772 INDEX
LOCAL GOVERNMENT PENSION APPEAL - MR XXX
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 6 March 2000 in which you appeal (under regulation 102 of the 1997 regulations), on behalf of Mr XXX against the decision of Mr XXX, the Appointed Person for XXX, in relation to his local government pension scheme (LGPS) dispute with XXX Limited (the Company).
2. The Appointed Person found that Mr XXX was not entitled to the immediate payment of his LGPS pension benefits because he was not satisfied that Mr XXX was permanently incapable of discharging efficiently the duties of his former employment.
3. 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 Company to act outside the provisions of the regulations.
4. The disagreement you referred to the Appointed Person was whether the Company should have granted Mr XXX immediate payment of his LGPS benefits on the grounds of ill-health from when he ceased employment with them on 6 May 1998.
5. The question for decision: The question for decision by the Secretary of State is whether Mr XXX’s employment ceased because he was permanently incapable of discharging efficiently the duties of that employment, by reason of ill health or infirmity of mind or body, so as to qualify for the immediate payment of his LGPS benefits.
6. Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. Based on the balance of probabilities, he finds that for the purposes of the 1997 regulations, it has not been shown conclusively that Mr XXX ceased employment because he was permanently incapable of discharging efficiently the duties of his employment by reason of ill-health or infirmity of mind or body. Mr XXX does not therefore qualify for immediate payment of his LGPS benefits. The Secretary of State’s decision confirms 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.
7. 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).
8. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).
1) The following evidence has been received and taken into account:
a) From you: Letter dated 6 March 2000 (with enclosure); letter dated 3 May 2000 (with enclosure);
b) From Mr XXX: Letter dated 28 March 2000;
c) from the Appointed Person: Letter dated 12 April 2000 containing documents considered by him (copies sent to you under cover of the Department's letter of 19 April 2000);
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 23 July 1941;
b) He was employed by XXX Limited as a bus driver;
c) He is a member of the LGPS;
d) He had an episode of ‘geographical disorientation’ on 22 November 1997 whilst driving a motor vehicle.
e) He ceased employment with the Company on 6 May 1998.
f) On 27 May 1998, following a medical examination, Dr XXX (consultant neurologist) wrote a report in which he stated that he considered it likely that Mr XXX’s episode of 22 December 1997 was due to cerebravascular disease. He stated that he would arrange a CT scan and an EEG.
g) Mr XXX’s PCV driving licence was revoked on 8 June 1998.
h) Mr XXX was referred to the Company’s medical advisor to consider whether retirement on the grounds of ill health was appropriate. On 16 June 1998 Dr XXX signed a certificate stating that Mr XXX was ‘not incapable of discharging efficiently the duties of his/her employment by reason of permanent ill health or infirmity of mind or body.’
i) On 5 November 1998 Dr XXX wrote to Mr XXX’s GP, confirming that the ‘CT head scan showed no focal abnormality and his EEG was also within normal limits.’
j) Following your appeal to the Appointed Person, Mr XXX, the Appointed Person’s medical advisor, concluded in his report dated 27 October 1999 that: ‘.in the absence of a clinical diagnosis, one must still conclude that this man is not permanently incapacitated.’
3. You contend that Mr XXX should be entitled to early retirement on ill health grounds with benefits on the basis of his continued inability to work. The substantive grounds of your appeal are as follows:
i) The Appointed Person’s decision letter made no reference to the fact that Mr XXX’s PCV licence had been revoked, and ‘therefore we can only assume that this fact was not considered.’
ii) Both Dr XXX (consultant neurologist) and Dr XXX (Mr XXX’s GP) are of the opinion that the Mr XXX’s episode of geographical disorientation was due to cerebrovascular disease, and, contrary to the Appointed Person’s conclusion, their opinions did amount to a clinical diagnosis.
iii) Mr XXX cannot categorically confirm that Mr XXX will not suffer any further episodes of geographical disorientation, and since he cannot do so ‘it stands to reason that Mr XXX is permanently incapable of carrying out the duties of a bus driver.’
iv) As a result of these episodes, Mr XXX ‘has developed a phobia about driving’, and ‘as a result of Mr XXX’s phobia, Mr XXX’s opinion is that he will never be able to return to his previous employment.’
