Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/18/17

18 February 1998

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)

1. I refer to your letter of 11 November 1997 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 Pension Fund (the Fund). The Appointed Person upheld the Fund’s decision, subject to a revised final pay figure, that your pension should have been reduced during the periods 24 February 1997 to 4 April 1997 and 27 May 1997 to 22 June 1997 whilst your were re-employed by the XXX Committee (the Committee).

2. The question for determination by the Secretary of State is whether your local government pension should have been reduced during the periods 24 February 1997 to 4 April 1997 and 27 May 1997 to 22 June 1997 when you were in whole-time re-employment with the Committee.

3. The Secretary of State has considered all the representations and evidence. The documents considered 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 Fund were correct in reducing your local government pension during the periods you worked whole-time for the Committee. His decision confirms that made by 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. 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 Mr XXX: letter dated 11 November 1997, with enclosures; and

b. from the Appointed Person: letters dated 17 December 1997, with enclosures and 23 January 1998.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a. you retired from the Committee on 6 September 1996 and received immediate payment of your local government pension;

b. you were re-employed by the Committee in part-time employment on 10 February 1997;

c. your hours were altered, and between 24 February 1997 and 4 April 1997, when your employment ceased, you were employed on a whole -time basis;

d. on 27 May 1997 you were again re-employed by the Committee working whole-time until 22 June 1997, when your hours were altered to part-time.

3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. Where someone who is in receipt of a local government pension is re-employed, with a local government pension scheme employer, they must in certain circumstances have their local government pension reduced or suspended (Schedule D5 Part 1 paragraphs 1, 2, 3, 4, 5 and 6 of the 1995 regulations).

4. In your case you were re-employed by the Committee on several occasions in either part-time or whole-time employment. For the purposes of the 1995 regulations, where the contractual hours of a new employment are altered it counts as new employment (see Paragraph 6 of Schedule D5 Part 1 of the 1995 regulations).

5. Under the 1995 regulations it is the annual rate of remuneration on the first day of your new employment which has to be taken into account, not the amount earned in any one year (Schedule 5 Part 1 paragraphs 2 and 5). Schedule 5 requires the annual rate of the retirement pension to be reduced “while the person holds the new employment”. It does not specify that this period has to last a year or more for the reduction to apply. In your case the annual rate of remuneration on the first day of your two periods of whole-time employment with the Committee (24 February 1997 and 27 May 1997 respectively) was £21,759.06. Therefore, during the period you worked whole-time for the Committee your local government pension must be reduced or suspended so that during that period you do not receive more than you were earning before retiring, subject to any increases made to your pension under the Pensions (Increase) Act 1971.