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The Teachers' Superannuation (Scotland) Regulations 2005

Type Scottish-Statutory-Instrument

Publication 2005-07-21

State In force

Jurisdiction Scotland

Department Queen's Printer for Scotland

Source legislation.gov.uk

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Made: 21st July 2005

Laid before the Scottish Parliament: 5th August 2005

Coming into force in accordance with regulation A1(1)

The Scottish Ministers, in exercise of the powers conferred by sections 9 and 12 of, and Schedule 3 to, the Superannuation Act 1972[^f00001] and of all other powers enabling them in that behalf, after consulting with representatives of education authorities and of teachers and with such representatives of other persons likely to be affected by these Regulations as appear to them to be appropriate in accordance with section 9(5) of that Act, and with the consent of the Treasury[^f00002], hereby make the following Regulations:

PART A — PRELIMINARY

Citation, commencement and extent

A1

(1) These Regulations may be cited as the Teachers' Superannuation (Scotland) Regulations 2005, shall come into force on 1st October 2005 and shall have effect as follows:–

(a) regulations B6(1), C1(1), C2(1) and (9) D1(4), E24(1), E29(1), type=start slip=2006-05-01 time=1185436021623E34(7)type=end slip=2006-05-01 time=1185436021623, J4(1) and Schedule 1 on 6th April 2003 but only insofar as those provisions apply to paternity or adoption leave; and

(b) for all other purposes, on 1st October 2005.

(2) These Regulations extend to Scotland only.

Interpretation

A2

(1) Schedule 1 to these Regulations contains a glossary of expressions and in these Regulations, unless the context otherwise requires, any expression for which there is an entry in the first column of that Schedule has the meaning given against it in the second column or is to be construed in accordance with directions given against it in that column.

(2) In these Regulations–

(a) any reference to the purchase of added years is, in relation to previous provisions, to be construed as including a reference to the payment of contributions by a teacher in respect of a period during which that teacher was not in pensionable employment;

(b) any reference to contributions and benefits payable in respect of a teacher is to be construed as including a reference to contributions paid by and benefits paid to that teacher; and

(c) any reference to a transfer value paid or accepted is to be construed as including a reference to a transfer value which would have been paid or accepted but for arrangements made for the avoidance of payments between Ministers.

(3) Where these Regulations require anything to be done within a specified period after or from a specified day or event, the period begins immediately after the specified day or, as the case may be, the day on which the specified event occurs.

(4) For the purposes of these Regulations a teacher’s pensionable employment ends with the last day of the employment or, as the case may be, the last day on which the employment was pensionable.

(5) Expressions used in these Regulations to which meanings are assigned by the Education (Scotland) Act 1980[^f00003] shall have the same meanings in these Regulations as in that Act.

(6) In this regulation, “Ministers” includes the Scottish Ministers.

PART B — PENSIONABLE EMPLOYMENT

Full-time service

B1

Subject to regulations B6 to B9, a teacher is in pensionable employment where he or she is in full-time service in an employment specified in Schedule 2.

Part-time service

B2

(1) Subject to paragraphs (2) and (3) and regulations B6 to B9, a part time teacher is in pensionable employment where he or she is in part time service in an employment specified in Schedule 2.

(2) A teacher is not in pensionable employment by virtue of paragraph (1) if, in respect of that employment, he or she is eligible to be an active member in accordance with the Local Government Pension Scheme (Scotland) Regulations 1998[^f00004].

(3) A part time teacher who, immediately before 1st April 1999 was in part time service in an employment specified in Schedule 2 and had not made an election for the purposes of regulation B2 of the 1992 Regulations[^f00005] (as in force before that date) in relation to that employment shall not be in pensionable employment unless he or she makes an election for the purposes of this regulation or enters a new employment specified in Schedule 2.

(4) An election for the purpose of this regulation may be made at any time by giving written notice to the Scottish Ministers and, unless paragraph (5) applies, shall have effect from the first day of the month after that in which the notice was given.

(5) If the Scottish Ministers so specify, the election shall have effect from an earlier date provided that the contributions payable under regulations C4(2) and H5(1) are paid to the Scottish Ministers by the date 6 weeks after the date of the demand under regulation C15(5) or H5(2), as the case may be.

(6) In these Regulations, “the back period” means the period between the date specified by the Scottish Ministers as the date from which the election shall have effect and the first day of the month after that in which the notice was given.

Concurrent full-time and part-time service

B3

(1) Notwithstanding anything in regulation B2, a teacher is not in pensionable employment in respect of any part time service on or after 20th November 2000 which is additional to concurrent full time service unless–

(a) he or she was in part time service additional to concurrent full time service immediately prior to 20th November 2000; and

(b) he or she has continued in such part time service additional to concurrent full time service.

(2) A teacher to whom paragraph (1) applies may elect that such part time service shall cease to be treated as pensionable employment, and an election for this purpose may be made at any time by giving written notice to the Scottish Ministers and shall have effect from the first day of the month after that in which it was given.

Continuing employment

B4

Subject to regulations B6 to B9, a teacher who immediately before the date on which these Regulations come into force was in employment (“the first employment”) which was reckonable service by virtue of regulation B3 of the 1992 Regulations shall be treated as being in pensionable employment–

(a) while in the first employment; and

(b) while in employment which is in continuation of the first employment.

Accepted school

B5

(1) In pursuance of paragraph 2 of Schedule 2, subject to paragraph (6) and regulations B6 to B9, a teacher is in pensionable employment while employed in a school which is an accepted school for the purposes of this regulation.

(2) For the purpose of this regulation–

(a) “accepted school” means an independent school which–

(i) immediately before the date on which these Regulations come into force was accepted under regulation B4 of the 1992 Regulations[^f00006]; or

(ii) being registered, and being the subject of a relevant application by its governing body or proprietor, is accepted by the Scottish Ministers as able to meet the requirements placed upon an employer under Part H to pay employers' contributions;

(b) “registered” means registered in the register of independent schools in accordance with Part V of the Education (Scotland) Act 1980; and

(c) “proprietor” has the meaning assigned to it by section 135 of the Education (Scotland) Act 1980 and includes a person who, by reason of holding any office or having any interest in a company by which the school is conducted, is substantially in the position of a proprietor.

