512      INDEX

Our Ref: LGR 85/18/137

 

16 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 REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 28 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 (the council) that your widower’s pension is only payable on your late wife’s membership of the local government pension scheme (LGPS) after 5 April 1988.  You maintain that your benefits as a widower should be equal to those of a similarly entitled widow.

3.                  The Secretary of State’s XXXs under regulations 102 and 103 of the 1997 regulations are limited to whether the LGPS regulations have been correctly applied in the circumstances.  Questions whether the regulations provide for equal benefits are not ones the Secretary of State can consider on appeal.

4.                  The question for decision: The question for decision by the Secretary of State is whether your widower’s benefits can be equivalent to those of a similarly entitled widow whose spouse’s pensionable service included service before 6 April 1988.

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 your widower’s benefits cannot be equivalent to those of a similarly entitled widow whose spouse’s pensionable service included service before 6 April 1988, unless your spouse had paid additional contributions for service before 6 April 1988.  There is no evidence that she elected to do so.  This 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 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 2 December 1998 (with enclosures); and

b)                 from the Appointed Person: letter dated 14 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)                  on 3 March 1991 your wife retired from her employment with the council;

b)                 she was in receipt of an LGPS pension;

c)                  from 22 February 1998 you were paid a widower’s pension benefits; and

d)                 your widower’s pension was based on your wife’s pensionable service in the local government superannuation scheme (now the LGPS) from 6 April 1988 to 3 March 1991.

3.                  The Secretary of State notes that you do not provide evidence that your late wife elected to pay contributions on service before 6 April 1988 for widowers’ pension cover, nor do you dispute the way the council applied the regulations to calculating your pension.  In your appeal to the Appointed Person you argued that if you predeceased your wife she would have received half your pension and therefore you considered it inequitable that your entitlement is not the same.  The Appointed Person found that the council applied the 1995 regulations correctly when calculating your pension and that they did not have the power to award you a pension equal to that which a woman would receive in the event of her husband’s death.

4.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  While the 1995 regulations apply to the calculation of your widower’s pension award the Secretary of State notes that the 1986 regulations were in force when your wife retired and ceased her contributions.  Provision for widowers’ pensions were introduced from 6 April 1988; previously a widowers’ pension was not payable.  Calculation of widowers’ pensions was then based on membership after 5 April 1988, unless the member elected to pay additional contributions to allow earlier service to be taken into account.  At the time your wife was a pensionable employee she had the opportunity to choose under regulation C8A whether or not to buy earlier service so that a period before 6 April 1988 could be included in the calculation.

5.                  The Secretary of State on appeal cannot direct the council to act other than as prescribed by the regulations.  For you to receive a pension equivalent to a widow’s in a similar situation your wife had to elect to pay additional contributions for her service before 6 April 1988.  Therefore, as the LGPS did not have provision for widowers’ pensions prior to April 1988 and there is no evidence that your wife elected to pay additional contributions for earlier service, your pension is not equivalent to a widow in your position.  The Secretary of State therefore dismisses your appeal.

6.                  An important reason for the need for contributions to be paid on pre 1988 service is that improvements to pension schemes are normally made only from a current date.  This is because schemes would not be in a position to know that a new liability was to be put on them and prepare for it.