LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.      I refer to your letter dated 30 October 2000 in which you appeal (under regulation 102 of the 1997regulations), on behalf of Mr XXX, against the decision of Mr XXX, the Appointed Person for XXX Council (the council), in relation to his local government pension scheme (LGPS) dispute with the council.

 

2.      The Appointed Person found that Mr XXX did not satisfy the requirements of the LGPS regulations for the immediate payment of LGPS benefits from 18 August 2000 on the grounds of ill-health.

 

3.      The question for decision: The question for decision by the Secretary of State is whether Mr XXX ceased employment with the council on 18 August 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, and so qualifies for the immediate payment of his LGPS benefits.

 

4.      The 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 it has not been shown that on the balance of probabilities Mr XXX ceased employment with the council on 18 August 2000 because he was 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 dismisses your appeal.  His decision confirms that made by the Appointed Person although because the reasons for his decision are different it technically replaces it.

 

6.      The Secretary of State’s 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.

 

7.      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.

 

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 they have failed to resolve.  Their address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7233 8080).

 

9.      The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law made or referred in accordance with the Pension Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7834 9144).

 

EVIDENCE RECEIVED

 

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

 

a)   from you: letter dated 23 October 2000 (with enclosures) and 22 December 2000 (with enclosure); and

 

b)   from the Appointed Person: letters dated 5 December 2000 (enclosing copies of the documents considered by him) (list enclosed with the Department’s letter dated 13 December 2000) and  16 January 2001 (with enclosures) (copied to you with the Department’s letter dated 25 January 2001).

 

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.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)   Mr XXX’s date of birth is 2 June 1947;

 

b)   he was employed as Assistant Site Manager at XXX School;

 

c)   he commenced a period of extended sickness absence on 18 January 1999;

 

c)   on 2 March 2000 Mr XXX’s representative, Mr XXX, asked the council to consider whether Mr XXX was entitled to LGPS ill-health retirement benefits;

 

d)   the council decided that Mr XXX was not entitled to LGPS ill-health retirement benefits based upon the advice of Dr XXX;

 

f)    Mr XXX’s employment was terminated on 18 August 2000 on the grounds of medical capability; and

 

g)   the Appointed Person referred Mr XXX to Dr XXX before dismissing his appeal.

 

4.      You maintain that Mr XXX does qualify for LGPS ill-health retirement benefits on the grounds of ill-health.  You consider the diagnosis of XXX is perverse and that it should be disregarded.  Mr XXX disagrees with XXX’s assessment of his condition and contends that XXX did not consider all the relevant medical evidence before providing his opinion.

 

5.      The Appointed Person determined that “On the basis of all the medical information presented by Mr XXX, XXX Council and my independent medical adviser, XXX, I believe that Mr XXX’s illness did not satisfy the ill-health retirement test in August 2000.”.

6.      The Secretary of State has considered the additional evidence from XXX, dated 14 January 2001, which was submitted by the Appointed Person with his letter dated 16 January 2001.  He will not normally take account of material new evidence as his role is to reconsider the original disagreement referred to the Appointed Person under regulation 100 of the 1997 regulations on the basis of medical evidence that is broadly contemporaneous.  However, he considers that XXX’s letter of the 14 January 2001 is clarification of the opinion he provided in his letter dated 14 October 2000 and it does not materially alter the facts of the case.

 

7.      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 retirement 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.  Regulation 97(9) required the council, before deciding whether Mr XXX might be entitled under regulation 27 to ill-health retirement benefits, to obtain a certificate from an independent registered medical practitioner, stating his opinion whether he was permanently incapable of discharging efficiently the duties of the relevant local government employment because of ill-health or infirmity of mind or body.

 

8.      The Secretary of State notes that for his incapacity to be permanent regulation 27 provides that it would have to be unlikely to improve sufficiently for Mr XXX to perform the duties of his previous employment, or any other comparable employment with the council, efficiently before age 65.

 

9.      The Secretary of State has noted all the medical evidence submitted to him comprising: General Practitioner Dr XXX’s letter dated 17 February 2000; Locum Consultant Hand Surgeon Mr XXX’s letter dated 17 February 2000; Dr XXX’s letter dated 7 June 2000; Occupational Health Physician Dr XXX’s letters dated 26 August 1999, 18 October 1999, 7 February 2000, 9 March 2000, 1 June 2000, 18 July 2000 and 24 August 2000; and Consultant Occupational Physician Dr XXX’s letters dated 14 October 2000 and 14 January 2001.

 

10.  The Secretary of State notes that Mr XXX was referred to the council’s occupational health adviser, Dr XXX.  He notes that Dr XXX, in his letter dated 18 July 2000, stated “It is not possible to predict how much recovery, or how quick a recovery, will take place.  Nevertheless, it is not possible to predict at this point that he will not become fit return to work before his normal retirement age of sixty-five.”.

