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Statutory Instruments of the Scottish Parliament


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SCOTTISH STATUTORY INSTRUMENTS


2005 No.293

PENSIONS

The Local Government Pension Scheme (Scotland) Amendment Regulations 2005

  Made 31st May 2005 
  Laid before the Scottish Parliament 2nd June 2005 
  Coming into force 30th June 2005 

The Scottish Ministers, in exercise of the powers conferred by sections 7 and 12 of the Superannuation Act 1972[1] and of all other powers enabling them in that behalf, after consultation with such associations of local authorities as appeared to them to be concerned and such representatives of other persons likely to be affected by the proposed regulations as appeared to them to be appropriate, and not having considered consultation with any individual local authority to be desirable, all in accordance with section 7(5) of that Act, hereby make the following Regulations:

Citation, commencement and effect
     1.  - (1) These Regulations may be cited as the Local Government Pension Scheme (Scotland) Amendment Regulations 2005.

    (2) These Regulations shall come into force on 30th June 2005 but regulation 3 shall have effect from 8th December 2002.

Amendment of the Local Government Pension Scheme (Scotland) Regulations 1998
    
2. The Local Government Pension Scheme (Scotland) Regulations 1998[2] (referred to in these Regulations as "the principal Regulations") are amended in accordance with regulations 3 to 47 below.

Paternity and adoption
     3. The principal Regulations are amended in accordance with Schedule A to these Regulations.

General eligibility for membership: employees of Scheme employers etc.
    
4. In regulation 3(1), after "regulation 4" insert ", regulation 4A".

Employees of non-Scheme employers: community admission bodies
    
5. For regulation 4 substitute-

Further restriction on eligibility
     6. In Regulation 5-

Periods of membership: "total membership"
     7. In regulation 8(2), for "regulations 9, 10 and 31" insert "regulations 9, 10, 28, 31A and Schedule 4".

Meaning of "pay"
    
8. In regulation 12, omit paragraphs (5), (6) and (7).

Calculations
    
9. In regulation 19(6), omit sub-paragraph (a).

Final pay
    
10. Omit regulation 20(8).

Normal retirement
    
11. In regulation 24-

Ill-health
    
12. In regulation 26(5), for the definition of "permanently incapable" substitute-

Amounts of ill-health pension and grant
    
13. In regulation 27-

Re-employed pensioners
    
14. For regulation 28, substitute-

Further provisions about elections under regulation 28
    
15. Omit regulation 29.

Other early leavers: deferred retirement benefits and elections for early payment
    
16. In regulation 30(7), for "payable from his NRD without reduction" substitute "without reduction, payable from his NRD or such earlier date on or after his 60th birthday as the member elects provided that the sum of the items referred to in sub-paragraphs (a) to (c) of paragraph (4) is 85 years or more".

Concurrent employments
    
17. After regulation 31, insert-

Reduction of death grants: re-employed pensioners
    
18. Omit regulation 38.

Meaning of "eligible child"
    
19. For regulation 43(1), substitute-

Dependants of re-employed pensioners
    
20. Omit regulation 47.

Power of employing authority to increase total membership
    
21. In regulation 51-

Power of employing authority to increase total membership of new members
    
22. Omit regulation 52.

Election for pension in lieu of retirement grant
    
23. In regulation 57(1), omit "has attained the age of 50 and".

Retirement benefits
    
24. In regulation 63(2), for "as soon as reasonably practicable" substitute "at any time prior to the 75th birthday of the member".

Elections as to use of accumulated value of AVCs
    
25. For regulation 65, substitute-

Accounts and audit
    
26. After regulation 75, insert-

Actuarial valuations and certificates
     27. After regulation 76(5), insert-

Special circumstances where revised actuarial valuations and certificates must be obtained
    
28. In regulation 77(2A)-

Employer's further payments
    
29. In regulation 79-

Interest
    
30. In regulation 81(1), for ", 126 or 127" substitute "or 126".

Discontinuance of additional contributions
    
31. In regulation 82(9)(b), omit "and has not made an election under regulation 28".

Cost of calculations for transfer of AVCs or SCAVCs into the Scheme where no transfer is requested
    
32. In regulation 85(a)-

Rights to return of contributions
    
33. In regulation 86(4), for the words "to such period of membership as is appropriate in accordance with guidance issued by the Government Actuary" substitute-

Commencement of pensions
    
34. In regulation 92(2)-

First instance decisions
    
35. In regulation 96-

Decision by appointed person and notice of it
     36. At the end of regulation 100(4) insert-

Decisions
    
37. In regulation 102(4)(e), for "difficulties which they have failed to resolve with the Secretary of State" substitute "any difficulty with the Scheme which remains unresolved".

