514      INDEX

Our Ref: LGR 85/18/136

 

18 February 1999

 

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 (TRANSITIONAL PROVISIONS) REGULATIONS 1997 (transitional regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 3 December 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 not to restore your original pension without loss of dependant’s cover you are seeking to provide.

3.                  The question for decision: The question for decision by the Secretary of State is whether you must continue to surrender part of your pension to provide a pension for a surviving dependent.

4.                  The Secretary of State has considered all the representations and evidence.  All the documents you submitted were those considered by the Appointed Person as confirmed in the department’s letter of 7 December 1998.

5.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that you are required to continue to surrender part of your pension to provide for a surviving widower dependent.  His decision confirms that of the Appointed Person.  The Secretary of State’s reasons for his decision 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 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.

6.                  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).

7.                  The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to theLGPS 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 evidence considered was that submitted with your letter dated 3 December 1998.

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)                  in December 1988 you retired from employment with the XXX Probation Service; and

b)                 you are surrendering £288 a year from your pension to provide a pension for your spouse should you predecease him.

3.                  Your appeal to the Appointed Person was against the XXX’s refusal to apply provisions in the 1997 regulations for widower’s pension cover to apply to you.  The Appointed Person dismissed your appeal.

4.                  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. When you retired and became entitled to receive retirement benefits the 1986 regulations applied.  You elected to surrender part of your pension in favour of your spouse for payment of a pension to him should he survive you. The Secretary of State concludes that this was a surrender under the terms of regulation E20. Similar provisions to regulation E20 appeared in both the 1995 regulations and the 1997 regulations (regulation 33).  The 1997 regulations do not apply to you because you ceased local government employment before they were introduced, but the surrender provisions have not changed in substance.

5.                  In 1992, amendments to the 1986 regulations introduced provisions for married women who were LGPS members before 6 April 1988 to make arrangements to reckon an additional period in calculating a widower’s pension (regulations E6(7) and C8A). These provisions were separate from the surrender arrangements provided under regulation E20. They took effect after you had retired and did not apply to you.  Different provisions for widowers’ pensions apply from 1 April 1998 under the 1997 regulations and by virtue of regulation 9 of the transitional regulations, but these do not apply to you as you are no longer a contributor to the LGPS, and they do not affect the surrender provisions.

6.                  The Secretary of State concludes that changes introduced by the transitional regulations and the 1997 regulations do not relate to your election under regulation E20 of the 1986 regulations.  Changes introduced in the 1997 regulations concerning widowers’ pensions cannot be applied in your circumstances.