(3) Notwithstanding the provisions of paragraph (2) the Scottish Ministers may, in such case as they think appropriate, accept under the provisions of this regulation an independent school which is for the time being only provisionally registered.

(4) The date on which an independent school becomes an accepted school under paragraph (2)(a)(ii) shall, unless an alternative date is agreed by the Scottish Ministers and the governing body or proprietor thereof, be the 1st September preceding acceptance of the application.

(5) An accepted school shall cease to be an accepted school on such a day as is specified in a notice in writing sent by the Scottish Ministers to the governing body or proprietor of the school on or after any of the following events–

(a) the receipt by the Scottish Ministers of an application by the governing body or proprietor that the school shall cease to be an accepted school;

(b) the school ceasing to be registered;

(c) any default by the governing body or proprietor in the payment of contributions, whether under these Regulations or under the Teachers' Superannuation (Additional Voluntary Contributions) (Scotland) Regulations 1995[^f00007];

(d) failure by the governing body or proprietor to comply within one month with any requirement of the Scottish Ministers to make any report or return, give any information or produce any document, under regulation J4;

(e) failure by the governing body or proprietor to comply with any other provision of the Regulations relating to the employment of teachers in reckonable service;

(f) the closure of the school.

(6) The service of a teacher in an accepted school shall not be pensionable employment if–

(a) the teacher is a proprietor thereof; or

(b) paragraph (2)(a)(i) applies to the school and the teacher’s employment therein immediately before the date on which these Regulations come into force was not reckonable service.

Employment not pensionable

B6

(1) A teacher is not in pensionable employment unless aged at least 16 and under 70 and–

(a) entitled to be paid his or her salary in full;

(b) on sick leave and entitled to be paid not less than half his or her salary; or

(c) on maternity, paternity or adoption leave and entitled to be paid any contractual remuneration or receive statutory maternity, paternity or adoption pay (whether as a constituent part of or as the teacher’s sole income).

(2) A teacher is not in pensionable employment while he or she is in an employment which immediately before the date on which these Regulations come into force was, by virtue of regulation B5(2) of the 1992 Regulations, not pensionable employment.

(3) Subject to paragraph (4), a teacher who–

(a) immediately before the date on which these Regulations come into force was in; or

(b) not more than 12 months before that date had ceased to hold,

an employment which by virtue of regulation B5(3) of the 1992 Regulations was not pensionable employment and who has made no election under regulation B5(4) of the 1992 Regulations, is not in pensionable employment.

(4) Within 3 months after the start of an employment to which paragraph (2) applies the teacher may, by giving written notice to the Scottish Ministers and to the appropriate administering authority within the meaning of the Local Government Pension Scheme (Scotland) Regulations 1998[^f00008], elect that paragraph (3) is to cease to apply.

(5) Subject to regulation B9, a teacher is not in pensionable employment in respect of any employment which commenced on or after 1st April 1997 while he or she is entitled to be paid a teacher’s pension, including cases where the annual rate of the pension has been reduced to zero in accordance with regulation E18.

Election for employment not to be pensionable

B7

(1) A teacher who–

(a) is employed in pensionable employment; or

(b) is not so employed but expects to enter an employment in which he or she would be so employed,

may at any time, by giving written notice to the Scottish Ministers, make an election under this regulation.

(2) As from the date from which the election has effect, the employment referred to in paragraph (1) and any subsequent periods of employment which would otherwise be pensionable employment shall, subject to regulation B8 below, cease to be pensionable employment, and employment where this paragraph applies is in these Regulations referred to as “excluded employment”.

(3) Where paragraph (1)(a) applies, an election under this regulation has effect–

(a) if the notice is received by the Scottish Ministers during the first pay period after commencing pensionable employment, from the date on which the teacher became so employed; and

(b) in any other case, from the first day of the pay period following that in which the notice was received by the Scottish Ministers.

(4) Where paragraph (1)(b) applies, an election under this regulation, if the notice is received by the Scottish Ministers before or during the first pay period after commencing pensionable employment, has effect from the date on which the teacher became so employed.

Resumption of pensionable status

B8

(1) Subject to paragraph (5), a teacher who has made an election under regulation B7, who has since been in excluded employment and who–

(a) is in excluded employment; or

(b) is not in, but expects to enter, employment which is excluded employment by virtue of an election previously made under regulation B7,

may, at any time, by giving written notice to the Scottish Ministers, make an election under this regulation.

(2) As from the date on which the election has effect, subject to regulation B7, any excluded employment on or after that date is pensionable employment.

(3) Where paragraph (1)(a) applies, an election under this regulation has effect from the first day of the pay period following that in which the notice was received by the Scottish Ministers.

(4) Where paragraph (1)(b) applies, an election under this regulation has effect–

(a) if the notice is received by the Scottish Ministers before or during the first pay period after commencing employment, from the date on which the teacher became so employed; and

(b) in any other case, from the first day of the pay period following that in which the notice was received by the Scottish Ministers.

(5) For the purposes of this regulation the Scottish Ministers may in a particular case refuse to accept an election where the teacher is on sick leave.

Further employment

B9

(1) Subject to paragraph (2) and regulations B6 to B8, a teacher who is already in receipt of a teacher’s pension, including cases where the annual rate of pension has been reduced to zero in accordance with regulation E18, is in pensionable employment where on or after 1st October 2001 he or she enters into full time or part time service in an employment specified in Schedule 2.

(2) A teacher who is excluded from pensionable employment by virtue of regulation B6(5) of the 1992 Regulations shall not be in pensionable employment unless he or she makes an election under regulation B8.

PART C — TEACHERS' CONTRIBUTIONS

Salary on which contributions are payable

C1

(1) Subject to paragraphs (2) to (9) and regulation C2, a teacher’s contributable salary shall, for the purpose of these Regulations, be the aggregate of the amounts payable by his or her employer in respect of their pensionable employment–

(a) whether by way of salary or in kind; and

(b) in satisfaction of any contractual or statutory liability arising out of sickness leave or maternity, paternity or adoption leave.

