843 INDEX
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 dated 6 June 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council (the council), in relation to your local government pension scheme (LGPS) dispute with the council.
2. The disagreement you referred to the Appointed person was whether the council should have granted you early release of your preserved LGPS benefits following your request for them on the grounds of ill-health on 27 July 1996. The Appointed Person found that you did not satisfy the requirements of the LGPS regulations for early release of your deferred retirement benefits on ill-health grounds.
3. The question for decision: The question for decision by the Secretary of State is therefore whether, at the time of your application, you had become permanently incapable of discharging efficiently the duties of your former employment because of ill-health or infirmity of mind or body, and so qualify for the early release of your deferred LGPS benefits.
4. Secretary of State’s decision: Based on the balance of probabilities, the Secretary of State finds that for the purposes of the 1995 regulations, it has not been shown conclusively that, at 17 October 1997, you were permanently incapable of discharging efficiently the duties of your former employment by reason of ill-health or infirmity of mind or body, and do not therefore qualify for early release of your benefits.
5. The Secretary of State therefore dismisses your appeal. His decision confirms that made by the Appointed Person. His reasons and the regulations he considers apply in this case are set out in the annex to this letter, which forms an integral part of the decision.
6. The Secretary of State 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. This completes the second stage of the internal dispute procedure. The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone 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 made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7834 9144).
1. The following evidence has been received and taken into account:
a) from you: letters dated 6 June 2000 (with enclosures), 15 June 2000 (with enclosures) and 10 July 2000; and
b) from the Appointed Person: documents considered by him (list enclosed in the Department’s letter dated 29 June 2000.
THE SECRETARY OF STATE’S POWERS
2. 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. The 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 council to act outside of the provisions of the regulations.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) your date of birth is 5 September 1960;
b) you were employed by the council as a Domestic Bursar in the Education Department;
c) you were a member of the LGPS;
d) you had an accident at work on 11 August 1993;
e) on 12 August 1993 you commenced a period of extended sickness absence;
f) your employment with the council was terminated, on the grounds of redundancy, on 11 November 1994;
g) you applied to the council for early release of your deferred LGPS benefits on the grounds of permanent ill-health on 27 July 1996;
h) the council refused to grant your application for early release of your deferred LGPS benefits on 21 August 1997;
i) you wrote to the council on 22 September 1997 indicating that you wished to appeal their decision and advised that your union representative would be acting on your behalf;
j) your representative, Mr XXX, subsequently submitted a further medical report to the council on 17 October 1997;
k) the council reconsidered your case, but refused to grant you early release of your deferred LGPS benefits on 24 February 1998 following the advice of the council’s Occupational Health Physician; and
l) you appealed to the Appointed Person on 12 May 1998 against the council’s decision not to grant you early release of your LGPS benefits.
4. You maintain that you are permanently incapable of efficiently discharging the duties of your former employment by reason of ill-health. You also consider that the council biased the outcome of the independent medical consultants’ reports by sending them a copy of your file and you also consider they implied your previous duties were ‘a light desk job’. You further contend that Professor XXX failed to consider the fact you had given birth 12 days before his examination of you.
5. The Appointed Person determined that “ In my view the Council’s decision not to certify you as permanently unfit with effect from 17 October 1997 was reasonable on the basis of the evidence available at the time of the relevant decision (24 February 1998). Further, my subsequent consideration of additional evidence leads me to decide that there continues to be insufficient evidence to conclude, on a balance of probabilities, that you are permanently unfit.”
6. 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 deferred pension benefits, the 1995 regulations were in force. To qualify for early payment under these regulations, it must be shown that, at the time that you applied for the early release of your deferred LGPS benefits you had become permanently incapable of discharging efficiently your former duties as a Domestic Bursar because of ill-health or infirmity of mind or body (regulation D11). He regards the appropriate test of permanent incapability to be that your condition would be unlikely to improve sufficiently for you to be able to perform your former duties before your normal retirement age when LGPS benefits must, in any event, be paid.
7. The Secretary of State notes your contention that the council biased the outcome of the independent medical consultants’ reports by sending them a copy of your file and implying your previous duties were ‘a light desk job’. He notes that this contention was not included in your original disagreement referred to the Appointed Person. His powers under the regulations are to reconsider the disagreement referred to the Appointed Person. However, he notes that it is normal practice to forward case papers to an independent medical practitioner to provide him with background information so as to assist his consideration of the case. He also notes Dr XXX considered a copy of your job description as Domestic Bursar at XXX School when preparing his report dated 19 August 1999.
8. The Secretary of State notes that you consider Professor XXX did not consider the fact that you had given birth twelve days before his examination of you. He notes that Professor XXX states “…[you] have had two children since the accident. ….the second [pregnancy] resulted in a child being born about two weeks before my examination…” He considers that Professor XXX did therefore recognise that you had recently given birth.
9. The Secretary of State notes that you are entitled to Disability Living Allowance for life. He takes the view that benefits awarded by the DSS are not conclusive in determining the award of LGPS benefits, as the tests to be applied are different.
