569 index Our Ref: LGR 85/19/48
June 1999
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 9 April 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council. The Appointed Person upheld the decision of XXX Council (the council) that your deferred pension benefits should not be paid from the time of your redundancy in March 1995.
2. The question for decision: The question for decision by the Secretary of State is whether in March 1995 you had become incapable of efficiently performing your duties by reason of permanent ill-health or infirmity of mind or body, so as to qualify for early payment of your deferred pension benefits.
3. The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited to reconsidering the original disagreement, that is, the disagreement referred to the Appointed Person. He takes the view that it would be inappropriate for him to consider new medical evidence which became available after the Appointed Person had reached his decision. This is because this evidence does not form part of the original disagreement between you and the council. For this reason the letter from XXX, Consultant Physician dated 18 February 1999 has been noted but not relied upon by the Secretary of State in reaching his decision.
4. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations, all the representations made, and the evidence submitted to the Appointed Person. He finds that insufficient medical evidence has been provided to him to demonstrate whether in March 1995 you had, on the balance of probabilities, become incapable of efficiently discharging the duties of your former post by reason of permanent ill-health or infirmity of mind or body. You have provided no convincing medical evidence to this effect; equally the council have not provided evidence to demonstrate that they acted properly in reaching their decision and that their decision was justified and not unreasonable. The Secretary of State has decided that the council should reconsider the matter in a proper fashion, demonstrating that they have taken proper account of the medical issues. His decision does not require the council to come to a different decision if, after considering the appropriate medical evidence, they conclude that your deferred pension benefits should not be paid from the time of your redundancy in March 1995. His decision replaces 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 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 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).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a) from you: letters dated 9 April 1999 (with enclosures) and 3 June 1999; and
b) from the Appointed Person: letters dated 22 and 28 April 1999.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) your date of birth is 15 December 1943;
b) you were employed by the council from 28 November 1988, as a clerical assistant on 1 May 1992, until your employment was transferred to XXX Plc on 22 August 1994;
c) you were a member of the local government pension scheme (LGPS) with reckonable service, determined by an earlier appeal to the Secretary of State, from 28 November 1989 until 21 August 1994;
d) you were entitled to deferred benefits on transferring to XXX Plc;
e) in March 1995, while on sick leave, you were made redundant from XXX Plc;
f) following the Secretary of State's determination of your previous appeal in March 1997, you applied to the council for early release of your deferred benefits; and
g) on 8 June 1997 you were awarded early release of your deferred LGPS benefits on ill-health grounds.
3. You contend that your benefits should have been paid with effect from March 1995. You maintain that you are prevented from working by depression which you have suffered since 1992, back pain and pelvic pain; that you were off sick when you were made redundant and have not worked since. You contend that despite the Appointed Person's recommendation the council have failed to consult the relevant medical evidence in determining your case.
4. The Secretary of State has not been given a copy of your original appeal to the Appointed Person, but he accepts that you were seeking payment of your deferred benefits from March 1995 instead of 8 June 1997 when they were actually put into payment. The Appointed Person noted, in his first decision dated 14 July 1998, that "I have no knowledge from the employers (both XXX Council or XXX Plc) of the complainants health record, absentee record etc. and the complainant has herself not produced any medical evidence to justify or support her claim.". He concluded that "It is my decision, based on the evidence available, not to uphold the complaint of Ms XXX.". However he urged "...the employer to retrieve all relevant documentation, seek full medical records relating to the former employee (the complainant) to ensure that the original decision was indeed reasonable, consistent and appropriate."
5. On 17 November 1998 the council decided that there was “no further information to substantiate your original claim for ill-health benefit to be backdated...no evidence to show you were suffering from a permanent condition which would mean that you were incapable of carrying out your former role...”. Their decision followed consideration of a medical report supplied by your GP in conjunction with the information previously supplied. The Appointed Person issued a second decision dated 4 December 1998 not to uphold your appeal. He considered it would be extremely difficult to conclude objectively that your condition prior to 1997 was permanent without a qualified and firm opinion being provided to that effect by your and the council’s medical advisers.
6. The Secretary of State has had regard to the regulations which, in his view, apply. He notes that the Appointed Person considered the facts of your case under regulation D11 of the 1995 regulations. The regulation in force when you ceased employment with XXX Plc in March 1995 was regulation E2(6)(a) of the 1986 regulations. In practice the test to be applied was the same in both regulations: whether you had become incapable by reason of permanent ill-health or infirmity of mind or body of carrying out your former duties efficiently.
7. The Secretary of State notes that your deferred benefits were put into payment on health grounds on 8 June 1997. The Secretary of State therefore accepts that it is not disputed that you were so incapable at that date. However, no evidence has been provided to him to indicate the medical basis of that decision. Nor has he been given any evidence of what your former duties comprised. He finds this unhelpful when considering whether you were so incapable at the earlier date of March 1995.
8. The medical evidence shown to the Secretary of State is sparse. Leaving aside the letter of 18 February 1999 from XXX, Consultant Physician, which postdates both the council’s and the Appointed Person’s decisions and has not therefore been considered by them, the medical evidence available to the Secretary of State consists of:
a) a letter dated 4 October 1997 from Dr XXX FRCPE, medical adviser to the council, saying that he is unable to comment on your state of health at the time you were made redundant, and whether you would have qualified to be certified as unfit for duties due to permanent ill-health; and
b) an undated document headed “XXX - medical report” comprising a list of dates and brief medical notes which the Secretary of State assumes to be evidence from your G.P. Dr Martin. It is unclear at what stage this was submitted to the council or whether it is the evidence from your G.P. considered by Dr XXX. It is noted that the council’s letter of 27 May 1997 refers to a report from Dr XXX to Dr XXX.
9. The Secretary of State does not find this medical evidence or the lack of clarity helpful or conclusive in considering the date of your permanent incapacity. Furthermore he has not been provided with the council’s initial decision to refuse to backdate your benefits to March 1995, which led to your original appeal. It is not clear to him, therefore, how the council reached that decision or what evidence they considered. In his view the statement by Dr XXX in his letter of 4 Ocotber 1997 would, on its own, have been insufficient on which to arrive at such a conclusion. The Secretary of State notes the council’s decision dated 17 November 1998 following their review of the evidence, stating that there is no further information to substantiate your claim and no evidence of permanent incapacity in March 1995. It is clear from the papers that the council sought further medical evidence from you and had a report from your G.P. but there is no written evaluation of the evidence and the issues raised. In the Secretary of State’s view, therefore, this letter also fails to show clearly how the council reached their decision and it fails to demonstrate, as required by the Appointed Person’s decision of 14 July 1998, that their original decision was reasonable, consistent and appropriate.
10. The Secretary of State is unable to conclude on the limited information provided to him whether you fulfilled the criteria for early release of your benefits on health grounds in March 1995. He considers that you have not provided convincing evidence to show that on the balance of probabilities this was the case and that you have not substantiated the grounds of your appeal. However, while he cannot therefore uphold your appeal, he cannot dismiss it because he is not satisfied that the evidence demonstrates that the council acted properly in reaching their decisions or that that those decisions were demonstrably justified and not unreasonable. In all the circumstances he concludes that the council must now reconsider the matter in a proper fashion and reach a decision which satisfactorily demonstrates that it is based on a clear evaluation of relevant evidence. The Secretary of State’s decision does not require them to come to a different decision if after considering and properly assessing the medical evidence, they still conclude that your deferred pension benefits should not be paid from the time of your redundancy in March 1995.