Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LG 79/1/1410 333 index

Date: 1st June 1998

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 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 against the decision of XXX Council, (formerly XXX County Council), (“the council”) on your local government pension scheme (“the LGPS”) retirement benefits.

2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 5 and 27 June 1995, 10 January, 26 September and 24 October 1996; to the council’s letters of 2 April, 23 August, 26 September, 23 October and 16 December 1996; and to all copy documents enclosed with those letters.

3. The question for determination is the total period of membership, including enhancement, to be used in the calculation of your benefit.

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

a. your date of birth is 6 June 1944;

b. you commenced part-time employment with the council on 29 September 1976; and

c. on 9 June 1995, you retired on ill-health grounds.

These facts have been agreed by the parties to the appeal.

5. You appealed to the Secretary of State as you were not satisfied with the council’s calculation of your retirement benefits.

6. All the representations and evidence submitted have been considered. The Secretary of State is required to determine the same question as to your rights under the regulations which 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.

7. There is no dispute that you satisfied the conditions of regulation D7 of the 1995 regulations when you retired on 9th June 1995 on the grounds of ill-health.

8. Regard must then be given to Schedule D3 of the 1995 regulations to calculate the level of enhancement. Schedule D3 also makes reference to ‘total period of membership’ as defined in regulation B14 of those regulations. It is clear that as you took advantage of the part-timer buy-back provisions, by virtue of regulation B14(a) and (f), you are entitled to count the whole period of your local government employment as membership.

As far as is relevant in your case the 1995 regulations provide for the calculation of pension as follows:-

“B14.-(1) For the purposes of these regulations, in relation to any member the following periods count as periods of membership, in relation to an employment in which he is a member-

(a - e ) ...

(f ) ...

(i) any period he became entitled to count as reckonable service by virtue of regulation D1(l)(b) to (h) of the 1974 regulations, or regulation D4 to D7, D8A, D9 or D13 or Part F of the 1986 regulations,

(ii) any period of added years,

(iii) an period which by virtue of the interchange rules became reckonable under the former regulations,...”

“B15.-(1) For the purpose of calculating the amount of any benefit under these regulations-

(a) a period of membership in excess of a number of complete years shall be counted as the appropriate fraction of a year (and accordingly references to the length in years of membership shall be taken as references to the number of complete years and any fraction of a year in the period of membership); and

(b) subject to paragraph (3), a period of membership in part-time service in local government employment shall be treated as though it had been a proportionately reduced period of membership in whole-time local government employment...”

Schedule D3 states, as far as is relevant, as follows;

“2.-(1) Subject to paragraphs 3 and 4, the additional membership period is-

(a) in a case where the length of the relevant membership period is less than 10 years, a period equal to the length of the relevant membership period; ...

(b) ...

(2) The additional membership period is not to exceed the period by which the member's period of membership would have been increased if he had continued in the employment which he has ceased to hold until-

(a) he attained the age of 65 years, ...

(b) ...

3 ...

4.-(1) Where-

(a) the whole of a member's relevant membership period is in respect of part-time service, and

(b) the reduction under section B15(1)(b) is by the same proportion in respect of the whole period,

the additional membership period shall be determined in accordance with paragraphs 1 to 3 by reference to the period which would be the relevant membership period if the reduction required by regulation B15(1)(b) were not made ... , and then the period resulting from the application of those provisions shall be reduced as mentioned in that regulation.”

9. This gives a membership period of 18 years 254 days, to which must be added 6_ years by virtue of Schedule D3.2. One must then look at the connection between Schedule D3.4(1) and regulation B15, which requires the membership to be proportionally reduced. After the reduction, which is stated to be 44.89%, the total period of membership to be used in calculating your pension is 11.39 years. This in turn is multiplied by the whole time equivalent your salary, £8535.51, which gives a pension of £1215.20 and a lump sum retirement grant of £3645.60.

10. The Secretary of State therefore determines as above and allows the appeal to the extent as set out above, any arrears, plus the interest due, should be paid from 10 June 1995.

11. A copy of this letter has been sent to the council.