4. The Appointed Person referred Mr XXX to his Independent Medical Advisor, Mr XXX. Following Mr XXX’s report, the Appointed Person concluded: ‘in the absence of a clinical diagnosis, he (Mr XXX) is unable to conclude that you are permanently incapacitated. Having considered all of the medical evidence my decision is that I am not satisfied that you are permanently incapable of discharging efficiently the duties of your former employment as a driver and therefore you are not entitled to immediate payment of your pension benefits.’
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 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. The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for a member to perform the duties of their former employment efficiently before their normal retirement age when LGPS benefits must, in any case, be paid.
6. The Secretary of State has noted all the medical evidence submitted to him comprising: Medical report and certificate by Dr XXX, dated 5 August 1998; medical reports by Dr XXX, dated 27 May 1998 & 27 July 1999; letters from Dr XXX dated 5 November 1998, 19 November 1999, 25 February 2000 & 20 April 2000; letter & medical report by Mr XXX, dated 27 October 1999; supplementary medical report by Mr XXX dated 8 December 1999; letter from Dr XXX, dated 26 November 1999.
7. The Secretary of State has noted the additional evidence of a letter by Dr XXX, dated 20 April 2000, and your comment on the question raised in your letter of 3 May 2000.
8. The Secretary of State has first noted your contention that, as the Appointed Person’s decision letter dated 20 January 2000 did not refer to the revocation of Mr XXX’s PCV licence, the Appointed Person did not take this fact into account. The Secretary of State notes Mr XXX’s (deputy clerk to the Appointed Person) letter dated 9 March 2000, which makes specific reference to this issue: ‘The fact the DVLA have withdrawn Mr XXX’s licence to drive a bus is not evidence that he is permanently incapacitated. If Mr XXX’s health were to improve in the future and he reapplied for his licence then no doubt the DVLA would reconsider their decision.’ He also notes that a number of explicit references were made regarding the revocation of Mr XXX’s licence in the documents considered by the Appointed Person, including in the report dated 27 October 1999 by the Appointed Person’s own medical advisor, Mr XXX. He is satisfied therefore, that the Appointed Person properly considered this matter. Furthermore, he agrees with the view expressed by Mr XXX in his letter of 9 March 2000 with regard to the relevance of the withdrawal of a driving licence on the grounds of ill health by the DVLA. This is, in his view, supported by your letter of 3 May 2000 stating that they would re-consider re-instatement of Mr XXX’s PCV licence if there was evidence that a year had elapsed without a second attack and the application had medical support.
9. The Secretary of State has also noted your contention that Dr XXX and Dr XXX made a clinical diagnosis that Mr XXX’s episodes were due to cerebravascular disease, and consequently that Mr XXX was incorrect to interpret their opinions as anything other than that. The Secretary of State notes Dr XXX’s statement in his report dated 27 July 1999 that: ‘I agree with Dr XXX that it is likely that the episode on 22 December was due to cerebrovascular disease.’ And also; ‘Mr XXX had an episode of geographical disorientation on 22 December 1997. The Cause of this was uncertain but it was thought to be due to cerebravascular disease.’ The Secretary of State further notes that Dr XXX made these statements after the results of the CT head scan and EEG were known to him. In Dr XXX’s letter of 5 November 1998, he confirmed that the ‘CT head scan showed no focal abnormality and his EEG was also within normal limits.’ Mr XXX wrote in his first report dated 27 October 1999 that: ‘With regard to the issue of his incapacity, it is impossible to offer a clinical judgement without knowing the results of the C.T. scan, the E.E.G. and other tests..’ Following confirmation of the test results, Mr XXX stated in his report dated 8 December 1999: ‘in the absence of a clinical diagnosis, one must still conclude that this man is not permanently incapacitated.’ The Secretary of State takes the view that it was Mr XXX’s medical opinion that, without positive confirmation from the test results, or more definitive statements regarding the cause of Mr XXX’s episodes by other medical professionals, Dr XXX’s and Dr XXX’s opinions as to possible causation did not amount to a clinical diagnosis.
