540      INDEX

 

LOCAL GOVERNMENT PENSION APPEAL

 

SUPERANNUATION ACT 1972

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1.    I refer to your letter of 29 March 1999 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.  The Appointed Person found that XXX Council (the council) applied the relevant regulations correctly, in that no valid admission agreement exists which would permit you to count your employment with XXX, as pensionable under the Regulations.

 

2.    You referred the matter to the Secretary of State as you consider you have been badly misled.  You point out that in 1994 you queried whether you were eligible to be a member of the local government pension scheme (LGPS).  You further point out that as a result you have been prevented from subscribing to an appropriate pension fund and have lost the benefits and accruals that would apply you believe a satisfactory conclusion would be for your five years and two months contributions to be frozen and for you to commence a new fund with a private company.

 

3.    The Secretary of State notes that the council proposes to refund your contributions with interest.

 

4.    The question for decision:  The question for decision by the Secretary of State is whether you can be given a frozen pension in the LGPS.

 

5.    Secretary of State’s decision: The Secretary of State’s powers under regulations 102 and 103 of the 1997 regulations are limited, like the Appointed Person’s, to whether the appropriate LGPS regulations have been correctly applied in the given circumstances.  When you started paying contributions, LGPS eligibility criteria were set out in Part B of the 1986 regulations.  Having taken into account the appropriate regulations the Secretary of State finds that because you were not an employee of the council or of an admitted body, you were not eligible to join the LGPS and were wrongly admitted to it.  Employee’s contributions were wrongly deducted and employers’ contributions wrongly paid from October 1993. There are no provisions in the LGPS regulations which would allow the XXX Fund (the fund) to treat this period as a period of membership and therefore the benefits accrued cannot be “frozen” to provide you with benefits under the LGPS.  The Secretary of State has no powers to require the council or the fund to act other than in accordance with the regulations.  He therefore has to dismiss your appeal.  His decision confirms that made by the Appointed Person.  The Secretary of State 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 but you may refer the matter to the Pensions Ombudsman or to the High Court.  Because of this the Secretary of State’s officials cannot discuss the case further.

 

6.    While the Secretary of State has sympathy with you he cannot helpfully consider questions of alleged maladministration in the context of a pensions appeal as he has no appropriate powers of redress.

 

7.    This decision completes the second stage of the internal disputes 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 0171 233 8080).

 

8.    The Pensions Ombudsman may investigate claims of maladministration and investigate and determine any complaint or dispute of fact of law in relation to the LGPS made or referred in accordance with the Pensions Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).