Our Ref: LGR 79/1/1634 462 INDEX
Date: 16 NOVEMBER 1998
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1974 (“the 1974 regulations”)
THE 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”) about your pension position.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 25 October, 16 November and your undated letter received in this office on 2 December 1996 and 27 January 1997; to the council’s letters of 17 December 1996, and 22 January 1997 and 29 July 1998; and to all copy documents enclosed with those letters.
3. The questions for determination are whether:
i) the additional contributions you made related to the 12 month waiting period manual workers had to observe before they were entitled to join the Local Government Superannuation Scheme (LGSS); and
ii) your pervious non local government employment should be considered as reckonable service.
4. From the evidence submitted the following points have been noted:
a) you were employed by the Ministry of *** from 1970 until 1975;
b) you commenced local government employment on a casual basis with the council on 9 October 1980;
c) on 25 May 1981 you became a whole-time employee as a manual worker;
d) at the time that you commenced whole-time employment as a manual employee you had to wait 12 months before you were entitled to join the LGSS;
e) due to an administrative error by the council you were admitted to the LGSS on 4 October 1982 instead of 25 May 1982;
f) on 26 November 1995 you retired from your employment on ill-health grounds; and
g) on 25 October 1996 you appealed to the Secretary of State.
5. You believed that your non local government service with the Ministry *** would count towards your LGSS pension and the additional contributions you made regarding your admittance to the LGSS, were for the 12 month waiting period that manual workers had to wait before they could join.
6. The council maintain that you had no pensionable benefits preserved or transferred from your pervious employer. They explain that on your new starter form you indicated that you had received a refund of your pension contributions from the Ministry, and that you did not wish the County Treasurer to investigate the possibility of reinstating and transferring any such rights to the LGSS. The council comment that as a manual employee you had a 12 month waiting period from the date of commencement of whole-time employment, before you could be admitted into the LGSS. However, due to an administrative error you were not admitted to the LGSS until 4 October 1982. The council state that they wrote to you on 8 November 1982 advising you that they would backdate your date of entry to the LGSS to 25 May 1982 the date you should have joined, and that you would be required to pay arrears of £67.44. They further comment that a statutory notice was sent to you advising you that you had a right of appeal. The council explain that they had previously written to you informing you that the arrears paid were in respect of the period 25 May to 3 October 1982, and that it did not relate to your first year of employment. The council consider that you did not satisfy the requirements of regulation B2(1)(b)(iii) of the 1974 regulations and you were therefore not entitled to pay superannuation contributions in respect of the 12 month waiting period. The council also contend that you would have been advised of your right to purchase service as this information is contained within their guide to the Local Government Pension Scheme and furthermore in the late 1980's all scheme members were provided with a series of Pensions Planning leaflets which included information about purchasing service and paying for AVC’s.
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. When you took up employment with the council, and when you joined the LGSS, the 1974 regulations were in force. Regulation D14A, so far as material, states:
“(1) A whole time manual worker to whom this regulation applies who on entering the employment of a scheduled body does not immediately become a pensionable employee shall be entitled to reckon as reckonable service his service in that employment prior to becoming a pensionable employee if he pays into the appropriate superannuation fund the sum mentioned in paragraph (3) within the period specified in paragraph(4).
(2) This regulation applies to a whole-time manual worker if-
(a) he becomes a pensionable employee by virtue of regulation B2(1)(b)(iii); or
(b) he becomes or became a pensionable employee by virtue of regulation B2(1)(b)(i) and-
(i) he entered the employment of the scheduled body on or after 1st. April 1974 but before 1st. January 1980; and ...”
Regulation B2 - (1), so far as material, states:
“The following persons shall, subject to the provisions of this regulation, be entitled to participate in the benefits of the appropriate superannuation fund maintained under these regulations-
(a) every whole-time officer of a body described in column (1) of Part I of Schedule 1 (other than any such person as may be specified in respect of such body in column (2));
(b) every whole-time manual worker of such a body as aforesaid who either-
(i) has completed 12 months’ continuous whole-time employment with his employing authority: or
(ii) entered or re-entered the employment of his employing authority, after other employment in which he was a contributory employee, pensionable employee or local Act contributor and in respect of which he has not, before so entering or re-entering, received a return of the whole of his contributions under the former regulations, or under these regulations, or under a local Act scheme: or
(iii) satisfies the requirements of Part III of Schedule 1.”
Schedule 1 Part III states:
“1. The requirements to be satisfied in order that a whole-time manual worker of a body described in column (1) of Part I of this Schedule may be a pensionable employee by virtue of regulation B2(1)(b)(iii) are that-
(a) he became employed by that body as such a worker after ceasing to be employed in non-local government employment; and
(b) he has, not later than 12 months after the date on which he became employed by that body as such a worker, elected to become a pensionable employee by notice in writing given to that body.
2. A notice under paragraph 1 (b) above must also contain a declaration by the worker that his pension rights under his non-local government scheme will be preserved or that has applied, or will apply, for their transfer to the appropriate administering authority.”.
9. Certain whole-time manual workers had the opportunity under regulation D14A to pay for the first year they were unable to join the LGSS, because the regulations did not allow them immediate addmission. The Secretary of State notes your contention that you paid contributions for the 12 month period you were unable to join the scheme. However, on the evidence available it appears that the contributions you paid were for the period 25 May to 4 October 1982. It is noted that you indicated on the council’s LGSS Statement of Particulars Required From a New Employee (SPRFNE) that you wished to backdate your contributions to the date you commenced employment with the council. However, to make such contributions you had to fall within the criteria set out in regulation D14A of the 1974 regulations.
10. It is not clear where you were employed prior to your casual employment with the council; however, you do not fall under schedule 1 of the 1974 regulations because you did not have preserved benefits in a non-local government scheme nor had you become a permanent employee of a local authority before 1 January 1980. The Secretary of State concludes therefore that under regulation D14A you were unable to pay contributions for the 12 month waiting period and therefore it does not count towards your reckonable service which is used to calculate your pension.
11. With regard to your previous service with the Ministry ** which you believed would count towards your pension, the Secretary of State notes that you indicated that you had received a refund of contributions on the SPRFNE form. He also notes that you did not wish the council to investigate the possibility of reinstating and transferring any pension rights. The Secretary of State therefore concludes that for this reason this period does not count towards your LGSS benefits.
12. The Secretary of State therefore determines as set out above and dismisses your appeal.
13. 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 but you may refer the matter to the Pensions Ombudsman or to the High Court. Because of this, officials may not discuss the matter further.
14. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).