677 INDEX
SUPERANNUATION ACT 1972
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 31 August 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 Limited (the company).
2. The Appointed Person upheld the company’s decision not to extend their discretion to allow you to transfer your pension rights from the Teachers Pension Scheme (TPS) into the LGPS.
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 questions for decision by the Secretary of State are whether;
a) the council were required to accept a transfer of your pension rights;
b) the company acted unreasonably or improperly in not extending the period allowed by the 1995 regulations for accepting your request for a transfer of pension rights.
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 23 September 1999.
6. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds that the company was entitled to use their discretion in deciding whether to accept a transfer request outside the prescribed limits of the 1995 regulations. Under the 1997 regulations he will not overturn a decision where the company have exercised a discretion. His role is, rather, to ensure that the discretion has not been exercised unreasonably, improperly and, in cases where it has, to determine that the matter should be reconsidered in a proper manner. He concludes that the company has not acted unreasonably or improperly in exercising their discretion to extend the 12 month period for accepting an application for a transfer value by 3 months and not to extend the period further. Neither the company nor the council were required to accept your request for a transfer of pension rights from the TPS.
7. The Secretary of State 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.
8. 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).
9. The Pensions Ombudsman may investigate and determine any complaint of maladministration 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).
1. The following evidence has been received and taken into account:
(a) from you: letter dated 31 August 1999 (with enclosures); and
(b) from the Appointed Person: letter dated 20 September 1999 (with the enclosures copied to you with the department’s letter of 23 September).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
(a) you accrued 122 days pensionable employment to 31 December 1985 in the TPS;
(b) on 24 November 1986 you commenced pensionable employment with the XXX (the 1st council) and became a member of the local government superannuation scheme (LGSS now called the LGPS);
(c) on 24 April 1995 you took up pensionable employment with the 1st council and left on 31 March 1996 electing to preserve your accrued LGPS membership;
(d) from 1 April to 24 July 1996 you accrued membership with XXX (XXX) whose LGPS provision is administered by XXX Fund (the fund);
(e) on 25 July 1996 you took up LGPS pensionable employment with the company;
(f) on 8 October 1996 XXX County Council (the council) sent you a form which you completed and returned, dated 16 November, saying that XXX was your previous pension scheme administrator;
(g) on 24 January 1997 the council requested a transfer of your pension rights from XXX;
(h) on 31 March 1997 you ceased employment with the company;
(i) on 1 April 1997 you told the council that you were previously a member of the LGPS;
(j) on 8 December 1997 your accrued membership with the fund was transferred to the council;
(k) on 12 December 1997 you elected for your preserved benefits with XXX to be transferred to the fund and it was subsequently transferred to the council;
(l) on 30 December 1997 the council notified you of your preserved LGPS benefits with the council;
(m) on 10 January 1998 you asked the council to arrange a transfer of your accrued membership in the TPS (with a guaranteed value of Ł491.03 until 4 February 1999).
3. You appealed to the Appointed Person against the company’s decision not to extend their 12 month period for a request to arrange the transfer of your accrued membership in the TPS. You felt the company should extend the period because your ill-health had caused you to overlook your preserved rights in the TPS, you therefore failed to request a transfer. Furthermore you contend that you were not made aware of the 12 month time limit.
4. The Appointed Person in reaching his decision took into account all the matters referred to in his letter of 4 March 1999, and other facts and found that the company had acted reasonably in using their discretion in deciding not to extend the notice period for requesting a transfer.
5. You contend that the Appointed Person in reaching his decision has not taken into account your ill-health when he reviewed the company’s decision not to extend the notice period for requesting a transfer. You claim that you were not notified of the time limit for requesting a transfer when you started employment with the company.
6. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. When you started work with the company the 1995 regulations applied to your LGPS pension rights. If, within 12 months from the date you became a member of the LGPS as an employee with company, you had made a written request for a transfer of previously accrued pension rights into the LGPS fund administered by the council, the council were required to accept a transfer. Otherwise it was for company to decide whether to accept a request (regulation K13). On 1 April 1998 the 1997 regulations replaced the 1995 regulations. The 1997 regulations contained similar provisions for the transfer of pension rights. Decisions by an employer on entitlement to benefits must be made as soon as reasonable after a person becomes a member and after they cease employment (Part J of the 1995 regulations and Chapter 4 of the 1997 regulations).
7. The Secretary of State has considered all the evidence. He considered the same question as fell to the Appointed Person to decide. The 1995 regulations are clear that from 25 July 1997, a year after you became a member of the LGPS with the council, it was for the company to decide whether to accept any request for a transfer of any previous pension rights you held with other pension funds, LGPS or otherwise. The Secretary of State notes that neither the council nor the company notified you immediately of your right to request a transfer when you became a member. The council notified you of the 12 month time limit in their letter of 8 October 1996 when notifying you of your membership (attached was a form for you to complete with details of your previous rights). He notes that they extended the time limit so that you were given 12 months from 8 October, when they gave you notice of your admission to the LGPS. This was in line with the company’s policy on operating the discretionary power to extend time limits in such transfer cases. The Secretary of State notes that the policy only provides for consideration of whether a member is aware of the time limit. It does not provide for any other criteria such as member’s ill health. While the company in their decision have not referred to your ill-health, which you asked to be taken into account, the Secretary of State takes the view that their decision was consistent with the company’s policy only to take account of delays in notification when extending the time limit on accepting transfers. He takes the view that you were aware there was a time limit for requesting a transfer as you completed and returned the form attached to the company’s notification of 8 October 1996 although you may not have been aware that this period had been extended. He notes however that it was not until 10 January 1998 that you applied for a transfer of your TPS rights, some three months after the 12 month period had expired. The Secretary of State notes the company reviewed their decision on 28 January 1999 and concluded that “ … was clearly aware of the time limits … sorry to hear of this ill-health problems we do not feel there are sufficient mitigation circumstances to alter the decision that the transfer is not possible”.
8. The Secretary of State takes the view that, on balance, the compan’s decision not to accept your request for a transfer of your TPS rights on 10 January 1998 was not an improper or unreasonable one. Although you were not aware that the company had extended the time limit for requesting a transfer you were aware of the time limit that you had 12 months from 8 October 1996 to apply. You did not apply within the period. He further notes that during this period you were in contact with the council over the transfer of other periods of membership into the LGPS. The Secretary of State takes the view that the intention of the company’s policy on discretion referred only to a member being aware of the time limit required in the regulations. He concludes that there would be no advantage in asking them to reconsider their decision. The Secretary of State therefore dismisses your appeal.