848 INDEX
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 21 June 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 Council (the administering authority), in relation to his local government pension scheme (LGPS) dispute with XXX (the council).
2. The Appointed Person found Mr XXX did not satisfy the requirements of the LGPS regulations for immediate payment of ill-health retirement benefits from when he ceased employment with the council on 25 November 1997. The council found that he does satisfy the requirements of the LGPS regulations for early release of his deferred benefits on ill health grounds from 29 November 1999.
3. The question for decision: The question for decision by the Secretary of State is whether Mr XXX either ceased employment with the council on 25 November 1997 by reason of being permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body, and so qualifies for immediate payment of ill-health retirement benefits from that date or whether he had become incapable by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of that employment at 15 May 1998, and so qualifies for payment of his deferred pension benefits from that date.
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, Mr XXX ceased employment with the council on 25 November 1997 because he was permanently incapable of discharging efficiently the duties of his former employment by reason of ill-health or infirmity of mind or body, and does not therefore qualify for immediate payment of ill-health retirement benefits from that date. The Secretary of State also finds that, based on the balance of probabilities, it has not been shown conclusively that, Mr XXX had become incapable by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of that employment at 15 May 1998, and does not therefore qualify for payment of his deferred pension benefits from that date.
5. The Secretary of State therefore dismisses Mr XXX’s 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 or enter into any further correspondence with you about the decision. 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).
9. The Secretary of State notes that Mr XXX had an accident at work on 17 March 1997 and commenced a period of sick leave following that accident. The Secretary of State takes the view that Mr XXX may be entitled to the payment of an injury allowance under the provisions of the Local Government (Discretionary Payments) Regulations 1996. He notes that Mr XXX requested, in his letter dated 8 December 1997, information relating to any financial help that he may be entitled to, and it appears he was not informed of the injury allowance provisions. If Mr XXX chooses to request the consideration of an injury allowance whether he is entitled to such an allowance under the 1996 regulations is a matter, in the first instance, for the council to consider and determine.
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a) from you: letters dated 21 June 2000 (with enclosures) and 31 July 2000;
b) from the Appointed Person: documents considered by him (list enclosed with the Department’s letter dated 20 July 2000.
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. This regulation refers to a matter relating to the LGPS, which effectively means whether the statutory provisions governing 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 Mr XXX ill-health retirement when he ceased employment with the council on 25 November 1997.
3. From the evidence submitted the following points have been noted:
a) Mr XXX’s date of birth is 8 December 1960;
b) he was employed by the council as a Senior Assistant Highways Engineer;
c) he was a member of the LGPS;
d) on 17 March 1997 he had an accident at work, which resulted in periods of sick leave;
e) on 25 November 1997 the council terminated Mr XXX’s employment on the grounds of redundancy;
f) Mr XXX requested ill-health retirement;
g) the council refused to grant Mr XXX ill-health retirement on 15 October 1998 based upon the recommendations of Dr XXX;
h) you submitted further medical evidence to the council on 9 June 1999 and requested the council to again consider Mr XXX for ill-health retirement; and
i) the council treated your request as a request for early payment of Mr XXX’s deferred LGPS benefits on the grounds of ill-health and granted him the early payment of his deferred LGPS benefits from 29 November 1999 on the recommendation of Dr XXX.
4. You maintain that Mr XXX should have been granted ill-health retirement, with enhancement, by the council based upon the medical opinion of Dr XXX. You consider that if ill-health retirement is not granted Mr XXX should have his deferred benefits paid from the date that Dr XXX conducted her medical examination of him. You state that Mr XXX contends that Dr XXX’s report is inaccurate.
5. The Appointed Person determined that “In his application to me Mr XXX says he should have been retired from November 1997, or at the latest from May 1998 when his GP certified that he was permanently incapable of discharging efficiently the duties of his former post. The Local Government Pension Scheme regulations in force at both times require XXX to obtain a certificate from an independent registered medical practitioner before making a decision as to whether Mr XXX was entitled to early receipt of benefits. Further, before any referral is made to any particular registered medical practitioner, XXX needed the County Council’s approval (as administering authority). No referral was made on either date. The certificate received from Dr XXX was not as a result of any referral. XXX was right, in my view, therefore to refer the matter to Dr XXX in May 1998. Given that Dr XXX was not of the opinion that Mr XXX satisfied the requirements of the Regulations for immediate entitlement to pension benefits on the grounds of ill-health, no decision could be taken to give him such access. I am unable to agree therefore that Mr XXX’s entitlement to pension benefits should be backdated.”
6. The Secretary of State notes that you state “Mr XXX has been receiving incapacity benefit since his redundancy…” 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.
7. The Secretary of State notes that Mr XXX contends that Dr XXX’s report is inaccurate. He considers there is no evidence to support this contention.
8. The Secretary of State notes that no appeal was submitted by, or on behalf of, Mr XXX against the council’s decision not to grant him ill-health retirement on 15 October 1998.