(2) The following payments or allowances shall not be treated as part of the teacher’s contributable salary–

(a) payments in respect of overtime, special services or extra duties;

(b) any emoluments receivable from or out of an educational endowment or bequest;

(c) any additional allowance paid to a teacher serving outside the British Islands under arrangements approved by the Scottish Ministers for the interchange of teachers;

(d) payments by way of travelling or expense allowances;

(e) any sums chargeable to tax under section 148 of the Taxes Act[^f00009];

(f) subject to paragraph (9), the equivalent money value to the teacher of the provision of a motor vehicle by or on behalf of his or her employer;

(g) any compensation paid under the Local Government (Compensation for Reduction of Remuneration on Reorganisation) (Scotland) Regulations 1995[^f00010].

(3) The Scottish Ministers may make a direction, in such cases as they think appropriate, disapplying any exclusion under paragraph (2) from the salary of a teacher.

(4) In determining the contributable salary to which a teacher is entitled for the purposes of abatement of annual pension under regulation E18, the following payments to that teacher shall be disregarded–

(a) any payments in respect of employment in connection with education which, while employed in pensionable employment or comparable British service, the teacher undertook in addition to such service and which he or she continues after ceasing such service, not exceeding, when expressed as an annual rate, the average annual rate of such payments for the last 3 years of employment in pensionable employment or comparable British service;

(b) any payments in respect of employment in connection with education outside the British Islands, being employment in which, in the opinion of the Scottish Ministers, it is expedient to facilitate the employment of teachers from Scotland; and

(c) any fees in respect of employment for the purposes of the Scottish Certificate of Education or the General Certificate of Secondary Education.

(5) Subject to paragraphs (6) and (7), in relation to a teacher who enters pensionable employment on or after 1st June 1989, where his or her salary, calculated in terms of paragraph (1), exceeds the permitted maximum in terms of section 590C of the Taxes Act[^f00011], the excess over that permitted amount shall not be treated as contributable salary for the purpose of these Regulations.

(6) Paragraph (5) shall not apply to a teacher who was in pensionable employment before 1st June 1989 and who resumes pensionable employment following–

(a) an absence on maternity leave in respect of which she enjoyed a right to return to work under Part VIII of the Employment Rights Act 1996 and regulations made thereunder[^f00012];

(b) a period of secondment or additional period of absence necessarily attributable to that secondment; or

(7) Paragraph (5) shall not apply to a teacher who was in comparable British service before 1st June 1989 who enters pensionable employment, provided there has not been a period of more than one year between cessation of employment in comparable British service and entering pensionable employment.

(8) For the purposes of paragraph (7) “comparable British service” does not include service which is pensionable under a superannuation scheme for teachers in public employment in the Channel Islands and the Isle of Man.

(9) Notwithstanding paragraph (2)(f), where on 15th November 1993 a teacher was paying contributions on a sum which represents the equivalent money value to him or her of the provision of a motor vehicle, the equivalent money value to him or her of the provision of a motor vehicle provided from time to time by or on behalf of the employer shall be treated as salary on which contributions will continue to be payable until the earlier of the date on which–

(a) a motor vehicle as no longer provided for him or her; or

(b) he or she ceases to be employed by the employer employing him or her on 15th November 1993.

Salary on which contributions are payable – election

C2

(1) Subject to paragraph (12), a teacher who–

(a) continues in pensionable employment but whose contributable salary is reduced, otherwise than by reason of sick leave or maternity, paternity or adoption leave, and who satisfies the conditions in paragraph (2); or

(b) leaves pensionable employment with one employer (“employer A”) and–

(i) takes up employment again with employer A, or

(ii) takes up employment with another employer (“employer B”),

at a lower contributable salary and who satisfies the conditions in paragraph (3),

may make an election that his or her salary is to be treated as having continued at the rate specified in paragraph (4).

(2) The conditions referred to in paragraph (1)(a) are–

(a) that on the date when the contributable salary was reduced the teacher had attained the age of 50;

(b) that on that date he or she had been in pensionable employment or excluded employment for at least 5 years; and

(c) that the responsibility of that teacher’s post after the reduction in contributable salary is lower than the responsibility of any of the posts which he or she had held during the period of 5 years immediately preceding the date of the reduction in contributable salary.

(3) The conditions referred to in paragraph (1)(b) are–

(a) that on the date of leaving pensionable employment with employer A the teacher had attained the age of 50;

(b) that on that date he or she had been in pensionable employment or excluded employment for at least 5 years;

(c) that the responsibility of the teacher’s new post with employer A or, as the case may be, the teacher’s post with employer B is lower than the responsibility of any of the posts which he or she had held during the period of 5 years immediately preceding the date on which he or she left employment with employer A as described in paragraph (1);

(d) that employer A notifies the Scottish Ministers that the teacher has provided satisfactory service during the period of 5 years referred to in sub paragraph (c) or, where he or she has been employed by employer A for less than 5 years, during the period when he or she was employed by employer A; and

(e) that no more than one year had elapsed between leaving pensionable employment with employer A as described in paragraph (1) and taking up pensionable employment again with employer A or, as the case may be, taking up pensionable employment with employer B.

(4) The rate of salary referred to in paragraph (1) is–

(a) where the teacher falls within paragraph (1)(a) and is employed in full time service after the reduction in contributable salary, the rate applicable immediately before the reduction;

(b) where the teacher falls within paragraph (1)(b) and is re employed in full time service with employer A, or is employed in full time service with employer B, the rate applicable immediately before he or she left employment with employer A as described in paragraph (1);

(c) where the teacher falls within paragraph (1)(a) and is employed in part time service after the reduction in contributable salary, the rate which would have been applicable immediately before the reduction if he or she had been employed for the same number of hours or for the same proportion of the year, term, month or week, as the case may be, as he or she is employed immediately after the reduction; and

(d) where the teacher falls within paragraph (1)(b) and is employed in part time service at the start of their re employment with employer A or their employment with employer B, the rate which would have been applicable immediately the teacher left their employment with employer A as described in paragraph (1) if the teacher had been employed for the same number of hours or for the same proportion of the year, term, month or week, as the case may be, as he or she is employed at the start of his or her re employment with employer A or, as the case may be, his or her employment with employer B,

increased, in each case, on each increase day by–

$$(RI-RE)RE$ where– RI is the retail prices index for the month in which the increase day occurs; and RE is the retail prices index for the month in which the election was made.$

(5) For the purposes of paragraph (4) the “increase day” is the first day of the month in each year following the month in which–

(a) the salary was reduced, in a case where the teacher falls within paragraph (1)(a), or

(b) the teacher left his or her employment with employer A as described in paragraph (1) in a case where the teacher falls within paragraph (1)(b),

and the first increase day is that falling in the year after the year in which the salary was reduced or the teacher left his or her employment with employer A, as the case may be.

