Our Ref: LG 79/1/1432       341          index

Date:       May 1998

 

SUPERANNUATION ACT 1972

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

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1974 (“the 1974 regulations”)

 

1.         I am directed by the Secretary of State for the Environment, Transport and the Regions to refer to your notice of appeal submitted under regulation J5 of the 1995 regulations against the decision of XXX County Council, (“the council”) on your local government pension scheme (“the LGPS”) benefits.

 

2.         The appeal has been conducted by correspondence. Consideration has been given to your letters of 11th August 1995 and 5th April 1996; to the council’s letters of 8th January, 19th and 22nd April and 22nd November 1996, to their undated letter received in this office on 16th September 1996; and to all copy documents enclosed with those letters.

 

3.         The question for determination is whether your period of reckonable service was correctly calculated.

 

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

 

a) you commenced employment with the council on 1st January 1973;

 

b) between 5th August 1983 and 7th February 1984, you were involved in an industrial dispute and were absent from duty;

 

c) on 30th June 1991, your employment with the council ceased and you were awarded            preserved benefits; and

 

d) your preserved award was based on 17 years and 359 days reckonable service.

 

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 preserved award.

 

6.         You contend that your total period of employment was 18 years and 181 days and that the council have not included the period of 187 days from 5th August 1983 to 7th February 1984,  when you were involved in an industrial dispute, in their calculation of your preserved award.

You further contend that the days you attended an external training course during this period should count as reckonable service.

 

7.         The council contend that, during the course of the industrial dispute,  you were given the option to make a payment in order that the period of the dispute could count towards your reckonable service; however, you declined to do so.  

 

8.         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.

 

9.         As far as is relevant to the question which has to be decided, regulation C1A of the 1974 Regulations, which were in force at that time, states:-

 

“C1A. - (1) This regulation applies to a person who -

 

(a) has been absent from duty, otherwise than on leave of absence, for a period                         of one or more days during and in consequence of a trade dispute, and

 

(b) immediately before -

 

(i) the period of absence, ...

(ii) ...

 

was a pensionable employee.

 

(2) For the purposes of paragraph (1) -

 

(a) a person whose contract of employment is terminated in consequence of a                trade dispute is, notwithstanding the termination, to be treated as having been                 absent from duty after the termination if, not later than the day after the end of the                    trade dispute, he again becomes a pensionable employee of the same scheduled                         body, and

 

(b) it is immaterial whether or not -

 

(i) the person was participating in or financing or otherwise directly                                interested in the trade dispute, or

(ii) the employing authority were a party to the trade dispute.”

 

10.       It is clear that there was a lengthy industrial dispute. It is also agreed that you were not paid for the days you attended the training at the college, although the course fees had been met by your employer. You have also stated that your trade union gave agreement for your attendance.

 

11.       The Secretary of State finds that for the whole of the period 5th August 1983 to 7th February 1984 you were absent from work in consequence of a trade dispute, and for the purposes of the regulations the whole of this period is to be regarded as a period of unauthorised absence, and that the authority acted correctly in treating it as such, since your employment was treated as terminated for the whole of this period. It does not have to be relevant that you were a party to the dispute, but you have indicated that you regarded yourself as party to the dispute by seeking dispensation from your trade union to continue your training. Your dispute with your employer was continuous. The Secretary of State also finds that you declined the option of paying the contributions necessary to treat any of this period as a period of reckonable service.

 

12.       The Secretary of State therefore determines as above and dismisses the appeal.

 

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

 

14.       The above constitutes the Secretary of State’s determination of this case. It is final and cannot be changed except by a judgement in the High Court. As the Secretary of State’s jurisdiction is now at an end; officers may not discuss or comment on the case further.