869 INDEX
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 18 October 2000 in which you appeal (under regulation 102 of the 1997 regulations), against the decision of Mr XXX, the Appointed Person for XXX Council, on behalf of Ms XXX, in relation to her local government pension scheme (LGPS) dispute with XXX Council (the Council).
2. The Appointed Person found that Ms XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits.
3. The question for decision: The question for decision by the Secretary of State is whether Ms XXX qualifies for the immediate payment of her LGPS benefits, on the grounds that she ceased employment with the Council by reason of being permanently incapable of discharging efficiently the duties of her employment because of ill-health or infirmity of mind or body.
4. Secretary of State’s decision: Based on the balance of probabilities, the Secretary of State finds that for the purposes of the 1997 regulations, it has not been shown conclusively that Ms XXX ceased employment because she was permanently incapable of discharging efficiently the duties of her employment by reason of ill-health or infirmity of mind or body. However, he also finds that the Council did not appoint an independent medical adviser to consider the question as required by the regulations. His decision is that they must now put this matter in hand by referring Ms XXX to an independent medical adviser, who is appropriately qualified; not generally employed by the Council; and who has no previous involvement in this case, for a medical view as to whether, in their opinion, Ms XXX was permanently incapable of her former post, or a comparable one, from when she ceased employment with the Council.
5. The Secretary of State’s decision replaces 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.
6. 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).
7. 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 number 020 7834 9144).
THE SECRETARY OF STATE’S POWERS
1. 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. The disagreement you referred to the Appointed Person was whether the Council should have granted Ms XXX ill-health retirement from when she ceased employment with them on 10 September 2000.
2. The following evidence has been received and taken into account:
a) From you: Letter dated 18 October 2000 (with enclosures); 7 November 2000 ( with enclosure); e-mail dated 5 December 2000; letter dated 5 December 2000 (with enclosures); letter dated 12 December 2000;
b) from the Appointed Person: Letter dated 17 November 2000 containing documents considered by him (copies sent to you under cover of the Department's letter 21 November 2000); and
c) from the Council: Letter dated 24 November 2000, containing enclosures copied to you under cover of the Department’s letter dated 28 November 2000; copy of Dr XXX’s report to Dr XXX dated 18 June 1999, received in this office on 18 January 2001 (copied to you under cover of the Department’s letter dated 19 January 2001); letter dated 24 January, with enclosure (copied to you under cover of the Department’s letter dated 1 February 01).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Ms XXX’s date of birth is 5 February 1948;
b) She was employed as the Director of Environmental Services for the Council from 11 August 1997;
c) She is a member of the LGPS;
d) She was suspended from her duties on 8 February 1999 pending a disciplinary inquiry;
e) In a letter dated 12 May 1999, the Council referred Ms XXX to Dr XXX, their Occupational Health Physician, for an opinion on whether she was fit to attend a disciplinary hearing, and whether she was permanently incapable of carrying out the duties of her post, so as to be eligible for early payment of her LGPS benefits on the grounds of ill health. Dr XXX referred Ms XXX to a consultant psychiatrist for a specialist opinion;
f) On 14 June 1999, following Dr XXX’s advice, the Council confirmed that Ms XXX was not permanently incapable of her post in a disciplinary panel hearing;
g) On 19 July 1999 Ms XXX signed a ‘compromise agreement’ in which it was agreed that Ms XXX’s eligibility for early payment of her LGPS benefits, and therefore the grounds for her leaving employment, would be reviewed once again by Dr XXX;
h) On 1 September the Council wrote a decision letter stating that Dr XXX remained unable to support ill health retirement; and
i) On 10 September 2000, Ms XXX ceased employment with the Council.
4. The Appointed Person stated that ‘Dr XXX considered Ms XXX’s case on three occasions and I consider that the record shows that he had before him the relevant Regulations and other medical opinion and that he dealt with the matter in accordance with the Regulations. Having said this and Dr XXX having declined to issue the necessary certificate it follows that there was no entitlement on grounds of ill-health under Regulation 27. I therefore do not uphold this complaint.’
