LOCAL GOVERNMENT PENSION SCHEME APPEAL

 

SUPERANNUATION ACT 1972

THE LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)

 

1)      I refer to your undated letter (received in the Department on 27 March 2000) 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, in relation to your local government pension scheme (LGPS) dispute with XXX Council (the council).

 

2)      The Appointed Person found “ … that the decision of XXX Council Housing Department to decline Mr XXX’s request for “interests of efficiency” retirement was exercised reasonably.”.

 

3)      You explain that you believe Mr Sumby’s argument that you have not retired is correct, but maintain that you and colleagues were transferred under TUPE on the grounds of the inefficiency of the Department and therefore you ceased employment on efficient grounds.  You also point out that you were not given the opportunity to retire.

 

4)      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 provisions governing the LGPS have been correctly applied in the circumstances.  Like the Appointed Person the Secretary of State has no powers to direct the council to act outside the provisions of the regulations.

 

5)      The question for decision: The question you have asked the Secretary of State to consider is whether you were entitled to the immediate payment of your LGPS benefits on the grounds that your employment was terminated in the interests of efficiency.

 

6)      Secretary of State’s decision:  The Secretary of State has taken into account the appropriate regulations.  He finds that you are not entitled to immediate payment of your pension, because you did not retire in the interests of efficiency.  Under regulation 26 a member is entitled to immediate payment of his LGPS benefits if he retires at age 50 or over and his employing authority certify the reason for his retirement was his redundancy.  For the purposes of the LGPS redundancy includes retirement in the interests of efficiency.  However, decisions as to why a person ceases employment are not made under the regulations governing the LGPS; they are employment not pensions decisions.  They are not matters the Secretary of State on a LGPS appeal can consider, his powers being limited to the rules governing the LGPS.  As a result of a decision to terminate a LGPS member’s employment, he may become entitled to immediate payment of his benefits, depending on the precise circumstances of termination.  Any dispute about entitlement to or amount of these benefits may be considered by the Secretary of State on appeal.  There may be separate mechanisms under which a person is able to have the reasons why his employment ceased reviewed, but this is not a matter the Secretary of State can advise or comment on.  It is not disputed that your former employer (the council) has not certified the reason your employment with the council ceased was due to redundancy.  The Secretary of State is satisfied that you did not retire in the interests of efficiency within the meaning of the regulations, but that your employment ceased with the council because you were transferred to XXX Ltd when the council “outsourced” the work.  He concludes, therefore, you are not entitled to immediate payment of your LGPS benefits.

 

7)      This decision replaces that made by the Appointed Person although it dose not alter its effect.  The Secretary of State is acting judicially and has no power to modify the way the regulatory provisions 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.

 

8)      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 020 7233 8080).

 

9)      The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law in relation to the LGPS made or referred in accordance with the Pension Schemes Act 1993.  His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 020 7834 9144).