Date: 9 July 1998                             369          INDEX

 

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION SCHEME REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.         I refer to your letter of   22 April 1998 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions against the decision of XXX, the Appointed Person.  The Appointed Person upheld the decision of XXX County Council (the council) not to transfer into the local government pension scheme (LGPS) your deferred pensions with previous employers.

 

2.         The Secretary of State considers that the question for determination is whether the council should have agreed to transfer your accrued rights to pension benefits under your former employers to the LGPS.

 

3.         Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that   the council were not required by the relevant regulations to transfer your accrued rights to pension benefits under your former employers to the LGPS, and that they did not act unreasonably in exercising their discretion whether to extend the time limit in which a transfer request may be made. His decision confirms that made by the Appointed Person. His reasons and the regulations which he considers apply in your case are set out in the attached 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 but you may refer the matter to the Pensions Ombudsman or to the High Court.  Because of this officials may not discuss the case further.

 

4.         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).

 

5.         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 you: letters dated 22 April and 20 May 1998 with enclosures; and

 

b)                 from the Appointed Person: letter dated 11 May 1998 with enclosure (listed in the department’s letter dated 12 May 1998).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  in  May 1991 you commenced employment with the council (the Appointed Person has given the date as 8 May 1991; other papers suggest 1 May 1991);

 

b)                 during your employment with the council you were a member of the LGPS;

 

c)                  you did not elect to transfer your pensions with previous employers to the LGPS within 12 months of taking up employment;

 

d)                 your appointment was confirmed on completion of 12 months probation;

 

e)                  on 10 March 1997 you made a formal request to the council to transfer your previous pensions;

 

f)                   on 30 March 1997 you ceased employment on the grounds of redundancy; and

 

g)                  the council, in their letters dated 18 April 1997 and 3 July 1997, refused to extend the time limit and allow you to transfer in your previous pensions.

 

3.           The Secretary of State notes that when you started employment with the council, although you were aware of the twelve month time limit in the 1986 regulations for transferring in the pensions you had accrued, you felt unable to decide whether to do so during your period of probation.  Once your period of probation finished you considered it preferable to let your previous pensions accrue until normal retirement age.   You contend that you did not make a decision about transferring your pension.  On discovering that you were to be made redundant you enquired whether you could arrange a transfer into the LGPS. You maintain that you were then led to believe that a decision to extend the 12 month time limit was a formality, and you contend that the council did not tell you that in considering whether to do so the cost to the pension fund would be taken into account, and that their failure to do so was tantamount to maladministration.

 

4.           The Appointed Person considered that the council should have been clearer about the way they exercised their discretion.  However, he found that the council were permitted under the LGPS regulations to refuse to extend the time limit, and he did not uphold your appeal.

 

5.           When you started employment with the council the 1986 regulations were in force.  Regulation J8 of the 1986 regulations imposes a 12 month time limit from the start of employment during which written notice may be given to the council to accept a transfer of accrued rights under a superannuation scheme into the LGPS.  This period may be extended by the council.  It is not disputed that you were aware of the time limit and that you did not make a written election for the council to accept a transfer.  When you formsally requested them to accept a transfer in March 1997, the 1995 regulations were in force.  Similar provisions (regulation K13) operated in respect of the time limit and the council’s discretion to extend it.

 

6.           The Secretary of State notes that the decision whether to extend the time limit is at the discretion of the council.  He has therefore considered whether in withholding their discretion the council acted unreasonably.  He notes that you did not ask them to extend the time limit until over 4 1/2  years after it had expired.  He further notes that after initially refusing your request the council reconsidered it and gave you the opportunity to present your case in full.  He notes that they had regard to the Department’s circular 50/69.  He notes your contention that they failed to take account of the fact that you were on probation during the 12 months time-limited period, but he also notes that your probation was completed over 4 1/2 years before you applied to transfer your accrued benefits.  In all the circumstances the Secretary of State concludes that in considering whether to exercise their discretion to extend the time limit the council considered the circumstances of the case properly and took relevant factors into account.  He does not consider that in withholding their discretion their decision was one which no reasonable person could come to.  He therefore dismisses your appeal.

 

7.           The Secretary of State agrees with the Appointed Person that on receiving your transfer request, the council should have informed you more clearly of the way in which they would exercise their discretion.  He notes that you consider this tantamount to maladministration but he has no powers to order redress for maladministration in the context of a pensions appeal and cannot therefore consider this issue.