745 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 13 March 2000 in which you appeal (under regulation 102 of the 1997 regulations), against the decision of Mr XXX, the Appointed Person for XXX, in relation to your local government pension scheme (LGPS) dispute with XXX Limited (the Company).
2. The Appointed Person found that you were not entitled to the immediate payment of your LGPS pension benefits because he was not satisfied that you were permanently incapable of discharging efficiently the duties of your former employment.
3. 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 Company to act outside the provisions of the regulations.
4. The disagreement you referred to the Appointed Person was whether the Company should have granted you immediate payment of your LGPS benefits on the grounds of ill-health from when you ceased employment with them on 11 March 1999.
5. The question for decision: The question for decision by the Secretary of State is whether your employment ceased because you were permanently incapable of discharging efficiently the duties of that employment, by reason of ill health or infirmity of mind or body so as to qualify for the immediate payment of LGPS benefits.
6. Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. Based on the balance of probabilities, he finds that for the purposes of the 1997 regulations, it has not been shown conclusively that you ceased employment because you were permanently incapable of discharging efficiently the duties of your employment by reason of ill-health or infirmity of mind or body. You do not therefore qualify for immediate payment of your LGPS benefits. His decision confirms that made by the Appointed Person. His 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. The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.
7. 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 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. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).
1. The following evidence has been received and taken into account:
a) From you: Letter dated 13 March 2000 (with enclosure);
b) from the Appointed Person: Documents considered by him (copies sent to you under cover of the Department's letter of 29 March 2000); and
c) from Dr XXX: Letter dated 4 April 2000.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) Your date of birth is 29 June 1964;
b) you were employed by the Company as a bus driver;
c) you are a member of the LGPS;
d) you have had a number of absence periods since October 1997 related to your neck problem and have not worked since December 1998;
e) you ceased employment with the Company on 11 March 1999.
3. You contend that you should be entitled to early retirement on ill health grounds with benefits on the basis of your continued inability to work, and you claim that: ‘My doctor has told me that I will never drive a bus again with my sickness and in the future due to my ill health as Cervical Spondislits to my neck.’
4. The Appointed Person referred you to his Independent Medical Advisor, who concurred with the view of the Company’s Occupational Health Physician, that it was not currently possible to confirm that you are permanently incapacitated from your former duties.
5. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. At the time of your appeal, 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 duties efficiently due to ill-health or infirmity of mind or body. The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for you to perform the duties of your employment efficiently before your normal retirement age when LGPS benefits must, in any case, be paid.
6. The Secretary of State has noted all the medical evidence submitted to him comprising: Medical report by Dr XXX, dated 7 April 1999; medical report by Dr XXX, dated 6 October 1999; letter from Dr XXX, dated 4 April 2000.
7. The Secretary of State has noted the additional evidence of a letter by Dr XXX, dated 4 April 2000. The Secretary of State does not normally consider evidence that was not available to the Appointed Person in making his decision, as the Secretary of State’s role under the regulations is to reconsider the original disagreement. However, he accepts that some of this evidence refers to a period prior to the Appointed Person reaching his decision. He has therefore had regard to it, but concludes that it does not significantly add to the medical evidence available to the Appointed Person, nor does it specifically provide evidence directly addressing the questions the Secretary of State must resolve in reaching a decision.
8. The Secretary of State has also noted that you state that you are in receipt of Incapacity Benefit. However, he takes the view that being in receipt of DSS benefits does not in itself satisfy the specific requirements of the LGPS regulations, as a different test applies.
9. The Secretary of State notes your contention that: ‘My doctor has told me that I will never drive a bus again with my sickness and in the future due to my ill health’. However, he notes also that you have not supplied any statement in precisely those terms from your doctor to support this statement.
10. The Secretary of State takes the view that it is not disputed that at the time of your appeal you were incapable of efficiently performing your duties. He acknowledges that you have serious problems with cervical pain, which at the time your ceased employment made you incapable of efficiently performing your duties as a bus driver. Although the Company has not confirmed the reason for your dismissal, they have not disputed that it was on grounds of incapability. He has also noted that Dr XXX, the Appointed Person’s independent medical advisor stated: ‘There is no doubt that Mr XXX does have marked restriction of movement at his cervical spine and he has been informed by his general practitioner that x-rays indicate cervical spondylosis.’ However, the question the Secretary of State has to consider, is whether, at the time you ceased employment, you were permanentlyincapable of carrying out your duties by reason of ill-health. Dr XXX, the Company’s medical advisor found that: ‘I consider treatment options for this man, in that he has not received a specialist opinion on his problems and the fact that only one level of his X-ray was involved in a spondyltic process..., means that at present I cannot say that he is entitled to pension benefits.’ On appeal to the Appointed Person, you were referred to a second Occupational Health Physician, Dr XXX, who concluded: ‘Mr XXX has not been referred for a specialist opinion and this creates serious problems. Until a definitive diagnosis is made and until appropriate treatment is given, it is not possible to confirm that this man is or is not permanently incapacitated. My advice would be at this stage he should not be regarded as permanently incapacitated but that the decision should be reviewed at some stage in the future once he has been seen by a specialist and appropriately treated.’
11. The Secretary of State notes that both Dr XXX and Dr XXX refer to a lack of specialist opinion regarding your condition, without which, they are unwilling to say you are permanently incapable of carrying out your former duties. He also notes the letter of Dr XXX in which he states: ‘(you were) referred to physiotherapy with very little improvement.’ It is not entirely clear to the Secretary of State whether this should be regarded as specialist referral and appropriate treatment as suggested by Dr XXX, nor when this physiotherapy took place or, indeed, if it is ongoing. However, the Secretary of State is satisfied that the above statement does not provide conclusive medical evidence as to the permanence of your incapacity. If such specialist evidence becomes available at a later date, it is open to you to refer the matter back to your former employer to seek early payment of your LGPS benefits under regulation 31 of the 1997 regulations.
12. In summary, the Secretary of State finds that no specialist medical evidence has been submitted to him to demonstrate that you are permanently incapable of performing your former duties efficiently, and he accepts the opinions of the two Occupational Health Physicians stating that you cannot, at this stage, be deemed permanently incapacitated from your former duties.
13. The Secretary of State concludes therefore, that, on the balance of probabilities, there is no conclusive medical evidence to show that you are suffering from such a condition of ill-health or infirmity of mind or body that you are permanently incapable of performing your duties efficiently. He concludes that you did not, therefore, cease employment on grounds of permanent incapability because of ill-health in the sense required by the regulations, and consequently you are not entitled to the immediate payment of your LGPS benefits from when you ceased employment with the Company.