Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/18/69

August 1998

LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1995 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter of 19 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 against the decision of M XXX, the Appointed Person for XXX Pension Fund (the fund). The Appointed Person upheld the fund's decision not to allow you to backdate your membership of the local government pension scheme (LGPS).

2. The question for determination by the Secretary of State is whether you can backdate your entry in the LGPS to when you commenced employment with XXX Council (the council).

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 letter of 30 June 1998.

4. Secretary of State's determination: The Secretary of State having taken into account the appropriate regulations, finds that for the purposes of both the 1986 and the 1995 regulations there are no provisions which allow you to backdate your entry into the LGPS. His decision confirms that of 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 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.

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

EVIDENCE RECEIVED

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

a. from Mr XXX: letter dated 19 June 1998, with enclosures; and

b. from XXX, on behalf of the Appointed Person: letter dated 26 June 1998, with enclosures (listed in the Department's letter of 30 June 1998).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a. you commenced employment with the council on 28 December 1991 on a temporary contract;

b. you temporary contract was extended on a number of occasions;

c. your contract was made permanent and you became a member of the LGPS; and

d. your employment with the council ceased in September 1997.

3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. He notes that you confirm that during the time you were employed on temporary contracts you did not join the LGPS, and on one occasion signed a form deferring interest in a pension, because you considered that as the contracts were temporary you did not expect the job to last very long. Furthermore in reaching this decision you considered that the two year rule on pensions would also have worked against you. You also consider that the council believe that because you signed the form this is an end to the matter.

4. The council explained to you that as you decided not to opt into the LGPS they were not prepared to backdate your entry.

5. The Secretary of State considers that you made a conscious decision not to join the LGPS. While he understands your reason for doing so, there are no provisions in the 1986 regulations, which applied at the time you commenced employment with the council, or in the 1995 regulations which allow members of the LGPS to backdate their membership where they had previously decided not to join. The Secretary of State therefore concludes that you cannot backdate your entry into the LGPS.