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 received in this office on 28 July 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. 

2.                  The Appointed Person upheld the decision of XXX Council (the council) as local government pension scheme (LGPS) administrators of the XXX Fund that you cannot receive a refund of contributions on your additional voluntary contributions (AVC’s).  The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited to reconsidering the original disagreement referred to the Appointed Person under regulation 100.  This regulation refers to a matter relating to the LGPS, which effectively means whether or not the LGPS regulations have been correctly applied in the circumstances.  There are no provisions to award compensation where claims are made that information has not been provided with regard to the LGPS.  Like the Appointed Person the Secretary of State has no powers to direct a local authority to act outside the provisions of the regulations.

3.                  In the light of the above the Secretary of State takes the view that the question for determination is whether you are entitled to a return of your AVC’s and whether all your AVC contributions have been taken into account by the council in considering your entitlement to benefits.

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

5.                  Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that the LGPS regulations do not provide for a return of AVC’s in your circumstances and that all your AVC contributions have been taken into account in considering your entitlement to benefits.  His decision confirms that made by 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 this 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.

6.                  This completes the second stage of the internal disputes resolution procedure.  The Occupational 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).

7.                  The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the LGPS made or referred in accordance with the Pensions 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 the council on behalf of the Appointed Person: letter dated 7 August (with enclosures); and

b)                 from you: the letter received on 28 July and the letter dated 17 August 1998 (with enclosures).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)                  on 9 January 1989 you joined the local government superannuation scheme (“the LGSS” now the LGPS);

b)                 on 5 August 1993 you commenced paying AVC’s;

c)                  on 31 March 1998 you retired on grounds of redundancy receiving immediate payment of pension.

3.                  In your appeal to the Appointed Person you contended that you were misled into opting to start AVC’s and that you did not received balanced advice.  You understood that an AVC scheme used the same formula as an LGPS pension and that you would be able to buy added years.  You were unhappy with the value of the benefits produced by the AVC’s when you retired.  You contended that from April 1997 to March 1998 you made 13 contributions and that a statement of contributions made was short of the full value.

4.                  The Appointed Person found that when you commenced paying AVC’s you would have received an explanatory booklet.  He found that on receiving payment of benefits, you must at the same time convert your AVC’s into an annuity and that, under the 1995 regulations, you would only be entitled to a refund of your AVC’s if you were entitled to a refund of your LGPS contributions.  He could not find any discrepancy in your contributions from April 1997 to March 1998.  He agreed with the council’s view that the above booklet gave sufficient explanation of the performance of an AVC fund and that you may have found it misleading in that you retired before the age of 65 (which limited the sum accrued).  He found that he could not decide on matters of maladministration.

5.                  You appealed to the Secretary of State contending that you believed the figures on your AVC statement had been manipulated and you further question the integrity of the AVC scheme.

6.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  You elected to make AVC’s under regulations C9A of the 1986 regulations.  When you retired the rules governing the LGPS were contained in the 1995 regulations.  Regulation C21 of the 1995 regulations provided for a return of pension contributions if a member of the LGPS leaves with less then 2 years membership.  Paragraph 16 of schedule C4 of the 1995 regulations provides various options for re-investing the accumulated value of AVC’s; however, paragraph 17 only provides for a return of contributions in the circumstances provided by regulation C21.

7.                  The regulations do not therefore permit a refund of AVC contributions in your case as you had more than 2 years membership of the LGPS.  On the issue of your AVC contributions being taken into account the Secretary of State takes the view that it has not been shown that any of your contributions were not taken into account.  He notes that you have been given explanations by the Appointed Person and the council about the alleged discrepancies.  He does not consider that you have shown these explanations to be wrong.  He considers that the evidence provided shows that all your contributions were recorded as received and that the missing contributions you refer to were explained as a misunderstanding or misreading of the records and not due to any error.

8.                  You maintain that you were not properly informed about the AVC scheme.  As in the case of the Appointed Person the Secretary of State cannot appropriately consider on appeal whether alleged misinformation amounts to maladministration because he has no power of redress in such circumstances.

9.                  The Secretary of State therefore dismisses your appeal.