623 INDEX
LOCAL GOVERNMENT PENSION APPEAL
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1997 (the 1997 regulations)
1. I refer to your letter of 8 April 1999 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 your former employers XXX Council (“the council”)
2. The Appointed Person decided two issues on which he assumed you had a disagreement with decisions made by the council to the effect that certain payments you received were not part of pensionable pay. In the first instance he overturned the council’s assumed decision that contractual overtime payments you received were not pensionable pay in that only non-contractual overtime payments are excluded from pay by the 1997 regulations. On the second issue he upheld the council’s decision that electoral fees paid in respect of those election tasks you carried out which were the Chief Executive’s personal responsibility were not pensionable because they were not payments in respect of your employment with the council.
3. The question for decision: The question for decision by the Secretary of State is whether fees you received for electoral duties constitute pay under the 1997 regulations.
4. The Secretary of State has considered all the representations and evidence. Copies of documents supplied by the Appointed Person which you may not seenwere sent to you under cover of the department’s letter of 22 June 1999.
5. Secretary of State’s decision: The Secretary of State has taken into account the appropriate regulations. He finds the fees you received for electoral duties constitute pay under the 1997 regulations. The Secretary of State’s reasons and the regulatory provisions which he considers apply in yourcase are set out in the annex to this letter, which forms an integral part of this decision. His decision replaces that of the Appointed Person. 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 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.
6. 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. Their 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 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).
1) The following evidence has been received and taken into account:
a) from you: letters dated 8 April and the two dated 24 May 1999 (with enclosures); and
b) from the Appointed Person: letter dated 25 May 1999 (with the enclosures listed in the department’s letter of 4 June).
2) From the evidence submitted the following relevant points have been noted:
a) you were employed by the council from 1 April 1974 until you retired on 5 October 1998;
b) your terms of employment were covered by the agreement of The National Joint Council for Local Authorities Administrative, Professional, Technical and Clerical Services Scheme of Conditions of Service;
c) you have been in receipt of election fees since 1974/75;
d) on 1 April 1985 you were appointed Electoral Registration Officer in the Chief Executive’s Department; and
e) in the period leading up to your retirement your overtime was made contractual.
3) Before considering the substantive question, there are two matters which the Secretary of State notes with concern. First, it appears to him that the council made their initial decision on whether your fees constituted pensionable pay, as required by regulations 97 and 98, in their letter to you dated 30 October 1998. However, on 29 January 1999 they “jointly” referred the matter to the Appointed Person for advice. He treated this reference as an application under regulation 100. Regulation 100 does not contain any power for an employing authority either to refer a question to an Appointed Person for advice or to make a formal appeal to him. Neither do regulations empower an Appointed Person to give advice or to deal with a question referred by an employing authority as an application under regulation 100. The Secretary of State regards this as a misuse of the internal disputes resolution procedure and a contravention of the regulations which govern it.
4) The Secretary of State has therefore had to decide whether he can accept the appeal from you as a valid reference under the second stage of the internal disputes resolution procedure set out in regulation 102. The Secretary of State does not consider that the procedural contravention at the first stage goes so far as to invalidate the Appointed Person’s decision, particularly as he made clear that he was dealing with the reference as a first stage appeal following a disagreement. Bearing in mind also the terms in which you have referred the disagreement to the Secretary of State, he recognises that no useful purpose would be served by remitting the matter back to the council, and he has decided to accept it as a valid application under regulation 102.
5) The second matter of concern to the Secretary of State is that a decision in another appeal case in a different authority with a named appellant has been submitted in evidence. The Secretary of State is unclear how this case came to your attention. No evidence has been provided to indicate that the appellant gave approval to his case being considered. The Secretary of State would emphasise that each case must be considered on its merits in the light of its individual circumstances; consideration of other cases may be inappropriate and not relevant in reaching a decision since circumstances are unlikely to be identical in each case. Comparison with other appeals is not in itself a deciding factor. An appeal can only be decided on the relevant facts. Moreover, public discussion of cases relating to a named individual’s personal circumstances breaches fundamental principles of confidentiality and privacy unless it is clearly shown that it is done with the express consent of the individual concerned.
6) The Secretary of State in reaching his decision on the substantive question has had regard to the regulations which, in his view, apply. When you ceased working for the council the 1997 regulations applied to the calculation of your pension benefits. Your pensionable pay would have been calculated by reference to regulation 20. This referred to benefits being calculated from your final pay. Pay is defined in regulation 13. The definition includes “all salary, wages, fees and other payments paid to him for his own use in respect of his employment”. Regulation 13(1)(c) allows other payments to be made pensionable if they are specified as such in a contract of employment. Certain payments are specifically excluded (as listed under regulation 13(2)) such as “payments for non-contractual overtime”. Furthermore under regulation 13(10) no sum can be treated as pay unless income tax liability has been determined on it. Regulation 22 deals with the final pay period for fees where fees are treated as pay. Regulation 132 provides for duties of returning officers and acting returning officers to be considered under the LGPS. However, the 1997 regulations are silent on the role of supporting officers and their duties.