(6) An election for the purposes of paragraph (1)–

(a) must be made by giving written notice to the Scottish Ministers before the date which is 3 months after–

(i) the reduction in salary, in a case where the teacher falls within paragraph (1)(a); or

(ii) taking up employment again with employer A or, as the case may be, taking up employment with employer B, in a case where the teacher falls within paragraph (1)(b);

(b) has effect from–

(i) the day after the last day on which the teacher’s salary was payable at the rate applicable immediately before the reduction in contributable salary, in a case where the teacher falls within paragraph (1)(a); or

(ii) the day on which the teacher takes up employment again with employer A or, as the case may be, takes up employment with employer B, in a case where the teacher falls within paragraph (1)(b); and

(c) subject to paragraph (7), continues to have effect until the teacher ceases to be in pensionable employment unless he or she–

(i) elects to pay additional contributions under regulation C8 or C9; or

(ii) takes up pensionable employment with another employer (“employer C”) within 6 months of ceasing to be in pensionable employment.

(7) An election for the purposes of paragraph (1) may be cancelled by giving written notice to the Scottish Ministers at any time.

(8) Notice of cancellation–

(a) has effect from the first day of the month following that in which it was received; and

(b) is irrevocable.

(9) If, while an election made for the purposes of paragraph (1) has effect, there is any further reduction in salary during a period of sick leave or maternity, paternity or adoption leave, the rate of salary specified in paragraph (4) is, during that period, to be treated as having been reduced in the same proportion as the actual rate.

(10) In paragraphs (1)(a) and (1)(b) the reference to contributable salary is, in the case of a teacher employed in part-time service, a reference to the salary which would have been the teacher’s contributable salary if the teacher had been in full-time service.

(11) In this regulation “the retail prices index” means the index of retail prices published by the Office for National Statistics.

(12) Paragraph (1) shall not apply where a teacher is in pensionable employment by virtue of regulation B9.

Ordinary contributions

C3

(1) Subject to paragraph (2), a teacher who is in pensionable employment is to pay contributions of 6 per cent of contributable salary for the time being.

(2) A teacher who has made an election under regulation C2(1) shall, in addition to the contributions referred to in paragraph (1), pay contributions of the required percentage of the difference between the teacher’s actual contributable salary and the contributable salary at the rate referred to in regulation C2(4) to the extent that such contributions are not paid by any employer referred to in regulation H4 under an election mentioned in that regulation.

(3) No contributions are to be paid by a teacher in respect of any reckonable service beyond a total of 45 years.

Contributions where an election under regulation B2(4) has been made

C4

(1) This regulation applies where–

(a) a teacher has elected under regulation B2(4) that his or her part time employment should be pensionable; and

(b) the Scottish Ministers have specified that the election shall have effect from an earlier date than the first day of the month after that in which the notice is given.

(2) Where this regulation applies the teacher shall–

(a) pay the contributions calculated in accordance with regulation C3 referable to the back period; and

(b) unless the Scottish Ministers determine otherwise, pay interest on such contributions which have accrued on each reference date, at 7 per cent per annum compounded with yearly rests from the reference date in question to the date of payment of the contributions.

(3) For the purposes of this regulation–

(a) the first reference date is the date a year after the end of the month in which the beginning of the back period falls;

(b) the next reference date is the date a year after the first reference date and each subsequent reference date is the date a year after the previous reference date; and

(c) the contributions which have accrued on a reference date are the contributions which would be outstanding on that date if the teacher had been in pensionable employment during the back period and if contributions had not been paid in accordance with regulation C15.

Additional contributions to purchase past added years

C5

(1) This regulation applies to a teacher who–

(a) is in pensionable employment otherwise than by virtue of regulation B9; and

(b) first became employed in pensionable employment, or has been credited with reckonable service on the receipt of a transfer value in respect of comparable British service that began, before he or she attained the age of 55; and

(2) Subject to paragraphs (4) to (9), a teacher to whom this regulation applies may elect to pay additional contributions in accordance with–

(a) Part I of Schedule 4 (“Method A”); or

(b) Part II of Schedule 4 (“Method B”),

in order to become entitled to count an additional period (“the past period”) as reckonable service.

(3) Subject to paragraphs (4), (5), (7) and (10), the employer of a teacher to whom this regulation applies may elect to pay additional contributions in respect of the teacher in accordance with Part II of Schedule 4 (“Method B”).

(4) The past period must not exceed the maximum calculated in accordance with Schedule 3, and–

(a) must have begun after the teacher attained the age of 20;

(b) must have ended–

(i) before the teacher attained the age of 60;

(ii) before the date of the election; and

(iii) if the teacher has become entitled to payment of retirement benefits by virtue of regulation E6(1)(d), before the relevant termination of employment;

(i) contributions in respect of the period have been repaid after 31st May 1973; or

(ii) the right to count reckonable service in respect of it has been extinguished by payment of a transfer value;

(d) if payment is to be made by Method A, must satisfy paragraph 2 of Schedule 4; and

(e) unless payment is to be made by Method B and notice of the election is given no earlier than the date of applying for payment of retirement benefits, must be a period of not less than 30 days.

(5) If the teacher is already entitled to count any reckonable service in respect of the past period, that period is for the purposes of payment under this regulation and those of regulation D1 reduced by the length of that service.

(6) Where payment is to be made by Method A, the period during which additional contributions are to be paid (“the contribution period”) must satisfy paragraph 2 of Schedule 4.

