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28 December 2000 829 INDEX |
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1) I refer to your letter of 7 August 2000 in which you appeal (under regulation 102 of the 1997 regulations) 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) You referred four questions to the Appointed Person. In relation to the first question he found that “… was incorrectly advised by Pension that she could continue with her Teacher’s AVC … there is no contemperanious record of it I have concluded … was not told in terms … that she could continue payments for the Teacher’s AVC facility.”. In relation to the other three questions he concluded that he had no jurisdiction to consider the matter as they where not disputes in relation to the LGPS.
3) The question for decision: The matters you referred to the Secretary of State were:
a) a claim for loss of pension of £446.88 to August 2000 plus £3,351.60 for loss of future pension based upon 15 years more life; and
b) a claim for £1,000 for the anxiety and distress caused by having to bring the above claim.
The Secretary of State cannot consider claims for anxiety and distress caused by referring a dispute to him. The internal dispute resolution procedure provides free access to a two tier system of appeal to a member. Where a member of a scheme disagrees with the decision at first stage, in this case the decision by the Appointed Person, the member has a right to refer the matter to be considered at the second stage, in this case the Secretary of State. There is no charge at either stage. This ensures that all members are in a position to refer their disagreement at both stages and an award of compensation where a second stage appeal is submitted would seem to be inappropriate.
The question the Secretary of State has therefore considered, is whether the council committed maladministration in relation to your Teacher’s Additional Voluntary Contributions (TAVCs) when you joined the LGPS.
4) The Secretary of State’s decision: The Secretary of State’s decision is that no clear or conclusive evidence has been provided that you where given incorrect oral advice that you could continue to pay into the TAVC facility after becoming a member of the LGPS. Even if evidence of maladministration was clear and there was evidence you had suffered financial loss or injustice the Secretary of State has no powers to award compensation. He has no jurisdiction in relation to the Teachers’ Pension Scheme or AVCs purchased as part of that scheme.
5) The Secretary of State dismisses your appeal. His decision confirms that made by the Appointed Person.
6) The Secretary of State is acting judicially and has no power to modify that 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 or enter into any further correspondence with you about the decision. 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 020 7233 8080).
8) 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 made or referred in accordance with the Pension Schemes Act 1993. His address is 11 Belgrave Road, London, SW1V 1RB (telephone 020 7834 9144).
1) The following evidence has been received and taken into account:
a) from you: letter dated 7 August 2000 (with enclosures);
b) from the Appointed Person: letter dated 4 September (with enclosures) (list of enclosures and copies sent to you under cover of the Department’s letter of 14 September 2000).
2) 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 rules governing the LGPS have been correctly applied in the circumstances. The Secretary of State has no powers to direct the council to act outside the provisions of the regulations. There are no provisions to award compensation where claims are made that incorrect oral advice was given or for a claim for the anxiety and distress caused by making an appeal to the Secretary of State.
3) The Secretary of State notes that neither you nor the council have disputed the facts as set out in the Appointed Person’s decision of 31 March 2000.
4) You explain that you contacted the council’s Audit and Financial Services, who are responsible for administering the LGPS for the council, and enquired about your pension and Teachers Additional Voluntary Contributions. You say they agreed to advise you if any action was necessary and that you did not receive information from the council on this matter. You consider the council do not dispute this version of events. You explain that you were unaware that your Teacher’s Additional Voluntary Contributions (TAVC) had been discontinued and no contributions were paid until you took out a Free Standing Additional Voluntary Contributions in September 1995. The contributions made into the TAVC for the period September 1993 to July 1994 were returned to you. As a result you believe the pension you are receiving from the TAVCs is 30% lower than it would have been as a result. You consider you have not been treated fairly or properly and feel the council has failed in its duty as an employer to you.
5) The Secretary of State notes that you believe the council, under the LGPS, were responsible for informing you that you could no longer contribute to the TAVC facility when you were promoted and when the payments ceased. There are no provisions in the rules governing the LGPS which require the council to provide information about a different pension scheme. In the Secretary of State’s view it would be wrong for one scheme to provide information about another scheme. Whether the Teachers’ Pension Scheme or Prudential has such a responsibility is not a matter the Secretary of State can consider on appeal as his powers are limited to whether the rules governing the LGPS have been correctly applied. Both the Teachers’ Pension Scheme and Prudential are required to have an internal dispute resolution procedure. The Secretary of State cannot consider on a LGPS appeal whether the council had a duty to ensure that deductions from your salary were paid into a valid AVC account as you had not taken out an AVC under the LGPS. Such a disagreement falls outside the Secretary of State’s powers.
6) The Secretary of State has considered your complaint that the council’s pension department gave you incorrect oral advice that you could continue to pay into the TAVC facility after becoming a member of the LGPS. The Secretary of State notes that you consider the council have not disputed your version of events. However, the Secretary of State also notes that the Appointed Person found that “Pension have no record of this”. The Secretary of State has had regard to the regulations and finds there are no provisions in the LGPS for employees of the pensions department to give advice. The pensions department are required to provide certain information in relation to the LGPS (as set out in the Occupational Pensions (Disclosure of Information) Regulations 1996) and would also be expected to provide general information about the LGPS to all new members but this does not extend to information concerning the Teachers’ Pension Scheme or TAVCs. No clear or conclusive evidence has been provided with regard to this matter. However, even if evidence of maladministration was clear and there was evidence that you had suffered financial loss or injustice the Secretary of State has no powers to award compensation.