9. 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 1995 regulations were in force. Regulation D7 provides for a member’s pension and retirement grant, with an additional period where applicable, to be paid immediately where they cease employment because they are incapable of discharging efficiently the duties of that employment by reason of permanent ill-health or infirmity of mind or body. Regulation D11 provides for a member’s retirement benefits to be paid from the date on which he becomes incapable, by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of the employment he has ceased to hold.
10. The Secretary of State takes the view that for an incapacity to be permanent it would have to be unlikely to improve sufficiently for Mr XXX to perform the duties of his former employment efficiently before his normal retirement age when LGPS benefits must, in any case, be paid.
11. The Secretary of State takes the view that regulation D7 gives an entitlement to benefits where two major criteria are satisfied. There is the medical criterion, which under regulation J1 must be certified by an independent registered medical practitioner, that the member is permanently incapable of performing his former duties efficiently because of ill-health. That on its own, however is not sufficient to qualify for benefits. There is also the requirement that employment must cease on that account. The later criterion – the reason why employment ceases – is an employment matter. The 1995 regulations are about entitlement to benefit where certain employment conditions are satisfied. They do not themselves apply those employment conditions. Mr XXX’s employment was terminated on 25 November 1997 on the grounds of redundancy. The Secretary of State concludes that at the time Mr XXX ceased employment, therefore, he had no entitlement to ill-health retirement benefits because he ceased employment on the grounds of redundancy and not on grounds of ill-health. Decisions whether, why and when to terminate employment are employment decisions, not pensions ones taken under the provisions in the LGPS regulations, the Secretary of State, therefore, has no powers to consider such decisions on appeal.
12. The Secretary of State notes that you submitted further medical evidence to the council on 9 June 1999. Mr XXX was referred to XXX (Pensions Division) in November 1999. He notes Dr XXX signed a certificate of permanent incapacity dated 30 November 1999 and Mr XXX was granted the payment of his deferred benefits from 29 November 1999.
13. The Secretary of State has considered all the medical evidence and opinion submitted to him, comprising of: Consultant Orthopaedic Surgeon Dr XXX’s reports dated 4 March and 30 September 1999; Dr XXX’s report dated 14 May 1998; Dr M XXX’s report dated 1 October 1998; and a Certificate of Permanent Incapacity signed by Dr A XXX, dated 30 November 1999.
14. The Secretary of State notes that regulation J1, as amended with affect from 28 March 1997, requires decisions regarding the permanency of a members ill-health under regulations D11 and D7 to be referred to an independent, duly qualified medical practitioner approved by the appropriate administering authority. He notes the Appointed person determined that “In his application to me Mr XXX says he should have been retired from November 1997, or at the latest from May 1998 when his GP certified that he was permanently incapable of discharging efficiently the duties of his former post. The Local Government Pension Scheme regulations in force at both times require XXX to obtain a certificate from an independent registered medical practitioner before making a decision as to whether Mr XXX was entitled to early receipt of benefits. Further, before any referral is made to any particular registered medical practitioner, XXX needed the County Council’s approval (as administering authority). No referral was made on either date. The certificate received from Dr XXX was not as a result of any referral. XXX was right, in my view, therefore to refer the matter to Dr XXX in May 1998.” The Secretary of State notes that the council, in Ms XXX’s letter dated 7 May 1998, referred Mr XXX to Dr XXX. He also notes that Mr XXX states, in his letter dated 20 September 2000, that Dr XXX was approved by the administering authority for the purposes of the 1995 regulations. He notes that Ms XXX states, in her memorandum dated 30 March 2000, “Dr [XXX] … did sign [a] certificate of permanent incapacity.”
15. The Secretary of State notes that the Appointed Person, in his determination letter dated 15 May 2000, states “…as Dr XXX was not considered by XXX to be a recognised occupational health physician, a further examination was booked with Dr XXX…”. He notes that regulation J1 of the 1995 regulations does not require the independent medical practitioner to be qualified in occupational health medicine. The Secretary of State notes, however, that Mr XXX was referred to Dr XXX and that Dr XXX states, in the report dated 1 October 1998, “I am unable to recommend Mr XXX for early retirement on the grounds of ill-health.”
16. The Secretary of State finds, due to Dr XXX’s report there is a difference of medical opinion that has not been satisfactorily resolved, this has arisen because the council incorrectly dismissed Dr XXX’s opinion. In the Secretary of State’s view this may amount to maladministration, however, he has no power to award compensation even if it were shown that maladministration had occurred resulting in financial loss or injustice. He considers that because of this difference of medical opinion, for the purposes of the 1995 regulations, it has not been shown conclusively that, at 14 May 1998, Mr XXX had become permanently incapable by reason of permanent ill-health or infirmity of mind or body, of discharging efficiently the duties of the employment he has ceased to hold.