(7) Subject to paragraph (8), an election under this regulation may be made at any time.

(8) A teacher may not simultaneously make different elections under this regulation, except that an election to make payment by Method A may be made at the same time as an election to make payment by Method B in respect of a different past period.

(9) An election under paragraph (2) must be made by giving written notice to the Scottish Ministers, which–

(a) is to specify the past period;

(b) is to specify the method by which payment is to be made;

(d) where payment is to be made by Method A, is to contain a declaration that the teacher has no reason to believe that his or her health may prevent them from continuing in pensionable employment until payment has been completed.

(10) An election under paragraph (3) must be made by giving written notice to the Scottish Ministers which–

(a) is to specify the teacher in respect of whom it is made; and

(b) is to specify the past period.

(11) An election under this regulation shall be revoked only where a written request seeking revocation has been accepted in writing by the Scottish Ministers but any additional contributions paid to the date of such acceptance shall not be refunded.

(12) Where payment is to be made by Method A and–

(a) within 12 months after the date of the election the teacher becomes incapacitated; and

(b) the declaration required by paragraph (9)(d) was not made in good faith,

the election is to be treated as not having been made and any additional contributions paid are to be refunded.

Additional contributions to purchase past added years in the case of a deceased teacher

C6

(1) This regulation applies where a teacher dies in circumstances where–

(a) had he or she ceased to be in pensionable employment on the date of death, he or she would have become entitled under regulation E6 to payment of retirement benefits; and

(b) in respect of whom another person is entitled under regulation E30 to a long term pension.

(2) Where this regulation applies, the person, or in the case of a child, a person acting on the child’s behalf, may by giving written notice to the Scottish Ministers within 3 months after the death make any election which, on the hypothesis stated in paragraph (1)(a), the deceased teacher could have made under regulation C5.

(3) Subject to paragraph (4), an election under this regulation has effect as if it had been made under regulation C5 by the deceased teacher.

(4) The additional contributions except to the extent that they are, with the consent of any person entitled to it, met out of a terminal sum, payable by the person referred to in sub-paragraph (1)(b).

(5) This regulation does not apply to a teacher who at the date of his or her death was in pensionable employment by virtue of regulation B9.

Additional contributions to purchase past added years under earlier provisions

C7

(1) Part I of Schedule 5 has effect where immediately before the date on which these Regulations come into force additional contributions remained to be paid by virtue of regulations 22 to 25 of the 1977 Regulations[^f00013].

(2) Part II of Schedule 5 has effect where immediately before the date on which these Regulations come into force additional contributions remained to be paid by virtue of regulation 26 of the 1977 Regulations.

Additional contributions to purchase current added years

C8

(1) Subject to paragraphs (11) to (14), this regulation applies to a teacher who–

(a) before attaining the age of 60 has ceased to be in pensionable employment, otherwise than by virtue of an election under regulation B7;

(b) was not then incapacitated;

(d) has not become a member of another occupational pension scheme.

(2) Subject to paragraphs (3), (4) and (10), a teacher to whom this regulation applies may elect to pay additional contributions in order to become entitled to count as reckonable service a period (“the period”) beginning on the day after the cessation of the pensionable employment, or where paragraph (4)(a) applies on the day after the last day of the earlier period.

(3) The period–

(a) must end before the teacher’s 60th birthday;

(b) must not in any case exceed the maximum calculated in accordance with Schedule 3;

(i) as a teacher in any school outside the British Islands in which, in the opinion of the Scottish Ministers, it is expedient to facilitate the employment of teachers from Scotland; or

(ii) in an educational service outside the British Islands in employment which to a substantial extent involves the control or supervision of teachers in such schools,

must not exceed 6 years; and

(d) in any case to which paragraph (c) does not apply, must not exceed 3 years.

(4) If the teacher has paid additional contributions under this regulation for an earlier period and–

(a) has not since the end of that period been in pensionable employment; or

(b) has since been in pensionable employment but for less than 12 months,

the earlier period is to be deducted from the maximum allowed by paragraph (3)(b).

(5) If before the end of the period the teacher–

(a) becomes entitled to payment of retirement benefits;

(b) becomes a member of another occupational pension scheme; or

the period is to be treated as having ended on the day on which the relevant event occurred; and if before the end of the period the teacher fails to pay an additional contribution, or a late payment is not accepted under paragraph (9), it is to be treated as having ended on the day up to which contributions have been paid.

(6) An additional contribution is payable for each financial year and is a percentage of the notional salary for so much of the period as falls within that year.

(7) For the purposes of paragraph (6)–

(a) the notional salary is an amount notified by the former employer, or (where no such notification is given) estimated by the Scottish Ministers, as being what the teacher’s contributable salary would have been if pensionable employment had not ceased and the teacher had continued to be employed in the same post and on the same terms taking into account, where appropriate, any election under regulation C2(1); and

(b) the percentage is (A + B) where A is the percentage specified in regulation C3 and B is the required percentage which is to be applied to contributable salary to determine employers' contributions under Part H.

(8) The additional contribution for a financial year is to be paid directly to the Scottish Ministers–

(a) where the period has not ended during the financial year, within 3 weeks after the end of the financial year; and

(b) in any other case, within 6 weeks after the end of the period or the date of a written notification by the Scottish Ministers that payment is due, whichever is the later.

(9) A late payment of a contribution may for special reasons be accepted by the Scottish Ministers; but if it is accepted the teacher is to pay interest on the amount of the contribution at 4 per cent per annum, compounded with yearly rests, from the due date of payment to the date of payment.

(10) An election under this regulation must be made by giving written notice to the Scottish Ministers, which must specify the period and must be given–

(a) if paragraph (3)(c) applies, within 6 months; and

(b) in any other case, within 3 months,

after the cessation of the teacher’s pensionable employment or, if later, the end of a previous period for which he or she has paid additional contributions under this regulation.

(11) For the purposes only of this regulation a teacher remains in pensionable employment while absent from duty during and in consequence of a trade dispute.

(12) Paragraph (11) applies–

(a) even if the teacher was not participating in or financing or otherwise directly interested in the trade dispute; and

(b) even if the teacher’s employer was not a party to the trade dispute.