Annual benefit statements
    
38. After regulation 105 insert-

Recovery or retention where former member has misconduct obligation
    
39. In regulation 113(3), for "regulation 65(5)" substitute "regulation 65(4)".

Inward transfers of pension rights
    
40. In regulation 121(2)-

Right to count credited period
    
41. In regulation 122(4), after "and his NRD" insert "or, if earlier, the date on or after the member's 60th birthday on which the sum of the items referred to in sub-paragraphs (a) to (c) of regulation 30(4) is 85 years or more".

Changes of fund
    
42. In regulation 126-

Liability for combined benefits
    
43. Omit regulation 127.

Conversion of periods credited under Discretionary Payments Regulations etc. into membership
    
44. Omit regulation 136.

Interpretation
    
45. In Schedule 1-

Matters to be included in an admission agreement in certain cases
    
46. For Schedule 2A, substitute Schedule 2A as set out in the Schedule B to these Regulations.

Revenue restrictions
    
47. In Schedule 4-

Transitional provisions
    
48.  - (1) Nothing in regulations 8 and 10 will affect the amount of pay or final pay determined in accordance with an agreement made under regulation 12(5) of the principal Regulations prior to 30th June 2005.

    (2) This paragraph applies to a member, who was a re-employed pensioner member on 30th June 2005, where the member-

    (3) Nothing in these Regulations shall prevent a member to whom paragraph (2) applies from electing for a single pension in accordance with regulations 28 and 29 of the principal Regulations.

    (4) Nothing in the Regulations shall affect the calculation of benefits under regulation 47 of the principal Regulations in respect of a member to whom paragraph (2) applies.

    (5) Nothing in these Regulations shall prevent an authority from being obliged to make payments to another authority in accordance with regulation 127 of the principal Regulations (liability for combined benefits), or, in the case of an overdue payment, to pay interest under regulation 81 of the principal Regulations.

    (6) Nothing in these Regulations shall affect any admission agreement made in accordance with the principal Regulations before the date on which these Regulations came into force and so far as it is necessary to give effect to any such agreement, the principal Regulations shall be treated as if they had continued in effect without the amendments made by these Regulations.

    (7) So far as it is necessary to give effect to the entitlements in this regulation and to make provision for any matters incidental to them, the principal Regulations shall be treated as if they had continued in effect without the amendments made by these Regulations.

Right to opt out
    
49.  - (1) Where-

then the principal Regulations shall have effect in relation to him or her as if those amendments had never been made.

    (2) For the purposes of paragraph (1), a relevant beneficiary is a person to whom any benefit is or may become payable being a benefit payable to or in respect of a person who-

before the date on which these Regulations come into force.


TAVISH SCOTT
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
31st May 2005



SCHEDULE A
Regulation 3

    

Regulations Amendment
8 After regulation 8(6) insert-

    " (7) Periods of membership before and after any unpaid period of maternity or adoption absence or period of parental leave in respect of which the member does not pay any contributions shall be treated as continuous.".

16(2), 54(8) After each occurrence of "maternity" insert ", paternity or adoption".
16 After regulation 16(3) insert-

    " (3A) If a person who is a member or has applied to be a member-

    (a) goes on ordinary maternity leave, ordinary adoption leave or paternity leave; and

    (b) is not entitled to receive pay (including statutory maternity, paternity or adoption pay) payable under the Social Security Contributions and Benefits Act 1992[17] for all or any part of that period of leave,

for the purpose of these Regulations that person shall be treated as if that person had paid contributions under paragraph (2) for the unpaid period of that ordinary maternity leave, ordinary adoption leave or paternity leave and on the pay that that person would have received during that period but for that person's absence.".

17(2)(a) For "goes on maternity leave" substitute "is on maternity leave, other than ordinary maternity leave".
17(2)(b) After each occurrence of "maternity" insert "or adoption".
20 After regulation 20(6) insert-

    " (6A) For the purposes of this Chapter, a member's pay for any period of maternity, paternity or adoption absence during the final pay period in respect of which that member pays or is treated as paying contributions is the pay that member would have received had that member not been absent;"

78 After regulation 78(5) insert-

    " (6) Where an employee-

    (a) is treated, under regulation 16(3A), as if that employee had paid contributions; or

    (b) has paid contributions during a period of maternity, paternity or adoption absence;

the pay on which the common percentage is calculated is the pay the employee would have received if that employee had not been absent."

