Our Ref: LGR85/18/97 455 INDEX
9 November 1998
LOCAL GOVERNMENT PENSION APPEAL
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1974 (the 1974 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 4 August 1998 in which you appeal to the Secretary of State (under regulation 102 of the 1997 regulations) following Mr XXX’s determination of 17 July 1998. As the Appointed Person, Mr XXX determined that because you had less than 5 years qualifying service you were not eligible to be awarded deferred benefits; the 1974 regulations required a member’s contributions to be returned to him within 12 months of his employment ceasing unless he gave notice to the contrary before the refund was paid, for example where a transfer to another pension scheme was expected. Mr XXX further determined that his jurisdiction as the “appointed person” does not extend beyond the interpretation and application of the relevant statutory provisions; so he was unable to consider and make a decision on your grievances against XXX Police.
2. The question for determination: The Secretary of State notes that you have not questioned the Appointed Person’s decision. Rather because his jurisdiction in the complaints procedure does not extend beyond the interpretation and application of the statutory provision, you ask the Secretary of State to consider whether you have been unfairly treated by XXX Police.
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 9 September 1998.
4. The Secretary of State’s determination: The Secretary of State determines that;
i) he cannot reasonably consider your contention that XXX Police have treated you unfairly as he has no powers of redress;
ii) you were not eligible to be awarded deferred benefits but were entitled to a refund of contributions; and
iii) you are entitled to interest on the returned contributions.
Sub-paragraph ii) confirms the Appointed Person’s decision and sub-paragraph iii) replaces it. 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 the High Court. Because of this, the Secretary of State’s officials cannot discuss the case further.
5. This completes the second stage of the internal disputes resolution procedure. The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. The address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).
6. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme made or in accordance with the Pensions Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).
7. EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a. from Mr XXX: letter dated 4 August 1998 with enclosures; and
b. from the Appointed Person: letter dated 7 September 1998 with enclosures (listed in the Department’s letter dated 9 September 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited, like the Appointed Person’s, to whether the regulations have been correctly applied in the given circumstances. Concerning your contention that you have been treated unfairly by XXX Police, the Secretary of State considers it is not a matter he can reasonably consider in the context of a pensions appeal, because he has no means of redress.
3. With regard to the refund of your contributions and those transferred from XXX pension scheme, the Secretary of State agrees with the Appointed Person’s determination that as you had less than 5 years qualifying service you were not eligible to be awarded deferred benefits. He further agrees that the 1974 regulations, which applied at the time you ceased employment in 1984, required the member’s contributions to be returned to him within 12 months of his employment ceasing unless he gave notice to the contrary before the refund was paid (regulation C8).
4. However, the Secretary of State notes that the Tyne & Wear Pension Fund (the fund) had been unable to trace any of your records but in the absence of any evidence to show that either a transfer or refund had already been paid they were prepared to refund your pension contributions. He further notes, from the fund’s letter of 1 April 1998, that they sent a cheque for £446.52 to you (he notes that you returned this cheque). This letter also explains how they calculated this sum. However, under the 1995 regulations which applied to you at the time the fund made the refund, interest is payable on the return of contributions under regulation C8 of the 1974 regulations if it has not been made within twelve months of the due date (regulation H1 of the 1995 regulations). It appears from the information available that the fund have not calculated the interest due. The Secretary of State determines that the fund should calculate and pay you any interest due under H1 of the 1995 regulations.