688 INDEX
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 10 December 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 Council (the council).
2. The Appointed Person upheld the decision of the council not to count the period from 1 August 1964 to 23 July 1969 as pensionable service to count towards your retirement benefits paid from 31 March 1999. You maintain you paid contributions for this period and that, this being so, you were entitled to a refund of contributions but you did not receive one. You suggest that this may have been due to an error on the part the council at the time in question. You suggest therefore that you are entitled to count this period toward the calculation of your retirement benefits.
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, such as regular estimates of benefits, have 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 count previous local government service from 1964 to 1969 towards your pension.
5. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds that you cannot count previous local government service from 1964 to 1969 towards your pension, for the reasons given below. He has first considered whether he is required to consider your appeal given that your dispute is about a matter that dates back to 1969. It is unclear to the Secretary of State why you have not raised the question before. The Secretary of State takes the view that the law requires claims or disputes to be pursued with reasonable diligence. However, he notes your explanation to OPAS, following the Appointed Person’s decision, that you did not challenge the Statutory Notification issued in 1975 because you believed the forms only sought details of your career from that date and that your earlier service was secure. He also notes that the Appointed Person considered your dispute and in his view did so as thoroughly as possible given the length of time which has elapsed. In the circumstances the Secretary of State has decided to consider it.
6. The Secretary of State accepts and agrees with the Appointed Person’s findings. Before the 1 April 1974 when the 1974 regulations came into force rules governing the LGSS were contained in the 1937 to 1953 Acts and regulations made under those Acts. The regulations at the time did not allow periods of pensionable employment in local government - also known as reckonable service - of less than five years to count towards pension; in these circumstances, if a member ceased local government employment before they were due to retire, they were entitled only to a refund of contributions. You should, therefore, have been given a refund. The Secretary of State considers it cannot be proved whether or not you received such a refund but in any case this is not a matter which can be resolved on appeal. Irrespective of whether a refund was paid, you cannot count the period towards your pension and the 1997 regulations do not allow you to buy back membership for that time, as the Appointed Person has pointed out.
7. The Secretary of State’s decision confirms that made by the Appointed Person. 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 maladministrationor 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).