478      INDEX

LOCAL GOVERNMENT PENSION APPEAL

 

SUPPERANNUATION 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 October 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 Mrs XXX, the Appointed Person.

2.                The Appointed Person upheld the decision of XXX County Council (the council) that sleeping-in allowance payments were not included in your pensionable remuneration.

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.  This regulation refers to a matter relating to the local government pension scheme (LGPS), which effectively means whether the LGPS regulations have been correctly applied in the circumstances.

4.                The question to be decided: The question to be decided by the Secretary of State is whether a sleeping-in allowance was part of your pensionable remuneration for the relevant period.

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 29 October 1998.

6.                Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that your pensionable remuneration for the relevant period should not include a sleeping-in allowance.  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 decision.  He is acting judicially and has no power to modify the way the regulationsapply to the facts of the case.  Having made his decision 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 decide 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 Appointed Person: letter dated 22 October 1998 and the enclosures listed in the department’s letter of 29 October 1998;

(b)            from you: letters dated 16, 30 and 31 October, and 1 and 3 November 1998 (with enclosures).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)            in 1990 you were suspended from your post as a residential social worker with the council for which you received sleeping-in allowance payments;

(b)            on 12 December 1990 the allowance was stopped;

(c)            at the end of your suspension the allowance was not reinstated; and

(d)            on 15 May 1992 your employment with the council was terminated and this date was used to calculate your final pay for pension purposes.

3.                On 26 March 1990 you applied to an IT complaining of sex discrimination and on 13 March 1992 made a further application complaining of unfair dismissal and wrongful deduction of wages.  A settlement was agreed and you were paid £5,500.  Your dispute with the council was that you were contractually entitled to sleeping-in allowance payments.  You contend that you successfully challenged the council over their wrongful deduction of wages and the IT settlement included sleeping-in allowance payments which should therefore have been included in the calculation of your pensionable remuneration.

4.                The council found that as you had not been paid a sleeping-in allowance in your final year of employment it was not included in your pensionable remuneration, and they did not consider the IT settlement constituted remuneration.  It was not subject to income tax and was in full and final settlement for both IT applications and could not be apportioned between the two.

5.                The Appointed Person considered that there was no dispute that over the relevant period you received no sleeping-in payments.  While she accepted your explanation that “unlawful deduction of wages” related to alleged withholding of sleeping-in payments, she was satisfied that no part of the IT settlement could come within the definition of remuneration in the regulations.  She considered it was not for her to decide whether your sleeping-in allowance should have been paid when you were reinstated.

6.                The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  He notes that two dates have been given as the date when you finally left the council’s employment: 12 March 1992 and 15 May 1992.  Although it does not affect his decision, he assumes the latter (as stated in your deferred benefits statement) to be correct.  At that date the 1986 regulations applied to the calculation of your deferred pension benefits.  Regulation E22 of the 1986 regulations dealt with pensionable remuneration.  Regulation E22(1) defined pensionable remuneration as remuneration for the relevant period.  The relevant period is the final year of employment unless one of the two years immediately before can yield a higher level of remuneration.  It is not disputed that your relevant period for the purpose of regulation E22 was 16 May 1991 to 15 May 1992.  Schedule 1 of the 1986 regulations defined remuneration as “all salary, wages, fees, poundage and other payments paid or made to an employee as such for his own use ... ”.  The definition excludes a number of payments including “ ... non-contractual overtime ... ”.

7.                The Secretary of State has considered all the evidence.  Like the Appointed Person he can only consider on appeal matters relating to the LGPS regulations.  He cannot make decisions about non-pension scheme issues which may arise under your contract of employment.  In the current case therefore he can only decide whether or not your “pensionable remuneration” as defined in the regulations should have included a sleeping-in allowance.  He cannot decide whether you should have been paid an allowance which you were not in fact paid; that is a matter, relating to your contract of employment terms, between you and your former employer.

8.                The Secretary of State has not seen your contract of employment but notes that in your letter of 11 May 1998 to Mr XXX you say that it is dated 8 February 1984 and refers to sleeping-in allowance duties and allowances.  The council have not disputed this nor have they disputed that a sleeping-in allowance, where it is paid, would constitute remuneration.  The Secretary of State therefore accepts that the parties agree that in your case it would have done so.  However, it is also not disputed that you did not undertake sleeping-in allowance duties during your final year nor were you paid such an allowance.  At the time, that you ceased employment, therefore, a sleeping-in allowance could not be included in your pensionable remuneration because no such allowance was paid for the relevant period.  The only remaining question is whether part of the IT settlement can be said to constitute “remuneration”, as you suggest.  The Secretary of State takes the view that the settlement, paid in full and final settlement of various employment-related matters in dispute, cannot be held to constitute “remuneration” even though it was paid partly in recognition of your application that wages had been wrongfully deducted.  So it cannot be taken into account in calculating your pension.

9.                Finally, regulation E22 of the 1986 regulations requires pensionable remuneration to be pay on which you have paid contributions in your final year of employment if the remuneration in the preceding two years is not higher.  It has not been shown nor is it argued that your remuneration for either one of the two years preceding your final year of employment was higher than your final year’s remuneration despite having received sleeping-in allowance payments for the duration of at least one of the preceding 2 years.  The Secretary of State therefore dismisses your appeal.