246 INDEX
Our Ref: LGR85/18/006
18 December 1997
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
1. I refer to your letters of 28 July and 6 August in which you appeal (under regulation J8 of the 1995 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person for XXX Council (the council). The Appointed Person upheld the council’s decision that you could not back date membership of the local government pension scheme (LGPS) by a further 11 years to 1978 and that under EC legislation there have been no further changes concerning part-timers other than that applying when the decision was taken.
2. The Secretary of State notes that you raise a number of questions in your letter of 28 July. However, he can only reconsider matters which have already been considered by the Appointed Person. He considers, therefore, the only question the Secretary of State can determine is whether you can back date your membership of the LGPS to the date you commenced employment with the council on 30 October 1978.
3. The Secretary of State has considered all the representations and evidence. Copies of all the documents supplied by the Appointed Person have been sent to you and are listed in the annex to this letter.
4. Secretary of State’ determination: The Secretary of State having taken into account the appropriate regulations, finds there are no provisions under the 1995 regulations to allow you to back date your membership of the LGPS to 30 October 1978. 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. The Secretary of State is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it unless instructed to in a judgement by the High Court. Because of this officials may not discuss the case further.
5. This decision confirms the appointed person’s decision regarding whether you can back date your membership of the LGPS to the date you commenced employment with the council on 30 October 1978.
6. If you consider there is a question of maladministration you may be able take the matter up with up with the Pensions Ombudsman (his address is 11 Belgrave Road, London, SW1V 1RB) or with the Local Government Ombudsman (his address is 21 Queen Anne’s Gate, London, SW1H 9BU).
7. The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB.
8. The Pensions Ombudsman may also investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme.
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a. from Mrs XXX: letters dated 28 July with enclosures, 6 August and 2 December; and
b. from the Appointed Person: letters dated 7 and 21 October; with enclosures.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
a. you commenced part-time employment with the council on 30 October 1978;
b. at that time you were unable to join the LGPS as part-time employees were excluded;
c. in 1985 the Department announced that the LGPS would be amended so that part-time employees working 15 or more hours per week could opt to join the LGPS;
d. the council say that in 1985 they sent a notification to the relevant employees asking them to complete an option card stating whether or not they wished to join the LGPS;
e. in 1987 the LGPS was amended so that part-time employees working 15 or more hours per week could elect to join;
f. on 1 August 1989 you became a whole-time employee of the council;
g. in October 1992 you elected to join the LGPS;
h. on 4 November 1994 you requested that your membership be back-dated to 1 August 1989; and
i. on 22 August 1995 you asked for your membership to be further back-dated to 30 October 1978.
3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. In April 1985 a Departmental Circular (Circular 10/85) was issued which set out the anticipated amendments that would be made to the LGPS with regard to part-time employees working 15 hours or more per week. Amending regulations came into force on 1 April 1987, which included the provision for this group of part-time employees to elect to join the LGPS (regulation 4 of the Local Government Superannuation (Miscellaneous Provisions) Regulations 1987, which amended regulation B1 of the Local Government Superannuation Regulations 1986 (the 1986 regulations)). Provision was also made so that, in certain circumstances, the effective date was 1 April 1986. You did not elect to join the LGPS.
4. The Secretary of State notes that you state that you did not receive the notification issued, in 1985, by the council. The Secretary of State also notes that the council state that they issued an option card with the notification for part-time employees to complete. Employees were asked to either compete the “yes” or “no” section. The council have been unable to find your card. They state that they are confident that you declined to join the LGPS, because, your payroll record was marked accordingly. This was done by placing a code ‘x’ on the record. On the information provided by the council and yourself the Secretary of State has no independent evidence to indicate whether or not you were sent and/or received this notification, and/or completed the option card. He has no option but to consider the matter in strict accordance with the regulations. As you did not make an election to join the LGPS between 1 April 1986 and 1 April 1988 (regulation D12 of the 1986 regulations) you are not eligible to elect to back-date your entry to the LGPS. The reason for this is that only those part-time employees who elected to join the scheme between 1 April 1986 and 1 April 1988 could elect to buy back the earlier part-time employment so as to count as membership in the LGPS.
5. Even if you had joined the LGPS in 1989, when you started whole-time employment with the council, for the reasons explained in paragraph 4 above, you would not have been eligible to elect to buy back you earlier part-time employment so as to count as LGPS membership.