515      INDEX

 

LOCAL GOVERNMENT PENSION APPEAL

 

SUPPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION SCHEME REGULATIONS 1974 (the 1974 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                I refer to your letter of 5 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 County Council (the council) to reduce on your 65th birthday your local government pension scheme (LGPS) pension benefits due to the provisions of the National Insurance Acts.  You maintain that as such provisions are no longer contained in the 1997 regulations which came into force before your 65th birthday it is not lawful that they should apply to you.

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.

4.                The question for decision: The question for decision by the Secretary of State is whether the 1997 regulations or earlier regulations apply to you in deciding whether your pension should be reduced when you reached state pensionable age.

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 14 December 1998.

6.                Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that the 1997 regulations do not apply to you and that the question whether your pension fell to be reduced on attaining the state pensionable age of 65 years had to be considered under the National Insurance modification provisions of the 1974 regulations.  His decision confirms that made by the Appointed Person.  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 decision.  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 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: letters dated 5 November and 18 December 1998;

(b)            from the Appointed Person: letter dated 2 December 1998 (with the enclosures listed in the department’s letter of 14 December; and

(c)            from the council: facsimile dated 22 February 1999 and enclosures copies of which are attached.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)            your date of birth is 23 July 1933;

(b)            on 18 March 1985 your pension benefits were brought into payment; and

(c)            on 23 July 1998 the council reduced your pension benefits by £83.54 per year under the National Insurance Modification provisions in the 1974 regulations.

3.                In your appeal to the Appointed Person you complained that as there was no longer a requirement to reduce pensions under the 1997 regulations it was not necessary for the council to impose the reduction.  You asked him to use his discretion and dispense with the reduction in your case.  The Appointed Person found that the reduction applied to all pensioners who were members of an occupational pension scheme before 31 March 1980, that the council was compelled by the provisions of LGPS regulations to reduce your pension, that he did not have any discretion in the matter and although the 1997 regulations no longer contained National Insurance modification provisions they did not apply to you as you retired before they came into force.

4.                Up to 31 March 1998 certain individuals leaving the LGPS were subject to a reduction in their annual pension on reaching state retirement age.  This reduction was a result of a National Insurance modification which took account of the integration between an employer’s contracted out occupational pension scheme and the state flat rate retirement pension.  As part of changes and improvements made to the LGPS from 1 April 1998, individuals with periods of active membership, periods for which contributions are paid, would no longer have National Insurance modification reduction applying from their state pension age.  As with other improvements to public service pension schemes it is a matter of general government policy that improvements are not backdated but introduced for future membership so that costs of such improvements are met by members and employers.

5.                The Secretary of State has considered all the evidence.  He notes that it is not disputed the way the National Insurance modification has been applied in your case.  Rather you contend that the 1997 regulations apply to you.  The Secretary of State takes the view that as you retired and ceased making contributions before the 1997 regulations the benefits of changes to the scheme cannot apply in your case.  He finds that the council were correct to reduce your pension on attaining the age of 65 (state pensionable age).  He therefore dismisses your appeal.