799 INDEX
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 dated 10 June in which you appeal (under regulation 102 of the 1997 regulations) against the decision of Mrs XXX, the Appointed Person for the XXX Fund (the Fund), in relation to your local government pension scheme (LGPS) dispute with the Fund.
2. The Appointed Person, in her decision dated 7 June 2000, upheld the Fund’s decision not to allow you to count as reckonable service in excess of 40 years.
3. The question for decision: The question for decision by the Secretary of State is whether you are entitled to count as reckonable, service which exceeds 40 years membership because of service transferred in 1970.
4. Secretary of State’s decision: The Secretary of State has decided that you are entitled to count as reckonable, your service which exceeds 40 years, which you accrued as the result of an inward transfer made in 1970.
5. The Secretary of State therefore upholds your appeal. His decision replaces that made by the Appointed Person.
6. The Secretary of State’s reasons and the regulations he considers apply in this case are set out in the annex to this letter, which forms an integral part of his decision.
7. The Secretary of State is acting judicially and has no power to modify the way the regulations 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 they have failed to resolve. Their address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0207 233 8080).
9. The Pensions Ombudsman may investigate and determine any complaint of maladministration or any dispute of fact or law 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).
1. 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. The disagreement you referred to the Appointed Person was whether the Council acted correctly in their decision not to allow you to count as reckonable, service you have accrued which exceeds the normal 40 year maximum.
2. The Secretary of State has considered all the representations and evidence, and has taken into account the appropriate regulations.
EVIDENCE RECEIVED
3. The following evidence has been received and taken into account:
a) from you: letter dated 10 June 2000 (with enclosures); and
b) from the Appointed Person: letter dated 28 June 2000 (with the enclosures copied to you with the Department’s letter of 30 June 2000).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
4. From the evidence submitted the following relevant points have been noted:
a) On 1 April 1970 you became a member of the LGPS, and transferred 11 years 90 days service from the Principal Civil Service Pension Fund;
b) On 31 August 1999 you wrote to the Fund, challenging their decision not to allow you to count as reckonable, your service which exceeded the normal LGPS maximum of 40 years;
c) in a letter dated 2 September 1999, the Fund confirmed in writing their decision that you could not count more than 40 years of service toward your pension benefits, because you transferred into the LGPS before 2 May 1995.
5. You state that your appeal revolves around the retrospection of the amendment made to paragraph 9A of Schedule C5 in the 1995 Regulations, by Regulation 12 of the LGPS (Amendment) Regulations 1997. This amendment, you understand, made it possible for members who transferred in service from another scheme, to exceed the normal 40 year limit of reckonable service generally imposed by the LGPS regulations..
6. The Fund noted that the relevant amendment was backdated and made effective from 2 May 1995. They considered that the LGPS regulations in force before 2 May 1995 prevented members from counting as reckonable, service that exceeded 40 years, even where, in cases such as yours, that service was accrued partially as the result of an inward transfer. They appear to have considered the regulations prior to 2 May 1995 in determining your reckonable service, because you transferred into the LGPS on 1 April 1970, before the relevant amendment came into effect.
7. The Appointed Person stated in her determination that ‘Having examined the wording of the relevant Regulations, I can only confirm the Fund has applied the Regulations correctly and I must therefore reject your appeal.’
8. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. You are an active member of the LGPS, so the 1997 regulations apply to you. The Fund are required to calculate your total membership under regulation 9 and excluded membership under regulation 10. Regulation 10(3) refers to the table in schedule 3, which sets out periods of membership that are excluded in certain circumstances:
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Description of membership |
Purposes for which membership does not count |
Relevant notes |
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1. A credited
period which is counted as a period of membership under regulation 122(1) or
was counted under any corresponding earlier provision and is counted under
regulation 9(1)(d). |
Calculating total membership for regulation 6(3) and (5) or paragraph 2, 4, 5 or 6(1) of Schedule 4 (and see regulation 15(4)). |
|
Regulations 6(3) and (5) do not appear to be relevant to your case. The paragraphs of schedule 4 referred to in the table under the heading ‘Purposes for which membership does not count,’ impose revenue restrictions that generally limit reckonable LGPS membership to 40 years.
9. The Secretary of State takes the view that in applying regulations 9 and 10, paragraph 1 of Schedule 3 is to be taken account in your case. This refers to transferred-in membership under regulation 122(1) “or any corresponding earlier provision”. As a result your total period of membership includes a period covering ‘retained benefits.’ The Secretary of State does not consider the date of your transfer into the scheme, or the date of the amendment made to the 1995 regulations, to have any bearing on the question before him. The question before him is whether you can count as reckonable, your membership that exceeds 40 years, which was accrued as a result of an inward transfer to the Scheme made in 1970 (‘retained benefits’). Schedule 3 excludes your retained benefits from being subject to the 40 year maximum imposed by the LGPS and revenue rules. You are, therefore, entitled to count as reckonable, that membership which exceeds 40 years, which has been accrued (‘retained benefits’) by the transfer you made into the Scheme in 1970.