Schedule 1 (a) After the definition of "official pension" insert-

" "ordinary adoption leave" means leave under section 75A of the Employment Rights Act 1996[18];

"ordinary maternity leave" means maternity leave under Part VIII of the Employment Rights Act 1996;";

    (b) After the definition of "passenger transport executive" insert ""paternity leave" means leave under regulations 4 or 8 of the Paternity and Adoption Leave Regulations 2002[19];"; and

    (c) For the definition of "period of maternity absence" substitute ""period of maternity, paternity or adoption absence" means any period throughout which a member is absent from duty because that member is exercising the right to take maternity, paternity or adoption leave in accordance with sections 71, 73, 75A or 75B of the Employment Rights Act 1996 or regulations 4 or 8 of the Paternity and Adoption Leave Regulations 2002;".




SCHEDULE B
Regulation 46

    





EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations make various amendments to the Local Government Pension Scheme (Scotland) Regulations 1998 ("the principal Regulations"), which regulate the Local Government Pension Scheme in Scotland ("the Scheme"). Regulation 3 takes effect on a date before the Regulations come into force (as set out in regulation 1). Section 12 of the Superannuation Act 1972 provides that regulations made under section 7 of that Act may have retrospective effect.

Regulation 3 amends various regulations of the principal Regulations so as to take account of new entitlements to paternity and adoption leave provided for by the Employment Act 2002 that came into force on 8th December 2002. Accordingly, the principal Regulations are amended with effect from that date as follows-

Regulation 4 is a minor clarification to ensure that an appropriate member of a transferee admission body is included in the list of persons who may be an active member of the Scheme.

Regulation 5 amends regulation 4 of the principal Regulations by substituting new regulations 4, 4A and 4B, which provide for administering authorities to make admission agreements to enable employees of non Scheme employers to be members of the Scheme. The main changes are-

The amended regulation 4 of the principal Regulations makes provision for the admission of community admission bodies. These are bodies that provide public services, otherwise than for the purposes of gain, and which have links with local government.

The inserted regulation 4A of the principal Regulations makes provision for the admission of transferee admission bodies. These are bodies that either provide a service or assets transferred from Scheme employers, or carry out a public service and have been approved by the Scottish Ministers for admission to the Scheme.

The inserted regulation 4B of the principal Regulations makes further provisions in relation to admission agreements with both types of admission bodies.

Regulation 6(1)(a) substitutes a new regulation 5(10) in the principal Regulations, a consequential amendment to new regulations 4, 4A and 4B to provide for when employees of the transferee admission bodies are treated as leaving local government employment for the purposes of the Scheme.

Regulation 6(1)(b) adds a new regulation 5(11) to the principal Regulations which allows members who become employees of an NHS Superannuation Scheme employing authority as a result of an arrangement under section 15 of The Community Care and Health (Scotland) Act 2002 (asp 5) to remain members of the Scheme.

Regulation 7 makes a minor drafting amendment to regulation 8(2) of the principal Regulations (periods of membership).

Regulation 8 deletes provisions for Scheme employers and employee representatives to agree a method for determining employees' pay.

Regulation 9 omits regulation 19(6)(a) of the principal Regulations to remove a reference to regulation 28 of the principal Regulations (re employed pensioners).

Regulation 10 omits regulation 20(8) of the principal Regulations (final pay).

Regulation 11 amends regulation 24 of the principal Regulations (normal retirement) to ensure that certain members of the Scheme who were members before 1st April 1998 continue to have a normal retirement date between age 60 and 65 as provided in the Local Government Superannuation (Scotland) Regulations 1987 (S.I. 1987/1850), the regulations which were superseded by the principal Regulations.

Regulation 12 amends regulation 26 of the principal Regulations (ill health) to clarify the definition of "permanently incapable".

Regulation 13(1)(a) amends regulation 27 of the principal Regulations (amounts of ill health pension and grant) to provide that where a member becomes entitled to a further ill health pension and grant (unless by virtue of being in concurrent employments which cease simultaneously), the multiplier for that pension and grant will be total membership without enhancement.

