Letters to the Editor |
Appendix to Ill-health retirement: national rates and updated guidance for occupational physicians. Poole CJM, Bass CM (co-opted), Sorrell JE, Thompson ME, Harrison JR, Archer AD on behalf of the Association of Local Authority Medical Advisers. Occupational Medicine 2005;55
Dear Sir,Under the terms of the Local Government Pension Scheme (LGPS) Regulations 1997, a scheme member is entitled to the immediate payment of an ill-health pension if he/she leaves by reason of being permanently incapable of discharging efficiently the duties of his/her employment or any other comparable employment with his/her employing authority because of ill-health or infirmity of mind or body.
In the second paragraph of the guidance for occupational physicians which you published in August 2005 (Volume 55, Number 5, pp. 345–348), the authors state, when considering the question of whether or not the employee is capable of a comparable job with the employer, ‘The Regulations are ambiguous in this situation, but it is our belief that if a comparable job is likely to be available before the employee's normal retirement age, then the occupational physician should not support early retirement due to ill health.’
That is not my understanding of the regulations. Of course, only the Courts can provide a definitive interpretation of statute but, in the circumstances, I think it would be helpful if I set out what I understand were the policy objectives behind the regulations when they came into force in 1999.
First, the practical, rather than theoretical, test was one agreed with the trade unions side of local government after much discussion. The unions did not want a situation where a scheme member could be denied an ill-health pension on the grounds that they may be capable of undertaking some theoretical employment in the future, regardless of whether such a job (i) existed or (ii) would be available to the person in question. The regulations were therefore drafted to ensure that it was only existing jobs within the remit of the same employing authority that fell to be considered in the ‘comparable employment’ test. The key element of comparable employment is, in my view, the word ‘employment’. If a comparable vacant job does not actually exist, how can it be employment. This is backed up by the definition of comparable employment within the LGPS Regulations 1997 which makes it clear that to be comparable, the contractual provisions of the other job (in terms of place of employment, remuneration, hours of work, holiday entitlement, sickness or injury entitlement and other material terms) must not differ substantially from those of the employee's current employment. Given this wording, it is, in my view, impossible to compare a current, actual employment, against a theoretical job in the future where location, remuneration, etc., can only be a matter of conjecture.
My views are backed up by:
- (i) the advice issued on 23 June 1999 by what was then the DETR which said ‘it is worth repeating that to be comparable, the employment under consideration must exist within the confines of the scheme member's employing authority. It would not, for example, be within the terms of the amended Regulation 27 to deny entitlement to ill-health retirement on the grounds that the member was capable of performing the duties of any similar, hypothetical job’ (see http://www.xoq83.dial.pipex.com/reg27.htm).
- (ii) Secretary of State appeal determinations—see Pensions Ombudsman case POO185 which says ‘With regard to comparable employment, the Secretary of State decided that this must be employment which exists within the authority and be such that can be offered to the member at the time that retirement is being considered.’
- (iii) the Management of Ill Health Handbook produced by the Employers' Organisation for Local Government, which was endorsed by ALAMA, and which states ‘To be regarded as comparable, a job must be with the same employer. The ODPM have advised that the job must be an actual available job, although this is not explicitly stated in regulation 27. So, for the purposes of regulation 27, no account need be taken of whether a person can do any job available at another employer or any job not currently available with the present employer.’
- (ii) Secretary of State appeal determinations—see Pensions Ombudsman case POO185 which says ‘With regard to comparable employment, the Secretary of State decided that this must be employment which exists within the authority and be such that can be offered to the member at the time that retirement is being considered.’
I hope this helps to clarify for local authority medical advisers what constitutes comparable employment.
LGE
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