LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

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 19 February 1999 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.  The Appointed Person found that XXX Fund (the fund) and XXX had complied with the Regulations which govern the Local Government Pension Scheme (LGPS) and dismissed your application.

 

2.      The question for decision: The question for decision by the Secretary of State is whether you should be treated as though you were married to your husband at the time he retired because he did not receive information relating to marriage after retirement, prior to his retirement on 31 January 1994.

 

3.      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 were sent to you under cover of the Department’s letter of 6 April 1999.

 

4.      Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that there are no provisions in the statutory rules governing the LGPS for you to be treated as though married to your husband at the time he retired.  Having considered your complaint, the Secretary of State finds that there is no evidence that the regulations have not been properly enforced. His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the statutory provisions which 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.

 

5.      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).

 

6.      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 19 February (with enclosures) and 14 April 1999; and

 

b)     from the Appointed Person: letter dated 3 March 1999 (with the enclosures listed in the department’s letter of 6 April 1999)

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)      your husband retired from XXX on 31 January 1994;

 

b)     his LGPS benefits became payable immediately;

 

c)      subsequent to him ceasing employment you married him.

 

3.      You consider you should be treated as though you had been married to your husband at the time he ceased employment.  You state that your husband did not receive a copy of “Retirement Benefits - Notes for Guidance” when he retired and that this clearly sets out details relevant to your circumstances.  You point out that you received a copy when you retired in 1996, but a colleague of your husband did not.  Had this information been received before your husband ceased employment you would have been in a position to make your own decision to marry before he retired.

 

4.      The Appointed Person found that there is no evidence that the fund advised your husband, during 1993 or before, of the consequences of a marriage or re-marriage following retirement.  He stated that both XXX and the fund concede that it is quite likely that your husband was not provided with specific advice about the effect on a widow’s pension of the timing of any marriage.  He therefore considered whether the fund and XXX were in breach of their statutory duty to inform members about the Scheme rules and if so what possible remedies may exist for any loss that may arise.  He found that there was no statutory duty on the fund to provide information about this matter.  He concluded that the fund and XXX have complied with the Regulations governing the LGPS and he dismissed your application.

 

5.      In reaching his decision the Secretary of State has had regard to the statutory provisions which, in his view, apply. His powers under regulations 102 and 103 of the 1997 regulations are to reconsider the original disagreement referred to an appointed person under regulation 100, which effectively means whether the scheme rules have been properly applied.  The Secretary of State cannot direct a local authority to act outside the requirements of the rules

 

6.      Your dispute with the local authority concerns the lack of advice (information) given to your husband in respect of a widow’s pension; you maintain that if you had been advised of the LGPS’s requirements, you could have decided to marry before he ceased employment so as to maximise your benefits.  As you were not so informed you consider that your widow’s benefits should be paid as if you had been married at that time.

 

7.      The LGPS regulations in force when your husband retired were the Local Government Superannuation Regulations 1986.  Regulations E5 and E6 provided for widow’s benefits.  In the 1995 regulations widow’s benefits are provided under Part F.  Both sets of regulations have the same effect in relation to a widow of a post-retirement marriage.  Your pension has to be based on your husband’s service in contracted-out employment, that is, since 5 April 1978.  The Secretary of State is satisfied that this regulation has been properly implemented.

 

8.      The LGPS regulations do not require the provision of advice.  Certain information is required to be provided under the Occupational Pension Schemes (Disclosure of Information) Regulations 1996.  The Secretary of State is satisfied that the regulations in force at the relevant time (up until your husband ceased employment) were those identified by the Appointed Person in his letter of 23 October 1998.  He agrees with the Appointed Person that these did not require the local authority to provide your husband with information about a spouse’s pension in the event of a post retirement marriage given that from the time his first marriage ended until he ceased employment and active membership of the LGPS, no spouse’s benefits were payable as he was unmarried.  He considers that the provision of such information to all members is, however, a matter of good practice, but as in the particular circumstances of this case it is not specifically required by the rules governing the LGPS he has to dismiss your appeal.