Local Government Pension Scheme Appeal Determination By The Secretary of State

Our Ref: LGR85/18/Y

20 July 1998

LOCAL GOVERNMENT PENSION 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 of 7 July 1998 in which you appeal, on behalf of your husband, (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 for XXX Council (the council). The Appointed Person found that i) Mr XXX had been transferred to XXX in accordance with TUPE, the council were incapable of issuing a certificate as prescribed by Regulation D6(2) of the 1995 regulations therefore there is no entitlement to early payment of pension benefits on redundancy grounds from the local government pension scheme (LGPS), ii) as Mr XXX was transferred under TUPE his employment did not cease on redundancy grounds or in the efficient exercise of the council’s function, the council were correct not to pay compensation and iii) there is no requirement in the LGPS governing an employer’s option when considering a transfer under TUPE. Comparability of the pensions schemes is not one that can be considered under the LGPS Regulations.

2. You appealed to the Secretary of State. He notes that the issues of disagreement (which you do not disagree with in your letter), considered by the Appointed Person, are that:-

a. the council was obliged to offer the option of Redundancy or Redeployment as an alternative to compulsory transfer, an offer they did not make;

b. the Structural Change Order of 18 July 1996 gave effect to Compensatory Benefits in Mr XXX’s circumstances and these have not been provided; and

c. the benefit package provided by XXX is inferior to that previously provided by the council on a number of points and as a consequence both Mr XXX and yourself have been placed at a disadvantage.

3. The Secretary of State’s powers under regulation 102 are limited to reconsidering disagreements about a matter relating to the LGPS, which effectively means whether or not the pension scheme regulations have been correctly applied in the given circumstances. It appears that the issues raised with the Appointed Person concern decisions taken by the council regarding transfer of employment under TUPE. Decisions to terminate or transfer employment under TUPE is a contractual matter between the employer and employee. They are not matters the Secretary of State can consider on appeal and he determines accordingly.

4. It is noted that Mr XXX may have been provided with an estimate of his LGPS benefits. There are no provisions in the LGPS regulations requiring the council to provide estimates of pension benefits. As the Secretary of State’s powers of redress are limited to whether the appropriate LGPS regulations have been correctly applied the provision of an estimate and the reasons why it was provided are not matters he can reasonably consider and he determines accordingly.

5. Having made his determination the Secretary of State has no power to alter it but you may refer the matter to the Pensions Ombudsman or to the High Court. Because of this officials may not discuss the case further.

6. This completes the second stage of the IDRP. The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).

7. The Pensions Ombudsman may investigate and determine any complaint or 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).

8. A copy of this letter has been sent to the Appointed Person.