Our Ref: LGR85/18/106 461 INDEX
16 November 1998
LOCAL GOVERNMENT PENSION APPEAL
LOCAL GOVERNMENT SUPERANNUATION REGULATIONS 1986 (the 1986 regulations)
LOCAL GOVERNMENT PENSION SCHEME (TRANSITIONAL PROVISIONS) REGULATION 1997 (the transitional regulations)
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 1 September 1998 in which you appeal to the Secretary of State (under regulation 102 of the 1997 regulations) against the determination by Mr XXX (the Appointed Person) of 22 June 1998. The Appointed Person set out why he considered the 1997 regulations do not apply to you in the particular circumstances. He determined that you were not entitled, as a deferred beneficiary, to the early release of your local government pension scheme (LGPS) benefits when your age and reckonable service totalled 85 years.
2. You explain that you were forced to leave the LGPS when you were transferred with your job under TUPE to a private sector contractor, and that you feel discrimination has taken place in that the XX Fund’s decision is not in line with TUPE legislation. You contend that the new regulations should apply to you and you should be allowed to receive your LGPS benefits when you reach the 85 year point.
3. Question for determination: The Secretary of State considers the question for determination is whether you can elect to receive payment of your deferred benefits when your age plus LGPS membership totals 85 years.
4. Secretary of State’s determination: The Secretary of State’s powers under regulations 102 and 103 are limited, like the Appointed Person’s, to whether the appropriate LGPS regulations have been correctly applied in the given circumstances. Questions about TUPE and why, when and how your employment was terminated, are not matters he can consider as they are not issues relating to the LGPS. The Secretary of State having taken into account the appropriate regulations finds that your deferred LGPS benefits are payable under the 1986 regulations. His reasons are the same as the Appointed Person set out in paragraph 3 of his letter of 22 June 1998. There are no provisions in the 1986 regulations which allow you to elect to receive payment of your deferred benefits when your age plus LGPS membership totals 85 years. It should be noted that although members or deferred members whose benefits are payable under the 1997 regulations can elect for their benefits to be paid in these circumstances the consent of their employer or former employer is required. The Secretary of State’s decision confirms that of the Appointed Person. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it but you may refer the matter to the Pensions Ombudsman or the High Court. Because of this, the Secretary of State’s officials cannot discuss the case further.
5. This 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. The address is 11 Belgrave Road, London, SE1V 1RB (telephone number 0171 233 8080).
6. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme 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).