Local Government Pension Scheme Appeal Determination By The Secretary of State

5. This completes the second stage of the internal disputes resolution procedure. If Mr XXX believes there is any question of maladministration he may wish to ask the Pensions Ombudsman whether there is any question for him to consider. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

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 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

7. The Pensions Ombudsman may also investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme.

8. The Local Government Ombudsman may investigate wider complaints of maladministration by local authorities. His address is 21 Queen Anne's Gate, London, SW1H 9BU (telephone 0171 915 3210).

9. A copy of this letter has been sent to the Appointed Person.

EVIDENCE RECEIVED

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

a. from Mr XXX, on behalf of Mr XXX, letters dated 18 March and 28 April 1998: with enclosures; and

b. from the Appointed Person letters dated 8 April 1998 with enclosures (listed in the Department's letter of 16 April 1998) and 19 May 1998 (copy enclosed).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a. Mr XXX joined the council in January 1990 as a part-time teacher;

b. all the papers submitted to the Secretary of State relating to his employment referred to the Teachers Superannuation Scheme now the Teachers Pension Scheme (TPS);

c. as a re-employed part-time teacher, he has not been eligible to join the TPS;

d. he joined a personal pension scheme;

e. he applied to join the LGPS in December 1996, but was initially informed that he was not eligible; and

f. with effect from 1 February 1997 he became a member of the LGPS.

3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view apply. He notes that the Appointed Person considered whether he should recommend that the council exercise their discretion to pass a resolution to add an additional period of membership to Mr XXXs period of membership of the LGPS (regulation B16).

4. In 1990 Mr XXX became a part-time teacher. He did not apply to join the TPS. Mr XXX contends that he asked his Line Manager at the council whether he could join any other occupational pension scheme and was told he could not. Mr XXX further contends that he asked the council if they would also contribute to a personal pension scheme, but was refused. In October 1995 he wrote to the council asking whether they would contribute to his personal pension scheme. The Education Services Department replied explaining that the council could not pay contributions to private pension schemes. Mr XXX asked for confirmation from the Pension Department. The Education Services Department replied that the Pensions Manager had confirmed that the council could not pay contributions to private pension schemes. In March 1996 Mr XXX applied to join the TPS, but was refused. Although he was aware he was ineligible he applied for a number of reasons including the fact that he wished to refer the matter to OPAS. In December 1996 Mr XXX wrote to the council asking if he could join the LGPS. They replied that he was not eligible. He wrote to the council on the 8 and 16 January 1997.

5. The council in their reply explained that as a result of Mr XXX's letter of 12 December 1996 they had made enquiries of the TPS. As a result of these enquiries they became aware that Mr XXX was ineligible to join the TPS and therefore was eligible to join the LGPS. However before Mr XXX could join the LGPS he would need to cease contributing to his personal pension scheme. The council treated Mr XXX's letter of 12 December 1996 as his first application to join the LGPS. They also explained that there was no statutory provision which would allow the council to pay the relevant contributions to purchase added years. Nor did they consider, under the circumstances, that the council had any obligation to pay such contributions.

6. You contend that:

a. Mr XXX was repeatedly denied access to the TPS and the LGPS by the council. You consider that this is borne out by the meetings and conversations your firm had with Mr XXX at the time his personal pension was set up. You have notes on your files which confirm this. You also believe that this is confirmed because as recently as December 1996 the council, in their letter of 20 December 1996, stated that Mr XXX was not eligible to join the LGPS.

b. the Appointed Person was wrong to conclude that the six month time limit which the council had to resolve whether Mr XXX should be granted an additional period of membership in the LGPS had expired. Mr XXX did not start the Internal Dispute Resolution Procedure until 15 May 1997, with formal application being made on 30 July 1997. Nor do you consider the age restriction of 59 should be strictly applied in Mr XXX's case as he was 53 when he was employed by the council and had he then be allowed to join the LGPS this restriction would not have arisen;

c. the council have denied Mr XXX 7 years of membership to an occupational pension scheme;

d. the council have failed to discharge an employer's common law duty of care to it employees, as well as the obligations it has to draw to their attention the benefits available as a part of their remuneration package. Nor is there any evidence that the council provided information which would have informed part-time teachers that they could join any other occupational pension scheme; and

e. as Mr XXX has lost out because of errors by the council it is their responsibility to find a way of restoring Mr XXX's benefits. If the council cannot use the purchase of added years, then it is up to them to compensate Mr XXX in some other way.

