863 INDEX
LOCAL GOVERNMENT PENSION SCHEME APPEAL
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter dated 14 August 2000 in which you appeal, on behalf of Mrs XXX, against the decision of Dr XXX, the Appointed Person for XXX Council (the council), in relation to her local government pension scheme (LGPS) dispute with the council.
2. The Appointed Person found that Mrs XXX did not satisfy the requirements of the LGPS regulations for immediate payment of her LGPS benefits from 17 May 1999.
3. The question for decision: The question for decision by the Secretary of State is whether Mrs XXX ceased employment with the council on 17 May 1999 by reason of being permanently incapable of discharging efficiently the duties of that employment, or any other comparable employment with the council, by reason 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, and has taken into account the appropriate regulations. He finds that the council failed to give proper consideration to whether Mrs XXX was entitled to ill-health retirement benefits, and the Appointed Person’s decision does not satisfactorily deal with this issue. He has therefore decided to refer the matter back to the council for them to refer all the medical evidence to an independent registered medical practitioner who is qualified in occupational health medicine (and who has not been involved in the previous decisions) for a firm and clear opinion.
5. The Secretary of State’s decision replaces that made by the Appointed Person. His 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.
6. 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.
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 made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7834 9144).
1. The following evidence has been received and taken into account:
a) from you: letters dated 14 August 2000, 4 September 2000 (with enclosures) and 2 November 2000;
b) from the Appointed Person: letter dated 18 October 2000 (enclosing copies of the documents considered by him)(list enclosed with the Department’s letter dated 25 October 2000); and
c) from the council: Mr XXX’s letter dated 15 September 2000 (with enclosures)(copied to you with the Department’s letter dated 13 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 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) Mrs XXX’s date of birth is 30 April 1947;
b) she was employed by the council as a Home Care Manager in the Social Services Department;
c) she was a member of the LGPS;
d) on 17 June 1997 she commenced a period of extended sick leave;
e) her employment with the council was terminated on 17 May 1999 on the grounds of ill-health and prolonged sickness absence;
f) the council awarded her deferred pension benefits; and
g) you appealed, on behalf of Mrs XXX, against the council’s decision not to award Mrs XXX immediate payment of her LGPS benefits on the grounds of ill-health from when her employment ceased on 17 May 1999.
4. Dr XXX determined that “I am unable to support her request for dating her ill-health retirement [from] April 1999 but confirm that it is appropriate from April 2000.”.
5. You maintain that Mrs XXX did qualify for the immediate payment of her LGPS benefits from 17 May 1999 on the grounds of ill-health. You consider that there is medical evidence to support Mrs XXX’s request for ill-health retirement from the date her employment was terminated.
6. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. At the time Mrs XXX 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 that employment, or any other comparable employment with the council, because of ill-health or infirmity of mind or body. Regulation 97(9) required the council, before deciding whether Mrs XXX might be entitled under regulation 27, to obtain a certificate from an independent registered medical practitioner, stating his opinion whether she was permanently incapable of discharging efficiently the duties of the relevant local government employment because of ill-health or infirmity of mind or body. Regulation 101(1) required the Appointed Person to issue his decision to the appellant. Regulation 101(3) required his decision among other things to include reference to the scheme provisions relied on and the applicant’s further rights of appeal.
7. The Secretary of State notes that the council has appointed Dr XXX for the purposes of resolving disputes under the internal dispute resolution procedure. He notes that regulation 99 of the 1997 regulations requires the council to appoint persons they considered to be suitably qualified for the purpose of resolving such disputes. He does not consider that it is inappropriate to appoint a qualified medical practitioner for the purposes of regulation 99, in fact he recognises that such an appointment could be beneficial for the purposes of resolving disputes that involve medical considerations. However, the Appointed Person is required to provide his decision in the manner set out in regulation 101 of the 1997 regulations. The Secretary of State notes that Dr XXX’s letters of 20 April 2000 and 13 July 2000 took the form of a medical opinion to the council. They did not provide notice of his decision in accordance with regulation 101 and Dr XXX has not therefore fulfilled his statutory obligation. Mr XXX’s letter of 3 August 2000 went some way to making good these serious deficiencies but he has taken pains to explain that he is not the Appointed Person.
8. The Secretary of State notes that for her incapacity to be permanent regulation 27 provides that it would have to be unlikely to improve sufficiently for Mrs XXX to efficiently discharge the duties of her former employment, or any other comparable employment with the council, before age 65.
9. The Secretary of State has noted all the medical evidence submitted to him comprising: Consultant Occupational Physician Dr XXX’s letters dated 5 December 1997 and 20 March 1998; Occupational Health Physician Dr XXX’s letter dated 14 May 1998; Consultant Occupational Physician Dr XXX’s letters dated 15 September 1998, 27 January 1999 and 23 April 1999; Consultant Neurosurgeon and Spinal Surgeon Mr XXX’s medical reports dated 17 November 1999 and 7 December 1999; Consultant Occupational Surgeon Dr XXX’s letter dated 5 August 1999; and Medical Officer Dr XXX’s letters dated 12 April 2000, 13 July 2000 and 9 August 2000 (enclosing certificate of permanent incapacity).
