278        INDEX

Our Ref: LGR 79/1/1574

Date:   20   February 1998

Madam

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 the notice of appeal submitted on behalf of Mrs XXX under regulation J5 of the 1995 regulations against the decision of the XXX County Council (“the council”) on your local government pension position.          

2.   The appeal has been conducted by correspondence. Consideration has been given to XXX’s letters;  to the council’s letters;  and to all copy documents enclosed with those letters.

3.   The question for determination is whether the election to cease paying contributions which provide a widower’s pension for service prior to April 1988 can be effective from 31 January 1994 rather than 2 May 1995.

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

(a) Mrs XXX is an employee of XXX County Council;

(b) on 22 January 1993 she elected to provide widower’s benefits in respect of all her service prior to 6 April 1988;

(c) as a result Mrs XXX’s lump sum was liable to a reduction with regards to her pensionable pay for service prior to 6 April 1988;

(d) on 12 August 1993 she elected to pay additional contributions to avoid such a reduction;

(e) on 31 January 1994 Mrs XXX’s husband died; and 

(f)      following an application to the council,  Mrs XXX ceased to pay additional contributions from April 1996 under regulation C18 of the 1995 regulations; 

(g)       you appealed to the Secretary of State against the inability of  Mrs XXX to cease       payment of her additional contributions retrospectively from 31 January 1994.

5.       Mrs XXX contend’s that a lay person’s interpretation of  “an election to provide widower’s benefits in respect of service prior to 6 April 1988, can not be cancelled”, is rather different to the explanation provided by the council which states that “an election was irrevocable”.  Mrs XXX felt that she was misled by the council’s earlier statements.

6.       The council state that all female employees were informed that an election to provide widower’s benefits could not be cancelled in the event of their husbands pre-deceasing them. The council comment that they have on record Mrs XXX’s confirmation to cease paying the additional pension contributions. However, they have no record that Mrs XXX requested retrospective backdating.

7.       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.

8.       In January 1993, Mrs XXX made an election to pay contributions to provide for widower’s benefit in respect of her pre 1988 service. This was allowed by virtue of regulation E6(7) & (10) of  the 1986 regulations introduced from 28 February 1992 which state:

           “(7)  A married woman who -

(a)  is a pensionable employee, was a pensionable employee on 27 July 1989, and       has since that date continuously been a pensionable employee, and

(b)  is entitled to reckon a period of reckonable service before 6 April 1988,

may, subject to paragraph (9) and in accordance with paragraph (10), give notice in     writing to the appropriate administering authority of any additional period which she    wishes to reckon for the purposes of calculating a widower's long-term pension.

(8) .... -

(a) ...

(b) ...

(9) ....

(10)  Notice under paragraph (7) must be given not later than whichever is the latest of -

(a)  12 months after 28 February 1992, or

(b)  if she marries or remarries after 28 February 1992, 12 months after the date of     any such marriage, or

(c)  if her husband becomes permanently incapacitated by reason of ill-health or          infirmity of mind or body and wholly or mainly dependent on her, 12 months after      a medical certificate to that effect is submitted to the appropriate administering       authority.”

At the time this provision was introduced there was no facility for payments to stop, as regulation E6(12) states:

“(12)  Notice given under paragraph (7) shall be irrevocable, but subject to the provisions      of this regulation notice may be given on more than one occasion.”

The Secretary of State is satisfied this point was made clear and beyond reasonable doubt in the  documents issued to Mrs XXX.

9.       From 2 May 1995, the principle regulations were amended and state as follows:

        “C18.  Payment in accordance with regulation C9(2) or C16(2) may be discontinued if the member notifies the appropriate administering authority and the employing authority in writing that he wishes it to be discontinued.”

This provision enabled elections to purchase earlier periods of service to be terminated. This covered elections made under regulation E6 of the 1986 regulations.

10.     There is no facility to allow for termination of payments from a date earlier than 2 May 1995 when the 1995 regulations came into force.  The Secretary of State therefore determines as set out above and dismisses the appeal.

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

12.     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.