830            INDEX

 

 

LOCAL GOVERNMENT PENSION SCHEME 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 dated 7 August 2000 in which you appeal (under regulations 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.      The Appointed Person found that the council was correct in excluding the cost of annual medical checks from your pensionable pay.

 

3.      The question for decision: The question for decision by the Secretary of State is whether the money value of annual medical checks should be included in your pensionable pay.

 

4.      Secretary of State’s decision: The Secretary of State has considered the representations and evidence submitted to him, and has taken into account the appropriate regulations.  He finds that the money value of the annual medical checks are not pensionable pay for the purposes of the LGPS.

 

5.      The Secretary of State therefore dismisses your appeal.  His decision confirms the effect of that made by the Appointed Person.

 

6.      The Secretary of State’s reasons and the regulations 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 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 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).

 

EVIDENCE RECEIVED

 

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

 

a)      from you: letters dated 7 August (with enclosure), 1 October and 2 November 2000;

 

b)      from the Appointed Person: documents considered by him (list enclosed with the Departments letter dated 11 September 2000); and

 

c)      from Mr XXX: letter dated 20 October 2000 (with enclosures)(copied to you with the Department’s letter dated 24 October 2000).

 

THE SECRETARY OF STATE’S POWERS

 

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 provisions 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.

 

REGULATIONS CONSIDERED AND REASONS FOR DECISION

 

3)      From the evidence submitted the following points have been noted:

 

a)      you were employed by the council from 1 August 1989;

 

b)      you were a member of the LGPS;

 

c)      you joined the council’s private medical insurance scheme on 1 June 1996;

 

d)      you were required to undergo free annual health checks; and

 

e)      you retired on 31 March 1999.

 

4)      You consider that the value of your annual health check should be included in your pensionable remuneration.  You contend that the annual health checks provided to you during your employment constitute an allowance in kind.  You dispute the Appointed Person’s decision as you are aware of a previous decision by the Secretary of State where a benefit was considered to be part of that appellant’s pensionable remuneration despite the fact that tax had not been paid on it.  You contend that the council decided not to include the costs of the health checks as part of pensionable remuneration on the grounds of cost.

 

5)      The council maintain that while the private medical insurance scheme was an allowance in kind, the annual health checks were not, because they were undertaken for the council’s benefit not the member’s.  They maintain that you were present at the council’s discussions when they reached their decision.  The other case referred to related only to the private medical scheme and not the health checks.

 

6)      The Appointed Person determined that “Income tax liability has been determined on the private health insurance premiums paid by the Council in respect of you.  However, no such liability applies to the cost of the annual medical checks.  Therefore, I find that XXX Council are correct in excluding the cost of annual medical checks from your pensionable pay.”

 

7)      The Secretary of State in reaching his decision has had regard to the regulations, which, in his view apply.  When you joined the council’s private health plan on 1 June 1996 the 1995 regulations were in force.  Regulation C2 of the 1995 regulations sets out what is to be considered remuneration for the purposes of the regulations.  Regulation C2(1) provides that remuneration comprises all the salary, wages, fees and other payments paid to the member for his own use in respect of his employment, the money value of any benefits provided for him by reason of his employment, and any payment or benefit specified in his contract of employment as being a pensionable emolument.

 

8)      Members such as you who were contributing members of the scheme on 1 April 1998 became subject to the provisions of the 1997 regulations, which replaced the 1995 regulations.  Regulation 20 provides the method for calculating a member’s pension and retirement grant, which is based upon final pay multiplied by the appropriate multiplier as defined in the regulation.  Regulation 13 sets out what constitutes a member’s pay in terms similar to the 1995 regulations.  Regulation 13(10) provides that no sum may be taken into account in calculating pay unless income tax liability has been determined on it. 

 

9) The Secretary of State notes that mention has been made of a previous decision by the Secretary of State where a benefit was considered to be part of that appellant’s pensionable remuneration.  No evidence has been provided to indicate that the appellant gave approval to his case being considered.  The Secretary of State would emphasise that each case must be considered on its merits in the light of its individual circumstances: consideration of other cases may be inappropriate and not relevant in reaching a decision since circumstances are unlikely to be identical in each case.  Moreover, public discussion of cases relating to a named individual’s personal circumstances breaches fundamental principles of confidentiality and privacy unless it is clearly shown that it is done with the express consent of the individual concerned.

 

10) The Secretary of State takes the view that your annual health checks cannot be described as salary, wages, fees or other payments paid to you for your own use.  The question is, rather, whether they constitute an allowance in kind, that is, the money value of a benefit provided for you by reason of your employment, or a benefit specified in your contract of employment as being a pensionable emolument.  From the evidence the Secretary of State takes the view that the annual health checks, while you qualified for them at the same time, were separate from the private medical health insurance.  It appears that the health checks, but not the insurance, were mandatory; and it is clear that the council treated them differently when they clarified their status in the memo dated 19 February 1997.  No evidence has been provided to convince the Secretary of State that your contract specified the health checks as a pensionable emolument, even if, as you argue, you were contractually bound to undergo them.

 

11) The Secretary of State, while taking due regard of your view to the contrary, accepts the council’s statement that the purpose of the annual health check was for the benefit of the council.  In his view, therefore, although these checks were provided by reason of your employment, they were not provided as a benefit for you.  Furthermore, no income tax liability has been determined on them, and they do not therefore meet the requirement of regulation 13(10) of the 1997 regulations.

 

12) The Secretary of State concludes that the money value of the annual health checks does not constitute pay for the purpose of calculating your pensionable pay.