10. The Secretary of State notes your contention that, if Mr XXX cannot categorically confirm that Mr XXX will not suffer from any further episodes of geographical disorientation, ‘it stands to reason that Mr XXX is permanently incapable of carrying out the duties of a bus driver.’ The Secretary of State does not agree with this contention. The regulations require that permanent incapability due to ill-health must be positively demonstrated. The relevant test would therefore be whether the medical evidence demonstrated that, on the balance of probability, such episodes were likely to recur, and cause permanent incapability, not simply that there was no evidence to show they would not recur.
11. Lastly, the Secretary of State notes your contention that Mr XXX ‘has developed a phobia about driving’, and ‘as a result of Mr XXX’s phobia, Mr XXX’s opinion is that he will never be able to return to his previous employment.’ The Secretary of State notes that, in Dr XXX’s report of 27 October 1999, he states:
‘It is absolutely plain from my conversation with Mr. XXX that he is terrified about the possibility of driving a public service vehicle. He feels that his health is unsafe and he seems to have a perfectly genuine belief that it would be unfair and intolerable to expose members of the public to the possible danger of him suffering a further episode while driving. For this reason I feel that it is out of the question that Mr. XXX will ever be able to return to his previous employment.’
‘With regard to the issue of his incapacity, it is impossible to offer a clinical judgement.......’
The Secretary of State accepts that Mr XXX believed Mr XXX to be genuinely ‘terrified’ of driving a bus again, and that he felt that this, if not his actual physical health, would prevent him from driving again. The Secretary of State also notes however, that Mr XXX does not appear to consider this issue a medical incapacity, as he clearly draws a line of distinction between the two issues in the above quoted passage, and he does not offer a clinical diagnosis for Mr XXX’s ‘terror’ of driving a bus. The Secretary of State takes the view, therefore, that there is no conclusive medical evidence of a medically diagnosed phobia that renders Mr XXX permanently incapacitated from the duties of his former employment.
12. The Secretary of State takes the view that it is not disputed that at the time of Mr XXX’s appeal he was incapable of efficiently performing his duties. He acknowledges that Mr XXX suffered an episode of geographic disorientation in 1997 whilst driving his bus and that he is terrified that this might happen again. He has further noted that the DVLA have revoked Mr XXX’s PCV licence on medical grounds. Although the Company has not confirmed the reason for his dismissal, they have not disputed that it was on grounds of incapability. The Secretary of State has also noted that both Dr XXX and Dr XXX appear genuinely sympathetic to Mr XXX’s situation. However, he has also noted that neither the Company’s nor the Appointed Person’s medical advisors were prepared to certify that Mr XXX is permanently incapacitated from his former duties by reason of ill health, as required by the regulations, without a definitive clinical diagnosis, which they could not make and apparently did not feel other medical professionals had made. The Secretary of State must conclude therefore, that there is no conclusive medical evidence to show that Mr XXX is, on the balance of probability, suffering from such a condition of ill health or infirmity of mind or body that he is permanently incapable of performing his former duties efficiently. The Secretary of State concludes, therefore, that it has not been shown that Mr XXX ceased employment on grounds of permanent incapability because of ill health in the sense required by the regulations, and consequently he is not entitled to the immediate payment of his LGPS benefits from when he ceased employment with the Company. He would add, however, that if a clinical diagnosis is made in the future, it is open to Mr XXX to reapply for his LGPS benefits to be paid early.