Local Government Pension Scheme Appeal Determination By The Secretary of State

593 INDEX Our Ref: LGR85/18/196

27 July 1999

LOCAL GOVERNMENT PENSION APPEAL

LOCAL GOVERNMENT SUPERANNUATION ACTS 1937 TO 1953 (the 1937 to 1953 Acts)

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1974 (the 1974 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter of 11 June 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mrs XXX, the Appointed Person, in relation to your local government pension scheme (LGPS) dispute with XXX Council. The Appointed Person upheld XXX Council’s decision that the regulations which were in force when you became a member in 1962 and all subsequent Regulations have not changed with regard to widow’s benefits. That is, a widow is disqualified if the marriage took place after her husband became entitled to the pension or allowances. She concluded that she could not agree with your request that payments would be due to your widow in the event of your death.

2. The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited to reconsidering the original disagreement, that is, the disagreement referred to the Appointed Person under regulation 100.

3. The questions for decision: The questions for decision by the Secretary of State is whether your benefits, and therefore widow’s benefits should you predecease your wife, are payable under the 1937 to 1953 Acts or the 1974 regulations, and whether your wife would be entitled to a widow’s pension.

4. 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 letter of 5 July 1999.

5. Secretary of State’s decision: The Secretary of State, having taken into account the appropriate regulations, finds that your benefits are payable under the 1974 regulations. He further finds that should you predecease your wife she would be entitled, under the 1974 regulations, to a widow’s pension calculated on your membership of the LGPS for the period 6 April 1978 to 31 July 1980. His decision replaces that made by the Appointed Person. The Secretary of State’s reasons and the legislative provisions which 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 legislative provisions apply to the facts of the case. Having made his decision he has no powers 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.

6. The Occupational 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).

7. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144)

8. A copy of this letter has been sent to the Appointed Person and the council.

EVIDENCE RECEIVED

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

a) from you: letters dated 11 June and 14 July 1999 with enclosures;

b) from the Appointed Person: letter dated 1 July 1999 with enclosures (listed in the Department’s letter of 5 July 1999); and

c) from the council: letter dated 8 July 1999 (copy enclosed).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

a) you joined the LGPS on 31 July 1950;

b) at the time you retired on 31 July 1980 you were married; and

c) you were subsequently divorced and remarried in August 1990.

3. You consider that the 1974 regulations alter the position with regard to the provision of widows’ benefits where the marriage took place after retirement. You believe that the council should honour the agreement in force when you joined the LGPS in 1950.

4. The Appointed Person found that the Pension Regulations which were in force at the time you were employed by XXX Council in 1962 and all subsequent Regulations have not changed with regards to the payment to widows and that the 1954 Regulations state “A widow is disqualified, however, if the marriage took place after her husband became entitled to the pension or allowance”. She concluded that your statement that the 1974 Regulations altered the arrangements is incorrect and as there has been no subsequent change in the Regulations with regards to the provision of a widow’s pension, and as your current marriage took place after your retirement, she could not agree with your request that payments would be due to your widow in the event of your death.

5. The Secretary of State in reaching his decision has had regard to the regulations, which in his view, apply. At the time you joined the LGPS the Local Government Superannuation Act 1937 (as amended by the Local Government Superannuation Act 1939) was in force. Under this Act there was no provision for widows’ benefits. In 1953 amendments were made by the Local Government Superannuation Act 1953, which included the provision for widows’ benefits. This provision came into operation from 1 October 1954 following the making of the 1954 regulations. The 1954 regulations set out who is entitled to widows’ benefits and the method for calculating these benefits. Regulation 8(1) provided that a widow of a person who dies after the coming into operation of the 1954 regulations is entitled to an annual pension. However regulation 8(1)(i) provided that a widow shall not be entitled to receive a widow’s pension if the marriage took place on or after the date on which her husband became entitled to the pension.

6. The 1937 to 1953 Acts and the 1954 regulations were revoked with effect from 1 April 1974 when the 1974 regulations came into operation. With effect from that date current members (that is members whose benefits were not in payment) benefits became payable under the 1974 regulations. The relevant provisions relating to widows’ benefits were continued without material change. However, the Local Government Superannuation (Social Security - Requirements for Contracting-out) Regulations 1978 amended the provisions in the 1974 regulations with regard to benefits for widows of marriages which took place after the member had ceased employment either with a deferred entitlement or in receipt of their pension. With effect from 6 April 1978 such a widow was entitled to a widow’s pension calculated on her husband’s membership of the LGPS after that date (regulation 6(3)).

7. The Secretary of State finds that when you joined the LGPS there were no provisions for widows’ benefits to be paid. Although provision for widows’ benefits were introduced in 1954 they did not entitle a widow to such benefits where the marriage took place after the member had left local government employment. In 1974 the 1937 to 1953 Acts and the 1954 regulations were revoked and current member’s benefits became payable under the 1974 regulations. The Secretary of State concludes therefore that in the circumstances of this case your benefits, and any that might became payable to your wife, are set out in the 1974 regulations and you, or your wife, are not entitled to be considered for benefits under the earlier Acts and regulations.

8. The Secretary of State also finds, on the evidence available, that should you predecease your wife, she is entitled to widows’ benefits under the 1974 regulations calculated on your membership of the LGPS after 5 April 1978.

9. The Secretary of State notes that you believe you cannot be worse off than you would have been under the original arrangements. Regulation 12 of the Superannuation Act 1972, under which the 1974 regulations were made, provides that no provision shall be made unless any person who is placed in a worse position is given an opportunity to elect that the provision shall not apply. However, for the reasons set out above, he takes the view that neither you, nor your wife should you predecease her, is worse off. Under the provisions which applied when you joined the LGPS your current wife would not have been entitled to a widow’s pension if you pre-deceased her. Under the amended 1974 regulations in place when you retired, she would be.