857 INDEX
LOCAL GOVERNMENT PENSION SCHEME APPEAL
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter dated 5 July 2000 in which you appeal, on behalf of Ms XXX, against the decision of Mr XXX, the Appointed Person for XXX Council (the council), in relation to her local government pension scheme (LGPS) dispute with the council.
2. The Appointed Person found that Ms XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from 2 June 2000.
3. The question for decision: The question for decision by the Secretary of State is whether Ms XXX ceased employment with the council on 2 June 2000 by reason of being permanently incapable of discharging efficiently the duties of that employment, or any other comparable employment with the council, because of ill-health or infirmity of mind or body.
4. The Secretary of State’s decision: Based on the balance of probabilities, the Secretary of State finds that for the purposes of the 1997 regulations it has not been shown conclusively that Ms XXX ceased employment with the council on 2 June 2000 because she was permanently incapable of discharging efficiently the duties of her former employment, or any other comparable employment with the council, by reason of ill-health or infirmity of mind or body, and does not therefore qualify for early release of your benefits.
5. The Secretary of State therefore dismisses your appeal. His decision confirms that made by the Appointed Person. His reasons and the regulations he considers apply in this case are set out in the annex to this letter, which forms an integral part of the decision.
6. The Secretary of State 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 7233 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 7834 9144).
1. The following evidence has been received and taken into account:
a) from you: letters dated 5 July 2000 (with enclosures), 19 July 2000 (with enclosures) and 10 August 2000;
b) from the Appointed Person: letter dated 31 July 2000 enclosing documents considered by him (list enclosed with the Department’s letter dated 7 August 2000).
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. The 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 of the provisions of the regulations.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Ms XXX’s date of birth is 14 October 1959;
b) Ms XXX was employed by the council as a Senior Residential Social Worker;
c) she was a member of the LGPS;
d) Ms XXX commenced a period of extended sickness leave on 30 December 1997;
e) Ms XXX’s employment with the council was terminated, on capability grounds, on 2 June 2000; and
f) you appealed to the Appointed Person on 7 June 2000 against the council’s decision not to put Ms XXX’s retirement benefits into payment on ill-health grounds.
4. You maintain that Ms XXX is permanently incapable of performing the duties of her former employment by reason of ill-health and that there is medical evidence to support this. You consider that because of Dr XXX’s specialist knowledge in the field of psychiatry his opinion should be paramount in this case. You also consider no one is giving consideration to Dr XXX’s opinion.
5. The council rely on the advice of the county medical officer Dr XXX, of the independent medical practice XXX, and of the county medical adviser Dr XXX, that Ms XXX’s incapacity is not permanent.
6. The Appointed Person determined that “…I have come to the conclusion that the County Council acted reasonably in relying on Dr XXX’s opinion; and that no useful purpose would be served by seeking a further medical opinion. I have therefore decided to reject this appeal.”
7. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. At the time Ms 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 former duties, or any other comparable employment with the council, efficiently due to ill-health or infirmity of mind or body.
8. The Secretary of State notes that for Ms XXX’s incapacity to be permanent it would have to be unlikely to improve sufficiently for her to discharge efficiently the duties of her former employment, or any other comparable employment with the council, before age 65.
9. The Secretary of State has considered all the medical evidence and opinion submitted to him, comprising of: Consultant in Social and Community Psychiatry Dr XXX’s letters dated 14 December 1998, 4 March 1999, 19 March 1999, and 30 April 1999; County Medical Adviser Dr XXX’s letters dated 18 June 1998, 19 October 1998, 14 January 1999 and 31 March 1999; Ms XXX’s General Practitioner Dr XXX’s letter dated 23 March 1999; Case Team Administrator for XXX (Pensions Division), Mr XXX’s letter dated 7 February 2000 with enclosed certificate of incapacity, dated 7 February 2000, signed by Dr XXX; County Medical Adviser Dr XXX’s letter dated 24 May 2000; and a list of Dr XXX’s qualifications.
