Our Ref: LG 79/1/1700 359 INDEX
Date: June 1998
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (“the 1986 regulations”)
LOCAL GOVERNMENT SUPERANNUATION (AMENDMENT) REGULATIONS 1990 (“the 1990 regulations”)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (“the 1997 regulations”)
1. I am directed by the Secretary of State for the Environment 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 scheme”) retirement benefits.
2. The appeal has been conducted by correspondence. Consideration has been given to your letters of 17th February, 21st March and 3rd July 1997; to the council’s letters of 28th May and 7th July 1997; and to all copy documents enclosed with those letters.
3. The question for determination is whether you can make an election enabling you to buy-back your earlier periods of part-time service.
4. From the evidence submitted the following facts have been established:
a) your date of birth is 21st April 1948;
b) you were employed on a part-time basis by the council between 1978 and 1987;
c) you resigned on 6th February 1987;
d) you commenced full-time employment with the council on 23rd January 1989;
e) your application to buy-back your previous part-time service has been refused by the council; and
f) you appealed to the Secretary of State.
5. 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.
6. Regulation C7A, which was introduced in 1990 and amended the 1986 regulations, states, as far as is relevant, as follows:-
“C7A.-(1) In this regulation -
"eligible person" shall be construed in accordance with paragraph (2);
"employing authority", in relation to a person who has ceased to be a pensionable employee, means the body which was his employer when he was last a pensionable employee.
(2) Subject to paragraph (3), an eligible person is a person who became entitled by virtue of regulation D12 to reckon a period of service as qualifying service, or who would have been so entitled if that regulation and Part IV of Schedule 2 had come into force on 1st April 1986 and if the words "or 5" had been inserted after the words "paragraph 1(1)" in regulation D12(1)(a)...
(3) - (5)...
(6) A notice of election -
(a) shall be given in writing to the eligible person's employing authority not later than six months after he or his widow or widower has received a notification under paragraph (5);
(b) shall specify the length of the period which the eligible person or his widow or widower wishes to be taken into account for the purpose of reckoning an additional period of whole-time reckonable service under regulation D13;
(c) shall be irrevocable but, subject to paragraph (7), an eligible person or his widow or widower may by further notice given in accordance with sub paragraph (a) increase the period specified under sub-paragraph (b)...”
Regulation D12 of the 1986 regulations states, as far as is relevant, as follows:-
“D12.- (1) A person who -
(a) has become a pensionable employee by virtue of an election under paragraph 1(1) of Part IV of Schedule 2 made before 1st April 1988 or by virtue of paragraph 4 of that Part...”
7. The Local Government Superannuation (Amendment) Regulations 1990 made provision for part-timers who had been provided access to the scheme, (if working 15 hours or more per week) and allowed such part-timers, (who had been continuously employed prior to April 1986 and subsequently and had been members of the scheme prior to 1st April 1988) to buy-back their previous service.
8. Unfortunately, as you did not join the scheme at the relevant time, that is before 1st April 1988, you cannot satisfy the first condition and thus, on this ground alone, you are not in the position to take advantage of the facility to elect to buy-back previous service.
9. The Secretary of State therefore determines as above and dismisses the appeal,
10. This determination does not prevent you from taking the opportunity of making additional contributions by the purchase of added years, under regulation 55 or contribute to an Additional Voluntary Contribution provision under regulation 60 of the 1997 regulations.
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. Having made his determination the Secretary of State has no power to alter it but you may refer the matter to the Pension Ombudsman or to the High Court. Because of this, officials may not discuss the matter further.
13. The Pension 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).