334 Index Our Ref: LGR85/19/8
8 May 1998
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
1. I refer to Mr XXX’s undated letter (which the Department received on 23 January 1998) in which he appealed (under regulation J8 of the 1995 regulations), on your behalf against the decision of XXX, the Appointed Person. The Appointed Person upheld the decision of XXX not to allow the immediate payment of your local government pension benefits on the grounds of permanent ill-health from when you were dismissed by them.
2. The question for determination by the Secretary of State is whether when you ceased employment with XXX you were incapable of carrying out your duties efficiently because of permanent ill-health, and so qualify for the immediate payment of your local government pension benefits.
3. The Secretary of State has considered all the representations and evidence. Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department’s letter of 10 March 1998.
4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that for the purposes of the 1995 regulations the balance of medical evidence is that you were not suffering from permanent ill-health or infirmity of mind or body so that you were incapable of discharging efficiently the duties of that employment at the time you ceased employment with XXX on 6 January 1997. His decision confirms that made by the Appointed Person. The Secretary of State’s reasons and the regulations which he considers apply in your case are set out in the annex to this letter, which forms an integral part of the determination. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it unless instructed to in a judgement by the High Court. Because of this officials may not discuss the case further.
5.The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).
6. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a. from Mr XXX, on behalf of Mrs XXX: undated letter received on 23 January 1998;
b. from Dr XXX, Mrs XXX’s GP; letter dated 12 March 1998;
c. from the Appointed Person; letter dated 28 January 1998 with enclosures (listed in the Department’s letter of 10 March 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
a. you are age 51;
b. you were employed by XXX;
c. at the time your employment ceased you were a mini bus driver;
d. your employment with XXX ceased on 6 January 1997.
3. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. The Secretary of State notes that you believe that you are entitled to your local government pension benefits due to your medical condition. You explain that you were medically discharged from XXX in January 1997 after twelve months sick leave with a hiatus hernia, stress and depression. You consider that driving brought on your illness and returning would bring back your depression and stress. You state that you have lost all confidence in driving, especially PCV vehicles and even the thought of driving your car makes you extremely agitated.
4. Your GP, Dr XXX, wrote to the Department on 12 March 1998 as he understood that you had appealed to the Secretary of State and he wished to provide some medical information. He stated that on 1 February 1996 you presented with depression and anxiety. At that time you were suffering quite severe physical symptoms of vomiting and upper abdominal pain which he concluded were all features of upper gastro-intestinal dysmofitilty/irritable bowel syndrome. He treated you with drugs to overcome the abdominal symptoms as well as an antidepressant. Your depression was slow to settle and even with powerful antidepressants you remained lacking in confidence and prone to anxiety attacks. In 1997 it became apparent that you were going to be unable to cope with a return to full-time employment and he understood that you were granted early retirement on ill-health grounds. Now that you are removed from the stress of the work environment there has been some improvement in your general condition. However your mood still varies considerably and you have difficulty coping with any sort of minor stress. You continue to take an antidepressant.
5. The company, on the advice of their occupational health specialist, maintain that your condition is not permanent.
6. The Appointed Person arranged for you to be seen by an independent medical examiner and Dr XXX saw you on 28 July 1997. In his letter of 31 July 1997 to the Appointed Person he stated that you were suffering from a mild anxiety state with intermittent depressive features dating back to early 1996. He further stated that you have been receiving treatment from your GP since that date, with some improvement. He opined that you are not suffering from permanent ill-health or infirmity of mind or body and that it is expected that you should, in the nearness of time, be capable of discharging efficiently the duties of your previous employment. His reasons for his opinion were given as:
a. you have had no professional counselling in relation to this illness;
b. no specialist advice or therapy has been tried in your case;
c. your only treatment has been a relatively low-dose antidepressants; and
d. the prognosis in this type of case is good, provided you receive the appropriate treatment.
Dr XXX based his opinion on the above four factors, his examination, plus the reports from Dr XXX (on behalf of XXX) and Dr XXX (your General Practitioner).
7. The Secretary of State has considered all the evidence. The test which he must apply in reaching his decision is whether you were incapable of discharging efficiently the duties of your former employment with XXX at the time you ceased employment by reason of permanent ill-health or infirmity of mind or body (regulation D7). Taking into account all the evidence he considers that on the balance of probabilities, your condition is not permanent in the sense required by the 1995 regulations. That is, your condition is likely to improve sufficiently for you to perform the duties of your former employment before your normal retirement date.