(13) In this regulation, “trade dispute” has the meaning given by section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992[^f00014].

(14) This regulation does not apply to a teacher in relation to pensionable employment by virtue of regulation B9.

Additional contributions for current period: service in a reserve force

C9

(1) This regulation applies to a teacher who ceases to be in pensionable employment by virtue of being called out or recalled for permanent service in Her Majesty’s armed forces in pursuance of a call out notice or call out order or a recall order made under the Reserve Forces Act 1996[^f00015], provided that–

(a) the teacher does not apply for payment of any retirement benefits to which he or she would otherwise be entitled on ceasing to be in such employment; and

(b) he or she does not accrue any reckonable service in the Armed Forces Pension Scheme or become a member of any other occupational pension scheme during his or her period of permanent service.

(2) Subject to paragraphs (10) and (11), a teacher to whom this regulation applies may elect to pay additional contributions in order to become entitled to count as reckonable service a period (“the period”) beginning on the day after the cessation of the pensionable employment and ending with the date on which he or she is released from permanent service or discharged.

(3) An additional contribution is payable for each financial year and is–

(a) 6 per cent of the notional salary for so much of the period as falls within that financial year; and

(b) where an election has been made under regulation C2(1), an amount equivalent to any contributions which would have been paid under regulation C3(2) for so much of the period as falls within that financial year taking the reference in that regulation to the teacher’s actual contributable salary as a reference to the notional salary disregarding the election under regulation C2(1).

(4) The notional salary is the salary that would have been payable if pensionable employment had not ceased and the teacher had continued to be employed in the same post and on the same terms taking into account, where appropriate, any election under regulation C2(1).

(5) Subject to paragraphs (7) and (8), an election under this regulation must be made in writing to the Scottish Ministers at any time between the cessation of pensionable employment and 6 months after the return to pensionable employment following service in a reserve force.

(6) An election has effect only if the teacher pays–

(a) any contribution under this regulation within 3 months of the date of a written notification by the Scottish Ministers that payment is due; and

(b) all contributions and payments due by him or her in respect of the period by virtue of any election made under regulation C5, C10 or C14.

(7) An election made before the end of the period must specify the day on which the period begins; and an election made after the end of the period must specify the period.

(8) Subject to paragraph (10), where the teacher dies during service in a reserve force without having made an election under this regulation, such an election shall be deemed to have been made so that the period beginning on the day after the cessation of the pensionable employment and ending with the date of his or her death shall count as reckonable service.

(9) Any contribution due under this regulation at the date of a teacher’s death during his or her service in a reserve force shall be deducted from any benefits payable under these Regulations.

(10) Notwithstanding that a teacher to whom this regulation applies has not made an election under this regulation, he or she shall be entitled to count the period as reckonable service where during the period his or her service pay, when aggregated with any payments under Part V of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951[^f00016], is less than the remuneration he or she would have received if he or she had during the period continued in the pensionable employment in which he or she was employed immediately before being called into service in a reserve force.

(11) For the purposes of paragraph (10), “service pay” means the pay for performing service in a reserve force, and includes marriage, family and other similar allowances.

Additional contributions for family benefits

C10

(1) Parts I and III of Schedule 6 have effect for enabling men and unmarried women to pay additional contributions (“family benefit contributions”) in order to secure, or to increase, family benefits in respect of reckonable service before 1st April 1972.

(2) Parts II and III of Schedule 6 have effect for enabling married women to pay family benefit contributions in respect of reckonable service before 6th April 1988.

Return of contributions

C11

(1) Subject to paragraph (3), this regulation applies where a teacher has ceased to be in pensionable employment and–

(a) he or she is not qualified for retirement benefits; and

(b) no transfer value under regulation G1 has since been paid or become payable in respect of the teacher; and

(d) the relevant period is not a period, or part of a period, for which the teacher has elected to pay additional contributions under regulation C8 or C9.

(2) The relevant period is the period of one month beginning when the teacher ceased to be in pensionable employment.

(3) This regulation shall not apply if part of the teacher’s reckonable service is attributable to a transfer value paid in respect of him or her to the Scottish Ministers by the trustees or managers of a personal pension scheme, notwithstanding that the teacher has less than 2 years' service.

(4) For the purposes of paragraph (1), a woman who ceased to be in pensionable employment wholly or partly because of pregnancy or confinement is to be treated–

(a) as having remained in such employment while she enjoyed the right to return to work conferred by Part VIII of the Employment Rights Act 1996[^f00017]; and

(b) if she has exercised that right, as not having ceased to be in pensionable employment.

(5) Where this regulation applies the teacher is entitled to have returned the balance of his or her contributions, calculated in accordance with regulation C12.

(6) The entitlement takes effect at the end of the relevant period, or on the teacher’s 70th birthday if earlier.

Calculation for the purposes of regulation C11

C12

(1) The balance of contributions referred to in regulation C11(5) is to be calculated as at the date of the calculation, or the teacher’s 70th birthday if earlier (“the calculation date”).

(2) The balance is (A − B) − C, where–

A is the total of the amounts specified in paragraph (3);

B is the total of the deductions specified in paragraph (4); and

C is the amount of the tax chargeable on (A B) under section 598 of the Taxes Act[^f00018].

(3) The amounts are those of–

(a) all contributions paid, under regulations C3, C5 and C8 to C10 except–

(i) any treated as employer’s contributions; and

(ii) any paid in respect of a period of employment for which an incapacity gratuity under regulation E21 has been received;

(b) contributions paid in respect of any comparable British service in respect of which the teacher is entitled to count reckonable service by virtue of the acceptance of a transfer value;

(c) if the teacher was entitled to count any reckonable service by virtue of the acceptance of a transfer value in respect of an employment that was not comparable British service, either–

(i) any payment by way of repayment of contributions, and interest, that he or she would otherwise have been entitled to receive under the rules of the pension scheme to which he or she was subject in the employment; or

(ii) if that scheme made no provision for the repayment of contributions, the contributions he or she paid under it in respect of the employment; and

(d) interest to the calculation date, at 3 per cent per annum, compounded with yearly rests–

(i) on the contributions mentioned in sub paragraphs (a) and (b), from the first day of the financial year following that in which they were paid; and

(ii) where sub paragraph (c) applies, from the first day of the financial year following that in which the transfer value was paid.