5. In a letter dated 18 October 2000, you appealed to the Secretary of State on behalf of Ms XXX, against the Appointed Person’s decision on the grounds that Ms XXX ‘is unhappy with the decision because she considers it to have been superficial & selective adjudication which failed to do justice to her complaint in the requisite independent and impartial manner. The decision did not deal at all with some of her grounds of complaint: it omitted some material facts and mis-stated others: and it did not address the key medical issue.’
6. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. At the time Ms 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 performing their duties efficiently due to ill-health or infirmity of mind or body. Permanent incapability is defined as meaning, at the least, to age 65. Regulation 97 required the council to refer the matter to an independent registered medical practitioner qualified in occupational health medicine.
7. The Secretary of State has noted all the medical evidence submitted to him comprising: Letters from Dr XXX, A.F.O.M. 20 May 1999, 10 June 1999, 30 June 1999, 24 August 1999, 8 September 1999; letters from Dr XXX, consultant psychiatrist, dated 7 June 1999, 18 June 1999; letter from Dr R. XXX, consultant psychiatrist, dated 9 July 1999; letters from Dr S. XXX, general practitioner, dated 5 May 1999 and 19 August 1999.
8. The Secretary of State has noted that you make a large number of complaints, but whilst he has carefully considered them, he takes the view that not all of them are relevant to the question at hand. In the Secretary of State’s view, the substantive grounds of your complaint are as follows:
You consider that the Council:-
i) Did not give proper consideration to her application of 27 April 1999 for ill-health retirement and consequently reached an unreasonable decision; and
ii) Took advice from a medical officer who was employed by the Council, and who was involved in the disciplinary process, as he was also asked to advise the Council on Ms XXX’s medical ability to answer disciplinary charges.
You also consider there to be a dispute in medical evidence, between Ms XXX’s GP and her consultant psychiatrist, and Dr XXX, the Council’s medical advisor.
9. The Secretary of State has first noted your contention that the Council failed to give proper consideration to Ms XXX’s application for ill health retirement. You state in your letter dated 18 October 2000 that the Council failed ‘to ascertain the opinion of Ms XXX’s own consultant.’ The Secretary of State notes that the Council referred this matter to Dr XXX in a letter dated 12 May 1999. Dr XXX referred Ms XXX to Dr XXX for a specialist psychiatric opinion, received a report from him dated 7 June, and advised the Council in a letter dated 10 June 1999. The Council had a letter from Ms XXX’s GP, Dr S XXX, dated 5 May 1999, which confirmed that Ms XXX was suffering from depression and was not fit to attend a disciplinary hearing. The Council made their first decision that Ms XXX was not entitled to her benefits on ill health grounds at a disciplinary panel held on 14 June 1999. Following a ‘compromise agreement’, the Council agreed to review their decision pending a further assessment by Dr XXX to be completed by 1 September 1999. In the event Dr XXX was able to reach a decision by 24 August, and it was on the basis of this decision that Ms XXX’s employment ceased on 10 September 2000 without entitlement to early payment of her LGPS benefits on the grounds of ill health. At that time, Dr XXX had carried out a further examination of Ms XXX on 3 August 1999, and had received a letter from Ms XXX’s GP dated 19 August 1999. You had received a letter dated 9 July 1999 from Dr XXX, a consultant psychiatrist, and it appears that you sent a copy of this to the Council. The Secretary of State considers that Dr XXX had a range of medical evidence to hand, including that from Ms XXX’s GP, at the time he made his recommendation on 24 August 1999 which determined the grounds on which Ms XXX’s employment ceased. He does not, therefore, uphold your complaint in that regard.
10. The Secretary of State has considered the medical evidence. He has noted that the diagnosis of a stress related illness has been confirmed by the physicians involved and has not been disputed. With regard to the prognosis, he notes from Dr XXX’s report dated 12 June 1999 that he considered Ms XXX’s condition to be amenable to treatment, and that if she ‘were to seek psychological help and intervention of her own accord, independent of the outcome of the enquiry or conflicts in relation to work, she stands a better chance to attain full recovery which in turn will help conflict resolution at work.’ Dr XXX stated in his letter of 9 July 1999 that ‘Considering the severity of her illness that was precipitated by the difficulties which she encountered in her work...and the way that the disciplinary procedures are serving to perpetuate her severe depression, I think she should be regarded as under permanent disability to return to her previous occupation.’ Dr XXX considered that Ms XXX’s condition ‘may improve when a settlement is reached...[but] even after an end to her grievance with ..[the] Council she will remain depressed and unfit for work for a considerable period of time. I would support her application to retire on the grounds of Ill Health.’ Dr XXX, in his letter dated 24 August 1999 stated that ‘I am unable to support her ill-health retirement at this stage. I do expect her to recover and return to work. In my opinion is far too early to consider that she would remain incapable of returning to work.’
