Local Government Pension Scheme Appeal Determination By The Secretary of State

245 INDEX

Our Ref: LGR85/18/4

10 December 1997

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME (AMENDMENT) REGULATIONS 1997 (the 1997 amendment)

1. I refer to your letter of 28 July in which you appeal (under regulation J8 of the 1995 regulations) to the Secretary of State for Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person for XXX Council (the council). The Appointed Person decided that the 1997 amendment to the 1995 regulations applied to you and that the council had taken reasonable action to advise you of the possible change to the 1995 regulations concerning the calculation of your pension benefits relating to your duties as a Returning Officer.

2. As you know the Department wrote to Mr XXX requesting copies of all the papers he considered. At the time we wrote Mr XXX was on sick leave. The council, therefore, sent us all the papers seen by Mr XXX, including papers not relevant to the matter. In Ms XXX's letter of 5 September we stated that copies would be sent to you. Copies of all the papers sent to us by the council are enclosed.

3. It is noted that you are dissatisfied with the council's decision to reduce the portion of your pension attributable to Acting/Returning Officer fees which you consider to be unjust and inequitable, since the council effected the 1997 amendment to the 1995 regulations three days before you retired, without notifying you in advance. You consider that the Department, which you state was clearly aware of your position having been consulted by the council on the question of the calculation of your pension and the council were aware of the effect of the changes on you personally and their failure to inform you of the implementation of the changes as soon as they knew of them deprived you of the opportunity of taking alternative action and has caused you serious financial loss.

4. Secretary of State's determination: The Secretary of State has considered all the papers and the regulations which, in his view, apply. He concludes that the 1997 amendment to the 1995 regulations properly applied to your case and he upholds the decision of the Appointed Person. The Secretary of State's reasons and the regulations which he considers apply in your case are set out in the annex to this letter, which forms an integral part of the determination.

5. Questions concerning unjust or inequitable treatment are not matters which can be considered by the Secretary of State. He can take into account only the regulations as they stand. If you consider there is a question of maladministration you may be able to take the matter up with the Pensions Ombudsman (his address is 11 Belgrave Road, London, SW1V 1RB) or the Local Government Ombudsman (his address is 21 Queen Anne's Gate, London, SW1H 9BU) or the Parliamentary Commission for Administration (known as the Parliamentary Ombudsman) (his address is Church House, Great Smith Street, London, SW1P 3BW tel. 0171 276 2130).

6. You imply the Department should have informed you of the changes to the 1995 regulations. The Department has a statutory responsibility, under regulation 7 of the Superannuation Act 1972, to consult with interested parties on proposed amendments to the local government pension scheme. The Secretary of State fulfills this responsibility by consulting with relevant local authorities in England and Wales and any other parties he considers has an interest, including the appropriate trades unions. On 13 November 1996 draft amendment regulations to the 1995 regulations, which included the clarification of Schedule D1 paragraph 9(b), were sent to all Chief Executives in England and Wales, ALACE and a number of other interested parties. A copy of the regulations which made the amendment to Schedule D1 paragraph 9(b) was sent to all Chief Executives of County and District Councils on 17 March 1997. It is the responsibility of the Local Government Pension Scheme Administering Authorities to inform its members of the changes.

7. Interpretation of the 1995 regulations is the responsibility of each local authority taking whatever legal advice they feel necessary. In the past the Department has provided informal opinions relating to these regulations, but they do so on the clear understanding that the responsibility rests with the local authority for any decision made. Furthermore, because of the Secretary of State's appellate role the Department does not consider specific individual members' situations since such matters may come before him at a later date. Where an informal opinion has been offered it relates to the general question rather than to specific individual circumstances.

8. A copy of this letter has been sent to Mr XXX.

EVIDENCE RECEIVED

1. The following evidence has been received and taken into account:

a. from Mr XXX: letter dated 28 July 1997 and enclosures; and

b. from the council: letters date 3 October and 15 October and enclosures.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2. From the evidence submitted the following relevant points have been noted;

a. you were an Acting/Returning Officer;

b. you retired from XXX District Council on 31 March 1997;

c. regulation 13 of the 1997 amendment came into force on 28 March 1997; and

d. regulation 13 of the 1997 regulations amended Schedule D1 paragraph 9(b) by adding the words ending with the last day of the period which is the relevant period for the purposes of regulation D1.

3. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. He notes that regulation 13 of the 1997 amendment came into force on 28 March 1997. As you retired from XXX District Council on 31 March 1997 and regulation 13 of the 1997 regulations came into force on 28 March 1997 the council were required to apply them in your case.