866 INDEX
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter dated 17 August 2000 in which you appeal (under regulation 102 of the 1997 regulations), against the decision of Ms XXX, the Appointed Person for XXX Council (the council), in relation to your local government pension scheme (LGPS) dispute with XXX (the company).
2. The Appointed Person found that you did not satisfy the requirements of the LGPS regulations for immediate payment of LGPS benefits from when your employment with the company was terminated.
3. The question for decision: The question for decision by the Secretary of State is whether you ceased employment with the company on 19 September 1999 by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body, and so qualify for immediate payment of your LGPS benefits.
4. 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 with the company on 19 September 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.
5. The Secretary of State’s decision confirms the effect of that made by the Appointed Person although because the reasons for the decision are different it technically replaces it.
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 which 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 of 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).
1. The following evidence has been received and taken into account:
a) from you: letters dated 17 August 2000 and 14 November 2000 (with enclosures);
b) from the Appointed Person: letter dated 25 September 2000; and
c) from the company: letter dated 15 November 2000 (with enclosures) (copies sent to you with the Department’s letter dated 17 November 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 dispute 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. The disagreement you referred to the Appointed Person was whether the company should have granted you ill-health retirement benefits when your employment was terminated on 19 September 1999.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Your date of birth is 19 September 1949;
b) you were a member of the LGPS;
c) on 12 March 1999 you were issued with a notice of redundancy, and at your request the company agreed the effective date of your redundancy would be 19 September 1999;
d) on 2 June 1999 you made a formal request to be examined by the company’s medical adviser on the grounds that the company should terminate your employment on grounds of permanent ill-health;
e) on 16 June 1999 the company informed you that their decision to terminate your employment on the grounds of redundancy remained the same; effectively determining that you were not entitled to ill-health retirement;
f) on 15 November 1999 the Secretary of State determined that the company had not acted properly within the requirements of the 1997 regulations in reaching their decision that you were not entitled to ill-health retirement benefits. He determined the company must refer the question of whether you were permanently incapable of performing efficiently the duties of your former employment to an independent medical practitioner; and
g) on 13 January 2000 the company informed you that, based upon the recommendations of Dr XXX, they had decided that you were not entitled to ill-health retirement benefits and that the reason for the termination of your employment was redundancy.
4. You consider that your meeting with Dr XXX did not constitute a proper medical or examination. You state that Dr XXX did not consult your General Practitioner. You consider Dr XXX is not independent of the company as they retain him as their “company doctor”. You consider information supplied to Dr XXX by the company is biased in favour of the company and not the employee.
5. The Appointed Person determined that “I can therefore confirm that your employer has correctly acted in accordance with the LGPS regulations, and that the decision not to recommend retirement on ill-health grounds, has been made in accordance with the relevant regulations. It is therefore my decision to refuse your appeal.”.
6. 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 company, because of ill-health or infirmity of mind or body.
7. The Secretary of State notes that for your incapacity to be permanent it would have to be unlikely to improve sufficiently for you to discharge efficiently the duties of your former employment, or any other comparable employment with the company, before age 65.
8. The Secretary of State notes that you are receiving Incapacity Benefit from the Department of Social Security (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.
9. The Secretary of State notes that you consider that your meeting with Dr XXX did not constitute a proper medical or examination, and that he failed to consult your General Practitioner. He notes that the LGPS regulations do not provide that or how a medical examination must be conducted. The question of how a registered medical practitioner assesses an individual against the requirements of the regulations is a matter for their professional judgement and competence. It is not a pensions question that the Secretary of State can decide on appeal under the provisions of the LGPS.
10. The Secretary of State notes that you consider information supplied to Dr XXX by the company is biased in favour of the company and not the employee. The Secretary of State finds that no objective evidence has been submitted to him which supports this contention.
11. The Secretary of State notes that you consider that your case was pre-judged and that Dr XXX was influenced against you by the information supplied to him by the company. The Secretary of State has seen the company’s letter of 22 November 1999 to Dr XXX and does not consider this lends any support to your contentions.
12. The Secretary of State notes that you consider Dr XXX is not independent of the company as they retain him as their “company doctor”. He notes that it appears Dr XXX is employed by XXX NHS Trust in their Occupational Health Department, and not by the company. He also notes that Dr XXX had not been involved with your case prior to the company referring you to him on 22 November 1999. The Secretary of State finds no evidence has been presented to show that Dr XXX is not an “independent medical practitioner” for the purposes of regulation 97(9) of the 1997 regulations.
13. The Secretary of State is therefore satisfied that the company have complied with the requirements of the regulations in referring you to Dr XXX and in taking their decision in the light of his certificate.
14. The Secretary of State has considered all the medical evidence submitted to him comprising: Consultant Occupational Health Physician Dr XXX’s letter dated 23 December 1999; and General Practitioner Dr XXX’s medical report dated 17 May 1999.
15. The Secretary of State notes that Dr XXX, in his letter dated 23 December 2000, stated “I saw [you] this morning as requested. I would not consider [you] permanently unfit for [your] post of Claims Officer within the meaning of the Local Government Superannuation Regulations and I would not therefore recommend ill health retirement.”. He notes that no further opinion on the permanence of your incapacity is specifically stated in the evidence he has considered, including that of Dr XXX.
16. The Secretary of State concludes, therefore, that there is no conclusive medical evidence to indicate that, on the balance of probabilities, at the time you ceased employment with the company on 19 September 1999 you were suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of discharging efficiently the duties of your former employment, or any other comparable employment with the company, until age 65. You did not therefore cease employment on grounds of permanent incapacity because of ill-health in the sense required by the regulations and you are not therefore entitled to the immediate payment of your LGPS retirement benefits from when you ceased employment with the company.