343      INDEX

Our Ref: LG 79/1/1627

Date:       May 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, 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 10th and 31st October, 26th November, 2nd and 23rd December 1996, 14th and 21st April 1997 and 17th January 1998; to your facsimile dated 24th December 1996; to the council’s letters of 5th November and 10th December 1996; and to all copy documents enclosed with those letters.

 

3.         The question for determination is whether the lump sum element of your pension should have been reduced in respect of your pre-1972 service.

 

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

 

a) your date of birth is 15th October 1942;

 

b) you retired from XXX District Council on 7 July 1996, having completed      33 years 217 days continuous service in local government employment;

 

c) the council, by the addition of compensatory added years, made up your service to 40           years for the purpose of your pension;

 

d) the lump sum element of your benefits was assessed as £74,341.92 less £11,555.25 in          respect of service to 31st March 1972 not uprated by voluntary contribution; and

 

e)  you appealed to the Secretary of State against this decision

 

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

 

5.         You contend that the council failed to inform you of the option to uprate your pre-1972 service and that there had been no reference to a reduction on these grounds in the estimates provided by the council when the possibility of your early retirement was first raised.

 

6.         The council maintain that they took reasonable steps to disseminate information regarding the option to purchase an unreduced lump sum. The information in this case being distributed through XXX District Council.

 

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.         Where a married man with pre-1972 service retires, a reduction has to be made to his retirement grant. As far as is relevant to the question which has to be decided, regulation C13 of the 1995 regulations states:-

 

 

“C13.-(1) Subject to the following provisions of this regulation, a member-

 

(a) whose retirement grant would be subject to reduction under paragraph 2, 3(1)          or 4(1) of Schedule D2 (reduction in standard retirement grant on account of contingent spouse's pension), or

 

(b) whose death grant would be subject to reduction under regulation E5           (surviving spouse deductions from certain death grants),

 

may, by notice in writing given to the appropriate administering authority, elect to make additional periodical payments under this regulation in order to avoid all or part of the     reduction-

 

(i)  in his retirement grant, and

 

(ii) in any death grant that may become payable under Part E.

 

(2) A notice under paragraph (1) shall specify whether the reduction is to be avoided in respect of the whole or only a specified part-

 

(a) in the case of a male member, of his membership before 1st April 1972 or before any earlier date on which-

 

(i) he became a widower, or

(ii) he was judicially separated from his wife, or

 

(iii) his marriage was dissolved ...”

 

9.         To fulfil the requirements of the above requirements, it is necessary in order to avoid the reduction in lump sum under regulation C13 to give notice in writing to the appropriate administering authority of the wish to make payments to avoid all or part of that reduction. No such notice was given by you to the council.

 

10.       The Secretary of State notes that you are not claiming that the council have acted incorrectly according to the above regulations but that they at no time informed you of their provisions. The Secretary of State cannot, however, deal under the 1995 regulations with allegations of maladministration. He can take into account only the regulations as they stand and has therefore reached the conclusion that the council acted correctly within the regulations quoted above.

 

11.       The Secretary of State therefore determines as set out above and dismisses the appeal.

 

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

 

13.       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.