LOCAL GOVERNMENT PENSION APPEAL

 

SUPPERANNUATION 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 of 12 November 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 Mr XXX, the Appointed Person.

2.                The Appointed Person upheld the decision of the XXX (the council) regarding your local government pension scheme (LGPS) benefits on retirement.

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 LGPS, which effectively means whether the LGPS regulations have been correctly applied in the circumstances.  There are no provisions for the Secretary of State to award compensation where claims are made that information has not been provided with regard to the LGPS or that maladministration has taken place.  Like the appointed person the Secretary of State has no powers to direct a local authority to act outside the provisions of the regulations.

4.                The question for decision: The question for decision by the Secretary of State is whether the council are required under the LGPS regulations to pay you the difference between the pension lump sum you have received, and that which you claim you would have received if your benefits in the Teachers Pension Scheme (TPS formerly the TSS) had been transferred to the LGPS.

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 21 December 1998.

6.                Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that the council are not required under the LGPS regulations to pay you the difference in the lump sum.  The council cannot now transfer your TSS benefits to the LGPS so as to increase the lump sum due under the LGPS.  Nor does the Secretary of State have any power in a pension appeal to direct the council to pay compensation where maladministration is alleged.

7.                The Secretary of State’s decision confirms that made by the Appointed Person.  His 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 regulations apply 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.

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 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 you: letters dated 12 November (with enclosures) and 28 December 1998; and

b)               from the Appointed Person: facsimile dated 3 December 1998 (with the enclosures listed in the department’s letter of 21 December).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)                your date of birth is 15 October 1932;

b)               on 1 October 1980 you took up duties as a full-time warden employed by the council at XXX;

c)                during your time as a full-time warden you paid contributions to the TSS;

d)               on 23 January 1987 your post was redesignated as a manager;

e)                from that date you were admitted into the LGSS (now known as the LGPS);

f)                 on 27 October 1987 you signed a notification under regulation N7 of the 1986 regulations stating particulars of your admission to the LGSS;

g)               on 3 May 1989 you signed an undated letter sent to you by the council, which gave your consent to the Director of Finance making enquires about a possible transfer of accrued pension rights in respect of your former service;

h)               in October 1997 you retired from the council; and

i)                 your retirement benefits under both the TPS and the LGPS were subsequently brought into payment, with your TPS pension backdated to 15 October 1992.

3.                The Secretary of State notes that in December 1997, you wrote to the council about what you regarded as a loss in lump sum benefit as a result of receiving two pensions. You have contended that you were unaware that you were making contributions to the TSS, that the documents sent to you by the council did not contain any reference to the TSS/TPS and that if you received all your pension from either the LGPS or the TPS your lump sum would have been greater.  You consider the council should pay you the difference in the lump sum (with interest) as they have handled your pension incompetently.

 

4.                The Secretary of State also notes that the council accept that they failed to progress a transfer of your benefits from the TSS.  The TPS administrators have informed them that a belated transfer is not possible as your TPS pension is in payment.

 

5.                When you retired the 1995 regulations were in force.  The amount of the lump sum due is calculated by reference to regulation D2(1)(b) which refers to total period of membership (in the LGPS).  You have not contended that the calculation is incorrect.  There are no provisions in the regulations to pay a lump sum calculated otherwise than in accordance with regulation D2(1)(b).  It is accepted that your total period of membership would have been increased (and your LGPS lump sum higher) if your TSS benefits had been transferred into the LGSS.

6.                At the time you were admitted to the LGSS your entitlements were provided by the 1986 regulations.  Regulation J8 provided for inward transfers.  Regulation J8(1) required the council to allow you to elect within 12 months of becoming an LGSS pensionable employee and, under regulation J8(4) the council could, at their discretion, extend the period.  The 1986 regulations do not place any obligation on the council to provide advice before or during this process.

7.                The Secretary of State can only deal with matters relating to the LGPS.  He cannot consider your arrangements made for your pension under the TPS or your admission into the TSS. On appeal therefore he can only look at whether the LGPS regulations have been correctly applied. To receive all your pension benefits (lump sum and retirement pension) from the LGPS it would have been necessary to arrange a transfer under regulation J8 of the 1986 regulations.  The Secretary of State accepts that, for whatever reason, no such transfer took place and he notes that the council have admitted a failure on their part.  However, the 1986 regulations and subsequent LGPS regulations do not provide for a transfer after retirement and the TPS administrators have also confirmed to the council that this is not possible.  The LGPS regulations do not provide the Secretary of State with powers of redress where the regulations have not been complied with in such circumstances.  The Secretary of State therefore dismisses your appeal.