513      INDEX

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 19 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 XXX Council (the council) that your local government pension scheme (LGPS) retirement benefits cannot be brought into payment until you reach the age of 65 as you did not make an election at the age of 60 to receive payment at that time.

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. Like the Appointed Person the Secretary of State has no powers to direct a local authority to act outside the provisions of the regulations, even where claims are made that incorrect or misleading information has been provided with regard to the LGPS.

4.                The question for decision: The question for decision by the Secretary of State is whether you are entitled to payment of your retirement benefits before the age of 65.

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 you were entitled to retirement benefits which should have been paid when you reached the age of 60.  His decision replaces that made by the Appointed Person.  The Secretary of State’s reasons and the regulations which 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 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: letter dated 19 November 1998 (with enclosures);

b)               from the Appointed Person: letter dated 15 December 1998 (with the enclosures listed in the department’s letter of 21 December); and

c)                from the council: letter dated 22 January 1999 (with enclosures which were copied to you with the department’s letter of 25 January).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)                your date of birth is 11 June 1937;

b)               on 19 May 1980 you commenced pensionable employment with the council;

c)                on 22 September 1991 you resigned from employment with the council;

d)               your pension benefits were preserved; and

e)                in June 1998 you applied for payment of your preserved benefits.

3.                You appealed to the Appointed Person against the council’s decision not to put your pension into payment at age 61.  The council refused to release your pension until you reached the age of 65 as you had not made an election under regulation D11(2) of the 1995 regulations within 3 months of your 60th birthday to receive payment from the age of 60.  You contended that you were not informed that you had to make an election at the age of 60, and that the council’s literature led you to believe you could receive payment at any point between the ages of 60 and 65.

4.                In reaching his decision, the Secretary of State has had regard to the regulations which, in his view, apply.  When you ceased employment with the council the 1986 regulations applied.  You became entitled to retirement benefits (pension and lump sum) under regulation E2(1)(c) because you had more than two years reckonable and qualifying service.  You did not meet the necessary conditions for your benefits to be paid immediately, and so they were preserved (“preserved” benefits were those which had not yet become payable).  Regulation E2(6) set out when preserved benefits became payable.  In the case of a woman, this was from the first date on which she both had attained the age of 60 years and was no longer in any local government employment (regulation E2(6)(c)).  There were no provisions allowing a woman who had ceased local government employment to have her benefits paid from a later date.  The effect in your case, therefore, was that your benefits were payable at age 60, and you could not choose to have them paid later.

5.                Before you reached the age of 60, the 1995 regulations came into force, revoking the 1986 regulations.  The provisions applying to the payment of preserved benefits were changed.  There was no longer special provision for women who had ceased local government employment to receive their benefits at age 60.  Under regulation D11, a person who has attained the age of 60 and has ceased local government employment could elect to have their benefits  paid at age 60 (or their date of ceasing employment, if later);  otherwise, the benefits were generally payable at age 65 (or earlier only if the person had 25 years’ membership or in certain exceptional circumstances).  There was no provision for someone who had ceased local government employment to choose a date between the two.  This means that in your case, if regulation D11 applied to you, your benefits would not become payable until you were 65, because you did not elect to have them paid at 60.

6.                However, the Secretary of State takes the view that regulation D11 of the 1995 regulations does not apply to you.  The regulation states “If a member who ceases to hold a local government employment...”.  The Secretary of State’s view is that the regulation only applies to members ceasing on or after the date on which the regulations came into force (2 May 1995).  You had ceased before that date.  There is nothing in the transitional provisions in the 1995 regulations which treats people in your position  as though they had ceased under regulation D11.  When you applied to have your benefits put into payment, the 1997 regulations were in force.  However, these regulations did not apply to the payment of your benefits either, because you were not an active member of the scheme when they came into force.

7.                The Secretary of State concludes that your right in relation to payment of your retirement benefits under the 1986 regulations remained unaltered by the subsequent regulations. Your retirement benefits should therefore have been put into payment at age 60.