850 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 7 June 2000 in which you appeal (under regulation 102 of the 1997 regulations), against the decision of Mr XXX, the Appointed Person for the XXX (the Council), on behalf of Ms XXX, in relation to her local government pension scheme (LGPS) dispute with the Council.
2. The Appointed Person found that Ms XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits.
3. The question for decision: The question for decision by the Secretary of State is whether Ms XXX qualifies for the immediate payment of her LGPS benefits, on the grounds that she ceased employment with the Council by reason of being permanently incapable of discharging efficiently the duties of her employment because of ill-health or infirmity of mind or body.
4. Secretary of State’s decision: Based on the balance of probabilities, the Secretary of State finds that for the purposes of the 1997 regulations, it has not been shown conclusively that Ms XXX ceased employment because she was permanently incapable of discharging efficiently the duties of her employment by reason of ill-health or infirmity of mind or body. She does not, therefore, qualify for immediate payment of her LGPS benefits.
5. 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.
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 020 7233 8080).
7. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).
THE SECRETARY OF STATE’S POWERS
1. 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 Council to act outside the provisions of the regulations. The disagreement you referred to the Appointed Person was whether the Council should have granted Ms XXX ill-health retirement from when she ceased employment with them on 28 April 2000.
2. The following evidence has been received and taken into account:
a) From you: Letter dated 7 June 2000 (with enclosures); letter dated 14 August 2000; letter dated 4 October 2000 (with enclosure); and
b) from the Appointed Person: Letter dated 10 July 2000 containing documents considered by him (copies sent to you under cover of the Department's letter of 14 July 2000); and
c) from the Council: Letter dated 6 October 2000 confirming the date of Ms XXX’s termination of employment.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
3. From the evidence submitted the following points have been noted:
a) Ms XXX’s date of birth is 19 July 1950;
b) She was employed as a School Administrative Officer at XXX School;
c) She is a member of the LGPS;
d) She commenced a period of sickness absence in early 1997;
e) In a letter dated 15 September 1997, Dr XXX, Occupational Health Physician for the Council, confirmed a diagnosis of chronic fatigue syndrome (CFS), but stated that Ms XXX could not be described as permanently unfit;
f) Ms XXX was referred to an independent medical adviser, Dr XXX, Occupational Health Physician, for a second opinion on consideration for retirement on grounds of ill health. On 29 December 1998 Dr XXX wrote a letter stating that ‘Currently, [Ms XXX] is clearly unfit for work but it is my opinion that if she responds to treatment, there is a possibility that she could return to a somewhat less demanding post...until such time as full recovery takes place.’;
g) Following an employment appeals procedure and further medical evidence, the Council wrote a letter dated 5 July 1999 giving Ms XXX notice of dismissal on grounds of incapacity;
h) On 21 July 1999 Ms XXX appealed to the Appointed Person, against her employer’s decision to dismiss her on grounds of incapacity without payment of her LGPS benefits;
i) On 28 April 2000, Ms XXX’s employment was terminated.
4. The Appointed Person referred Ms XXX to Dr XXX, a senior occupational health physician, for a medical opinion. Following Dr XXX’s report dated 27 March 2000, the Appointed Person stated in his decision letter dated 30 March 2000: ‘It appears that the Council’s medical adviser has now categorically concluded that you are not permanently unfit for your duties at this stage. In these circumstances I have concluded that you are not permanently incapable of discharging efficiently the duties of your employment as Senior Administrative Officer within the meaning of Section 27(1) of the Local Government Pension Scheme Regulations 1997.
5. In a letter dated 7 June 2000, you appealed to the Secretary of State on behalf of Ms XXX against the Appointed Person’s decision on the grounds that ‘the referee has acted on medical advice although that advice has failed to address the opinion expressed by Ms XXX’s doctor who has been clear in recommending that Ms XXX will not be fit for work before her retirement age.’ In a further letter dated 14 August 2000 you contend that the investigation carried out by Dr XXX, medical advisor to the Appointed Person, was ‘inadequate.’
6. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. At the time Ms 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. Permanent incapability is defined as meaning, at the least, to age 65. Regulation 97 required the council to refer the matter to an independent registered medical practitioner qualified in occupational health medicine.
7. The Secretary of State has noted all the medical evidence submitted to him comprising: Letters from Dr XXX dated 11 February 1997 & 12 March 1997; letters from Dr XXX dated 1 July 1997, 14 July 1997 & 15 September 1997; letter from Dr XXX dated 29 December 1998; letters from Dr XXX, dated 10 February 1999 & 21 February 2000; letters from Dr XXX, dated 28 January 2000 & 27 March 2000.