7. The Secretary of State notes that Mr XXX was aware in 1990 that he could not join the TPS and that he contends that he asked his line Manager at that time if he could join any other occupational pension scheme and was informed that he could not. He further notes that Mr XXX contends that because he could not join an occupational pension scheme he set up a personal pension scheme. When Mr XXX applied in writing to the council, in December 1996, he was first informed that be could not join the LGPS because he was not eligible. The Secretary of State takes the view that on the evidence submitted Mr XXX has been unable to provide unequivocal evidence that he asked on a number of earlier occasions whether he could join another occupational pension scheme as he was ineligible to join the TPS.

8.The Secretary of State notes your contention with regard to the six month time period a council has to resolve that an additional period of membership (regulation B16) may be granted starts from when Mr XXX made his application to the Appointed Person. Regulation B16 states that a council may pass a resolution only if it is passed within 6 months of a person becoming a member in their employment. However, a resolution cannot be passed if the member is over age 59 unless he becomes so after becoming a member. The Secretary of State take the view that the council cannot consider using their discretion to add an additional period of membership to Mr XXX's membership of the LGPS as he was age 59 when he joined the LGPS. In the circumstances the Secretary of State has not considered the question of whether Inland Revenue restrictions apply in this case as they are not relevant because the council have no discretion in this instance.

9. The Secretary of State has considered your further contention that Mr XXX has been denied 7 years membership of the LGPS and that the council have a duty to provide information. The council do have a duty under the Occupational Pension Schemes (Disclosure of Information) Regulations 1997 to provide certain information. It appears from the evidence we have received that the council provided information with regard to the TPS, which is the pension scheme for teachers unless it specifically excludes them. Local authority employees can only join the LGPS if they do not have access to another occupational pension scheme. Mr XXX was specifically excluded from the TPS because he was re-employed part-time. The Secretary of State under regulations J8 and J9 of the 1995 regulations has no powers to consider questions relating to the TPS and whether or not the information provided explained that re-employed part-time teachers had a right to join the LGPS. With regard to whether insufficient evidence was provided by the LGPS the Secretary of State notes that the council consider it was only after they sought information from the TPA they were aware of Mr XXX's ineligibility to join the TPA.

10. The Secretary of State has no powers to consider whether insufficient or incorrect information was provided by the council to Mr XXX with regards to his right to join the LGPS as he was specifically excluded from joining the TPS. If Mr XXX considers that there is any question of maladministration he may be able to ask the Pensions Ombudsman or the Local Government Ombudsman to consider the issues.

11.The Secretary of State has also considered your contention that Mr XXX has suffered a loss in pension as a result of errors made by the council and that it is their responsibility to find a way of restoring his benefits. If the council cannot use the purchase of added years, then it is for them to compensate Mr XXX in some other way. There are no provisions in the LGPS for compensation in any form to be granted to a member where they consider they have been wrongly advised by the council and therefore the Secretary of State has no powers to consider such questions. If Mr XXX considers that there is any question of maladministration he may be able to ask the Pensions Ombudsman to consider the issues.

12. Like the Appointed Person the Secretary of State has no powers to direct local authorities to act outside the provision of the regulations. The Secretary of State concludes therefore that the council could not use their discretion to add an additional period of membership to Mr XXX's membership of the LGPS as he was age 59 when he joined the LGPS (regulation B16).