LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION SCHEME REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                I refer to your letter of 16 August 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 Borough of XXX (XXX) not to allow the transfer of your previous pension rights to the local government pension scheme (LGPS) on a “club basis”.

3.                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.

4.                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.

5.                The question for determination: The question for determination by the Secretary of State is whether XXX should accept the transfer value payment from the Teachers Superannuation Scheme (TSS) in respect of your service between 1 September 1970 to 31 March 1989 as from 1 April 1989 on a club basis.

6.                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 4 September 1998.

7.                Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that XXX should not accept a transfer value concerning your TSS service on a club basis.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulationswhich 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 way the regulationsapply 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 the Secretary of State’s officials cannot discuss the case further.

8.                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.  Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

9.                The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the LGPSmade 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 XXX, the XXX Pensions Manager on behalf of the Appointed Person: letter dated 30 August 1998 (with the enclosures listed in the department’s letter of 4 September 1998); and

(b)            from you: letters dated 16 August and 13 September 1998 (with enclosures).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)            from 1 September 1970 to 31 March 1989 you were a member of the TSS;

(b)            on 16 February 1989 you signed an application form electing to join the local government superannution scheme (“the LGSS” as the LGPS was known at the time);

(c)            by inserting the letter “B” in a table on the form you indicated that your pension contributions in your last teaching post were transferred; however you put a question mark in brackets next to it;

(d)            you did not complete the question on the form asking whether you were interested in transferring your pension rights;

(e)            on 1 April 1989 you commenced employment with XXX;

(f)             on 18 May 1989 XXX wrote to you asking you to indicate if you were interested in transferring Department of Education and Science pension rights;

(g)            at the same time you were given notice that you were a contributor to the superannuation fund maintained by XXX;

(h)            on 20 February 1996 you requested early retirement figures;

(i)              on 18 December 1996, subsequent to the receipt of the early retirement figures, you confirmed your refusal of a non-club transfer of your TSS service; and

(j)              XXX have refused to allow a transfer on club terms.

3.                In your appeal to the Appointed Person you claimed that you were not given sufficiently clear information about the transfer of your pension entitlement when you took up employment with XXX.  You contend that because the information you were supplied at the time was not clear you assumed that a transfer of your pension would be automatic.  You claim you did not receive the XXX reminder letter of 18 May 1989 because it was badly addressed and was sent by the unreliable internal mail system.

4.                The Appointed Person accepted that there was no evidence you received the XXX reminder letter of 18 May 1989.  He found that you were given notice that you were joining the LGSS, that you were made sufficiently aware by this notice, and the form you signed on 16 February 1989, that you were transferring to a new pension scheme.  Therefore you were aware of the need to make an election to transfer your TSS entitlement to the LGSS.  You did not attach the notifications relating to other pension rights for a transfer to be arranged.  He therefore decided that you were not entitled to a “club” transfer.

5.                In your appeal to the Secretary of State on 17 August 1998 you made a number of points in response to the Appointed Person’s decision.  As the details of other pension rights were never made available to you, you were unable to pass them onto XXX.  You consider it unfair that you should be punished for a single omission on the form when XXX, you contend, made several inaccuracies and omissions particularly in their letter of 18 May 1989. You feel the Appointed Person should have sought from you further details and clarification.  In your letter of 13 September 1998 you emphasise that you discovered that your TSS rights were not transferred to the LGPS only when you enquired about early retirement benefits.

6.                For XXX to accept the transfer value payment from the Teachers Superannuation Scheme (TSS) in respect of your service between 1 September 1970 to 31 March 1989 as from 1 April 1989 they would need to have regard to the 1986 regulations which applied to the LGSS at the time.  The Secretary of State in reaching his decision has had regard to these regulations.  Regulation J8(1) allowed a member of the LGSS, subject to certain conditions, to transfer in accrued rights from other pension schemes.  A transfer value accepted under regulation J8 could be counted as a period of additional membership calculated in accordance with regulation J9(1) and Schedule 17. Schedule 1 explains that a club scheme means a superannuation scheme which fulfils certain conditions.  It includes the TSS.  Schedule 17 paragraph 2(a) made special provision where the transfer was from a club scheme.  One of the conditions was that the application had to be made within twelve months of the member joining the LGSS.  There is no provision to allow XXX to extend this period.

7.                The Secretary of State considers that the form you signed on 16 February 1989 applying to join the LGSS gave you an opportunity to exercise your right to elect to transfer your rights from the TSS.  You did not fully complete this form and although you put in a question mark you did not follow this up by seeking clarification.  The Secretary of State does not have the means to verify whether you received a reminder and what your intention may have been at the time.  The Secretary of State concludes that, for whatever reason, you did not make a valid transfer application within 12 months of joining the LGSS and therefore you are not entitled to transfer on a club basis.

8.                The Secretary of State notes that you claim omissions and inaccuracies by XXX. However, he has no powers to order redress in these circumstances in the context of a pensions appeal and therefore cannot sensibly consider this issue.  The Secretary of State therefore dismisses your appeal.

9.                The Secretary of State notes that XXX are prepared to arrange a transfer on a non-club basis.