464   INDEX

Our Ref: LGR 85/18/103

17 November 1998

LOCAL GOVERNMENT PENSION APPEAL

 

SUPPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION SCHEME REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME (TRANSITIONAL PROVISIONS) REGULATIONS 1997 (the transitional regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.      I refer to your letter of 1 September 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 the XXX (THE FUND) on behalf of your employer not to repay your contributions for pre-1988 cover for widower’s pension.

3.      The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to the Appointed Person under regulation 100 and decide whether the local government pension scheme (LGPS) regulations have been correctly applied in the circumstances.  Where the council have exercised a discretion, the Secretary of State’s role is not to overturn the decision but to ensure that the discretion has not been exercised unreasonably or improperly; where it has, he will determine that the matter should be reconsidered in a proper manner.

4.      The question for determination:  The Secretary of State takes the view that the question for determination is whether, under the 1997 regulations, your additional contributions paid for widower’s pension cover for pre-1 April 1988 membership can be returned or credited to your pension.

5.      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 17 September 1998.

6.      Secretary of State’s determination: The Secretary of State has taken into account the appropriate regulations.  He finds that the regulations do not provide for the contributions to be returned to you, but that your employer has not acted reasonably in considering whether to provide alternative benefits in the form of augmentation of your LGPS membership.  He therefore refers this question back to your employer for re-consideration.  The Secretary of State’s reasons and the legislative provisions 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 way the legislative provisions apply 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.

7.      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).

8.      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 the Appointed Person: letter dated 11 September 1998 (with the enclosures listed in the department’s letter of 17 November 1998); and

(b)            from you: letters dated 1 and 20 September 1998 (with enclosures).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)            your date of birth is 20 August 1943;

(b)            in 1981 you joined the local government superannuation scheme (“the LGSS” now the LGPS);

(c)            in 1993 you paid £217.60 to reckon an additional period of service for the purpose of calculating a widower’s long-term pension under regulation E6(7) of the 1986 regulations; and

(d)            on 1 April 1998 the provisions of regulation E6(7) ceased to have effect under regulation 9 of the transitional regulations.

3.                In your appeal to the Appointed Person, you requested that your £217.60 widower’s pension payment be returned in full or transferred to your pension entitlement or AVC fund. The THE FUND maintained that they had no power under the LGPS regulations to return a one-off payment already made, and that they considered amending the regulations was a better way of dealing with the issue than augmentation of membership or an ex-gratia payment.

4.                The Appointed Person found that THE FUND had acted in accordance with the regulations and that there was no provision available for them to refund or transfer the contributions you had already made.

5.                Regulation E6(7) of the 1986 regulations provided for a married woman who was a pensionable employee and a contributor to the LGSS (a member) before 6 April 1988 to pay for an additional period of service after 31 March 1972 and before 6 April 1988 to be used in calculating a widower’s long-term pension.  This provision was stopped with effect from 1 April 1998 by regulation 9 of the transitional regulations.  However, regulation 9(3) required your employing authority to resolve before 1 November 1998 that the period to which the election relates counts for widower’s pension.

6.                The Secretary of State in reaching his decision has considered all the evidence and has had regard to the regulations which, in his view, apply.  It is clear that the effect of regulation 9 of the transitional regulations is to cancel your election under regulation E6(7).  It is not disputed that your pre-1988 widower’s cover will be honoured by your employer.  Neither the transitional regulations nor the 1997 regulations specifically provide for the circumstances where a one-off payment has already been made for widower’s pension cover.  The Secretary of State accepts therefore that the regulations do not require THE FUND to return this payment to you.

7.                However, the 1997 regulations (regulation 52) provide employing authorities with the facility to increase the total period of membership for employees leaving the scheme on or after their fiftieth birthday, though regard must be given among other things to the maximum permitted membership period (40 years).  It was open to employing authorities to consider awarding extra periods of membership to women who had paid contributions in respect of their pre-1988 service for widower’s benefit.  Authorities were required under regulation 106 of the 1997 regulations to publish their policy on how they intended to operate this procedure. It appears to the Secretary of State from the evidence available that irrespective of the views of the THE FUND your employer has not properly and reasonably considered how to use this discretion in relation to people in your position.  The Secretary of State therefore refers this question back to your employer to be considered in a proper and reasonable manner.