Our Ref: lgr 79/1/1701                                    313          INDEX

Date:                             March 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 your notice of appeal submitted under regulation J5 of the 1995 regulations against the decision of  XXX (“the council”) on your local government pension scheme (“the LGPS”) rights.

 

2.         The appeal has been conducted by correspondence.  Consideration has been given to your letters of 7 November 1996 and 7 July 1997; the council’s letters of 16 May and 1 July 1997; and to all copy documents enclosed with those letters.

 

3.         The Secretary of State takes the view that the question for determination is whether you are entitled to buy back part-time service from August 1983 to January 1986.

 

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

 

(a)        on 1 December 1975 you commenced work with the council;

 

(b)        from 1 April 1976 to 6 January 1983 you were a pensionable employee under the local government superannuation scheme (“the XXX”), now known as the LGPS;

 

(c)        from 7 January 1983 you took leave of absence for maternity;

 

(d)        in August 1983 you returned after a period of absence to the council working seventeen and a half hours per week;

 

(e)        you ceased employment on 15 January 1986; and

 

(f)         on 7 November 1996 you appealed to the Secretary of State against the council’s refusal of your request on 8 December 1994 for access to membership of the XXX between August 1983 and January 1986.

 

These facts have been agreed by both parties.

 

5.         Your appeal was prompted by a European Court ruling on access to pension rights of part-timers.

 

6.         The council contend that you were not eligible to elect to purchase previous part-time service under the 1986 regulations.  They consider you not eligible because you did not make an election under the 1986 regulations or become a pensionable employee between 31 March 1974 and 1 April 1988 after previous part-time employment.

 

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 ceased employment the 1974 regulations applied.  Under these regulations you were entitled to deferred retirement benefits in respect of your whole-time employment from 1 April 1976 to 6 January 1983.  The 1974 regulations did not provide for part-time employees to be members of the XXX. When you became a part-time employee you ceased to be a contributory member of the XXX, and on ceasing employment you had no entitlement to benefits in respect of your part-time service  from August 1983 to 15 January 1986.

 

9.         The 1986 regulations came into operation on 1 March 1986 and initially contained no provision for part-time employees to join the XXX.  In 1987, part-time employees working 15 or more hours a week were given the right to elect to become pensionable employees by amendments to the 1986 regulations.  Although these amendments contained some retrospective provisions, you had ceased employment with the council before the 1986 regulations or their amendments took effect and they did not apply to you.

 

10.       Further amendments to the 1986 regulations were introduced in 1990.  These provided for payment of additional contributions in certain circumstances in order to reckon previous part time service.  However, as you ceased employment before the 1986 regulations or their earlier amendments took effect they do not apply to you.

 

11.       The Secretary of State concludes that as your part-time local government employment ceased in January 1986, you could not have made an election under the 1986 regulations allowing you to join the scheme as a part-time employee nor could you elect to make these regulations applicable to your earlier part-time employment.  You are not therefore entitled to buy back part-time service from August 1983 to January 1986 as you are not eligible to do so under the 1986 regulations.

 

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.