LOCAL GOVERNMENT PENSION APPEAL

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 23 February 2000 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 Fund (the fund).

2.                  The Appointed Person upheld the fund’s decision that you were not entitled to a return of your contributions.

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 the provisions governing the LGPS have been correctly applied in the circumstances.  There are no provisions to award compensation where claims are made that incorrect information has 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 Secretary of State notes that you ask whether the termination of your employment was legal and request that it be investigated.  The provisions of the LGPS do not extend to employment issues and this matter cannot be considered on appeal.  Therefore the question for decision by the Secretary of State is whether when you ceased employment on 21 August 1997 you were entitled to a refund of your contributions under the 1995 regulations.

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 27 March 2000.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds that you are not entitled to a refund of contributions under the 1995 regulations.  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 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).

8.                  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 Pension Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).

9.                  A copy of this letter has been sent to the Appointed Person, your pension manager and your former employer.

EVIDENCE RECEIVED

1.                  The following evidence has been received and taken into account:

(a)               from you: letter dated 23 February 2000 (with enclosures); and

(b)               from the Appointed Person: letter dated 22 March 2000 (with the enclosures copied to you with the Department’s letter of 27 March).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2.                  From the evidence submitted the Secretary of State notes the facts of your case as stated in paragraph 2 of the Appointed Person’s decision letter, except that you maintain you started work with XXX’s University on 26 February 1986 and not in 1987.  The Secretary of State does not regard this date as material to your appeal.

3.                  In your appeal to the Appointed Person you say you were misinformed by the fund about the pension scheme when you first joined it.  You were told that you could get back the money paid into the LGPS within two years and you could “then renew the pension scheme” if you wished.  You say that you were later told you would not be able to rejoin and you claim this was wrong information.

4.                  The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply.  When you first joined the LGPS the 1995 regulations applied.  The 1995 regulations were introduced with effect from 2 May 1995 and Part B made membership automatic for all new employees and some current employees newly eligible to join, unless they notified their employer that they did not wish to join (regulation B10(2)).  A member could leave the scheme by giving written notice (regulation B12), and subsequently apply to rejoin under regulation B13.  An application to re-join where a member had opted out more than once was subject to the employer’s approval except where he was taking up a new employment (regulation B13(3)).  Where a member ceased LGPS membership with less than two years total membership and did not become a member again within one month and one day he was entitled to a refund of his contributions (regulation C21).

5.                  The Secretary of State has considered all the evidence.  It is not disputed that you were a member of the LGPS for more than two years.  The Secretary of State notes that you appeal against the Appointed Person’s decision but you do not dispute any aspect of his conclusions.  He notes that you say that you do not remember completing the forms to join the LGPS but that money was automatically taken out of your wages for two years and ten days.  He notes the copy of a form signed by you dated 11 June 1995 declaring that you wished to join the LGPS.  Also contained on the form was the option not to join and the reverse side of this form contained brief details of LGPS benefits.  The fund say that as a potential new member you were provided with the options for leaving the LGPS in an employees guide sent to new members.  The Secretary of State notes that a copy of extracts from the guide contains advice on how the regulations described in paragraph 4 above applied.

6.                  The Secretary of State considered your contention that you were misinformed.  He takes the view that it is clear from the declaration you signed on 11 June 1995 that you opted to join the LGPS and that you were given brief details of entitlements available in the LGPS.  You say you were initially advised that you could leave the LGPS within two years and obtain a return of contributions but that you were subsequently misinformed about your right to rejoin.  You do not provide evidence to support this contention.  The Secretary of State takes the view that the fund (and your employer) were required to inform you of your entitlements under the LGPS and it is apparent you received some information and were made aware of your entitlement to a return of contributions if you left the scheme within two years.  There is no conclusive evidence whether or not you received the information contained in the employees guide but you do not maintain that you did not receive it.  The Secretary of State concludes that it has not been shown that the fund or your employer misinformed you of your right to apply to rejoin the LGPS even if you had left the scheme within two years or, for that matter, that your former employer gave you incorrect information.  Furthermore, even if it were shown that you were misinformed of your rights under the LGPS the Secretary of State has no power to award redress even if there was maladministration which led to financial loss or injustice.

7.                  The Secretary of State has considered your request for a return of your contributions.  Regulation C21 of the 1995 regulations did not provide for a refund of contributions to a member who, as in your case, has accumulated more than two years membership.  You therefore have no entitlement to such a refund.  The fund were required to apply these regulations and could not override them even if it were shown that a member was not correctly informed about this entitlement.

8.                  The Secretary of State therefore dismisses your appeal.