Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/18/76

September 1998

LOCAL GOVERNMENT PENSION APPEAL

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 29 June 1998, on behalf of Ms XXX, in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council (the administering authority). The Appointed Person determined that the nomination by Ms XXX was not in the required form and not, therefore, a valid nomination form. He concluded that the administering authority were therefore precluded from paying the grant to Ms XXX as nominee.

2. The Secretary of State considers that the question for determination is whether the nomination form is valid.

3. The Secretary of State has considered all the representations and evidence. Copies of all the documents considered by the Appointed Person have been sent to you under cover of the Department’s letter of 10 July 1998.

4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that for the purposes of the 1995 regulations the nomination form was not valid as it was not signed by Ms XXX. His decision confirms that of the Appointed Person. The Secretary of State’s reasons 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 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 Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. Their 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 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).

EVIDENCE RECEIVED

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

a. from XXX, on behalf of Ms XXX: letters dated 29 June, 14 July and 16 July 1998, with enclosures; and

b. from the Appointed Person: letter dated 8 July 1998 with enclosures (listed in the Department’s letter of 10 July 1998).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a. on 8 October 1996 the administering authority received an unsigned nomination for death grant form in the name of Ms XXX; and

b. on 5 December 1996 Ms XXX died.

3. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. He notes Ms XXX’s contention that her late sister’s intentions were clear and should have been honoured with the payment being made to her in her personal capacity; and furthermore that the administering authority should have delayed making payments in the light of proposed changes to the relevant regulations particularly given that her late sister’s wishes were clear from the nomination form.

4. The administering authority took the view that as the nomination form was unsigned they could not act upon it. They explained that they received 12000 nomination forms in October/November 1996; around 1000 of these were not completed properly but administratively there had not been time to rectify these problems.

5. The Secretary of State notes your view that the administering authority should have delayed making payments until the relevant regulation had been amended. He takes the view that the regulations applicable are those that apply at the time a benefit is payable, not when the benefit is paid. This is because it is at this point that there is an entitlement to any benefits. The Secretary of State notes that Ms XXX died on 5 December 1996. Regulation E8 of the 1995 regulations, which had been amended with effect from 1 September 1996, allowed a member to nominate a beneficiary or beneficiaries for the lump sum death grant. This regulation required that the nomination must be made by notice in writing in such form as the administering authority require. The Secretary of State notes that the administering authority take the view that as the nomination form was not signed they could not act upon it. It is for the administering authority to set out their requirements and it appears that they consider an unsigned nomination form is not valid. The Secretary of State takes the view that where a form provides for a signature it is normal practice to require it to be signed before it can be acted upon. He concludes therefore that the administering authority’s decision that the nomination form was invalid was not unreasonable or arbitrary such that it should be overturned. He therefore determines that as the administering authority required the nomination form to be signed Mrs XXX’s form was not valid as it had not signed.