8. eggghThe Secretary of State has also received from you a copy of a letter by XXX, Medical Director of the M.E. association, to Dr XXX of the Association of Local Authority Medical Advisors. It appears that Dr XXX is concerned by the current guidelines on ill health retirement used by occupational health physicians with regard to chronic fatigue syndrome. Whilst the Secretary of State accepts that Ms XXX is suffering from CFS, he does not find that Dr XXX’s letter makes any reference to Ms XXX’s particular case, and he does not consider the evidence materially alters the facts of this case. The accuracy and appropriateness of guidance issued for occupational health physicians for considering ill health retirement is not a matter for the Secretary of State to consider in the context of a pensions appeal.
9. The Secretary of State has first noted the contention in your letter dated 14 August 2000 that ‘We dispute the judgement of the Appointed Person, which we feel to have been based on inadequate investigation by the XXX doctor who saw Ms XXX and on whose advice the Appointed Person acted.’ The Secretary of State notes that Dr XXX, the Appointed Person’s medical advisor, wrote to the Appointed Person on 28 January 2000 stating that: ‘I have obtained a full history from [Ms XXX] but I feel to make a full assessment I need to obtain further medical details of her recent treatment and response and therefore have written to her general practitioner for an update and hopefully copies of her referral.’ Dr XXX provided the information requested in a letter to Dr XXX dated 21 February 2000. Having received this report, Dr XXX wrote a second letter to the Appointed Person dated 27 March 2000, in which he stated - ‘I have now received comprehensive reports from her medical advisers and these, together with my own assessment, lead me to conclude that she does not meet the criteria for the award of early pension benefits on the grounds of permanent ill health at this stage.’ The Secretary of State is unsure what further investigation you feel Dr XXX ought to have pursued. It appears to him, however, that Dr XXX’s investigation was reasonable, in that he carried out his own assessment and sought and obtained the views of Ms XXX’s G.P. The Secretary of State takes the view that if Ms XXX had, or was able to obtain, further medical evidence in support of her case, it was open to her to provide it.
10. The Secretary of State has also noted your contention in your letter of appeal dated 7 June 2000 that ‘the referee has acted on medical advice although that medical advice has failed to address the opinion expressed by Ms XXX’s doctor who has been clear in recommending that Ms XXX will not be fit for work before her retirement age.’ The Secretary of State has noted that Ms XXX’s G.P., Dr XXX, stated in her letter of 10 February 1999 that ‘I cannot imagine Mrs XXX being able to return to her present duties at any time from now until her normal retirement age.’ However, he has also noted that Dr XXX appeared to have moderated her view in her letter dated 21 February 2000, which was written in response to Dr XXX’s request for her medical opinion: ‘I feel that her prognosis has to be guarded....I would not like to predict how things will be in the far future but in the near future I would not expect her to return to any form of employment.’ The Secretary of State accepts that Ms XXX’s G.P. appeared to be of the view that Ms XXX would not work again in her letter dated 10 February 1999. However, he also notes that over one year later Dr XXX did not feel she could predict how Ms XXX would be in the far future, and he does not consider her later statement amounted to a prognosis that she was permanently incapable within the meaning of the regulations. He does not agree, therefore, with the inference of your contention, that Dr XXX confirmed a prognosis of permanent unfitness and that Dr XXX disregarded it.
11. The Secretary of State accepts that Ms XXX is suffering from a debilitating illness and he notes it is not disputed that she was incapable of performing her employment duties, by reason of her ill health, at the time she ceased employment. He has also noted that her G.P, Dr XXX, did not expect her to return to ‘any form of employment in the near future’, in her letter dated 21 February 2000. However, the early release of pension benefits under regulation 27 is only permissible where a member ceases employment because they are permanently incapable of performing their employment duties, or similar ones. Neither Dr XXX, Dr XXX, nor Dr XXX have found Ms XXX to be permanently incapable, as the possibility of recovery before normal benefit age remains. Dr XXX is guarded. The Secretary of State concludes, therefore, that, on the balance of probability, Ms XXX did not cease employment on grounds of permanent incapability because of ill health in the sense required by the regulations, and consequently she is not entitled to the immediate payment of her LGPS benefits from when she ceased employment with the Council.