Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/18/8

Date: 23 October 1997

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 refer to your letter of 18 September in which you appeal (under regulation J8 of the 1995 regulations) to the Secretary of State for the Department of the Environment, Transport and the Regions against the decision of Mr XXX, the appointed person for XXX Council (the council). His reasons for his decision are set out in his letter to you of 1 August 1997. He stated that “ I can appreciate your frustration at finding that you could have paid contributions to the pension fund but did not. However, I can found no evidence that there was negligence on the part of the County Treasurer in this respect”.

2. The Secretary of State has no powers to consider questions of negligence, he can only consider questions as to your rights under the local government pension scheme (LGPS). His powers, therefore, allow him only to consider whether you should now be allowed to join the LGPS and pay contributions for the period 1 April 1986 to 31 March 1991.

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’s Determination: The Secretary of State, having taken into account the appropriate regulations, finds that there are no provisions in the LGPS which would allow you to now join the LGPS for the period 1 April 1986 to 31 March 1991. His reasons and the regulations which he considers apply in your case are set out in the annex to his letter, which forms an integral part of the determination. He 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. It is noted that you consider an employee should be able to rely on the expertise and advice of officers of the administering authority regarding the LGPS. 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).

6. 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 Belgave Road, London, SW1V 1RB (Telephone number 0171 233 8080). The Pensions Ombudsman may also investigate and determine any complaint or dispute of fact or law in relation to the LGPS.

EVIDENCE RECEIVED

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

a. from Mr XXX: letter dated 18 September 1997 with enclosures; and

b. from the council: letter dated 9 October 1997 with enclosures.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a. you commenced employment with XXX Council on 1 January 1985 working 29 hours per week;

b. as a part-time employee working less than 30 hours per week you were not eligible to join the LGPS;

c. the 1986 regulations were amended, with effect from 1 April 1986, to allow part-time employees working 15 hours or more per week to elect to join the LGPS;

d. an election form (dated May 1986) to join the LGPS was sent to you by the Superannuation Section, XXX County Council;

e. you did not complete the form as you were awaiting further information from the Superannuation Section.

3. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. At the time you commenced employment with XXX Council there were no provisions in the 1974 regulations for employees working less than 30 hours per week to join the LGPS. The 1986 regulations were amended in 1987, with an effective date from 1 April 1986, allowing part-time employees working 15 hours or more per week to elect to join the LGPS (regulation B1 of the 1986 regulations). Although you were aware of these changes you did not elect to join the LGPS. The reason why you did not elect to join the LGPS is not a matter which the Secretary of State can take into account, as there are no provisions in the 1995 regulations (nor the 1986 regulations) which would allow you to now join the LGPS for the period 1 April 1986 to 31 March 1991.