 

11.  The Secretary of State notes that before deciding whether Mr XXX was entitled to LGPS ill-health retirement benefits the council were required, under the provisions of regulation 97(9), to obtain a certificate from an independent registered medical practitioner who is qualified in occupational health medicine specifically stating whether Mr XXX was permanently incapable of discharging efficiently the duties of the relevant employment due to ill-health.  No evidence has been submitted to satisfy the Secretary of State that they did so.  Instead they appear to have relied upon the advice of their own occupational health adviser, Dr XXX, who was involved with Mr XXX’s case prior to ill-health retirement being considered and who cannot be regarded as independent within the meaning of the regulations.  However, the Secretary of State notes that the Appointed Person referred Mr XXX to an independent registered medical practitioner, who is qualified in occupational health medicine and had not previously been involved with the case.

12.  The Secretary of State notes that further medical evidence concerning Mr XXX was submitted to the council.  He notes that Dr XXX, in his letter dated 17 February 2000, stated “[Mr XXX] is unable to fulfil his duties, which I understand involves a lot of heavy work, lifting, pulling etc, and handling industrial cleaners.  If he is to retire, I think this should be on medical grounds, since it is entirely due to his medical condition that he is having to retire.”.  He also notes that Mr XXX, in his letter dated 17 February 2000, stated “As there are no immediate plans for any other therapeutic intervention regarding his right hand, it appears that Mr XXX is unable to continue his previous activities at work.”. The Secretary of State notes that neither Dr XXX or Mr XXX refer to the specific test required by the 1997 regulations and have not stated whether they consider Mr XXX’s incapacity is permanent.

 

13.  The Secretary of State notes that Dr XXX, in his letter dated 7 June 2000, stated “Obviously [Mr XXX] has a severe on going problem at the moment and is unable to undertake his current employment as a caretaker. … It is difficult to say how he will progress bearing in mind the fact that his problems already extend in excess of three years.  It is perhaps unlikely that he will make a dramatic improvement in the near future.”.  He notes that Dr XXX has not stated that he considers Mr XXX’s incapacity will be permanent within the meaning of the 1997 regulations; rather he has stated that Mr XXX’s incapacity is unlikely to improve in the near future.

 

14.  The Secretary of State notes that the Appointed Person referred Mr XXX to an independent medical practitioner qualified in occupational health medicine to determine whether Mr XXX was permanently incapable of discharging efficiently the duties of his former employment due to ill-health at the time that employment ceased.  He notes that XXX, in his letter dated 14 October 2000, stated “Whilst I have sympathy for [Mr XXX’s] predicament, I am unfortunately unable to confirm that he meets the definition of permanent ill-health as defined in the rules of the Local Government Pension Scheme Regulations.  I do not wish to support this appeal.”. 

 

15.  The Secretary of State notes that you consider XXX’s diagnosis perverse as it is in direct conflict with Mr XXX’s diagnosis.  He notes that XXX considered reports from Dr XXX, Dr XXX, Dr XXX and Mr XXX when he provided his medical opinion on Mr XXX’s condition.  The Secretary of State does not consider that a difference of medical opinion necessarily makes either opinion perverse.

 

16.  The Secretary of State notes that Mr XXX, in his letter dated 18 December 2000, stated “XXX … refused to finish me on “ill-health” stating that I did not have Carpal Tunnel.  The Specialist Mr XXX told me … that I certainly did have this disorder and the proof was in the results of the nerve conduction tests, which were carried out this year at Queens Medical Centre, Nottingham.  XXX told myself and my wife at the examination that he had not read any of the letters and reports to do with my case.  In fact he said he wasn’t even sure if he had been sent the results of the nerve conduction tests.”.  The Secretary of State notes that the Appointed Person, in his letter dated 10 January 2001, invited XXX to comment on Mr XXX’s comments.  He notes that XXX, in his letter dated 14 January 2001, stated “I enclose copies of the results of Mr XXX’s nerve conduction studies which I obtained from the Queen’s Medical Centre, Nottingham on 13 October 2000…”. He also notes that XXX, in his letter dated 14 October 2000, stated “I have read copies of reports by Drs XXX and XXX and Mr XXX FRCS.”.

 

17.  The Secretary of State notes that the medical evidence suggests that Mr XXX suffers from injuries to his wrists.  He also accepts that at the time he ceased employment the medical evidence indicates that he was incapable of discharging efficiently the duties of his former employment, or any comparable employment with the council.  However, the question the Secretary of State has to decide is whether Mr 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 him to be able to discharge efficiently the duties of his former employment, or any comparable employment with the council, before he reaches age 65.  The Secretary of State takes the view that the medical evidence taken as a whole does not demonstrate that on the balance of probabilities Mr XXX is suffering from such a condition of ill-health or infirmity of mind or body that he will be permanently incapable of discharging efficiently his former duties, or any other comparable employment with the council, in the sense outlined above as required by the regulations.