LOCAL GOVERNMENT PENSION APPEAL

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1974 (the 1974 regulations)

LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1.                  I refer to your letter of   14 July 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) dispute with XXX (the council).

2.                  The Appointed Person upheld the council’s decision      that you are not entitled to buy back membership of the LGPS as a part-time worker.  You maintain that the council failed to notify you of your right to join the LGPS at the appropriate time with the opportunity to purchase service since 1 April 1974.

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.  There are no provisions to award compensation where claims are made that information has not been provided with regard to the LGPS.  Like the Appointed Person the Secretary of State has no powers to direct a local authority to act outside the provisions of the regulations.

4.                  The question for decision: The question for decision by the Secretary of State is whether you can buy-back your membership of the LGPS for the period of part-time employment during which you were not a member, from the start of your employment with XXX University.

5.                  The Secretary of State has considered all the representations and evidence.  Copies of documents supplied by the Appointed Person were sent to you under cover of the department’s letter of  3 August 1999.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that you cannot back-date your membership of the LGPS.  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 anycomplaint maladministration or any 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 14 July 1999 (with enclosures); and

(b)               from the Appointed Person: letter dated 26 July (with the enclosures listed in the department’s letter of 3 August).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

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

(a)                           since March 1975 you have been employed by XXX University (formerly XXX Polytechnic) as a part-time employee;

(b)               on 23 March 1994 you applied to join the local government superannuation scheme (LGSS now the LGPS);

(c)                           since 1 April 1994 you have been an LGPS member; and

(d)                           on 28 August 1998 you applied to buy-back membership from 1986 to March 1975 when you joined the Polytechnic as a part-time worker.

3.                  You appealed to the Appointed Person against the council’s decision not to allow you to buy-back membership of the LGPS.  You maintained that the council did not inform you of your right to join the LGPS when part-time workers first qualified for membership and to buy-back membership.

4.                  The Appointed Person found that the council did inform you of changes to the LGPS that allowed you, as a part-time worker, to join; that you took no action at the time; and that the option of buying previous service is not now available to you.

5.                  In your appeal to the Secretary of State you maintain that the copy letters which the council have produced do not prove that they were sent to you or that you were informed you could join the LGPS. 

6.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  At the time you began employment the 1974 regulations applied.  At that time part-time employees (that is, effectively, workers whose contractual minimum hours of employment regularly or usually amounted to less than 30 hours in each week) could not join the LGSS.  The 1974 regulations were superseded by the 1986 regulations on 1 March 1986.  Access to the LGSS remained the same.  In 1987 the 1986 regulations were amended and part-time employees working 15 or more hours per week were permitted to join (regulation B1 and Schedule 2 Part IV), with backdated effect to 1 April 1986 if they so elected within 6 months.  In 1990, further regulations allowed part-timers who had joined before 1 April 1988 to purchase back membership to the date they started employment or 1 April 1974, whichever was later.

7.                  The Secretary of State has considered all the evidence.  It is not disputed that you were a part-time employee and were ineligible to join the LGSS when you started working for XXX University.  Nor is it disputed that you became eligible to join, as a part-timer, in 1987 with effect, if you properly elected, from 1 April 1986.  You did not do so.  As you were not a member at 1 April 1988 the regulations allowing buy-back did not apply to you.  It is not clear under what circumstances you decided to join the LGPS in 1994.

8.                  There are no relevant provisions in the current regulations to back-date membership of the LGPS.  The provisions allowing buy-back in 1990 were time-limited and no longer apply.  The Secretary of State in reaching his decision has had to consider whether the council were required under the rules governing the LGPS to inform you of your right to elect to join the LGSS in 1987, whether there is sufficient evidence from which it would be reasonable to conclude that you were not so informed, if so whether you would have joined if you had been informed, and whether you would then have opted to buy-back membership.  The Secretary of State takes the view that the Occupational Pensions Schemes (Disclosure of Information) Regulations 1986, to which the LGSS was subject, required your employer to inform you when you became eligible to elect to join.  It appears to the Secretary of State that your employer was XXX University but that the council, as pension fund administering authority, acted on their behalf.  He notes that the council provided copies of two notification letters from the council’s Director of Financial Services each with a copy of an election form attached.  The first, dated 22 October 1985, gave notice of proposed changes to the LGSS regulations giving part-time employees admission.  The attached form enabled part-time employees to elect to join the LGSS, to refuse to join or to defer a decision.  According to the council, the second letter was sent on 29 July 1987.  The letter announced that part-time employees could join the LGSS and an election form to do so was attached.  They say distribution of the letters was to home addresses as shown on the payroll system and that the payroll system held your current address.  They provided a copy of a register used for distributing the second letter to record who was sent a copy, and on which your name, payroll number and date sent (29.07.87) appear. 

9.                  The Secretary of State accepts that it cannot now be proved conclusively whether or not you received information about your right to join the LGSS in 1987.  You have not indicated or provided evidence why you might not have received the information which the council claim they circulated.   The Secretary of State is concerned to note that although the form sent out in 1985 contained a positive election not to join or to defer a decision as well as to join, no evidence has been presented to show that the council took any follow-up action in relation to forms that were simply not returned.  He is also concerned to note that in relation to the notification sent out in 1987 (which he regards as that which was statutorily required), there is no evidence that your employer adopted any method of notification additional to the one letter, or took any follow-up action.  However, he is satisfied that the council have provided evidence to indicate that they supplied information and how they supplied it.  The Secretary of State thinks it unlikely that they would have failed to send both the 1985 letter and the 1987 one or that both would have gone astray, particularly given the evidence from the register that they were aware of the need to inform you.  He takes the view that the weight of evidence lies with the council and that there is insufficient evidence to conclude that, on the balance of probabilities, they failed to inform you in 1987 of your right to elect to join the LGSS.

10.              For a part-time employee to be eligible to back-date their membership they had to elect to join before 1 April 1988.   The Secretary of State accepts you would probably not have been informed of the buy-back provisions in 1990; he takes the view that there was no requirement for you to be informed as you were not a member at the relevant date and so were not eligible.  He finds that there are no provisions to allow you now to back-date membership to cover a period before you joined, and he dismisses your appeal.