554      INDEX

Our Ref: LGR 85/18/138

 April 1999

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1974 (the 1974 regulations)

LOCAL GOVERNMENT SUPERANNUATION 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 overturned the decision of XXX Council (the council) that you are not entitled to buy back membership of the local government pension scheme (LGPS).  He permitted you to buy back membership to 8 March 1995.  You maintain that the council had a duty to inform you of your eligibility to join the LGPS and as they failed in this duty you should have the right to make further retrospective contributions for previous periods of service.

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 to award compensation where claims are made that information has not been provided with regard to the LGPS.  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 you should be allowed to back date membership of the LGPS for a period from 1 September 1985 to 2 May 1995.

5.                  The Secretary of State has considered all the representations and evidence.  Copies of documents supplied by the Appointed Person have been sent to you under cover of the Department’s letter of 19 January 1999.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that you should have been a member of the LGPS from 1 September 1985.  He takes the view that you were a whole-time local government employee from that time and therefore entitled to automatic and compulsory membership of the LGPS.  His decision overturns 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 28 November 1998 (with enclosures);

b)                 from the Appointed Person: letter dated 7 January 1999 (with the enclosures listed in the Department’s letter of 19 January); and

c)                  from the council: letter dated 16 March 1999 (copied to you with the Department’s letter of 16 March).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)                  on 1 September 1985 you commenced employment with the council as a secretary at XXX Teachers’ Centre;

b)                 you worked 35 hours per week and 43 weeks per year term time;

c)                  on 8 March 1995 you wrote to the council enquiring about joining the local government superannuation scheme (the LGSS now known as the LGPS) and obtaining retrospective membership;

d)                 on 2 May 1995 you became a member of the LGPS; and

e)                  on 1 May 1998 you ceased employment with the council.

3.                  The Appointed Person found that as he could not find evidence that you sought to join the LGSS before 8 March 1995 he would only recommend that you be allowed the buy retrospective membership to that date.

4.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  He notes that at the time you began employment with the council on 1 September 1985 the 1974 regulations applied.  Under regulation B2 of these regulations participation in the LGSS was compulsory for whole-time employees.  A “Whole-time employee” was defined in regulation A3 as one whose contractual minimum hours of employment regularly or usually amounted to 30 hours or more in each week.  Provided contributions were paid under regulation C1, pensionable service was reckonable under regulation D1.  Part-time employees (those who worked less than 30 hours per week) could not join the LGSS.  The 1974 regulations were superseded by the 1986 regulations on 1 March 1986.  Access to the LGSS remained the same with the exception of an option to elect to leave.  Subsequent amendments allowed part-time employees to join the LGSS and, later, to buy back membership.

5.                  It is not disputed that from the time you took up employment with the council you worked 35 hours per week and 43 weeks per year.  The Secretary of State has considered your position in relation to regulations that applied at the time.  The regulations referred to and defined whole-time, part-time and variable-time employees.  The expression “term time” does not appear in the regulations.  In the definition of “whole-time employee” the Secretary of State takes the view that “in each week” means in every week during which the employee will, under the terms of their employment, have to be at the place where she carries out the duties of her employment, so that if she is not there, she will be in breach of contract.  During each of those weeks she must (subject to any such occasional variations as are implicit in the words “regularly or usually”) be required to attend at the place of work for a minimum of 30 hours.  In the Secretary of State’s view you fitted these requirements and were therefore a whole-time employee for the purposes of the regulations from the time your employment started.  Subject to payment of the required contributions, your service as a pensionable employee from that time would be reckonable service (that is, it counts in calculating your benefit).  The question whether you were notified that part-time employees were permitted to join the LGPS is not relevant.