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 8 January in which you appeal (under regulation J8 of the 1995 regulations), on behalf of Mrs XXX, to the Secretary of State for the Department of the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person. The Appointed Person upheld that XXX County Council (the council) had taken reasonable steps in 1987 to bring to the attention of part-time employees working 15 hours or more per week that they could elect to join the local government pension scheme. He further concluded that he cannot now verify with certainty whether the two documents that had been issued by the council were in fact received by you. Nor does he consider he can criticise the council officers who were administering the local government superannuation scheme (now the local government pension scheme) in 1987 on the basis of the information he has been shown.

2. The question for determination by the Secretary of State is whether Mrs XXX should now be allowed to back-date her membership of the local government pension scheme (the scheme) to the time she commenced employment with the XXX College (the college) in November 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 under cover of the Department’s letters of 27 January and 12 March 1998.

4.Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds for the purposes of the 1986 regulations that Mrs XXX cannot back-date her membership of the scheme. His decision confirms that made by the Appointed Person. The Secretary of State’s reason and the regulations which he considers apply in this 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. If you consider there is a question of maladministration you may be able to take the matter up with the Pensions Ombudsman. He may also 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, on behalf of Mrs XXX, letters dated 8 January, with enclosures and 4 February 1998; and

b. from the Appointed Person, letters dated 16 January and 10 March 1998, with enclosures (listed in the Department’s letters of 27 January and 12 March 1998).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a. Mrs XXX commenced part-time employment with the college in November 1978 working 18.5 hours per week;

b. at that time part-time employees were not allowed to join the scheme;

c. Mrs XXX joined the scheme on 1 December 1994.

3. The council have stated that:

a. a computer list dated 9 March 1987, headed “EMPLOYEES WORKING AT LEAST 15 HRS BUT LESS THAN 30 HOURS NOT IN SUPERANNUATION”, was generated;

b. this list included Mrs XXX;

c. in March 1987 letters were sent to all those listed, explaining that they appeared to be eligible to join the scheme;

d. in September 1987 a Pensions News Letter was sent with pay slips; this also explained the situation;

e. in September 1990 a further letter headed BUY-BACK PROVISIONS FOR PREVIOUS PART-TIME SERVICE was sent as an enclosure with the September 1990 pay advice slip.

4. You contend that;

a.when Mrs XXX started working for the college and on a subsequent number of occasions she expressed a desire to join the scheme;

b. she was told that part-time staff were excluded from the scheme;

c. she cannot recall receiving the letter in March 1987, the Pensions News Letter in September 1987 or the letter in September 1990,

d. she considers the March 1987 invitation to join the scheme is quite memorable and is positive that even after ten years she would remember if she had seen it;

e. she believes there was a serious flaw in distribution of information at the college and that there was a lack of care on the part of the County Council in not ensuring and confirming that the relevant documents were placed in front of her at the appropriate time.

5. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. The Secretary of State notes that at the time Mrs XXX commenced employment in November 1978 the 1974 regulations applied. At that time part-time employees were not allowed to join the scheme. The 1986 regulations came into force on 1 March 1986, but the position regarding access to the scheme for part-time employees did not change. In 1987 the 1986 regulations were amended with regard to part-time employees (regulation B1 and Schedule 2 Part IV). Mr XXX’s letter of 5 January 1998 sets out the amendments as applicable in Mrs XXX’s case. A further amendment was made to the 1986 regulations, in 1990, which allowed those part-time members of the scheme who had elected to join the scheme before 1 April 1988 to back-date their membership (regulations C7A, D12 and D13) to 1 April 1974 or, if employment commenced at a later date, to that date.

6. Because there are no relevant provisions in the 1995 regulations to back-date membership of the scheme the Secretary of State in reaching his determination has had to consider whether there is evidence to indicate that Mrs XXX was not told of her right to join the scheme in 1987. He notes that the council have provided a copy of a letter, dated March 1987, sent to those listed on the computer list, which included Mrs XXX. These letters were addressed personally. He also notes that a Pensions News Letter was sent with the September 1987 pay advice slip. Both of these explained that a specific group of part-time employees could elect to join the scheme. The Secretary of State recognises that Mrs XXX cannot recall receiving either of these, or the letter sent in September 1990, and notes her view that there was a serious flaw in distribution of information at the college. However she has not indicated or provided evidence that there was a problem with distribution of information generally at the college.

7. The Secretary of State accepts that it cannot now be proved conclusively whether or not Mrs XXX received information about her right to join the scheme in 1987. However he is satisfied that the council have provided evidence to indicate that the information was supplied and how they supplied it. The Secretary of State takes the view, that the weight of evidence lies with the Council and that on the balance of probabilities they did inform Mrs XXX in 1987 of her right to elect to join the scheme.