(4) The deductions are–

(a) the amount of any previous repayment of contributions;

(b) if the Scottish Ministers have made a payment in lieu of contributions or the teacher is entitled to equivalent pension benefits, half the amount of the payment in lieu of contributions that was, or as the case may be would otherwise have been, made; and

(c) if the Scottish Ministers have paid a contributions equivalent premium, the amount recoverable by them under sections 61 to 63 of the 1993 Act[^f00019].

Return of certain contributions paid for family benefits

C13

(1) This paragraph applies where a member who has made no election under paragraph 2 of Schedule 6–

(a) becomes entitled under regulation C11 to the return of the balance of his contributions; or

(b) becomes entitled to payment of retirement benefits, unless on his death family benefits would become payable.

(2) Where paragraph (1) applies the member is entitled to be repaid an amount calculated in accordance with paragraphs (3) to (5).

(3) Where no family benefit would have been payable if the member had died before 1st April 1972, the amount includes the whole of the member’s normal contributions and any additional contributions.

(4) Where paragraph (3) does not apply, the amount includes–

(a) half the normal contributions paid in respect of any period during which family benefits would have been payable in the event of the member’s death; and

(b) the whole of the normal contributions paid in respect of any other period; and

(5) The remainder of the amount consists of interest at 3 per cent per annum compounded with yearly rests, from the first day of the financial year following that in which the contributions were paid to–

(a) the date of the calculation; or

(b) the member’s 70th birthday; or

whichever is the earliest.

(6) There is to be deducted from the amount the tax chargeable on it under section 598 of the Taxes Act.

(7) Where a member who has made no election under paragraph 3 of Schedule 6 dies and–

(a) he was entitled under regulation C11 to be repaid the balance of his contributions; or

(b) a death grant is payable under regulation E24 and no family benefit other than a children’s pension is payable,

the member’s personal representatives are entitled to be paid an amount calculated in accordance with paragraphs (3) to (5) but with the interest component calculated to the date of the member’s death.

Repayment of returned contributions

C14

(1) A teacher to whom contributions were returned before 1st June 1973–

(a) who is in pensionable employment; or

(b) who is in comparable British service and in respect of whom no transfer value has been paid since the end of his or her last pensionable employment,

may at any time, by giving written notice to the Scottish Ministers, elect to repay the contributions, with interest, to them.

(2) Interest is payable at the rate of 3.5 per cent per annum from the date on which the contributions were returned to the date on which their repayment is completed, and–

(a) where the repayment is made by a single payment, is payable on the full amount of the contributions and is compounded with yearly rests; and

(b) where the repayment is made by instalments, is payable on the balance for the time being outstanding and is compounded with yearly rests on 31st March.

(3) While a teacher is in pensionable employment, payments under this regulation shall be made in instalments and are, subject to paragraph (5), payable–

(a) at equal intervals, of not more than 6 months; and

(b) for a whole number of years not exceeding 5 and ending before his or her 60th birthday.

(4) Instalments are of equal amounts unless in any year the payment of an instalment of an amount equal to that paid in previous years would exceed the limit specified in paragraph (5) and in that event the instalments (and the corresponding period over which they are payable) shall be recalculated so that they do not exceed that limit.

(5) The annual amount of instalments paid under paragraph (3) is to be such that (A + B) does not exceed 15 per cent of the annual rate of the teacher’s contributable salary in the year where–

A is the annual amount of the instalments; and

B is the annual amount of other contributions paid under Part C (except any treated as employer’s contributions) or towards the provision of a pension otherwise than under these Regulations.

(6) If a teacher has commenced payment of instalments in accordance with this regulation and before they have all been repaid–

(a) he or she becomes entitled to payment of retirement benefits; or

(b) a death grant becomes payable in respect of him or her,

the balance outstanding, less any interest previously calculated but which relates to a future period of repayment, is to be deducted from the appropriate terminal sum and the repayment of contributions is to be treated as having been completed.

(7) If, in a case not falling within paragraph (6), a teacher who has commenced payment of instalments in accordance with this regulation ceases to be employed in pensionable employment before completing payment, he or she shall make a single payment of the balance outstanding, less any interest previously calculated but which relates to a future period of repayment.

(8) For the purposes of this regulation, a teacher is to be treated as being in pensionable employment if he or she is paying additional contributions under regulation C8 or under regulation C9.

(9) This regulation does not apply to a teacher who is in pensionable employment by virtue of regulation B9.

Deduction, payment and recovery of contributions

C15

(1) The employer of a teacher in pensionable employment is to deduct from the teacher’s salary each month–

(a) the contributions payable under regulation C3(1);

(b) any contributions payable under regulation C3(2);

(c) any additional contributions payable in accordance with Part I of Schedule 4 as a result of an election under regulation C5;

(d) any additional contributions payable by virtue of regulation C7 or C10; and

(e) any instalments payable under type=start slip=2006-05-01 time=1185436149987regulation C14(3)type=end slip=2006-05-01 time=1185436149987,

and any amount not so deducted in any month is to be deducted from the teacher’s salary no later than 30th April next following the end of the financial year in which it ought to have been deducted.

(2) If and so far as deductions are not made under paragraph (1), any sum remaining due is to be paid by the teacher to the Scottish Ministers on receipt of a written demand specifying the sum.

(3) If the sum is not paid within 6 weeks after the date of the demand, interest is payable on it at 4 per cent per annum, compounded with yearly rests, from the expiry of the 6 weeks to the date of payment.

(4) Without prejudice to any other means of recovery, any sum due to the Scottish Ministers under paragraph (2) or (3) may be recovered by deducting it from any benefits payable under Part E.

(5) Any sum which is due under regulation C4(2)(a) shall be paid to the Scottish Ministers on receipt of a written demand (without prejudice to the obligation to pay the sums referred to in regulation C4(2)(b)).

(6) Amounts due from a teacher under this Part which are not deductible under paragraph (1) are to be paid by the teacher to the Scottish Ministers.