10. The Secretary of State has received letters from XXX dated 16 May 2000, XXX dated 15 March 2000 and Dr XXX dated 15 May 2000 which were enclosed with your appeal letter dated 6 June 2000 and a letter from XXX dated 14 June 2000 which was enclosed with your letter dated 15 June 2000. The Secretary of State does not normally consider such evidence as his role under the regulations is to reconsider the original agreement referred to the Appointed Person. However, in his view this the evidence does not materially alter the facts of this case.
11. The Secretary of State notes that the council refused to grant you early payment of your deferred pension benefits on ill-health grounds, on 21 August 1997, based on the medical report from Dr XXX, Consultant Rheumatologist, which was requested by the council’s Occupational Health Physician, Dr XXX. In her memorandum dated 4 August 1997, Dr XXX states “I have now received the report regarding [you] from the independent medical examiner. This indicates that he does not consider [you] “incapable, by reason of permanent ill health or infirmity of mind or body, of discharging efficiently the duties of the employment [you] ceased to hold.” ”
12. The Secretary of State notes you gave permission for a medical report prepared by Professor XXX to be released to the council on 4 February 1997. He notes Professor XXX stated “…I observed gross discrepancies between [your] neck and back movements when being formally examined when they were severely restricted and at other times when [you] seemed able to move more freely. These observations suggest that the exaggeration of the severity of [your] problem is likely to be deliberate.” He notes Professor XXX also states “[You describe] disability sufficient to stop [you] working, but other factors which also would lead to difficulties in working are … very severe asthma and very severe eczema.” He notes that Professor XXX did not state whether he considered you were permanently incapable of performing you former duties.
13. The Secretary of State notes that, in his letter dated 17 October 1997, your representative Mr XXX submitted further medical evidence to the council from Dr XXX, dated 10 October 1997. He notes the council again refused to grant you early payment of your deferred pension benefits on 24 February 1998, based upon the advice of their Occupational Health Physician, Dr XXX. In her memorandum dated 6 February 1998, Dr XXX states “I have now received all the medical evidence I require in connection with [your] request for early payment of [your] pension benefits on the grounds of permanent ill health.” Dr XXX, in her further memorandum, dated 13 February 1998, states “I am able to confirm that there is no objective medical evidence that [you are] permanently unfit for [your] former post as Domestic Bursar at XXX School”.
14. The Secretary of State notes that the Appointed Person based his decision on the medical evidence submitted to him and a further medical report he requested from Dr XXX. In his report dated 19 August 1999, Dr XXX commented that “… it is not possible to say that [you are] permanently unable to work but [you] will be unable to work until there is effective control of [your] problem(s).” Dr XXXs report took account of: letters from your General Practitioner, Dr XXX and your Consultant Dermatologist, Dr XXX; medical reports from Consultant Rheumatologist, Dr XXX and Emeritus Professor of Rheumatology, Professor XXX; your letter of appeal dated 12 May 1998; letters from you to Mr XXX dated 10 July 1998, 23 July 1998, 2 August 1998 and 25 May 1999; and a copy of your job description as Domestic Bursar at XXX School.
15. The Secretary of State has considered all the medical evidence and opinion submitted to him, comprising of: Dr XXX’s medical certificate dated 25January 1994; Consultant Dermatologist Dr XXX’s letter dated 24 March 1998; letter from XXX, National Eczema Society, dated 25 March 1998; XXX Chemist’s list of prescription items provided to you from beginning of 1998 to 26 March 1998; Dr XXX’s letter dated 2 September 1996; Dr XXX’s letters dated 10 October 1997 and 19 December 1997; Consultant Orthopaedic Surgeon Dr XXX’s letter undated but confirmed as being sent on 15 May 1997; XXX’ letter 1 April 1998; Consultant Rheumatologist Dr XXX’s medical report dated 22 July 1997; Dr XXX’ letter dated 17 September 1999, Occupational Health Physician Dr XXX’s internal memoranda dated 4 August 1997, 23 September 1997, 6 February 1998, 13 February 1998, 16 June, 8 July 1998 and 31 July 1998; Dr XXX’s letter dated 14 August 1996; Emeritus Professor of Rheumatology, Professor XXX’s medical report dated 16 June 1997; Consultant Dermatologist Dr XXX’s letter dated 3 November 1998; and Consultant Dermatologist Dr XXX’s medical report dated 19 August 1999.
16. The Secretary of State takes the view that the medical evidence shows that you suffer from back pain and that you also suffer from asthma and eczema. He also accepts that at the time you applied for early release of your deferred benefits the medical evidence indicates you were incapable of efficiently performing your previous duties. However, the question that the Secretary of State has to decide is whether your incapacity is likely to be permanent within the meaning of the regulations, that is, that it would be unlikely to improve sufficiently for you to be able to efficiently perform your former duties before your normal retirement age when LGPS benefits must, in any event, be paid. Bearing in mind your age, the Secretary of State concludes that on the balance of probabilities the medical evidence taken as a whole suggests that you are not suffering from such a condition of ill-health or infirmity of mind or body that you will be permanently incapable of performing your former duties efficiently in the sense outlined above as required by the regulations.