Booth v Oldham MBC
The Local Government Pension Scheme Regulations state that members are entitled to additional benefits if they can show they are “permanently incapable” of doing their job. In Booth v Oldham MBC, the Court of Appeal said that it would be difficult (although not impossible) to show permanent incapacity if the member failed to establish that they were disabled under the 1995 Disability Discrimination Act (DDA).
Basic facts
Mr Booth was signed off work in March 2000 by his GP because of work-related stress and depression. He was due to go back at the beginning of September 2001, but the Council wrote to him on 31 August dismissing him on grounds of capability. He lodged a clam for disability discrimination, among other things.
Under regulation 27 of the 1997 Local Government Pension Scheme Regulations, Mr Booth would have been entitled to certain additional pension benefits if he could show he was “permanently incapable of discharging efficiently the duties of that employment because of ill-health or infirmity of mind or body”.
In July 2002, the Council told Mr Booth of the benefits to which he was entitled under the pension scheme. These did not include the benefits under regulation 27. Mr Booth complained to the appointed referee who said that a clear medical opinion was needed as to whether or not he was “permanently incapable” of doing his former job.
Tribunal and EAT decisions
While the Council was considering the views of the referee, the employment tribunal heard Mr Booth’s claim. It was not convinced by the evidence he put forward in support of his disability claim, and concluded that he was not a disabled person under the DDA. Mr Booth appealed the tribunal's decision to the EAT but was not successful.
Following the tribunal’s decision, the Council decided not to medically examine Mr Booth to establish if he qualified for the additional pension benefits under regulation 27. The appointed referee wrote to Mr Booth explaining that he could appeal this decision but he did not do so.
High Court claim
In August 2007, however, Mr Booth brought a breach of contract claim in the High Court to the effect that because the Council had failed in its duty to refer him for medical assessment and failed to investigate whether he was “permanently incapable”, he had suffered the loss of certain pension benefits. The High Court dismissed his claim and Mr Booth appealed to the Court of Appeal.
Court of Appeal
The Court of Appeal also found against Mr Booth.
It said that the nature of the disabilities that he relied on - his lack of mobility because of his claustrophobia and fear of meeting new people; his speech; his memory and ability to concentrate; and his perception of the risk of physical danger - were such that they did not result in him being disabled under the DDA. On this basis he was not permanently incapable of carrying out the duties of his employment either, as required by regulation 27.
However, the Court of Appeal did add that there may be circumstances where a person who is not disabled under the DDA could be "permanently incapable", but this was not such a case.
Given this conclusion, the Court said it was not necessary to decide whether the Council had a duty to refer him for further assessment since “even if there was such a duty there cannot have been any loss”.
Finally, the Court of Appeal said that as the 1997 regulations had their own statutory machinery for resolving disputes and Mr Booth had failed to make use of them, he had had no right to bring the proceedings at all.