Our Ref: LGR 79/2/352
Date: 7 JULY 1998
364 INDEX
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995
regulations”)
1. I am directed by the Secretary of State for the Environment, Transport and the Regions to refer to your notice of appeal submitted under regulation J5 of the 1995 regulations against the decision of the XXX Ltd ("the company”) that you are not entitled to the payment of ill-health retirement benefits under regulation D7(1)(b) of the 1995 regulations when you ceased your employment on 28 September 1995.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 4 July, 2, 19 September, 4 November 1996, and 14 January, 13 March, 17 April, 16 August 1997, and 10, 26 March 1998; to Mrs XXX’s letters of 5 July 1996 and 1 March 1997; to the company's letters of 30 August 1996, and 11 March, 16 April 1997, and a facsimile of 27 January, 24 April 1998; to Dr XXX, Medical Advisor to the company’s letter of 22 January 1997; and to all the copy correspondence enclosed with those letters.
3. The question for determination is whether when you ceased employment with the company you were incapable of carrying out efficiently your duties by reason of permanent ill-health or infirmity of mind or body and thus entitled to payment of enhanced retirement benefits.
4. From the evidence submitted the following facts have been established:
(a) you were employed by the company as an Engineering Supervisor;
(b) your employment was terminated on 28 September 1995 on the grounds of capability;
(c) on 4 July 1996 you appealed to the Secretary of State against the company's decision not to award you early retirement on ill-health grounds.
5. You explain that for three years prior to the termination of your employment you had taken long periods of sick because of your medical condition. You contend that every day life became so difficult that it was impossible for you to continue working. The company maintain that your contract of employment was terminated because you were incapable of meeting the company's requirements on the grounds of capability.
6. On 16 October 1996 you were examined by Dr XXX, Consultant Rheumatologist, a copy of his medical report was submitted by you. Dr XXX opined that you had a long history of musculo-skeletal pains, particularly back pain, latterly neck pain, and more recently headaches and dizziness. He commented that numerous investigations have been largely unremarkable but the physical examination currently revealed the changes of generalised spinal osteoarthritis. Dr XXX concluded that at the present time you did appear to be incapacitated from this condition.
7. The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to your rights under the regulations, as fell to be decided in the first instance by the company. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.
8. Regulation D7(1)(b) of the 1995 regulations makes no reference to any positive act that brings employment to an end either by the employer giving notice or the employee voluntarily resigning. It is considered that in order to satisfy the requirements of the regulations it must be shown that you are suffering from ill-health or infirmity of mind or body so as to be incapable of efficiently carrying out your former duties. If it is found that such a condition existed, either at the time that employment ceased or at an earlier date, it will be necessary to establish that it was permanent in the sense required by the regulations. To qualify for enhancement under schedule D3, the total period of membership must be not less than 5 years.
9. To assist the Secretary of State in reaching a conclusion, you underwent an independent medical examination on 7 October 1997 by Dr XXX, Consultant Rheumatologist.
10. In his report dated 17 February 1998, copies of which were sent to both parties on 2 March 1998, Dr XXX stated that he had reviewed x-rays of your cervical spine performed in 1994, which were reported as unremarkable; x-rays of your lumbar spine, which showed only minor degenerative changes in the apophyseal joints of the back; and x-rays of your knees, hands and wrists performed in January 1996, which were also unremarkable. He considered that these features would be in keeping with you having mild lumbar spondylosis but he did not think the changes severe enough to lead to permanent disability. He felt there were a number of other confounding features in terms of dizziness and headaches which he was sure contributed to your difficulty in working. Dr XXX concluded that you have evidence of mild radiological spinal osteoarthrosis affecting the lumbar spine, which was not in his view severe enough to lead to permanent disability and has responded at least in part to treatment under the Pain Clinic at XXX Hospital. Dr XXX maintained that your degenerative arthritis condition is not in itself the sole cause of your symptoms and illness and other complaints have contributed to your poor work record as outlined in your sickness record, the most recent thirty five complaints largely relating to vertigo, headache and collapse.
11. Dr XXX certified that the degenerative arthritis you are suffering from would not render you incapable of carrying out the duties set out in your job description, however, he indicated that your psychological condition would do so.
12. The Secretary of State recognises that there has been no suggestion during the presentation of your case, and up to the independent medical examination, by yourself, Dr XXX or Dr XXX that you are suffering from a psychological complaint. The Secretary of State takes the view that your medical condition in question has been the physical aspects of your illness.
13. The Secretary of State notes that you are not in agreement with the job description which was presented to Dr XXX from the company, however, after sight of both parties comments following his medical report, Dr XXX fully accepted that “... Mr XXX has a number of other symptoms, but with regard to specifically a degenerative arthritic condition, I see no indication to change my initial opinion”.
14. After careful consideration and taking all the medical and documentary evidence into account and based on the balance of probabilities, the Secretary of State takes the view that it is more likely than not that on 28 September 1995, you were not incapable of carrying out your former duties by reason of permanent ill health or infirmity of mind or body it is also noted that the disagreement concerning the job description does not add material to the views expressed in the report by Dr XXX. He therefore dismisses the appeal.
15. A copy of this letter has been sent to the company.
16. The above constitutes the Secretary of State's determination of this case. Having made his determination the Secretary of State has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court. Because of this, officials may not discuss the matter further.
17. 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).