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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Hamilton v Monmouthshire County Council & anor [2008] EWHC 3101 (Ch) (18 December 2008) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/3101.html Cite as: [2009] Pens LR 31, [2008] EWHC 3101 (Ch) |
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CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
NICHOLAS HAMILTON |
Appellant |
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- and - |
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(1) MONMOUTHSHIRE COUNTY COUNCIL (2) TORFAEN COUNTY BOROUGH COUNCIL |
Respondents |
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Mr. Rupert Reed (instructed by Lynda Willis, Torfaen County Borough Council) for the Respondents.
Hearing dates: 11th December 2008
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Crown Copyright ©
Mr Justice Lewison:
"Consequently, his contract was not renewed and Mr Hamilton became a deferred member of [the scheme]."
"(1) If a member leaves a local government employment (or is treated for these regulations as if he had done so) before he is entitled to the immediate payment of retirement benefits (apart from this regulation), once he is aged 50 or more he may elect to receive payment of them immediately.
(2) An election made by a member aged less than 60 is ineffective without the consent of his employing authority or former employing authority (but see paragraph (6)).
(3) If the member elects, he is entitled to a pension and retirement grant payable immediately
(4) [provides for reduction of benefits]
…
(6) If a member who has left a local government employment before he is entitled to the immediate payment of retirement benefits (apart from this regulation) becomes permanently incapable of discharging efficiently the duties of that employment because of ill health or infirmity of mind or body -
(a) he may elect to receive payment of the retirement benefits immediately, whatever his age, and
(b) paragraphs (2) and (4) do not apply."
"(1) Where a member leaves a local government employment by reason of being permanently incapable of discharging efficiently the duties of that employment or any other comparable employment with his employing authority because of ill health or infirmity of mind or body, he is entitled to an ill health pension and grant.
(2) The pension and grant are payable immediately."
"There is no evidence that MCC considered Mr Hamilton for ill health retirement before he left their employment. Nor is there any suggestion that Mr Hamilton himself raised the question of ill health retirement at that time. Mr Hamilton was not referred to MCC's [Occupational Health Unit] between December 2000 and March 2001, and there is no contemporaneous medical evidence to suggest that his condition had reached the point at which he would have been permanently unable to discharge efficiently the duties of his employment. In fact, in January 2000, Mr Hamilton had not then been diagnosed with chronic fatigue syndrome as it was thought that he was suffering from Benign Positional Vertigo. Mr Hamilton's employment came to an end naturally at the end of his fixed term contract and, having regard particularly to the timescale and lack of medical evidence, I am satisfied that MCC should not now be required to consider whether Mr Hamilton satisfied the criteria under Regulation 27 in 2001."
i) Lightman J was dealing with a claim to re-open a failed application that had already been made, whereas Mr Hamilton's application under regulation 27 was a new claim that had not been made before and the only claim that he had made was the claim under regulation 31 which had succeeded;
ii) The rules governing Mr Spreadborough's claim differed from those in force when Mr Hamilton ceased to be employed.
"… common sense and good administration require that a member of the Scheme shall not be entitled to contend that a previous final or unappealed decision was wrong on the evidence then adduced; but that he may be entitled to revive an earlier failed claim on new evidence in exceptional circumstances where justice so requires. Justice may so require when important new evidence comes to light or a relevant development has taken place in medical knowledge or understanding. Caution may be required in revisiting earlier decisions made on the basis of contemporary material, but the need for caution is not the same thing as permitting a different conclusion to be reached (as the Secretary of State appears to have thought) only if "conclusively" established as opposed to established on the conventional balance of probabilities, still less as ruling out such an exercise altogether."
"For this purpose incapacity by reason of permanent ill health or infirmity means incapacity in respect of which there is no reasonable prospect of recovery, taking account of the available treatment and the various possible courses that a condition may take and the potential outcomes. A reliable diagnosis may require the decision to be deferred over a period of time, and the eventual diagnosis may or may not be retrospective or prospective."
"…. assuming that the first issue is decided in favour of Mr Spreadborough, the critical issue is indeed the date of onset of permanent incapacity: the date that this condition was diagnosed is very much of secondary significance."
"(1) If a member who ceases to hold local government employment —
(a) is not entitled under regulation D5, D6, D7 or D9 to retirement benefits which are payable immediately on his ceasing to hold that employment; and
(b) he fulfils one of the following requirements, namely —
(i) he has a statutory pension entitlement; ….
then, subject to regulation D13, he becomes entitled in relation to that employment to a standard retirement pension with a standard retirement grant payable from the appropriate date; and in these regulations benefits to which a person becomes entitled under this paragraph by virtue of fulfilling one of the requirements mentioned in paragraph (b) and which have not yet become payable are called 'preserved benefits'.
(2) For the purposes of paragraph (1) 'the appropriate date' in relation to any person, is his 65th birthday, or if earlier, the earliest of the following —
….
(b) any 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 …."