694 INDEX
29 February 2000
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 4 December 1999 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person in relation to your local government pension scheme (LGPS) dispute with XXX (the company).
2. The Appointed Person upheld the company’s decision not to authorise early payment of your previous pension on compassionate grounds in that, as this was a discretionary matter, he was not empowered to impose a decision. He stated that the company had informed him that they had considered your personal circumstances. You contend that the company only considered commercial criteria and not the criteria required by the “Fund”, and that the company are discriminating in favour of current employees.
3. In your appeal to the Secretary of State you also complained about the confusion as to who should consider your application and the consequent time taken. This was not part of your original complaint to the Appointed Person. 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. Like the Appointed Person, the Secretary of State will not under the 1997 regulations overturn a decision where the company have exercised a discretion. His role is, rather, to ensure that the discretion has not been exercised unreasonably or improperly and, in cases where it has, to determine that the matter should be reconsidered in a proper manner.
4. The question for decision: The question for decision by the Secretary of State is whether the company acted unreasonably or improperly in deciding not to pay your deferred local government benefits on compassionate grounds.
5. The Secretary of State has considered all the representations and evidence. Copies of documents supplied by the Appointed Personwere sent to you under cover of the Department’s letter of 6 January 2000.
6. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds that the company’s decision dated 26 April 1999 was neither properly taken nor reasonable. The Secretary of State therefore determines that the company should reconsider the matter in a proper manner and reach a decision which is demonstrably reasonable. His decision does not require the company to come to a different decision if, on proper consideration and explanation of the issues, they conclude that the payment of your pension on compassionate grounds is not justified.
7. The Secretary of State’s decision replaces that made by the Appointed Person. The Secretary of State’s reasons and the regulatory provisions which he considers apply in your case are set out in the annex to this letter, which forms an integral part of this decision. He is acting judicially and has no power to modify the way the regulatory provisions 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. 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 which they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).
9. The Pensions Ombudsman may investigate and determine any complaint of maladministrationor any dispute of fact or law in relation to the LGPS made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).
10. A copy of this letter has been sent to the Appointed Person, your pension manager and your former employer who are by notice of this letter now required to re-consider the matter.