Regulations 13(1)(b) and (c) amend regulation 27 of the principal Regulations by making minor drafting amendments to paragraph (6) and adds a new paragraph (6A) to limit the reduction required to be made to the enhanced membership period of a member who becomes entitled to ill health benefits and has membership in part time employment.

Regulation 14 amends regulation 28 of the principal Regulations (re employed pensioners) to remove provisions relating to re employed pensioners' entitlement to elect for a single new pension and provides for when periods of former membership may be taken into account when calculating the total membership of a re employed pensioner.

Regulation 15 omits regulation 29 of the principal Regulations (further provisions about elections under regulation 28).

Regulation 16 amends regulation 30 of the principal Regulations dealing with early leavers. Regulation 41, which amends regulation 122 of the principal Regulations (right to count credited period), makes an amendment consequential upon these changes.

Regulation 17 adds a new regulation 31A to the principal Regulations dealing with concurrent employments to provide a method of calculating membership where one of two concurrent employments terminates and the member elects to keep the periods of service aggregated for the purposes of calculating benefits.

Regulation 18 omits regulation 38 of the principal Regulations (reduction of death grants: re employed pensioners).

Regulation 19 amends regulation 43 of the principal Regulations, which defines an eligible child for the purpose of children's pension rights. Also the test of financial dependency required in the case of a child who is not the legitimate or adopted child of a member is extended to include a child born after the death of a member, who would have been dependent on that member had the member not died before the birth.

Regulation 20 omits regulation 47 of the principal Regulations (dependants of re employed pensioners) from the principal Regulations to remove calculations in relation to re employed pensioners.

Regulations 21 and 22 amend regulations 51 and 52 of the principal Regulations to provide that employing authorities may increase an active member's total membership.

Regulation 23 amends regulation 57 of the principal Regulations (election for pension in lieu of retirement grant) removing the requirement for a member to be 50 before he can exercise the right to elect for the pension in lieu of retirement grant.

Regulation 24 amends regulation 63 of the principal Regulations (retirement benefits) to allow a longer period after retirement before the value of the additional voluntary contributions must be used to pay for a pension. This is to take advantage of a change in Inland Revenue practice.

Regulation 25 substitutes a new regulation 65 in the principal Regulations only allowing the use of the accumulated value of the additional voluntary contributions to provide a scheme benefit when a member ceases to be an active member of the Scheme with immediate entitlement to a pension. The changes do not affect the rights of a member who entered into the additional voluntary contributions scheme before the change takes effect.

Regulations 26 and 27 amend regulations 75 (accounts and audit) and 76 (actuarial valuations and certificates) of the principal Regulations to make provision for administering authorities to prepare, maintain and publish a written funding strategy statement, which must be taken into account by the actuary in specifying the common rate of employer's contribution.

Regulation 28 amends regulation 77 of the principal Regulations (special circumstances where actuarial valuations and certificates must be obtained) to require an indemnity or bond instead of a guarantee or indemnity and to allow the actuary to provide, in certain circumstances, that where an outgoing admission body cannot pay revised contributions to a fund, that liability is borne by the Scheme employer who is a party to the admission agreement.

Regulation 29 amends regulation 79 of the principal Regulations (employer's further payments) to remove reference to regulation 136 (conversion of periods credited under Discretionary Payments Regulations, etc. into membership).

Regulation 30 amends regulation 81(1) of the principal Regulations (interest) to remove a reference to regulation 127 of the principal Regulations (liability for combined benefits).

Regulation 31 amends regulation 82(9)(b) of the principal Regulations (discontinuance of additional contributions) to remove a reference to an election under regulation 28 of the principal Regulations (re employed pensioners).

Regulation 32 makes an amendment to regulation 85 of the principal Regulations (cost of calculations for transfer of additional voluntary contributions or shared cost additional voluntary contributions into the Scheme) consequential on the changes from the substitution of the new regulation 65 in the principal Regulations.

Regulation 33 amends regulation 86 of the principal Regulations (rights to return of contributions) by substituting a formula for the calculation of the period of membership the contributions can buy in place of the existing provision that the period will be calculated in accordance with guidance issued by the Government Actuary.

Regulation 34 makes consequential amendments to regulation 92 of the principal Regulations (Commencement of pensions) required as a result of the amendment to regulation 30(7) of the principal Regulations.

