Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LG R 79/2/409

Date: SEPTEMBER 1998

415 INDEX

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 ("the 1986 regulations")

THE LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“ the 1995 regulations”)

THE LOCAL GOVERNMENT(DISCRETIONARY PAYMENTS) REGULATIONS 1996 (“the 1996 regulations")

1. I am directed by the Secretary of State for the Environment to refer to your notice of appeal submitted under regulation J5 of the 1995 regulations and regulation 45 of the 1996 regulations against the decision of XXX ("the council") that you are not entitled to the immediate payment of ill-health retirement benefits under regulation D7(1)(b) of the 1995 regulations when your employment ceased on 2 July 1996 and that you are not entitled to the payment of an injury allowance.

2. The appeal has been conducted by correspondence. Consideration has been given to your appeal form of 16 April 1997, to your letters of 3 April, 23 May, 6 June, 15 and 28 July, 1 and 12 December 1997, 18 and 24 February, 12 March, 21 May and 15 July 1998; to your GP Dr XXX’s letter of 3 March 1998; to the council's letters of 22 May, 13 June 1996 and 11 November 1997, 20 January, 20 February, 3 and 30 April and 26 May 1998; and to all the copy correspondence enclosed with those letters.

3. The questions for determination are whether:

i) when you ceased your former employment with the council, you were incapable of carrying out efficiently the duties of that employment by reason of permanent ill- health or infirmity of mind or body;

ii) you ceased to hold your employment with the council as a result of an incapacity which is likely to be permanent and which was caused by an injury sustained or disease contracted as a result of anything you were required to do in carrying out your work.

4. From the evidence submitted the following facts have been established;

(a) you are aged 39;

(b) on 11 September 1989, you commenced your local government employment with the

council as a Mechanical and Electrical Technician;

(d) your job involved some lift motor room inspections;

(e) on 31 March 1995, you commenced your long term sickness absence;

(f) on 8 January 1996, you applied to the council to retire you on ill-health grounds;

(g) on the basis of the Occupational Health Physician’s advice the council decided not

to grant you ill-health retirement on the grounds of permanent incapacity;

(h) on 2 July 1996, you were dismissed by the council;

(i) you accumulated 4 years and 171 days of your pensionable service;

(j) you appealed to the Secretary of State on the grounds that you should have been awarded ill- health retirement benefits from the date you ceased your employment on 2 July 1996;

(k) you also appealed against the decision of the council for not awarding you an annual injury allowance under Part L3.

5. The Secretary of State has considered all the representations and evidence. He is required to determine the same questions, as to your rights under the regulations, as fell to be decided in the first instance by the council. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.

6. Regulation D7(1)(b) of the 1995 regulations makes no reference to any positive act that brings employment to an end either by the employer giving notice or the employee voluntarily resigning. It is considered that in order to satisfy the requirements of the regulations it must be shown that you were suffering from ill-health or infirmity of mind or body so as to be incapable of carrying out efficiently your duties. If it is found that such a condition existed, either at the time that employment ceased or at an earlier date, it will be necessary to establish that it was permanent in the sense required by the regulations. To qualify for enhancement under schedule D3, the total period of membership must be not less than 5 years.

7. The relevant provisions of the 1986 regulations which deal with the question of awarding an annual injury allowance are as follows:

"L2.- (1)...... this Part applies to a person employed in a relevant employment if he-

(a) sustains an injury, or

(b) contracts a disease

as a result of anything he was required to do in carrying out his work.

L3.- (1) if as a result of an incapacity which is likely to be permanent caused by the injury or disease a person to whom this Part applies ceases to be employed in a relevant employment (.....), he shall be entitled to an annual allowance".

8. To assist the Secretary of State in reaching a conclusion in this matter, you underwent an independent medical examination on 18 July 1998 by Miss XXX, Consultant Orthopaedic Surgeon.

9. In her report dated 30 July 1998, copies of which were sent to the parties, Miss XXX stated that, at the time of the examination, you had bilateral knee pain, a probable soft tissue injury (likely meniscal tear) on the right side and early osteo-arthritis on the left which rendered you incapable of carrying out your normal duties. Miss XXX further stated that the condition i.e right meniscal tear and left knee osteo-arthritis would have existed on 2 July 1996. Miss XXX considered the left knee condition to be permanent, and the right knee condition, although susceptible to treatment, unlikely to improve sufficiently to allow you to resume to duties involving climbing ladders and kneeling.

10. The Secretary of State accepts that your former duties included some lift motor room inspections involving climbing ladders. This is not disputed. What is disputed is the extent of this element of your job, and you have made extended reference to this in your contentions with repeated requests for timesheets to be disclosed. The Secretary of State considers this to be irrelevant. Given that it is agreed that your former duties included some climbing, the Secretary of State takes the view that, if it is shown you could not climb ladders, you would be unable to perform your former duties efficiently.

11. Taking all the medical evidence into account and based on the balance of probabilities, the Secretary of State takes the view that on 2 July 1996, you were incapable of carrying out your former duties efficiently by reason of permanent ill-health. He therefore allows the appeal with regard to entitlement to payment of ill-health retirement benefits under regulation D7(1)(b) without enhancement as you have less than 5 years of pensionable service.

12. The Secretary of State notes Miss XXX’s view that your permanent incapacity was caused to an extent by an injury sustained as a result of an accident in carrying out your work. The Secretary of State notes that there is some dissension between the parties about the alleged accident on 18 March 1994 and its effects. He takes the view that the evidence on balance suggests that the incident did take place and led to some damage to your right knee. He notes however that you did not take sick leave as a result of the incident, and that your later sick leave, which led up to your cessation of employment, was related to the problems with your left knee. He also notes that to an extent Miss XXX’s diagnosis of your right knee condition appears to be conjectural. However, he also notes that Miss XXX is clear that the condition in your right knee will preclude you from those of your former duties which involved climbing ladders and kneeling, and that it has resulted in an exacerbation of the condition in your left knee. He takes the view in all the circumstances that the injury you sustained to your right knee was on the balance of probability a very minor contributory cause of your permanent incapacity. He also accepts that your dismissal was at least in some part a result of that incapacity. He concludes therefore, that you just satisfy the conditions of regulations L2 and L3(1) of the 1986 regulations. The Secretary of State therefore allows the appeal in respect of the injury allowance.

13. Although the council are now required to pay you an injury allowance, the amount of that allowance is at their discretion. The regulations require them to have regard to all the circumstances, including any other rights to statutory benefit, compensation or superannuation. The council may, among the relevant circumstances, want to consider the extent to which your permanent incapacity and loss of employment was due to the injury to your right knee as opposed to other causes.

14. The above constitutes the Secretary of State's determination of this case. Having made his determination the Secretary of State has no power to alter it but you or the council may refer the matter to the Pensions Ombudsman or to the High Court. Because of this, officials may not discuss the matter further.

15. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pensions scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).