefits on compassionate grounds in their letter of 19 August 1998.  Whilst he is concerned to note that the council’s letter did not inform you of your right of appeal to the Appointed Person, as required under regulation 98(5) of the 1997 regulations, he notes that the county council, in their letter of 3 September 1998, state “There are formal procedures for you to follow if you have a disagreement about the decisions that have been made about you under the pension scheme.  Please see the details enclosed with this letter.”.  The Secretary of State notes that you have not disputed that you received the county council’s letter of 3 September 1998, although you maintain that the insert entitled ‘What to do if you have a complaint’ was not enclosed.  Whilst the Secretary of State notes that you do not appear to have requested a copy of the missing enclosure at that time, he takes the view that you were made aware of your right of appeal at the time the council made its decision.

 

4.                  The Secretary of State takes the view that where an individual considers he has a claim or grievance in respect of the LGPS, the law requires him to pursue it with reasonable diligence.  The Secretary of State notes that you did not make an application to the Appointed Person until 22 October 1999, some 14 months after the council’s original decision.  He acknowledges that you may not have received a copy of the insert to the county council’s letter of 3 September 1998, detailing the procedure for lodging an appeal; however, he is satisfied that you were informed in that letter that you had a right of appeal.  There is no evidence to suggest that you approached the county council for a copy of the insert at that time.  The Secretary of State also notes that in the intervening period between the council’s decision and your application to the Appointed Person you were pursuing a case through an employment tribunal; however, the Secretary of State notes that the matter seems to have been resolved via an out of court settlement in April 1999.  It is not clear to the Secretary of State why you waited over six months from the time your employment tribunal was settled out of court before making an appeal to the Appointed Person.  He takes the view therefore that you have not pursued this matter with reasonable diligence.  He concludes that he cannot reasonably give consideration to your complaint so long after the original act or omission giving rise to it.

 

5.                  The Secretary of State notes that regulation 31 of the 1997 regulations allows a member who leaves local government employment to elect to receive his benefits early, at any time, from age 50, but his election is normally only valid if his employer gives their consent.  Usually such benefits will be actuarially reduced but employers have discretion not to reduce them on compassionate grounds.  The early payment of unreduced benefits on compassionate grounds is therefore at the employing authority’s discretion; employing authorities are required by the regulations to issue policy statements on how they intend to exercise their discretions.  However, the Secretary of State notes that a member may elect under regulation 31 to receive early payment of benefits (at any age) on ill-health grounds.  In such cases, the employing authority has no discretion in the matter; they must pay the benefits if the member meets the ill-health criteria.  The procedure they have to follow is set out in regulation 97 of the 1997 regulations.  This is a quite separate provision from the discretionary provisions relating to compassionate grounds.

 

6.                  The Secretary of State notes that although you asked for your benefits on compassionate grounds, you have on more than one occasion referred to your state of health, and there is some evidence that you have health problems.  It does not appear to the Secretary of State that the council have investigated whether you qualify for early release of benefits on ill-health grounds.  Although it is not altogether clear from the evidence that you have explicitly sought release on health grounds, the Secretary of State considers the council should treat you as having elected to receive your benefits early on ill-health grounds, and must now follow the procedure in regulation 97 for deciding whether they are due.

 

7.                  The Secretary of State is concerned to note that the council, in their letter of 18 May 2000, state “… As I understand it, from reading the Appointed Person, Mr XXX is time-barred in his appeal.  How can it now even be considered further?”.  The Secretary of State does not consider that regulations 102 and 103 of the 1997 regulations fetter his powers to examine any disagreement that is referred to him within the six month deadline, even where the Appointed Person considers that the disagreement referred to him was made out of time.

 

8.                  This completes the second stage of the internal dispute 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 020 7233 8080).

 

9.                  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).