388 INDEX
Our Ref: LGR 79/1/1505
Date: July 1998
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (“the 1986 regulations”)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 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 the XXX County Council (“the council”) on your local government superannuation/pension scheme (“the scheme”) benefits.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 19 February, 30 July and 3 December 1996; the council’s of 16 May, 31 July and 23 August 1996, and to all copy documents enclosed with those letters.
3. The question for determination is whether you are entitled to receive combined pension benefits.
4. From the evidence submitted the following facts have been established:
a) your date of birth is 31 August 1930;
b) from 18 April 1972, you were employed at St XXX’s Primary School as a part-time Ancillary Assistant;
c) from 31 December 1982, your employment was changed to part-time Ancillary Assistant and Clerical Assistant;
d) with effect from 1 April 1986 you became a member of the scheme;
e) on 1 September 1990, you were retired as an 8 hours per week part-time Ancillary Assistant with a pension;
f) on 8 April 1991, you wrote to the council requesting deferral of the pension;
g) at the same time you were retained as an 18 hour per week part-time Clerical Assistant;
h) on 7 July 1994, you wrote to the council about the possibility of treating your separate employments as one;
i) on 10 August 1994, the council informed you that your employments would be treated separately;
j) on 31 August 1994, you retired with a second pension; and
k) on 19 February 1996, you appealed to the Secretary of State against the council’s decision not to combine the separated pension benefits of your employment.
5. You have suggested to the council that as you consider your circumstances to be exceptional that they use their discretion to combine employments and regrade your posts and that this would simplify your pension arrangements resulting in a single pension for a single employment. You have complained to the council respond adequately to your requests for advice on your pension options particularly when you were considering buy back options.
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. The 1986 regulations state, as far as is relevant, as follows:-
“B1A. -(1) Notwithstanding anything in regulation B1 or Part IV of Schedule 2, a person who was not a pensionable employee on 5th April 1988 (before the amendment of these regulations by the Local Government (Superannuation and Compensation)(Amendment) Regulations 1988) shall not after that date become a pensionable employee unless he makes an election to become such.
Schedule 2, Part IV of the 1986 regulations states, as far as is relevant, as follows:-
“(3) If a person is in two or more employments under a single such body, and -
(a) in each of the employments the contractual weeks are 35 or more and the contractual hours are fewer than 30, and
(b) the total of the contractual hours in all the employments is 15 or more,
then each of the employments is a qualifying part-time employment...”
The 1995 regulations state, as far as is relevant, as follows:-
“D15. Schedule D5 shall have effect for the purpose of making provision as to the retirement benefits in respect of certain pensioners who are re-employed by LGPS employers; and the provisions of this Part have effect subject to... Part II of that Schedule (combined benefits)...”
Schedule D5, Part II of the 1995 regulations state, as far as is relevant, as follows:-
“10.-(1) Subject to sub-paragraph (1) and paragraphs 11 and 15, where-
(a) a person has become entitled to a retirement pension ("the first pension"),
(b) after becoming so entitled he entered further employment which was or became local government employment, and
(c) he has ceased to hold the further employment and has become entitled in relation to it to a retirement pension ("the second pension"),
he may, by notice in writing to the authority which is the appropriate administering authority in relation to the second pension given within three months after the date on which he became entitled to the second pension, elect that this Part of this Schedule is to apply to him.
(2 - 3)
11.-(1) ... a person to whom this Part of this Schedule applies is to be treated as having, on the date on which the second pension became or becomes payable-
(a) ceased to be entitled to the first pension and the second pension; and
(b) become instead entitled to payment of an annual retirement pension ("the annual pension") and a lump sum payment ("the lump sum") each calculated by reference to both his total period of membership in the further employment and the total period of membership taken into account in calculating the first pension...”
8. There exists within the 1986 regulations a difference of approach to concurrent employments. On the one hand regulation B1A and Schedule 2, Part IV (3) states that membership of the scheme in one employment means membership of the scheme in all concurrent employments, treating the individual as one person with one job. However, on termination of one post within two years the person with concurrent employments is treated as if they were two separate persons because a refund of contributions is payable. There is no route within the 1986 regulations to enable these contributions to be counted nor the service to which they relate. For payroll purposes you were treated as having one employment. There is also the view expressed by you that the duties were very much intertwined, with no clear cut separation of duties into hours.
9. It is also not absolutely clear in the regulations dealing with buy-back of part-time service, whether the situation of a part-timer with one job of 15 hours or more and one job of less than 15 hours was catered for when the buy-back provisions were introduced. However, it is noted that the authority allowed you to buy-back all of your pre-1986 service, both in respect of your duties as an Ancillary Assistant and your duties as a Clerical Assistant.
10. The Secretary of State is minded to the view that you were able to buy-back all of your service, since to deny you that right now would have the effect of reducing the pension entitlement for which you had paid, and paid in good faith.
11. The Secretary of State is also seemingly sympathetic to the view that between 1982 & 1990 the two jobs for which you had been employed were no longer as distinct as the hours split would imply it was not possible to differentiate your duties. Indeed even after you were transferred from one post on your 60th birthday accepts that your duties did not radically alter, and that in fact a reduction in hours occurred.
12. Was it correct to put your pension into payment on your 60th birthday following your reduction in hours? Yes, but it should have been calculated in total pay, and following effective re-employment on reduced hours abatement provisions need to be considered. The Secretary of State is satisfied in the view that your contention is correct and for all intents and purposes you had one employment with multiple duties.
13. When you finally gave up employment you were entitled to a further small pension (4/80ths). Subsequently, by virtue of regulation D15 and Schedule D5, Part II of the 1995 regulations the two pensions can be combined.
14. The Secretary of State therefore determines as above and allows your appeal.
15. A copy of this letter has been sent to the council.
1 6. The above constitutes the Secretary of State’s determination of this case. Having made his determination the Secretary of State has no power to alter it unless instructed to by a judgement of the High Court. Because of this, officials may not discuss the matter further.