Our Ref: LGR85/18/270
784 INDEX
LOCAL GOVERNMENT PENSION SCHEME APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1) I refer to your letter of 20 February 2000 in which you appeal (under regulation 102 of the 1997 regulations) to the Secretary of State for the Department of the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person for XXX Council (the council) in relation to your local government pension scheme (LGPS) dispute with the council.
2) The Appointed Person confirmed that the council had correctly calculated you widow’s benefits.
3) In your application to the Appointed Person you maintain that your late husband was always advised that you would receive a widow’s pension of 3 months full pension (that is the amount he was receiving) and then half his current pension. You refer to a letter from the council dated 26 November 1990 which confirms this. Following your late husband’s death you received a letter from the council setting out your benefits. You found that the long-term benefits were not half you late husband’s benefits, but less than a third. You explain in your letter of 20 February 2000 that if your late husband had been aware that you would not receive half his pension you would have re-arranged your finances. You consider it is not good enough for the council just to apologise for “their error”. You ask the Secretary of State to look into the matter.
4) 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 regulations refers to a matter relating to the LGPS, which effectively means whether the provisions governing the LGPS have been correctly applied in the circumstances. Like the Appointed Person the Secretary of State has no powers to direct a local authority to act outside the provisions of the regulations.
5) The question for decision: The question for decision is whether your long-term widow’s pension can be paid at half of your late husband’s pension.
6) The Secretary of State notes that the Appointed Person has, in his letter of 5 October 1999, set out in some detail the regulations which he considered applied to your late husband and yourself, your contentions and the council’s contentions. He notes that you do not dispute that your late husband elected to retain his existing benefit entitlement by notice dated 9 September 1995 and at the time of his retirement on 6 November 1973 he chose not to exercise the option of surrendering part of his pension to provide for a widow’s pension. That it was as a result of the introduction of the Local Government Superannuation Regulations 1974 that your late husband acquired a new right to a contingent widow’s pension not withstanding his previous decisions. The Appointed Person found that as a result of notifications made to your late husband on 30 September 1977 and in September 1982 “… it was incorrect to state that Mr XXX was “always advised” or could reasonably have “always believed” that you would receive “3 months full pension and thereafter half …”: the notifications gave details of the actual widow’s pension”. “That the Chief Establishment Officer’s letter of 26 November 1990 must be read against the background of the earlier notifications … this letter contained incorrect information because it failed to take into account the relevant provisions of Schedule 12 of the 1974 regulations.”. “That the Principal Pensions Officer’s letter of 10 March 1999 correctly calculates your widow’s entitlement … I am satisfied that the Council has now correctly applied the relevant regulations … [which] do not … empower the Council to pay an increased widow’s pension to you.”.
7) The Secretary of State’s decision: The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations. He notes the council’s account, which you have not disputed, of your late husband’s pension history, and their explanation of how they have calculated your long-term pension. In the light of the specific circumstances of your late husband’s case, he finds that there are no provisions in the LGPS regulations which would entitle you to a long-term widow’s pension based on half your late husband’s pension. The Secretary of State also finds that the council provided incorrect information in their letter of 26 November 1990 to the effect that you would be entitled to a long-term widow’s pension based on roughly half your late husband’s pension. However, like the Appointed Person the Secretary of State finds that there is evidence to show that your late husband was informed in 1977 and 1982 of the annual amount of long-term pension you would be entitled to which appears to have been considerably less than half his pension at the time. The Secretary of State is satisfied therefore that your late husband was not always given to understand that you would receive a long-term pension based on half of his pension, even though the letter of 26 November 1990 was inaccurate and misleading. The Secretary of State has no power to order redress that would conflict with the requirements of the regulations, or to award compensation even where maladministration is shown to have led to financial loss or injustice. He therefore dismisses your appeal.
8) His decision confirms that made by the Appointed Person. He is acting judicially and has no power to modify the way the regulations 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.
9) The completes the second stage of the internal dispute 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 020 7233 8080).
10) The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the LGPS. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).