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 7 June 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 in relation to your local government pension scheme (LGPS, or formerly the LGSS) dispute with XXX (the fund).

2.                  The Appointed Person upheld the fund’s decision that the transfer of your rights from the Teachers Pension Scheme (TPS, or formerly the TSS) into the LGPS, and subsequently back into the TPS, was within the provisions of the LGSS and the Public Sector Transfer Club.  You claim you were disadvantaged by the transfer and maintain that the arrangements are unjust.

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 provisions governing the LGPS have been correctly applied in the circumstances.  Like the Appointed Person, the Secretary of State cannot direct the fund to act otherwise than in accordance with the regulations, even where it is alleged that the regulations, although correctly applied, operate unjustly.

4.                  The question for decision: The question for decision by the Secretary of State is whether on 31 August 1993 you could have transferred reckonable service (membership period) equivalent to the calendar length of your previous pensionable employment in the TSS and LGSS.

5.                  The Secretary of State has considered all the representations and evidence.  Copies of documents supplied by the Appointed Person which you may have not seenwere sent to you under cover of the department’s letter of 25 June 1999.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that you could not transfer on 31 August 1993 a membership period equivalent to the calendar length of your previous pensionable employment in the TSS and LGSS.  His decision confirms that made by the Appointed Person.  The Secretary of State’s reasons and the regulatory provisions which he considers apply in yourcase 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 and his officials cannot discuss the case further.  The decision is binding and can only be overturned by a judgement of the High Court or the Pensions Ombudsman.

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 7 June 1999;

(b)               from the Secondary Heads Association: letter dated 5 June 1999 with enclosures (copies enclosed); and

(c)               from the Appointed Person: letter dated 17 June 1999 (with the enclosures listed in the department’s letter of 25 June).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)               on 25 August 1966 you commenced pensionable employment in the TSS;

(b)               on 1 January 1992 you started LGSS employment having accumulated 25 years and 129 days reckonable service in the TSS; and

(c)               on 31 August 1993 you returned to employment under the TSS with 25 days and 356 days reckonable service and 27 years and 7 days qualifying service.

3.                  In your appeal you maintain that it is unjust that on transferring from the TSS to the LGSS you lost one year and 16 days of reckonable service, while on transferring back you were given year for year service.  You say that the effects of the transfer from the TSS to the LGSS were not explained to you and that you were not satisfied with the explanation offered as to why you did not regain your full membership period (reckonable service) with the TSS when you re-started your employment as a teacher.

4.                  The Appointed Person found that your transfer calculations were in accordance with the prescribed arrangements for club schemes.  When you transferred into the LGSS loss of reckonable service resulted from adjustments to take account of widow’s pension arrangements.  He therefore upheld the fund’s decision in that they had applied the relevant statutory provisions correctly in arranging the transfer of your TSS entitlements to the LGSS and that the fund could not restore these entitlements when you transferred back to the TSS.

5.                  In your appeal to the Secretary of State you maintain that the loss of one year and sixteen days reckonable service as a result of your transfer to the LGSS and back to the TSS is unjust and to your disadvantage.  Ms XXX of the Secondary Heads Association has supported your claim.  While she considers the fund’s decision technically correct she asks the Secretary of State to use his discretion to restore lost membership as equivalent rights were established in the TSS after you transferred out and transfers between the LGSS and TSS were now on a one for one basis.

6.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time of your transfers between the LGSS and the TSS the 1986 regulations governed the provisions of the LGSS.  It is not disputed that the transfer value accepted from the TSS was calculated as provided at the time by regulation J9(1) and Schedule 17 of the 1986 regulations.

7.                  The Secretary of State has considered all the evidence.  He has first considered whether the appeal was out of time.  Under regulation 100(8) of the 1997 regulations an application to appeal must be made within 6 months of the relevant date or longer if the Appointed Person considers this reasonable.  The Secretary of State takes the view that the relevant date in this case was when a decision was made concerning the transfer of your benefits to the TSS.  Appeal arrangements existed within the LGSS at that time.  The Secretary of State notes that you pursued informal explanation from the fund and that there has been some delay in seeking formal resolution.  However, the Appointed Person accepted your appeal and did not dismiss it under regulation 100(8).  In the circumstances the Secretary of State has also decided to consider the appeal.

8.                  Regarding the issue to be considered on the transfer of your pension entitlements between the LGSS and the TSS it must be noted that on appeal the Secretary of State can only consider whether the relevant provisions governing your entitlements under the LGPS have been properly applied.  The appeals procedure cannot examine whether the regulations themselves are fair or just.  The Secretary of State considers that the evidence indicates that the regulations applying to club scheme transfers were properly applied in the calculation of your reckonable service.  He agrees with the Appointed Person’s analysis and conclusions on this score.  Adjustments in reckonable service when you transferred to the LGSS were provided for in Schedule 17 of the 1986 regulations.  There are no LGPS provisions in your case to make re-adjustments to entitlement now or at the time you transferred back to the TSS, nor can consideration be given on appeal to your entitlements and liabilities under the TPS.  Furthermore, the Secretary of State does not have the discretion to make exceptions to the regulatory provisions governing the LGPS in individual cases as urged by the Secondary Heads Association.

9.                  The Secretary of State has considered your contention that at the time of your transfer you did not receive explanation from your employer of the effects of the transfer.  The Secretary of State notes from evidence supplied to the Appointed Person by the fund that before you elected to transfer your rights from the TSS to the LGSS you were sent estimates of transfer options with explanatory notes and that they provided you with other information regarding the transfer.  He further notes that you have not provided evidence as to whether you sought further clarification nor have you indicated whether you were misled at the time.  When you transferred between the LGSS and TSS the Occupational Pension Schemes (Disclosure of Information) Regulations 1986 applied.  There is a requirement under these regulations for certain information to be made available to members of an occupational pension scheme.  In the Secretary of State’s view, no conclusive evidence has now been produced to show that these requirements were not met at the time.  In any event, on appeal the Secretary of State cannot offer redress even if it has been shown that the requirements of these regulations were not met.

10.              The Secretary of State therefore concludes that there are no provisions for your membership period of the TSS and LGPS to be extended to its calendar length by restoring the year and sixteen days adjustment to your reckonable service when you transferred to the LGSS.  He therefore dismisses your appeal.