LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.                  I refer to your letter of 13 March 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 for XXX Council (the council).  The Appointed Person found that he was not eligible to backdate your membership of the local government pension scheme (LGPS) to May 1994.

 

2.                  The question for decision: The question for decision by the Secretary of State is whether you are entitled to have your membership of the LGPS backdated to 5 May 1994.

 

3.                  The Secretary of State has considered all the representations and evidence.  Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department’s letters of 8 April and 10 May 1999.

 

4.                  The Secretary of State’s determination: The Secretary of State, having taken into account the appropriate regulations, finds that at the time you commenced employment with the council there were no provisions for casual employees to join the LGPS, you were not eligible to be a member and, therefore you cannot backdate your membership of the LGPS.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulations which he considers apply in this case are set out in the annex to this letter, which forms an integral part of the determination.  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.                  The Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve.  His 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 scheme rules or referred in accordance with the Pensions Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).

 

7.                  A copy of this letter has been sent to the Appointed Person and the Pension Manager.

            EVIDENCE RECEIVED

 

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

 

a)                  from you: letters dated 13 March 1999 (with enclosures, including the Appointed Person’s decision letter dated 11 November 1998) and undated letter received on 20 April 1999;

 

b)                  from XXX council: letter dated 25 March 1999 (copied to you under cover of the Department’s letter dated 8 April 1999); and

 

c)                  from the council: facsimile dated 29 March and letter dated 31 March 1999 copied to you under cover of the Department’s letter dated 8 April 1999; and facsimile dated 10 May 1999 copied to you under cover of the Department’s letter dated 10 May 1999.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

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

 

a)                  you commenced employment with the council on 5 May 1994 as a Relief Museum Attendant;

 

b)                  on 3 October 1994 you commenced permanent employment with the council as a part-time City Centre Enforcement Officer; and

 

c)                  on 3 October 1994 you became a member of the LGPS.

 

3.                  You believe that your membership of the LGPS should be made retrospective to 5 May 1994.  You point out that members taking early retirement or redundancy are given extra years as an inducement to leave.  You further point out that other schemes give their members retrospection where it is advantageous for them.  You also consider that the LGPS rules have been changed.

 

4.                  The Appointed Person found that the regulations did not provide for any retrospection.  He pointed out that, “...some issues relating to equal treatment between male and female employees and access to pension schemes for part-timers that have yet to be finally resolved by the European Courts.  It is unlikely that this would have any bearing upon casual employees unless sex discrimination could be established.”.

 

5.                  In considering your appeal further information was sought from the council and XXX Council.  The council were unable to provide a copy of your appointment form, but stated that as far as they were aware you commenced in a post of a Relief Museum Attendant.

 

6.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time you commenced employment with the council the 1986 regulations were in force.  Regulation B1 sets out those employees who could join the LGPS.  At the time you commenced employment there was no provision for a casual (relief) employee to join the LGPS.  The Secretary of State finds therefore that as there were no provisions for casual employees to join the LGPS you were not then eligible to be a member.  Under the 1995 regulations, casual staff could elect to join the LGPS but there were no provisions to backdate these regulations to a date before they came into force on 2 May 1995.  There are no other provisions allowing membership to be backdated.  You therefore cannot backdate your membership of the LGPS to cover the period of your casual employment between 5 May 1994 and 3 October 1994.

 

7.                  The LGPS does allow members, in certain circumstances, to buy an additional period of membership (regulation 55 of the 1997 regulations) or to make additional voluntary contributions (regulation 60 of the 1997 regulations).  The pensions section of the council will be able to provide you with any relevant information.