7) The question whether your overtime payments were pensionable was considered by the Appointed Person who found that as your overtime was contractual the payments you received as a result were pensionable and not specifically excluded by the 1997 regulations. As there is no disagreement on this issue the Secretary of State has not re-considered the Appointed Person’s decision.
8) The Secretary of State has considered the issue of whether the fees you received for electoral duties were pensionable pay. The council took the view that a) the fees were in relation to extra work over and above the duties covered by your contract and this was partly why they agreed to make your voluntary overtime contractual; b) that fees paid by the Chief Executive as Returning Officer or as Acting Returning Officer were on an unspecified basis; and c) that there was some question whether fees for district elections where the council had responsibility, and those for other elections that the Chief Executive was personally responsible for, should be treated differently. The Appointed Person found that payments for the electoral work you undertook which was the Chief Executive’s personal responsibility were not “in respect of your employment” because the Chief Executive not the council was your employer. It was therefore not pensionable pay.
9) You contend that your election fees were paid for duties that were part of your contract of employment, subject to income tax and therefore pensionable. You consider the Appointed Person was not correct in arguing that the Chief Executive was your employer (in his Returning Officer role at election time) for the work which attracted fees. You argue that your contract of employment was with the council and not with the Chief Executive. You accept that fees for parliamentary elections originally came from central government; however, you say there is no requirement for the fees to be paid by the employer and that those for local authority elections were paid from council revenues.
10) As part of the evidence you submit you include your contract of employment, a list of fees payable for County, Borough and Parish Elections and your list of duties as an Electoral Registration Officer. The Secretary of State notes that you also state that in addition to your usual duties you were required to act as Deputy Returning Officer.
11) It is not disputed between the parties that the payments in question are properly described as fees and were separate from overtime payments. The Secretary of State accepts that they should be so regarded. In deciding whether the fees constitute pay, the Secretary of State has to consider under regulation 13 of the 1997 regulations whether the fees can be said to be paid to you, for your own use and in respect of your employment. It is not argued that the fees were specified as pensionable in your written contract of employment. The Secretary of State accepts that they were not. The definition of pay includes, but is not limited to, payments specified as pensionable in your contract of employment. It has not been argued that they fall within the exceptions listed in regulation 13(2); the Secretary of State takes the view they do not. He accepts your uncontested contention that they were liable to income tax. The Secretary of State notes that the 1997 regulations do not state that the payments have to be paid by the employer to be pensionable; he takes the view therefore that they may come from another source.
12) It is not disputed that the fees were paid to you in addition to your normal salary and overtime payments. The Secretary of State has considered whether they were for your own use. It is clear that you were, with the council’s consent, permitted to keep the fees despite payment of a salary and contractual overtime. The Secretary of State therefore considers that, by custom and practice, the fees must be regarded as for your own use.
13) The Secretary of State has next considered whether the fees were, for the purposes of regulation 13(1), paid in respect of your employment. It is clear that electoral duties were included in the list of your duties as an Electoral Registration Officer. The Secretary of State notes that among those duties was responsibility for the preparation and conduct of Parliamentary, County council, XXX and parish elections; you were also required to carry out the council’s obligations under the Representation of the People Act and carry out relevant duties as determined by the Chief Executive or council policy. The Secretary of State takes the view that these were therefore contractual requirements of your council employment. To the extent that you received fees for these duties, he takes the view that the monies were fees in respect of your employment. Payments by the Returning Officer or Acting Returning Officer in return for tasks which you were not contractually required to undertake – for example, any that were not “relevant duties” as determined by the Chief Executive or council policy - would not be paid in respect of your employment, even if it were the practice for you to undertake them. The council have questioned the status of fees for elections that they were not responsible for but for which their Chief Executive was personally responsible. The Secretary of State takes the view that this does not mean they had no responsibility in such elections or that you were not required to support the Chief Executive in his role as Returning Officer or Acting Returning Officer. Such elections were clearly written into your list of duties. The Secretary of State is not able in the context of this appeal to decide whether you were paid fees for any individual electoral duties which were not part of your contractual duties but which were, as the council contends, over and above those duties. The council have not specified what they consider those extra non-contractual duties were. The Secretary of State has seen nothing in the evidence to support that contention. This is essentially an employment matter, not a pension scheme one, though for the purposes of the pensions question referred to him the Secretary of State considers that the council have not conclusively shown that you performed electoral duties for which fees were received which were outside your contract and therefore not part of your employment.
14) The Secretary of State therefore concludes that the fees constituted pay within the meaning of regulation 13. This conclusion is based solely on the facts of the case in accordance with the 1997 regulations.
15) The Secretary of State therefore determines as set out above and allows your appeal that the council is obliged to treat fees received for electoral duties as pay for the purposes of determining your final pay.