SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 ("the 1986 regulations")

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 ("the 1997 regulations")

 

1.                  I refer to your letter of 7 January 1999 in which you appealed (under regulation 102 of the 1997 regulations), on behalf of Mr XXX, against the decision of XXX, the Appointed Person for XXX Fund.  The Appointed Person upheld the decision of XXX Authority (the authority) not to award Mr XXX immediate payment of ill-health retirement benefits from when he ceased employment with them, as there was no evidence to support the contention that he was permanently unfit.

 

2.                  The question for decision - The question for decision by the Secretary of State is whether, when Mr XXX ceased employment with the authority he was incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body, and so qualify for the immediate payment of his local government pension benefits.

 

3.                  The Secretary of State has considered all the representations and evidence.  Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department’s letter of 3 February 1999.

 

4.                  Secretary of State’s determination: The Secretary of State, having taken into account the appropriate regulations, finds that in the light of the medical evidence, and on the balance of probability, Mr XXX was not suffering from permanent ill-health or infirmity of mind or body so that he was incapable of discharging efficiently the duties of his employment at the time he ceased employment with the authority on 12 May 1993.  His decision confirms that made by the Appointed Person.  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 determination.  He is acting judicially and has no power to modify the application of the regulations to the facts of the case.  Having made his decision he has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court.  Because of this the Secretary of States officials cannot discuss the case further.

 

5.                  The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

 

6.                  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).

 

7.                  A copy of this letter has been sent to the Appointed Person and the Pension Manager.

 

 

            EVIDENCE RECEIVED

 

1.                  The following evidence has been received and taken into account:

 

a)                  from Mr XXX, on behalf of Mr XXX: letter dated 7 January 1999 with enclosures; and

 

b)                  from the Appointed Person: letter dated 19 January 1999 with enclosures (listed in the list of relevant papers sent to you under cover of the Department’s letter of 3 February 1999).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

2.                  From the evidence submitted the following points have been noted:

 

a)                  Mr XXX’s date of birth is 1 June 1941;

 

b)                  he was employed by the authority;

 

c)                  he was a member of the local government pension scheme (LGPS);

 

d)                  his employment with the authority ceased on 12 May 1993;

 

e)                  at the time his employment ceased he was employed as a General Assistant (Weighbridge Clerk); and

 

f)                    following medical reports from Mr XXX’s GP and two consultants, submitted to the authority on 23 June 1995, his deferred pension benefits were brought into payment on the grounds of permanent ill-health.

 

3.                  You contend that Mr XXX was dismissed in his absence as he was too unwell to attend the disciplinary hearing on 12 May 1993.  You also dispute the interpretation of the medical evidence by the Appointed Person, considering that a reasonable interpretation of the phrase “Mr XXX felt well in himself until May 1993” could be taken to mean that by May 1993 he was unwell because of his prevailing medical conditions.  In your view any reasonable construction of the medical evidence is that by 12 May 1993 Mr XXX was incapable, by reason of permanent ill-health, of efficiently discharging the duties of his post.

 

4.                  The Appointed Person found that there was no medical evidence to support the view that Mr XXX was permanently unfit when his employment was terminated.  He based his determination on the medical reports you submitted and Mr XXX’s sickness record.

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply.  At the time Mr XXX ceased employment the 1986 regulations were in force.  Regulation E2(1)(b)(i) of the 1986 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.  The test which he must apply in reaching his decision is whether Mr XXX was suffering from permanent ill-health or infirmity of mind or body so as to be incapable of carrying out efficiently his duties at the time his employment ceased with the authority.

 

6.                  The Secretary of State has carefully considered the medical evidence, comprising reports from Dr XXX (Consultant Cardiologist) dated 16 February 1995, Mr XXX (Consultant Vascular Surgeon) dated 27 February 1995, and Dr XXX dated 30 March 1995.  He notes from this that Mr XXX is suffering from multiple medical problems including non-insulin dependant diabetes, severe ischaemic heart disease and impaired circulation in his legs.  He also notes that it is accepted that by June 1995 Mr XXX’s condition was permanent and made him incapable of efficiently performing his former duties.

 

7.                  The Secretary of State notes that there is evidence that Mr XXX was suffering from heart disease from 1989.  Dr XXX stated that Mr XXX underwent coronary angioplasty in November 1992, from which there was initially a good result.  Mr XXX was seen by Dr XXX in November 1993 when it was noted that, whilst his angina had recurred to some extent, his limitation was not as bad as prior to his operation.  In 1994 Mr XXX was admitted to hospital with continuing chest pains which eventually settled with increased medication. 

 

8.                  Dr XXX reported that Mr XXX felt well until May 1993 and that he had been gradually deteriorating since then.  The Secretary of State notes that in the period 1 April 1992 to 12 May 1993 (the date Mr XXX’s employment ceased) Mr XXX was absent from work due to ill-health on the following occasions:

 

a)                  27 April 1992

b)                  1 to 4 May 1992

c)                  17 to 23 August 1992

 

However, he was suspended from October 1992 and it is claimed he was too unwell to attend a disciplinary hearing on 12 May 1993.

 

9.                  Taking all the evidence into account, the Secretary of State takes the view that, while it is clear that Mr XXX was suffering from medical problems for some time prior to his dismissal, these were being treated and were not such as to make him incapable of efficiently carrying out his former duties.  The evidence indicates a gradual deterioration in his condition from May 1993.

 

10.              The Secretary of State concludes that there is no conclusive medical evidence that at the time he ceased employment on 12 May 1993 Mr XXX was incapable of discharging his duties efficiently as a General Assistant by reason of permanent ill-health or infirmity of mind or body.