Our Ref: LGR85/18/11 252 INDEX
14 January 1998
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
1. I refer to your letter of 30 September in which you appeal (under regulation J8 of the 1995 regulations) on behalf of Mr XXX to the Secretary of State for Environment, Transport and the Regions against the decision of Mrs XXX, the Appointed Person for XXX Council (the council). The Appointed Person upheld the council’s decision that Mr XXX’s overtime for attending evening meetings with residents is not contractual overtime and therefore not pensionable.
2. The question for determination by the Secretary of State is whether the overtime payments made to Mr XXX are pensionable.
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 the overtime payments made to Mr XXX are not pensionable. His decision confirms that of the Appointed Person. The Secretary of State’s reasons and the regulations which he considers apply in Mr XXX’s case are set out in the annex to this 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. 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 (telephone number 0171 233 8080).
6. The Pensions 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).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a. from XXX: letter dated 30 September 1997 with enclosures: and
b. from the Appointed Person: letter dated 17 October 1997 with enclosures and letter dated 12 December 1997.
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
a. Mr XXX was employed by the council until he retired on 31 March 1996;
b. his Conditions of Contract dated 23 November 1990 state “your hours of duty will be 36 per week organised on a flexible basis you will not be entitled to rota days or to enhanced payments for working outside normal office hours except for attendance at evening meetings with residents”;
3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. A person’s pensionable remuneration is used to calculate their local government pension. The 1995 regulations explain what a person’s pensionable remuneration consist of (regulations D1 and C2 of the 1995 regulations). The Secretary of State has had to consider whether the overtime payments made to Mr XXX were for contractual or non-contractual overtime. This is because under the 1995 regulations non-contractual overtime payments are not considered as remuneration (regulation C2).
4. The Secretary of State notes that Mr XXX contends that it was obligatory for him to attend the evening meetings and refusal would have been a disciplinary offence and a breach of contract. Mr XXX has not provided any evidence that this was the case. However, the council have stated that this was not the case and if Mr XXX had not attended the meetings it would not have been a breach of contract and disciplinary action would not have been taken.
5. The Secretary of State considers that Mr XXX’s Conditions of Contract do not state that he is required to attend the evening meetings with residents but that he will receive enhanced payments for those meetings which he attends outside of normal office hours. The Secretary of State further notes that the council have stated that failure or refusal to attend would not have have been a breach of contract and disciplinary action would not have been taken. The Secretary of State takes the view that for the purpose of the 1995 regulations contractual overtime is payment for work which is contractual and performed outside of normal hours of employment, that is, where failure or refusal to carry out the work would result in a breach of contract which could result in disciplinary action being taken. On the evidence available the Secretary of State considers this is not so in Mr XXX’s case. The Secretary of State therefore concludes that the overtime payments were for non-contractual overtime and do not count as pensionable remuneration under the 1995 regulations.