Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR 79/1/1655 317 INDEX

Date: April 1998

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1974 (“the 1974 regulations”)

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 XXX’s notice of appeal submitted on behalf of Mr XXX under regulation J5 of the 1995 regulations concerning the level of pension contributions deducted by the XXX (“the XXX”).

2. The appeal has been conducted by correspondence. Consideration has been given to Ms XXX’s letter of 19 December 1996; the XXX’s letters of 3 February and 4 March 1997; and to all copy documents enclosed with those letters.

3. The Secretary of State takes the view that the question for determination is at which rate Mr XXX’s pension contributions should be deducted by the XXX.

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

(a) Mr XXX commenced employment as a Car Park Attendant with the XXX on 25 April 1983;

(b) in his “particulars of terms of employment” dated 23 April 1983 it states that he is a manual worker and this has not been subsequently amended;

(d) the XXX deducts and has, since he joined the LGPS, deducted 6% pension contributions from his remuneration; and

(e) you appealed to the Secretary of State against the XXX’s practice of deducting 6% pension contributions from Mr XXX’s remuneration.

5. Mr XXX contends that as his job is classified as a manual worker his rate of pension contribution to the LGPS should be 5%. De vous contacter afin que vous

6. The XXX argues that although Mr XXX is paid as a manual worker, for the purposes of the 1995 regulations he is an officer because the nature of his duties are mainly, more than 90%, of an administrative/clerical nature with some minor technical and managerial responsibilities. They are, therefore, required by the LGPS to deduct 6% of his remuneration as contributions to the LGPS.

7. The Secretary of State has considered all the representations and evidence. He is required to determine the same question as to Mr XXX’s rights under the regulations which fell to be decided in the first instance by the XXX. He is acting judicially and has no power to modify the application of the regulations to the facts of the case.

8. When Mr XXX commenced employment with the XXX, the 1974 regulations operated. As far as is relevant to this appeal they defined an “officer” as, “... an employee whose duties are wholly or mainly administrative, professional, technical or clerical” and a “manual worker” as “ ... an employee who is not an officer”. As far as material Part C stated:

“C1.-(1) ... a pensionable employee ... shall ... contribute to the appropriate superannuation fund-

(a) in the case of a manual worker, an amount equal to 5% of his remuneration under that employing authority ...

As far as is material to this determination, similar provisions have been incorporated in the 1986 and 1995 regulations.

9. The regulations define “manual worker” only as someone who is not an “officer”. The Secretary of State has, therefore, had to consider whether Mr XXX’s duties fall within the normal range of duties defined in the regulations for an “officer”, ie. wholly or mainly administrative, professional, technical or clerical, using what he considers to be the generally accepted senses of those terms in relation to local government staff. In this respect, the Secretary of State has taken as the relevant evidence the background information relating to car park attendant posts dated 30 January 1997, the job description and the XXX’s commentary thereon dated 28 February 1997.

10. The XXX’s claim that some 93% of the duties are administrative or clerical is noted. However, it is the Secretary of State’s view that duties 1, 2, 3, 9 and 10 (parking control, security control, patrolling, lamp replacement and cleaning) do not appear to be administrative, professional, technical, or clerical in the sense referred to in paragraph 9 above. Nor in his view are keyholder duties (duty 4) per se; they could be equally well performed by manual or officer staff. Duties 5 and 6 (accident and complaints report) would appear to be clerical (though the latter have apparently largely ceased), as would duty 7 (log-book). He considers that duty 8 (parcels collection point) probably has clerical elements, as does duty 11 apart from the concierge role (defined in the Concise Oxford dictionary as “doorkeeper, porter”).

11. The Secretary of State notes that the XXX have not specified the relative importance of these duties, nor, except for duty 10, time allocations. Nevertheless he considers from the above analysis that only a minor proportion of the duties, and not such as to form the kernel of the job, are of a clerical nature. He concludes that the duties are not wholly or mainly administrative, professional, technical or clerical, and so do not fit the definition of “officer”; they must therefore be regarded as “manual” within the meaning of the regulations. The Secretary of State is mindful of the fact that the classification, for the purposes of his contract of employment, of Mr XXX’s employment status as manual is not determinative of whether he is a manual worker for the purposes of the LGPS regulations, a point the XXX makes; nevertheless he is fortified in his conclusion by the fact that for other purposes of employment the XXX regard Car Park Attendants as manual workers.

12. In conclusion the Secretary of State takes the view that the XXX must apply the 5% contributions rate applicable to manual workers, and refund contributions made in error, with interest as required under regulation H1 of the 1995 regulations (as amended by the Local Government Pension Scheme (Amendment) Regulations 1997). Although the contribution rate for manual workers has been increased to 6% with effect from 1 April 1998 by the introduction of the Local Government Pension Scheme Regulations 1997, the new rate only applies to employees joining the scheme after 1 April 1998.

13. The Secretary of State determines as set out above and allows the appeal.

14. A copy of this letter has been sent to the XXX.

15. 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.