611          INDEX                                                                                                                   Our Ref: LGR  85/19/55

11 August 1999

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

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 25 April 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of the XXX Council Pensions Appeal Panel (the Appointed Person), in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).

 

2.                  The Appointed Person upheld the council's decision that you are not entitled to the early payment of your deferred LGPS benefits.

 

3.                  The question for decision: The question for decision by the Secretary of State is whether at the time you applied for early release of your deferred benefits in March 1998 you had become permanently incapable of carrying out efficiently your former duties by reason of ill-health or infirmity of mind or body.

 

4.                  The Secretary of State has considered all the representations and evidence.

 

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations and all the medical evidence.  Based on the balance of probabilities, he finds that for the purposes of the 1995 regulations, it has not been shown conclusively that between ceasing your employment with the council in March 1982 and March 1998, you had become permanently incapable of carrying out efficiently your former duties by reason of ill-health or infirmity of mind or body.  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 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 0171 233 8080).

 

7.                  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).

 

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

            EVIDENCE RECEIVED

 

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

 

a)                  from you: letters dated 25 April (with enclosures), 16 June, 23 June, 1 July and 23 July 1999; and

 

b)                  from the Appointed Person: letter dated 17 May 1999 (with enclosures) (listed in the Departments letter of 28 May 1999).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  your date of birth is 2 September 1948;

 

b)                  you were employed by the council as a Bus Conductor;

 

c)                  you were a member of the LGPS (formally the local government superannuation scheme);

 

d)                  your employment with the council ceased in March 1982;

 

e)                  in March 1998 you applied to the council for early payment of your deferred benefits on ill-health grounds; and

 

f)                    your application was refused following the advice of the council’s Occupational Health Physician.

 

3.                  You are dissatisfied with the Appointed Person's handling of your case and you question the interpretation of the medical evidence, specifically the report by Dr XXX, dated 17 June 1998.  You contend that, due to your numerous ill-health problems and the fact that you are receiving incapacity benefit, you are entitled to early release of your deferred LGPS benefits.

 

4.                  The Appointed Person reached the decision that "... you had not provided sufficient evidence to demonstrate that you suffered from a permanent incapacity ... in respect of your previous employment with XXX Council as a bus conductor.".

 

5.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time you applied for early payment of your preserved pension benefits, the 1995 regulations were in force.  To qualify for early payment under these regulations, it must be shown that, since ceasing your former employment you have become permanently incapable of discharging efficiently the duties of that employment by reason of ill-health or infirmity of mind or body.

 

6.                  The Secretary of State notes that the council refused to grant you early payment of your deferred pension benefits on ill-health grounds based on the advice of their Occupational Health Physician, Dr XXX.  He notes that in forming his opinion, Dr XXX sought the advice of your GP, Dr XXX and that based on this evidence, Dr XXX concluded that although you would almost certainly be in some difficulty working as a bus conductor due to your physical problems he did not consider that you were permanently incapable of such duties.  The Secretary of State further notes that in reaching his decision, the Appointed Person sought clarification on this matter from Dr XXX.  He is therefore satisfied that Dr XXX' opinion was not improperly founded and that the Appointed Person reached his decision using appropriate medical evidence.

 

7.                  The Secretary of State notes Dr XXX' letter to the council, dated 9 June 1998, in which he comments that "... unless he provides further substantial evidence as to his disability he would not be eligible for deferred benefits on medical grounds.".  He also notes that your solicitors, XXX, advised you that you would need to provide further documentary evidence to support your appeal to the Appointed Person.  Whilst the Secretary of State notes that a DSS Incapacity for Work - Medical Report Form was submitted to the Appointed Person, he notes that no report from your specialist was obtained.  The fact that you are receiving incapacity benefit is not conclusive because the test is not identical to that required under the LGPS regulations which the council, the Appointed Person and the Secretary of State have to apply.  The Secretary of State takes the view that you were given the opportunity to submit medical evidence that you were permanently incapable of performing your former duties as a Bus Conductor, but that you have not submitted evidence which conclusively demonstrates this to be the case.  

 

8.                  The Secretary of State has considered all the evidence submitted to him.  He notes the comments made by Dr XXX and those made by Dr XXX.  He takes the view that there is no conclusive medical evidence to show that, on the balance of probabilities, you are permanently incapable of discharging efficiently the duties of a Bus Conductor by reason of ill-health or infirmity of mind or body.  The Secretary of State concludes therefore that you are not entitled to the early release of your deferred benefits on the grounds of ill-health from March 1998.