11. The Secretary of State acknowledges that Ms XXX is suffering from a stress-related illness and that her GP and consultant psychiatrist are supportive of her application for ill health retirement. He further acknowledges that her psychiatrist considered that the extenuating circumstances at work meant that Ms XXX ‘should be regarded as under permanent disability to return to her former post.’ However, it is not clear to the Secretary of State that Dr XXX’s statements amount to a prognosis that Ms XXX is permanently incapable of her former post in normal circumstances, nor does he express an opinion on whether Ms XXX is permanently incapable of a comparable post. Furthermore, he notes that Ms XXX’s GP acknowledges that Ms XXX may improve; that Dr XXX states that there are treatment options available; and that Dr XXX considers that Ms XXX will make a recovery and be capable of returning to her former post. The Secretary of State takes the view, therefore, that there is no conclusive evidence that Ms XXX is permanently incapable of her former post or a comparable one.
12. Finally, the Secretary of State has noted your contention that the Council’s medical officer cannot be considered independent, because he is employed as an officer of the Council, and further, because he was involved in the disciplinary process against Ms XXX, in that he was asked to give a medical opinion on whether she was fit to attend disciplinary hearings. The Secretary of State notes that Dr XXX’s letter dated 10 June 1999 is signed ‘Medical Officer, XXX Council.’ The Secretary of State has ascertained from the Council’s letter to him dated 24 January 2001 that Dr XXX is contracted to the Council to ‘provide a fully comprehensive occupational health service.’ He has also noted the Council’s letter dated 12 May 1999, which referred Ms XXX to Dr XXX for his medical opinion on ‘whether she is fit to attend a disciplinary hearing....[and]..whether,... she is permanently incapable of carrying out the duties of her employment or any other comparable employment within the Council.’ The letter also states ‘At a very early stage in her employment, there were concerns about her behaviour and conduct which affected the quality of her working relationships she developed.......the pattern of behaviour worsened over her employment.....XXX’s conduct at the end of last year...led to very serious formal complaints against her...The Chief Executive initiated investigations into the complaint and the wider background of her poor working relationships and suspended her on 8 February.’ The Secretary of State takes the view that a medical practitioner is not independent if he is an employee of the Scheme employer, or if he has had previous involvement with the subject of the decision. In this case it is clear that Dr XXX is contracted to the Council, and further that the Council chose to involve him in the disciplinary procedure regarding Ms XXX as well as asking him to consider the question of ill-health retirement. The Secretary of State is particularly concerned to note the information held in the Council’s letter dated 12 May 1999, concerning details of the disciplinary hearing against Ms XXX, which in his view was prejudicial and not relevant to the question of whether Ms XXX was permanently incapable of her employment or a comparable one. In the Secretary of State’s view these issues should have been treated separately by different doctors.
13. The Secretary of State finds no objective evidence that Dr XXX’s decision was unreasonable or unduly influenced by the Council, nor any conclusive evidence that Ms XXX is permanently incapable of her former post. However, he upholds the element of your complaint concerning the independence of Dr XXX on the grounds of his involvement in the disciplinary procedures, and the fact that he is contracted to the Council for matters other than considering the question of immediate entitlement to LGPS benefits on the grounds of ill-health. He has decided, therefore, that the Council must now appoint an independent medical adviser, qualified in occupational health medicine, who is not ordinarily employed by them and who has had no previous involvement in the case, to reconsider the question of whether Ms XXX is permanently incapable of her former post or a comparable one. The Council should not seek or be seen to unduly influence that adviser by providing information to the adviser that is not relevant to the question at hand.