10. The Secretary of State notes that Mrs XXX was referred to the council’s occupational health advisers, successively Dr XXX, Dr XXX and Dr XXX, during the period between December 1997 and April 1999. He notes that Dr XXX, in his letter dated 20 March 1998, stated “[Mrs XXX] is currently unfit for work, but a recovery permitting a return to work in her previous capacity as a Home Care Manager remains foreseeable.”. He notes that Dr XXX, in her letter dated 14 May 1998, stated “[Mrs XXX] may be keen to return to work at some stage in the future and I am quite confident that we may be able to facilitate a rehabilitation within the workplace at some stage.”.
11. The Secretary of State notes that the council decided to dismiss Mrs XXX on the grounds of ill-health and prolonged sickness absence, on the 17 May 1999. This decision was made after advice from Dr XXX. Dr XXX, in his letter dated 15 September 1998 (eight months before Mrs XXX’s employment was terminated), stated “On the basis that we remain uncertain about future progress, it is not possible to support ill-health retirement at this stage.”. He also notes Dr XXX, in his letter dated 23 April 1999, stated “I saw Mrs XXX today. Although she is continuing to improve following her operation, it is clear that she will not return to her previous work within the next four weeks.”.
12. In deciding to make an award of deferred benefits, the council decided not to award Mrs XXX the immediate payment of her LGPS benefits on the grounds of ill-health. Given the circumstances under which Mrs XXX’s employment was terminated, the council were required under regulation 97(9) to obtain a certificate from an independent registered medical practitioner specifically stating whether Mrs 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 cannot be regarded as independent within the meaning of the regulations and whose letter of 23 April 1999 did not address the specific requirements of regulation 97 in relation to decisions on the award of benefits. By apparently ignoring the statutory requirements of regulation 97, the council have in effect contrived to ensure that no contemporaneous medical evidence was available clearly stating, in the terms of the regulations, whether or not Mrs XXX was permanently incapable of efficiently discharging the duties of her former employment (or any comparable employment if there was one) at the time that employment ceased.
13. Turning to the medical evidence available after the council decided not to award ill-health retirement benefits, the Secretary of State notes that Dr XXX, in his letter dated 5 August 1999, stated “[Mrs XXX] has been unable to return to work as a home care manager because of her ongoing disability.”. He notes that Dr XXX does not specifically state whether he considered Mrs XXX was permanently incapable of discharging efficiently the duties of her former employment.
14. The Secretary of State notes that Mr XXX, in his letter dated 7 December 1999, stated “It is certainly clear that [Mrs XXX] would not be able to work as a care assistant with her past and present problems.”. He notes that Mr XXX has referred to Mrs XXX’s past and present problems but did not offer an opinion on whether her incapability was likely to be permanent.
15. The Secretary of State takes the view that the medical evidence shows that Mrs XXX suffers from back pain. He also accepts that at the time she ceased employment the medical evidence indicates that she was incapable of efficiently performing her former duties. However, the question which has to be decided is whether Mrs XXX’s incapacity was likely to be permanent within the meaning of the regulations, that is, that it, at the time she ceased employment, would be unlikely to improve sufficiently for her to be able to discharge efficiently the duties of her previous employment, or any other comparable employment with the council, before she reaches age 65.
16. The Secretary of State notes that Dr XXX, in his letter of 12 April 2000, stated “With regards to her termination of employment in May 1999, her health status is not clear. …Dr XXX did not make…any reference to the long term future…There are no medical notes available to discern any underlying balance of opinion, though…I presume [my italics]he felt eventual recovery was possible.”. In his letter dated 13 July 2000, Dr XXX stated “… enquiries… have revealed no more than was stated to me previously… With regard to [Mrs XXX’s] assessment by Dr XXX on 23 April 1999, the only evidence available indicates that a return to work was considered possible at sometime, if not within 4 weeks and that her condition at that time did not seem to permanently prevent her resuming work. [Mrs XXX’s] records show that around September 1999 she had a recurrence of her condition, so changing her expectation for resuming work at this later date. I am unable to support her request for dating her ill-health retirement from [May] 1999 but confirm that it is appropriate from April 2000.”.
17. It seems to the Secretary of State that in his letter of 13 July 2000 Dr XXX expressed a slightly firmer view than in his letter of 12 April 2000 about views, in relation to Mrs XXX’s long-term potential to return to work when she ceased employment in May 1999. The Secretary of State has not seen any evidence which justifies this slight shift in opinion. But in any case, neither of Dr XXX’s letters specifically addresses the precise requirements of the regulations under which entitlement to benefit must be determined in relation to the date at which Mrs XXX’s employment ceased. It appears to the Secretary of State that Dr XXX is relying on a lack of medical evidence to justify his conclusion that ill-health retirement benefits should not be paid from the date Mrs XXX’s employment ceased. Neither is it clear to the Secretary of State how Dr XXX’s decision that benefits are due from April 2000 fits with his noting the recurrence of her condition around September 1999 which, he maintains changed her expectation for resuming work. Dr XXX appears to have adopted April 2000 as the appropriate date because that is when he was first able to properly assess Mrs XXX.
18. While, medically, such caution may be understandable, such a stance is wholly unsatisfactory, because the lack of proper medical opinion at the relevant time is wholly due to the council’s failure to obtain it when they were statutorily required to under regulation 97.
19. In the circumstances the Secretary of State cannot be satisfied that the proper question has been properly looked at. He has decided that the council must make good this deficiency by referring all the papers to a fresh independent registered medical practitioner qualified in occupational health medicine, for a clear and firm opinion whether, on the balance of probabilities, Mrs XXX was permanently incapable of discharging efficiently the duties of her former employment, or those of a comparable employment if there was one, because of ill-health at the time her employment ceased.