851 INDEX
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997(the 1997 regulations)
1. I refer to your letter dated 3 August 2000 in which you appeal (under regulation 102 of the 1997 regulations), against the decision of Mr XXX, the Appointed Person for XXX Council (the council), in relation to your local government pension scheme (LGPS) dispute with the council.
2. The Appointed Person found that your employment with the council was terminated on 12 March 1999 as a result of your request for voluntary early retirement. He considered that he could not proceed with your appeal.
3. The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the council on 12 March 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 qualify for immediate payment of your LGPS benefits from that date.
4. Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. He finds that for the purposes of the 1997 regulations, it has not been shown that you ceased employment with the council on 12 March 1999 because you were permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.
5. The Secretary of State’s decision replaces that made by the Appointed Person.
6. 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 or enter into any further correspondence with you about the decision. The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.
7. 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 they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7 233 8080).
8. 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 made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 783 9144).
1. The following evidence has been received and taken into account:
a) from you: letters dated 3 August 2000 (with enclosures), 6 September 2000 (with enclosures) and 28 October 2000 (with enclosures); and
b) from the Appointed Person: documents considered by him (list enclosed in the Department’s letter dated 27 September 2000).
THE SECRETARY OF STATE’S POWERS
2. 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 you ill-health retirement benefits when your employment was terminated.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) your date of birth is 28 November 1948;
b) you were employed by the council as a Property Inspector;
c) you were a member of the LGPS;
d) you had an accident at work on 4 September 1997;
e) you commenced an extended period of sickness absence on 8 September 1997;
f) your pay was reduced to half pay from 6 March 1998;
g) you requested early retirement on the grounds of ill-health, the council confirmed your request in writing on 29 January 1999;
h) the council determined that you were not eligible for ill-health retirement on 8 February 1999;
i) you requested early retirement on 12 February 1999;
j) your employment was terminated on the grounds of early retirement on 12 March 1999 and the council agreed to your request for the early release of your LGPS benefits; and
k) on 21 August 1999 you appealed, to the Appointed Person, against the council’s decision not to award you ill-health retirement.
4. You consider that the council’s decision not to award you ill-health retirement was not taken in a fair, sensitive and compassionate way, but in a manner that was convenient to the council. You contend that no one seems to know whether your condition will be permanent, but as it has existed for two years and has not improved you consider you have strong grounds for an appeal.
5. The Appointed Person determined that “…it has now become clear that your employment was terminated as a result of your request for voluntary early retirement rather than being dismissed on the grounds of capability due to ill-health. Therefore I cannot proceed with your case.”
6. The Secretary of State notes that you were awarded an industrial injuries disablement benefit by the DSS. He takes the view that benefits awarded by the DSS are not conclusive in determining the award of LGPS benefits, as the tests to be applied are different.
7. The Secretary of State notes that you have stated, in your letter dated 28 October 2000, that you are trying to obtain further medical evidence. The Secretary of State does not consider he needs to see such evidence, as his role under the regulations is to reconsider the original disagreement referred to the Appointed Person.
8. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view apply. At the time you 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 former duties efficiently due to ill-health or infirmity of mind or body.
9. The Secretary of State takes the view for your 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.
10. The Secretary of State has noted all the medical evidence submitted to him, comprising of: Consultant Orthopaedic Surgeon, Dr XXX’s medical report dated 20 October 1998; Orthopaedic Surgeon, Dr XXX’s medical report dated 16 February 1999; Senior Occupational Health Nurse, Ms XXX’s memorandum dated 10 February 1999; Decision Notice from XXX Medical Appeal Tribunal dated 15 January 1999; Dr XXX’s medical fitness for employment form dated 5 February 1999; Consultant Occupational Physician, Dr XXX’s medical report dated 11 February 2000; and Occupational Physician, Dr XXX’s letters dated 11 March 1998, 22 April 1998 and 15 July 1998.
11. The Secretary of State takes the view that the evidence taken as a whole shows that you suffer from an injury to your back. He notes that Dr XXX, in her medical report dated 11 February 2000, stated “[you were] not, on the balance of probabilities permanently incapable of discharging efficiently the duties of employment at the time [you] took voluntary early retirement, on 12 March 1999.” The Secretary of State notes that no other medical evidence has been submitted to him that specifically states whether your condition is likely to be permanent.
12. The Secretary of State takes the view that regulation 27 gives an entitlement to benefits where two major criteria are satisfied. There is the medical criterion, which under regulation 27 must be certified by an independent registered medical practitioner who is qualified in occupational health medicine, that the member is permanently incapable of performing his former duties efficiently because of ill-health or infirmity of mind or body. That on its own, however is not sufficient to qualify for benefits. There is also the requirement that employment must cease on that account. The later criterion – the reason why employment ceases – is an employment matter. The 1997 regulations are about entitlement to benefits where certain employment conditions are satisfied. They do not themselves apply those employment conditions.
13. Your employment was terminated on 12 March 1999 by reason of early retirement, which you requested in your letter dated 13 February 1999. The Secretary of State concludes that at the time you ceased employment, therefore, you had no entitlement to ill-health retirement benefits because you ceased employment by reason of early retirement and not on the grounds of ill-health. It is not entirely clear under which provision the council have made the early payment of your LGPS benefits. Decisions whether, why and when to terminate employment are employment decisions, not pensions ones taken under the provisions in the LGPS regulations, the Secretary of State, therefore, has no powers to consider such decisions on appeal.
14. The Secretary of State notes that from the evidence available to him it appears that the council have not considered whether an Injury Allowance with regard to your loss of earnings (under the provisions of the Local Government (Discretionary Payments) Regulations 1996), or further benefits in addition to your pension can be paid.