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 (TRANSITIONAL PROVISIONS) REGULATIONS 1997 (the transitional provisions)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

 

1.                  I refer to your letter of 15 February 1999 in which you appeal on behalf of XXX Council (the council), 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 revoked the decision of the council not to reinstate Mrs XXX (formerly XXX) widow’s pension.

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 local government pension scheme (LGPS), which effectively means whether the LGPS regulations have been correctly applied in the circumstances.  Like the Appointed Person, the Secretary of State will not under the 1997 regulations overturn a decision where the council have exercised a discretion.  His role is, rather, to ensure that the discretion has not been exercised unreasonably, improperly and, in cases where it has, to determine that the matter should be reconsidered in a proper manner.

4.                  The question for decision: The question for decision by the Secretary of State is whether the council can reinstate Mrs XXX’s widow’s pension under the 1995 regulations.

5.                  The Secretary of State has considered all the representations and evidence.  Copies of documents supplied by the Appointed Person which you may not have seen have been sent to you under cover of the department’s letter of 15 March 1999.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that the council cannot reinstate Mrs XXX’s widow’s pension.  His decision replaces that made by the Appointed Person.  The Secretary of State’s reasons and the regulatory provisionswhich he considers apply in this 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 regulatory 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).

9.                  A copy of this letter has been sent to the Appointed Person and to Mrs XXX.

EVIDENCE RECEIVED

1.                  The following evidence has been received and taken into account:

a)                  from you: letters dated 15 and 26 February 1999 (with enclosures); and

b)                 from the Appointed Person: letter dated 25 February 1999 (with the enclosures listed in the department’s letter of 15 March).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a)                  from 17 February 1978 Mrs XXX was in receipt of a widow’s pension awarded under the 1974 regulations;

b)                 on 1 March 1982 Mrs XXX remarried;

c)                  as a result her pension was stopped;

d)                 on 22 January 1998 the council resolved in anticipation of discretionary powers to be granted to them with effect from 1 April 1998 by the transitional provisions that spouse’s pensions for those who left before 1 April 1998 should be payable for life; and

e)                  from 1 April 1998 the LGPS regulations no longer contained the provision stopping a spouse’s pension on remarriage.

3.                  Mrs XXX appealed against the council’s decision not to reinstate her pension as she understood that changes to pension regulations permitted this.  She pointed to an entitlement she had to another LGPS widow’s pension and that payments from this pension were being reinstated from 1 April 1998.

4.                  The Appointed Person found that the council should revive payment of Mrs XXX’s widow’s pension from 1 April 1998.  This was because he took the view that the effect of the council’s resolution was that regulation F7(1) of the 1995 regulations, under which Mrs XXX’s pension was stopped, no longer applied; therefore, payment of her pension should restart from 1 April 1998.  It was his view that while during remarriage Mrs XXX lost her entitlement to pension payments, her pension entitlement was not extinguished, and in this sense he found that the council’s resolution applied to Mrs XXX’s case.

5.                  You contend that regulations F7(1) of the 1995 regulations remains unchanged by the transitional provisions until a relevant event occurs.  You say that a relevant event in this case would be cessation of re-marriage.  You do not agree that deletion of regulations can provide powers to local authorities to make payments.  You contend that regulations must specifically permit such payments.  You argue that the Superannuation Act 1972 only permits payments as prescribed by the Secretary of State in regulations and payment of pension in cases such as Mrs XXX’s are not prescribed by the transitional provisions.

6.                  In reaching his decision the Secretary of State has had regard to the regulations which, in his view, apply.  The Secretary of State has considered all the evidence.  It is not disputed that when Mrs XXX remarried, payment of her pension ceased under the 1974 regulations which have since been superseded and replaced by the 1986 and then the 1995 regulations.  Before 1 April 1998 under regulation F7(1) of the 1995 regulations (and the corresponding 1974 and 1986 provisions) a widow could not receive a pension on re-marriage or cohabitation.  She could only receive the pension again when such a marriage or period of cohabitation ended, at the discretion of the council.

7.                  With effect from 1 April 1998, the 1997 regulations replaced the 1995 regulations.  These new regulations did not include the earlier provisions stopping the entitlement to a surviving spouse’s pension on remarriage or cohabitation.  However, they did not apply to members or beneficiaries who had received pension payments under earlier regulations.  So they do not apply in Mrs XXX’s case.

8.                  With effect from 1 April 1998, amendments to the 1995 regulations by the transitional regulations allowed local authorities to resolve not to apply the provisions of regulation F7(1), in other words to allow them to continue to pay a surviving spouse’s pension on remarriage.  But in the Secretary of State’s view, this amendment only applies where the subsequent marriage takes place after the amendment came into effect (1 April 1998).  The amendment does not give local authorities the power to reinstate a surviving spouse’s pension where the entitlement to that pension had already ceased on re-marriage or cohabitation before the amendment was effective.  In Mrs XXX’s case, therefore, the Secretary of State does not consider that the council had the power to resolve to reinstate her widow’s pension.  Comparison with decisions by other LGPS authorities is not in itself a deciding factor as facts in individual cases may not be identical.  The Secretary of State’s jurisdiction only extends to cases that have been referred to him on appeal.  The appeal can only be determined on the relevant facts.

9.                  The Secretary of State notes that the regulations do contain a discretionary power for the council to decide to re-instate a former widow’s pension if Mrs XXX’s second marriage should come to an end.