871      INDEX

LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.      I refer to your letter dated 25 October 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX (the administering authority), in relation to your local government pension scheme (LGPS) dispute with XXX Borough Council (the council).

 

2.      The Appointed Person found that you did not satisfy the requirements of the LGPS regulations for the immediate payment of your LGPS benefits from 31 December 1999.

 

3.      The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the council on 31 December 1999 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: The Secretary of State has considered all the representations and evidence submitted to him.  He finds that, for the purposes of the 1997 regulations, it has not been shown that on the balance of probability you ceased employment with the council on 31 December 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.  However, in view of the later medical evidence provided by your General Practitioner the council must consider whether you now qualify for early release of your benefits under regulation 31.  They must refer this matter to an independent registered medical practitioner (not their Occupational Health adviser) as required by regulation 97.

 

5.      The Secretary of State dismisses your appeal.  His decision confirms 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 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).

 

EVIDENCE RECEIVED

 

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

 

a)   from you: letter dated 25 October 2000, undated letter received by the Department on 23 November 2000 and undated letter received by the Department on 8 January 2001; and

 

b)   from the Appointed Person: letter dated 8 December 2000 enclosing copies of the documents considered by him (copies sent to you with the Department’s letter dated 28 October 2000).

 

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 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 received the following points have been noted:

 

a)   your date of birth is 31 July 1953;

 

b)   you were employed by the council as a plumber;

 

c)   your employment was terminated on 31 December 1999 on the grounds that you were unfit for employment as a plumber;

 

d)   the council decided that you were not entitled to the immediate payment of LGPS ill-health retirement benefits from when your employment ceased following advice from their Occupational Health Adviser Dr XXX;

 

e)   on 10 January 2000 you appealed to the Appointed Person, against the council’s decision not to award you the payment of LGPS ill-health retirement benefits; and

 

f)    the Appointed Person referred you to Dr XXX who produced a report on you dated 14 May 2000.

 

4.      The Appointed Person determined that “Given the present medical evidence [Dr XXX] is of the opinion that “on the balance of probabilities” your health problems are not likely to be permanently disabling.  Thus she does not feel that you meet the criteria for permanent incapacity under the pension scheme regulations.  My decision therefore is that you did not qualify for ill-health retirement benefits and I cannot uphold your appeal.”.

 

5.      You maintain that you are permanently incapable of performing the duties of your former employment and are therefore entitled to the payment of LGPS ill-health retirement benefits.  You consider that the decision not to award you the payment of LGPS ill-health retirement benefits was based upon the injury you have suffered to your shoulder and that the medical evidence failed to consider other medical conditions that you suffer from.

 

6.      The Secretary of State notes that it appears you have been awarded the payment of incapacity benefits 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 contend the decision not to award you ill-health retirement benefits was based upon the injury to your shoulder and the medical evidence failed to consider other medical conditions you suffer from.  He notes that Dr XXX, in her medical report dated 14 May 2000, has referred to “…problems with [your] foot…” and has stated “[you have] other health problems which I have advised [you] to ask [your] GP to refer [you] for further specialist investigations if they continue to bother [you].”.  He considers that Dr XXX has clearly referred to health problems other than your shoulder.

 

8.      The Secretary of State has considered the additional medical report submitted by your General Practitioner, Dr XXX, dated 28 October 2000.  The Secretary of State does not normally take account of new medical evidence as his role under the regulations is to reconsider the original disagreement referred to the Appointed Person.  The Secretary of State has to consider your condition at the time you ceased employment and must therefore rely on medical evidence that is broadly contemporaneous with that event.  Significant new medical findings which have emerged since that time must first be considered by the council.

 

9.      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 discharging efficiently the duties of their former employment, or any other comparable employment with the council, because of ill-health or infirmity of mind or body.  Regulation 31 allows a member who has ceased employment to elect to receive his benefits early in certain circumstances, and if the member is permanently incapable of efficiently carrying out their former duties, the council must pay them without any reduction.  Regulation 97 requires the council, before deciding whether or not to release benefits on ill-health grounds, to obtain the opinion of an independent registered medical practitioner qualified in occupational health medicine, as to whether a member is so incapable.

 

10.  The Secretary of State notes that for your incapacity to be permanent regulation 27 provides that it would have to be unlikely to improve sufficiently for you to efficiently discharge the duties of your former employment, or any other comparable employment with the council, before age 65.

 

11.  The Secretary of State has noted all the medical evidence submitted to him comprising: Consultant Occupational Physician Dr XXX’s letters dated 14 March 2000 and 21 April 2000, and medical report dated 14 May 2000.  He notes your General Practitioner Dr XXX’s medical report dated 28 October 2000.

 

12.  The Secretary of State is less than satisfied at the paucity of medical evidence submitted to him in this case.  He has not been provided, either by you or by the council, with your specialist’s medical reports.  It is not therefore clear to him whether your General Practitioner and specialist considered the specific test required by the regulation, at the time you ceased employment.  Furthermore, the council appear to have based their decision not to pay your benefits on advice from their Occupational Health Adviser Dr XXX, who it appears had already been involved in advising the council on your case.  Again, the council have not provided Dr XXX’s report.  However, the Secretary of State does not consider that Dr XXX, given his role in relation to the council and his previous involvement, can be considered “independent” within the meaning of regulation 97.  However, the Secretary of State notes that the Appointed Person did refer you to an appropriate independent registered medical practitioner, Dr XXX.  He notes that Dr XXX considered reports from a specialist involved in your treatment and from the council’s Occupational Health Adviser.  He also notes Dr XXX examined you.

 

13.  The Secretary of State notes that, in her medical report dated 14 May 2000, Dr XXX stated “Given the present medical evidence, I am of the opinion that ‘on the balance of probabilities’ [your] health problems [are] not likely to be permanently disabling.  Thus I feel [your] current health problems do not satisfy the rules of the pension scheme and I am unable to uphold [your] appeal.”.

 

14.  The Secretary of State notes that Dr XXX, in his medical report dated 28 October 2000, stated “In June, 2000 [you were] admitted to hospital with chest pain.  It was diagnosed as Ischemic Heart Disease and Hypertension.”.  He notes that this event post-dates the decisions of both the council and the Appointed Person.  He also notes that Dr XXX has stated “…[you] will not be fit to do [your] normal job as a plumber.”.  The Secretary of State notes that Dr XXX has not stated whether he considers this is permanent within the meaning of the regulations.

 

15.  The Secretary of State finds that the medical evidence does not show that on the balance of probabilities you were suffering from such a condition of ill-health or infirmity of mind or body that you would be permanently incapable of discharging efficiently the duties of your former employment, or any other comparable employment with the council, at the time your employment ceased.  The Secretary of State notes however that since the decisions of the council and the Appointed Person you have been diagnosed as suffering from Ischemic heart disease and hypertension.  In the particular circumstances of your case, he has decided that the council must now consider whether you have subsequently become so incapable.  The council, in reaching a decision whether you are entitled under the provisions of regulation 31, will be required to observe the requirements of regulation 97 properly this time, and refer the medical question to an independent registered medical practitioner qualified in occupational health medicine for a decision on your medical condition.