Regulation 35 makes amendments to regulation 96 of the principal Regulations (first instance decisions). The amendment to regulation 96(9) is a clarifying amendment and the amendment to regulation 96(14) updates the definition of "qualified in occupational health medicine" to reflect the updated definition of "component authority" in the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2003 (S.I. 2003/1250).

Regulations 36 and 37 amend provisions in regulations 100 and 102 respectively of the principal Regulations dealing with resolution of disputes in connection with the information which must be given to members about the Pensions Advisory Service in the internal dispute resolution procedure. These changes are necessitated by the Occupational Pension Schemes (Disclosure of Information) Regulations 1999 (S.I. 1999/3198).

Regulation 38 inserts a new Regulation 105A into the principal Regulations making provisions for the issue of annual benefit statements.

Regulation 39 makes a minor change to regulation 113 of the principal Regulations (recovery or retention where former member has misconduct obligation) consequential on the substitution of the new regulation 65.

Regulation 40 amends regulation 121 of the principal Regulations (inward transfer of pension rights) to exclude rights under a non-Scheme additional voluntary contributions scheme from the list of relevant pension rights which may count as membership in the Scheme. Those rights are dealt with in regulation 59 of the principal Regulations (election to pay AVCs).

Regulation 41 makes a consequential amendment to the changes made by regulation 16 of these Regulations.

Regulation 42 amends regulation 126 of the principal Regulations (changes of fund) to provide that where a transfer involves ten or more members, the calculation of the transfer amount is to be by way of agreement between fund actuaries with reference to a third actuary to resolve disagreements.

Regulation 43 omits regulation 127 of the principal Regulations (liability for combined benefits).

Regulation 44 omits regulation 136 of the principal Regulations (conversion of periods credited under Discretionary Payments Regulations etc. into membership).

Regulation 45(1)(a) corrects an error in Schedule 1 of the principal Regulations. The remainder of regulation 45 and regulation 47 make consequential amendments from the changes in these Regulations, to definitions in Schedules 1 and 4 to the principal Regulations.

Regulation 46 substitutes a new Schedule 2A to the principal Regulations, as set out in Schedule B to these Regulations. Schedule 2A sets out matters which are to be included in an admission agreement in certain cases.

Regulation 48 makes transitional provisions and Regulation 49 allows certain persons who would be placed in a worse position by amendments made in these Regulations to elect for the amendments not to apply in their case.

The guidance published by CIPFA, the Chartered Institute of Public Finance and Accountancy, referred to in regulation 26, can be purchased from CIPFA, 3 Robert Street, London WC2N 6RL, Tel. 020 7543 5602. The publication costs £50 to members of the public, £25 to local authorities and £12.50 to an administering authority.


Notes:

[1] 1972 c.11; section 12 was amended by the Pensions (Miscellaneous Provisions) Act 1990 (c.7), section 10. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999, article 2 and Schedule 1 (S.I. 1999/1750).back

[2] S.I. 1998/366, as amended by S.I. 1998/1129 and 1999/787 and S.S.I. 2000/199, 2001/23 and 460, 2002/311; and as modified for particular purposes by S.I. 1998/364.back

[3] 1978 c.29.back

[4] 1948 c.29.back

[5] 1958 c.33.back

[6] 1984 c.36.back

[7] 2003 asp 13.back

[8] 1968 c.49.back

[9] 2003 asp 1.back

[10] 2000 c.8.back

[11] 1988 c.1. The current regulations are the Retirement Benefit Schemes (Information Powers) Regulations 1995, S.I. 1995/3103, as amended.back

[12] 1993 c.48.back

[13] The National Health Service Superannuation Scheme for Scotland is set up under section 10 of the Superannuation Act 1972. The current regulations are The National Health Service Superannuation Scheme (Scotland) Regulations 1995, S.I. 1995/365, as amended.back

[14] 2002 asp 5.back

[15] S.I. 1998/2888, regulation 9A was inserted by S.S.I. 2000/74 and amended by S.S.I. 2003/138.back

[16] S.I. 2003/1250 as amended by S.I. 2004/1947.back

[17] 1992 c.4.back

[18] 1996 c.18, as inserted by the Employment Act 2002, c.22.back

[19] S.I. 2002/2788.back

[20] 1988 c.1.back



ISBN 0 11 069591 7


 © Crown copyright 2005

Prepared 8 June 2005


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