Our Ref: LGR 79/1/1641
Date: 20 July 1998
385 INDEX
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 the XXX Pensions Authority ("the pensions authority") about the calculation of your preserved retirement benefits.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 14 November and 14 December 1996; 7 August and 24 November 1997 and 2 March 1998; the pension authority’s letters of 25 July and 21 November 1997; 11 February and 10 March 1998 and to all the copy correspondence enclosed with those letters.
3. The question for determination is whether for the purposes of calculating your preserved retirement benefits, the pensions authority were correct to treat a ten week period of secondment with the *** (“the AUTHORITY”) between November 1995 and March 1996 as whole time service for the purposes of regulation B3(3)(b) of the 1995 Regulations.
4. From the evidence submitted the following facts have been established:
(a) you were employed by XXX City Council (“the city council”) from 17 July 1989 until 31 March 1996;
(b) you were a member of the Local Government Pension Scheme during that period;
(c) your contract of employment was on a part-time, job-share basis of 21 hours a week with a whole-time equivalent of 37 hours a week;
(d) from December 1995 for a period of ten weeks you were seconded to the AUTHORITY where you worked an agreed 30 hour week;
(e) on 31 March 1996 you took voluntary redundancy and opted to receive preserved retirement benefits.
(f) in calculating those benefits, the pensions authority classified your period of secondment as whole-time employment.
5. You accept that during the ten week period of secondment with the AUTHORITY your hours of employment increased but otherwise contend that the 30 hours which you worked with the AUTHORITY should be regarded as part-time hours compared with the whole-time equivalent of 37 hours per week. To support your case, you refer to the definition of “full-time” in the 1995 Regulations, as being an employee whose contractual hours “are not less than the number of hours which, in accordance with his terms of employment, is the number of contractual hours for a person employed in that employment on a whole time basis.”
6. For their part, the pensions authority argue that the city council took no action to amend their definition of whole-time, for existing nor new employees, when the 1995 regulations came into force, and that the period of your employment covering your secondment must therefore be regarded as whole-time under the criteria in existence immediately before the 1995 regulations came into force.
7. The Secretary of State has considered all the representations and evidence. He is required to determine the same question, as to your rights under the regulations, as fell to be decided in the first instance by the pensions authority. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.
8. At the time you commenced your period of secondment with the AUTHORITY, regulation B3(3)(b) of the 1995 regulations defined a “whole-time employee” as an employee whose contractual hours were not less than the number of hours which, in accordance with their terms of employment, was the number of contractual hours for a person employed in that employment on a whole-time basis. In a letter from the city council dated 4 December 1995 you were notified that your hours of employment were to be increased to 30 hours per week with effect from 4 December and that “.....all your other terms and conditions of service remain unchanged.” A further letter from the city council amended this to confirm that the temporary increase in hours came into effect on 30 November. Accordingly, the view is taken that the increase in hours from 21 to 30 hours between November 1995 and February 1996 was a temporary variation to your substantive contract of employment which at all other times required you to work 21 hours of the standard working week of 37 hours.
9. Under regulation B3(3)(b) of the 1995 regulations, the decision as to whether or not employment is to be regarded as either whole time or part time for the purposes of calculating retirement benefits depended, in part, on the number of contractual hours stated in employees’ contracts of employment. Because the city council had taken no action to amend their definition of “full-time”for the purposes of regulation 3(3)(b) of the 1995 Regulations, the pensions authority argue that it was appropriate for them to rely on the definition of “whole-time employment” as it stood immediately before the 1996 regulations came into effect on 2 May 1995. Under the 1986 regulations, the pensions authority claim that your period of secondment should count as whole-time employment.
10. Regulation B3(3)(b) of the 1995 regulations imposed no requirement on local government employers to amend the definition of “whole-time” in the way suggested by the pensions authority. The clear intention of this regulation was to ensure that individual contracts of employment included details of both the contractual hours of employment of the individual employee and, where different, the contractual hours of whole-time employees in the same employment. On the evidence submitted, it is clear that the contractual hours of a whole-time employee in the employment which you undertook with the city council, including your period of secondment with the AUTHORITY, were 37 hours a week and that by virtue of a temporary variation to that contract, your part-time hours of employment increased from 21 to 30 hours a week during your period of secondment with the AUTHORITY. On this basis, the Secretary of State is satisfied that there is sufficient documentary evidence to confirm that your period of secondment between November 1995 and March 1996 should be regarded as part-time employment for the purposes of regulation B3(3)(b) of the 1995 regulations. He therefore allows the appeal.
11. A copy of this letter has been sent to the pensions authority.
12. 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.
13. 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).