Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR 85/18/

23 December 1999

LOCAL GOVERNMENT PENSION APPEAL

LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter of 14 December 1999 in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mr XXX, the Appointed Person for XXX Council, in relation to your local government pension scheme (LGPS) dispute with the XXX Fund (the fund).

2. The Appointed Person upheld the decision of the fund that your level of pension benefits had been overstated and that you are now receiving the correctly calculated ones. He also decided that he had no power to investigate claims of maladministration.

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. 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 cannot direct the fund or the council to act otherwise than in accordance with the regulations. The Secretary of State has no powers to direct the council to act outside the provisions of the regulations. Nor has the Secretary of State any power to order redress or award compensation even where maladministration is shown to have led to financial loss or injustice.

4. The question for decision: The question for decision by the Secretary of State is whether the fund, having established that an error had been made in the calculation of your LGPS benefits, were required to reduce your lump sum and annual pension to the level set out by the regulations.

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 confirms that the fund were required to reduce your pension to the level set out under the relevant provisions of the LGPS. His decision confirms that made by the Appointed Person. The Secretary of State’s 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. 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 0171 233 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 0171 834 9144).

EVIDENCE RECEIVED

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

a) from you: letter dated 14 December 1999 (with enclosure).

REGULATIONS CONSIDERED AND REASONS FOR DECISION

2. From the evidence submitted the following points have been noted:

a) in June 1999 you received an estimate from XXX Council (the council) of the pension benefits you would receive upon retirement;

b) on 1 September 1999 you ceased employment with the council; and

c) in September 1999 the fund wrote to you stating that your pension benefits had been overstated, and that they were seeking to recover the overpayment.

3. You state that on the basis of the estimate of the level of pension benefits you would receive if you ceased employment, you decided to resign from your employment with the council. You therefore believe it is wrong that you should suffer a reduction in your pension benefits following a mistake by the fund and the council.

4. The Appointed Person determined that “… I am satisfied that on recalculation your pension benefits are correct and, in fact, you have not disputed that the final calculation of your benefits is the correct one. As regards the overpayment, I am of the view that the XXX Fund cannot pay benefits outside the provisions of the regulations … Although the regulations are silent on the recovery of overpayments I feel that the XXX Fund … have a responsibility to seek recovery of benefits paid in error.”.

5. The Secretary of State has noted your comments regarding the estimates sent to you. There are no provisions in the 1997 regulations requiring the fund to provide estimates. The Occupational Pension Scheme (Disclosure of Information) Regulations 1996 do provide for certain information, such as estimates of benefits payable from normal retirement age, to be made available to a member. However, the level of benefits payable are those set out in the 1997 regulations and even if the estimate had provided for greater (or lower) benefits, the fund are required to pay at the level set in these regulations. The Secretary of State does not have any powers to direct the fund to act otherwise than in accordance with the appropriate regulations. Nor does he have any powers to order redress or award compensation where it is shown that maladministration has taken place.