10. The Secretary of State notes you consider Dr XXX’s opinion should be paramount in this case. Regulation 97 of the 1997 regulations requires that before making a decision regarding a member’s entitlement to ill-health retirement the council must obtain a certificate from an independent registered medical practitioner who is qualified in occupational health medicine. The Secretary of State notes that the evidence suggests Dr XXX does not hold such a qualification.
11. The Secretary of State notes that the council initially decided to dismiss Ms XXX on capability grounds, on 12 May 1999, based upon the recommendations of Dr XXX. In her letter dated 31 March 1999 Dr XXX stated “I cannot recommend early retirement because, given time, [Ms XXX] will be able to work and nothing from the health point of view exists to prevent her returning to [Residential Social Worker] duties. Clearly the time scale for this is likely to be lengthy and the service may not be able to cope with this.” He notes that you appealed against the council’s decision on 12 May 1999 and Ms XXX was reinstated to her former post on 12 July 1999. Ms XXX, in her letter dated 14 July 1999 stated “The Sub-Committee has no jurisdiction to determine for the purposes of the pension scheme that [Ms XXX is] permanently unfit to return to the duties of [her] job. However, after hearing conflicting medical evidence, the Sub-Committee decided not to uphold the decision to dismiss [Ms XXX] on the grounds of capability. …. The Sub-Committee recommends that [Ms XXX] be suspended on medical grounds on full pay pending the Department seeking an opinion from an independent medical practitioner who is qualified in occupational health medicine. The opinion will be whether [Ms XXX is] permanently incapable of discharging efficiently the duties of [her] employment because of ill-health or infirmity of mind or body.”
12. The Secretary of State notes that Ms XXX’s case was referred to Mr XXX at XXX (Pensions Division). In Mr XXX’s letter, dated 21 October 1999, XXX (Pensions Division) were requested to provide “a view as to whether Ms XXX should have access to her pension from the Local Government Pension Scheme due to permanent incapacity through ill-health.” He notes authorisation to obtain medical information relating to Ms XXX was given to XXX (Pensions Division), signed by Ms XXX on 21 September 1999; however, the evidence does not specifically state what medical evidence was considered by XXX (Pensions Division). He further notes that Dr XXX, in his certificate dated 7 February 2000, enclosed with Mr XXX’s letter of 7 February 2000, stated “It is my professional opinion that Mrs XX is not permanently incapable of discharging the duties of her former post or a comparable post within the organisation due to ill-health or infirmity of mind or body and therefore recommend that she is not entitled to an ill-health pension and grant.”
13. The Secretary of State notes that you contested Dr XXX’s decision stating “…XXX’s decision is based on their interpretation and expertise without even seeing XXX, doing any psychiatric tests on her and going completely against her highly qualified psychiatrist who has been working with XXX in excess of 4 years.” He notes that the council decided to refer Ms XXX to Dr XXX for a further medical opinion.
14. The Secretary of State notes the council decided not to grant Ms XXX’s ill-health retirement benefits from 2 June 2000, following the recommendation from Dr XXX. In his letter dated 24 May 2000, Dr XXX stated “Following clinical assessment and taking into account all available medical evidence it is my considered opinion that [Ms XXX] is not permanently incapable of discharging the duties of her post or a comparable post within the organisation, due to ill-health.” He notes Dr XXX considered a report from Ms XXX’s specialist Dr XXX.
15. The Secretary of State takes the view that the medical evidence suggests Ms XXX suffers from a bipolar affective disorder. He also accepts that at the time she ceased employment the medical evidence indicates that she was incapable of efficiently performing her former duties, or any other comparable employment with the council. However, the question that the Secretary of State has to decide is whether Ms XXX’s incapacity is likely to be permanent within the meaning of the regulations, that is, that it would be unlikely to improve sufficiently for her to be able to efficiently perform her former duties, or any other comparable employment with the council, before she reaches age 65. Bearing in mind her age, the Secretary of State concludes that on the balance of probabilities the medical evidence taken as a whole suggests that Ms XXX is not suffering from such a condition of ill-health or infirmity of mind or body that she will be permanently incapable of discharging efficiently her former duties, or any other comparable employment with the council, in the sense outlined above as required by the regulations.