LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

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 8 July in which you appeal to the Secretary of State (under regulation 102 of the 1997 regulations) to the Secretary of State for the Environment, Transport and the Regions following the failure of the Appointed Person to issue his decision or extend the period in which he could consider the disagreement you referred to him.  Your disagreement is in relation to the local government pension scheme (LGPS) in which your late wife was a member with XXX Council (the council).

 

2)      The disagreement you referred to the Appointed Person was whether you were being discriminated against as a male dependent.  This was because no account was taken of your late wife’s membership before 6 April 1988 in calculating your widower’s benefits.

 

3)      The question for decision: The question for decision by the Secretary of State is whether you have been discriminated against as a male dependent.

 

4)      Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations.   His power on appeal is limited to whether the rules governing the LGPS have been correctly applied.  The Secretary of State finds that there is no evidence to show that your wife elected and paid contributions for her membership before 6 April 1988 to count for purposes of a widower’s benefits.  The council are therefore correct not to count this period of membership in calculating your widower’s benefits.  On appeal the Secretary of State has no power to consider questions whether the regulations are discriminatory or operate unfairly, nor has he any power to direct a local authority to act outside the provisions of the regulations.  The Secretary of State therefore dismisses your appeal.

 

5)      It is noted that you claim that your wife paid “extra contributions to the Scheme”.  No evidence has been presented to show what any such contributions related to.  However it appears from the papers that your wife bought back part-time service, and that this was taken into account in the calculation of her pension and your widower’s benefits.  You should refer the matter to the council if you require further explanation of this.

 

6)      The reasons for the Secretary of State’s decision and the regulatory 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 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 dispute resolution procedures.  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 of maladministration or dispute of fact or law referred to him 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 8 July with enclosures: and

 

         b)         from the council; letter dated 21 July, with enclosures (copied to you, and listed in the document enclosed, with the Department’s letter of 29 July).

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

2)      From the evidence received the following points have been noted:

 

         a)         your wife joined the LGPS (then known as the local government superannuation scheme) on 3 July 1978;

 

         b)         she retired on 31 March 1993;

 

         c)         she died on 30 April 1998; and

 

         d)         you became entitled to widower’s benefits calculated on her membership after 5 April 1988.

 

3)      You do not dispute the widower’s benefits you are receiving have been calculated correctly, but understand that a widow’s benefits would have been calculated on all her husband’s membership. You consider you have been discriminated against as your widower’s benefits have been calculated on your wife’s membership after 5 April 1988.  You believe that under the 1997 regulations your wife would have opted for her membership prior to 6 April 1988 to be taken into consideration.

 

4)      The council consider your benefits have been calculated correctly as required by the regulations.  They explain that if the necessary resolutions had been passed by the administering authority and employing authority under the 1997 regulations, active members of both sexes would be able to enjoy equal benefits; thus, if your wife had remained an active member of the scheme until 1 April 1998 you may have enjoyed a benefit based on her full service.

 

5)      The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time your wife became entitled to her benefits the Local Government Superannuation Regulations 1986 (the 1986 regulations) were in force.  With effect from 6 April 1995 the 1995 regulations replaced the 1986 regulations.  On 1 April 1998 the 1997 regulations came into force.  These regulations apply to members who were “active” (that is, contributing members) on 1 April 1998 and their dependants.  Those members of the LGPS who did not fall into the “active” category and their dependants continue to have their benefits paid under earlier provisions.  As your wife was not an “active” member on 1 April 1998 the 1997 regulations do not apply to her and as a consequence do not apply to you.

 

6)      When your widower’s benefits became payable, therefore, the 1995 regulations applied.  There was no provision under these regulations for membership prior to 6 April 1988 to be taken into account in calculating a widower’s benefits unless the member had elected and paid contributions for her pre 1988 service.  It is noted that you do not dispute that your wife did not make such an election.  Under the provisions of the 1995 regulations the council are therefore required to calculate your benefits on membership after 5 April 1988 and it is noted that you do not dispute that they have been calculated correctly.

 

 The Secretary of State’s power on appeal is limited to whether the rules governing the LGPS have been applied correctly.  He finds that as you wife had not elected for her membership before 6 April 1988 to count for the purposes of a widower’s benefits the council are correct not to count this period of membership in calculating your widower’s benefits.  The Secretary of State on appeal has no power to consider questions of discrimination or to direct a local authority to act outside the provisions of the regulations.