LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION 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 10 June 1998 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions. The Appointed Person, Mr XXX for XXX Council (the council), had determined that due to the complexity of the nature of the case and the length of time which has elapsed, he did not feel that he could extend the six month submission deadline.

2. On receipt of your appeal I wrote to Mr XXX that as one of the issues you had raised was determined by the council on 18 November 1997 the view was taken that this issue was not outside the six month period and should therefore by considered by him. The council’s Appointed Person is now Mr XXX. Following your subsequent letters it has been agreed to proceed to stage 2 of the Internal Resolution Dispute Procedure.

3. The questions for determination by the Secretary of State are whether:

a. the application by the council dated 2 January 1997 to the Department for a certificate under regulation M1(1) of the 1986 regulations was made out of time;

b. a copy of the application was sent to you as required by regulation M1(5) of the 1986 regulations; and

c. given the time lapse the council can now seek to invoke the transfer using the certificate issued by the Department on 14 April 1987.

4. The Secretary of State has considered all the representations and evidence you submitted. He notes that you consider that it could be argued that the Secretary of State is compromised as he issued the original certificate which you claim is procedurally flawed, and has received and actioned representations from the council between the 1st and 2nd stages of the appeal procedure; you suggest you should be allowed to move on to OPAS for conciliation immediately. The Secretary of State does not accept that his position has been compromised; he takes the view that under the IDRP he is able to consider whether the regulations have been correctly applied in your case despite his earlier involvement.

5. Secretary of State’s determination: The Secretary of State would normally not consider an appeal submitted 11 years after the event complained of as the complainant has a duty to pursue a grievance with reasonable diligence. However it is noted that part of your complaint is that relevant papers were not copied at the time either to you or to your solicitor who was acting for you and in correspondence with the council. Your solicitor states in an Affidavit that apart from a letter dated 19 June 1987 there was no indication that the council were applying for a certificate and at no time was he asked to respond to any notification. The Secretary of State has no clear evidence whether you were properly informed and is, this far after the event, unable to reach a conclusion on this issue. In the light of your allegation he has however looked at the question whether the council’s application was made out of time. The Department’s papers relating to the certificate have been destroyed. However there is no documentary evidence to show that the council submitted their application more than 3 months after your conviction and the Secretary of State, without such evidence, has now no reason to question the date on the council’s letter. He therefore accepts that the application was made in time and determines accordingly. He dismisses this part of the appeal.

6. The Secretary of State has next considered the question whether the council can now invoke their powers under regulation M1 of the 1986 regulations or regulation H4 of the 1995 regulations (which has the same effect) given the lapse of time in the intervening period. The Secretary of State notes that neither regulation imposes any time limits during which the council must carry out the forfeiture. Whether or not any other legislative power or common law applies falls outside the local government pension scheme and is not therefore a matter that the Secretary of State can consider on appeal. The Secretary of State dismisses this part of the appeal.

7. In reaching his determination the Secretary of State 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.

8. This completes the second stage of the IDRP. As you are aware you may refer the matter to the Occupational Pensions Advisory Service (OPAS) who 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).

9. The Pensions Ombudsman may also investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).