568      INDEX

Our Ref: LGR 85/18/170

18 June 1999

 

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 19 March 1999 in which you appeal (under regulation 102 of the 1997 regulations) on behalf of Mrs XXX to the Secretary of State for the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person.

2.                  The Appointed Person upheld the decision of XXX (the council) to abate Mrs XXX’s pension as a re-employed pensioner, but decided that this should only be applied from the date it became clear that XXX was a local government pension scheme (LGPS) employer.  He also found that the council gave misleading advice and ruled on your complaints as to whether Mrs XXX should have informed the council of her new employment and whether the council had discretionary powers not to abate Mrs XXX’s pension.

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 wrong information has been provided with regard to the LGPS.  The Appointed Person and the Secretary of State have no powers to direct a local authority to act outside the provisions of the regulations.

4.                  The questions for decision: The questions for decision by the Secretary of State are whether:

a)                  Mrs XXX’s pension fell to be reduced when, as an LGPS pensioner, she entered new employment with XXX; and, if so

b)                  whether both repayment of the overpaid benefit and future abatement should be waived or she should be compensated for the loss of pension.

5.                  The Secretary of State has considered all the representations and evidence.  Copies of documents supplied by the Appointed Person have been sent to you under cover of the department’s letter of 28 April 1999.

6.                  Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations.  He finds:

a)                  that Mrs XXX’s pension fell to be reduced by virtue of the 1995 regulations when she entered new employment as an LGPS pensioner.  The abatement must take effect from the date of re-employment and the calculation be based on the relevant data at that date;

b)                  that there are no powers to waive the requirements of the regulations;

c)                  that while the 1995 regulations are silent on repayment of benefits mistakenly paid by the council, the council have a duty to properly maintain the pension fund; and

d)                  that the Secretary of State has no powers to require compensation to be paid outside the provisions of the regulations in considering a pension appeal.

7.                  The Secretary of State’s reasons and the regulatory provisions which he considers apply in Mrs XXX’s case are set out in the annex to this letter, which forms an integral part of this decision.  His decision replaces that made by the Appointed Person, while upholding the Appointed Person’s conclusion that Mrs XXX’s pension must be abated. He 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 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.

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 0171 233 8080).

9.                  The Pensions Ombudsman may investigate and determine any allegation of maladministration or any complaint or dispute of fact or 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).

10.               A copy of this letter has been sent to the Appointed Person and to Mrs XXX’s pension manager.