778 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
LOCAL GOVERNMENT PENSION SCHEME (TRANSITIONAL PROVISIONS) REGULATIONS 1997 (the 1997 transitional regulations)
1. I refer to your letter of 15 April 2000 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for the XXX Fund (the Fund) in relation to your local government pension scheme (LGPS) dispute with the Fund.
2. The Appointed Person did not uphold your complaint, finding that:
i) you chose to take a refund.
ii) ‘I do not accept your claims that you had not been advised of the consequences of having a refund.’
iii) The Provisions.... allowing certain members to repay previously refunded contributions, have strict parameters.... Your case does not fall into that category.
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 statutory provisions governing the LGPS have been correctly applied in the circumstances. The Secretary of State has no powers to direct the Fund to act outside the provisions of the regulations. The disagreement you referred to the Appointed Person was whether the Fund should have allowed you, in 1999/2000, to repay your LGSS contributions which were refunded to you in 1980.
4. The question for decision: The question for decision is whether the Fund should have allowed you to repay your returned contributions.
5. 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 finds that, for the purposes of the 1997 transitional regulations, you are not entitled to repay your refunded contributions. His reasons and the regulations which he considers apply in this case are set out in the annex to this letter, which forms an integral part of the decision. 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.
6. 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).
7. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).
1. The following evidence has been received and taken into account:
a) From you: letters dated 15 April 2000 (with enclosures) & 26 May 2000; and
b) from the Appointed Person: Letter dated 8 May 2000 containing documents considered by him (copies sent to you with the Department's letter of 16 May 2000).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following points have been noted:
a) You date of birth is 18 September 1944;
b) you joined the LGSS in September 1975;
c) in March 1980 your employment officially ceased;
d) at that time you elected to receive a refund of your LGSS contributions made between September 1975 and March 1980;
e) in 1999 you asked the Fund whether you might be able to repay your refunded contributions which were paid to you in 1980; they refused;
f) on 13 January 2000 you appealed against the Fund’s decision;
g) on 5 April 2000 the Appointed Person for the Fund refused your application.
3. The matter that you referred to the Appointed Person was that: ‘I read that I could buy back the pensions rights I surrendered for money when I worked for XXX Council.’ And ‘When I left I was not told the consequences for surrendering and taking money instead – In fact I was encouraged to withdraw the money – which I think was poor advice. You further appealed to the Secretary of State that ‘I feel that I have a right to buy back the pension because from July 1979 to March 1980 I was so ill..’ And ‘I would be grateful if you would reconsider and overturn the decision .on the compassionate grounds mentioned above.’
4. The Appointed Person determined that ‘The provision to which you refer, allowing certain members to repay previously refunded contributions, have strict parameters and do not allow for variation by the administering authority.... Your case does not fall into that category.’ And ‘I do not accept your claims that you had not been advised of the consequences of having a refund. In an earlier letter to the Pensions Fund you made no reference to any alleged poor advice but refer to your need to for the money. There is no strong evidence of poor or misleading advice.’
5. The Secretary of State in reaching his decision has had regard to the regulations, which, in his view, apply. Regulation 17, of the Local Government Pension Scheme (Transitional Provisions) Regulations 1997 allows certain members to repay LGSS contributions which were returned to them under certain circumstances:
17.- (1) This paragraph applies to a member if –
(a) he left a local government employment after 31st March 1974 and before 1st January 1980 with less than 5 years’ total membership;
(b) a return of contributions for that employment was made to him; and
(c) he subsequently begun another local government employment (whether before or after the commencement date) in which he is an active member.
(2) Despite regulation 9 (3) of the 1997 regulations, a member within paragraph (1) may count the period for which the contributions were returned, if he pays the appropriate sum to his appropriate fund in his new employment.
(3) That repayment must be made before the expiry of the period of six months beginning with his return to local government employment or such longer period as the authority who returned the contributions and, if different, his appropriate administering authority in his new employment may allow.
6. The Secretary of State notes that it is not disputed that your employment officially ceased in March 1980. He notes that the provision to pay back returned contributions applied only to employees left employment after 31st March 1974 and before 1st January 1980. He has noted that your appeal to the Secretary of State was based on compassionate grounds, owing to your circumstances at that time. However, there are no provisions for the Fund to allow you to pay back your returned contributions on the basis of such grounds; your employment ceased on March 1980 and therefore regulation 17 does not apply to you.
7. The Secretary of State has also noted your contention that ‘When I left I was not told the consequences for surrendering and taking money instead – In fact I was encouraged to withdraw the money – which I think was poor advice.’ He notes that you have not provided any evidence in support of this claim, and therefore, like the Appointed Person, he concludes that there is no strong evidence of inadequate or misleading advice. Regardless of this, there are no provisions to award compensation where claims are made that information has not been provided with regard to the LGPS. Nor has the Secretary of State power to order redress or award compensation even where it is shown that maladministration has taken place causing financial loss or injustice. Like the Appointed Person, the Secretary of State has no powers to direct a local authority to act outside the provisions of the regulations.
8. In conclusion, the Secretary of State finds that there are no provisions in the regulations for you to pay back the LGSS contributions returned to you in 1980 on any basis, and therefore you have no entitlement to do so. He also finds no evidence to support a claim of maladministration.