(7) If any amount to which paragraph (6) applies, except one due under regulation C4, C8 or C14, is not paid within 6 months after the end of the period to which it relates, but remains payable, interest is payable on it at 4 per cent per annum, compounded with yearly rests, from the expiry of the 6 months to the date of payment.

PART D — RECKONABLE SERVICE

Reckonable service generally

D1

(1) Subject to regulation D2, a teacher is entitled to count as reckonable service any period–

(a) subject to paragraph (3), during which he or she was employed in pensionable employment;

(b) counting as reckonable service by virtue of regulations D3, D4 or G2;

(c) which does not count by virtue of sub-paragraph (a) or (b) but which immediately before 31st March 1992 counted as reckonable service under regulation 4(1) of the 1977 Regulations[^f00020]; and

(d) subject to the payment of requisite contributions under Part C, counting as reckonable service by virtue of regulation C9.

(2) In aggregating the total reckonable service of any teacher–

(a) the amount in any financial year shall not exceed 365 days;

(b) all periods of reckonable service shall be aggregated and where 2 or more periods total 365 days or more each period of 365 days shall be reckoned as one year, service on the 29th February in a leap year being disregarded; and

(3) Subject to paragraph (5), where during a financial year a teacher has spent one or more periods in part time service, each such period counts as–

$$365×ABdays of reckonable service$ where– A is the number of hours worked by the teacher; and B is the number of hours which would have been worked if the employment had been full-time and had continued throughout the year.$

(4) For the purposes of paragraph (3)–

(a) any reduction of contributable salary during a period of absence from pensionable employment on sick leave or maternity, paternity or adoption leave shall be disregarded; and

(b) a period of part time employment ends, and another such period begins, when any change occurs in the rate of the teacher’s contributable salary.

(5) Where a teacher commences winding down employment by virtue of regulation J2 the period of part time service under the winding down employment shall count as if it had been full time service.

(6) Paragraph (5) above shall not apply if the teacher ceases to be in winding down employment and–

(a) returns to teaching service; and

(b) is not entitled to payment of retirement benefits by virtue of regulation E6(1).

(7) In calculating the length of reckonable service–

(a) no account shall be taken of a leap year day (29th February), except as provided in sub paragraph (b); but

(b) where total reckonable service which includes part of a year ends in a leap year on or after the leap year day, that day shall be included in the number of days of reckonable service.

Exclusion from reckonable service

D2

The following periods do not count as reckonable service–

(a) any period in respect of which contributions made by the teacher have been returned and not repaid to the Scottish Ministers in pursuance of regulation C14;

(b) any period in respect of which contributions have not been paid by the teacher unless the Scottish Ministers direct otherwise; and

Past added years for which additional contributions have been paid

D3

(1) A teacher–

(a) who has completed payment of additional contributions in accordance with Part I of Schedule 4, or Schedule 5; or

(b) who has paid additional contributions for a past period in accordance with Part II of Schedule 4; or

(c) in respect of whom payment of additional contributions for a past period in accordance with Part II of Schedule 4 has been made,

is entitled to count the past period as reckonable service.

(2) For the purposes of paragraph (1), a teacher who has at any time during the contribution period been in part time pensionable employment shall not be treated as having completed the payment of additional contributions in accordance with Part I of Schedule 4 unless (in addition to the payments in accordance with that Part) he or she pays a lump sum determined in accordance with paragraph (3).

(3) The lump sum referred to in paragraph (2) is such sum as would be payable under Part I of Schedule 4 in order to count as reckonable service a period equivalent to the difference between the length of reckonable service which arises from the contribution period and the length of such service if the teacher had been in full time pensionable employment throughout the contribution period.

(4) In paragraphs (2) and (3), “the contribution period” means the period during which additional contributions in accordance with Part I of Schedule 4 were paid.

(5) A teacher who has begun to pay additional contributions in accordance with Part I of Schedule 4, but who has not completed payment is entitled to count as reckonable service a period calculated in accordance with Schedule 7.

Current added years for which additional contributions have been paid

D4

A teacher who has paid additional contributions for a period under regulation C8 or C9, is entitled to count the following periods as reckonable service:–

(a) where the contributions are paid under regulation C8, the period in respect of which they are paid; and

(b) where the contributions are paid under regulation C9, the period specified in regulation C9(2).

PART E — BENEFITS

Overriding provisions as to guaranteed minimum pension

E1

(1) This regulation shall override any other provisions of these Regulations which are inconsistent with it, except the provisions of regulations E18 and E22.

(2) If a teacher has, in relation to employment before 6th April 1997, a guaranteed minimum in relation to benefits under these Regulations–

(a) he or she shall be entitled to receive from state pension age an annual pension payable at a rate equivalent to a weekly rate of not less than the guaranteed minimum;

(b) if that teacher attains state pensionable age while in pensionable employment, continues in the same employment for a further period of 5 years and does not then cease to hold it, he or she is (unless he or she consents to a postponement of his or her entitlement) entitled from the end of that period to so much of his or her retirement pension as equals his or her guaranteed minimum;

(c) in the case of a man who dies at any time leaving a widow, in relation to the weekly rate of widow’s pension provided for her under these Regulations, she shall be entitled, during any such period as is mentioned in section 17(5) of the 1993 Act[^f00021], to a long term pension which shall not be less than half his guaranteed minimum; and

(d) in the case of a woman who dies on or after 6th April 1989 leaving a widower, in relation to the weekly rate of the pension provided for him under these Regulations, he shall be entitled to a long term pension which shall not be less than half of that part of the member’s guaranteed minimum which is attributable to earnings factors for the tax year 1988/89 and subsequent tax years.

(3) The guaranteed minimum pensions referred to in paragraph (2) shall, insofar as they are attributable to earnings factors for the period beginning with the tax year 1988 89 and ending with the tax year 1996 97, be increased in accordance with the requirements of section 109 of the 1993 Act[^f00022].

(4) If the commencement of any teacher’s guaranteed minimum pension is postponed for any period, the guaranteed minimum pension shall be increased to the extent, if any, specified in section 15 of the 1993 Act.

Residual liability for guaranteed minimum pensions and for section 9(2B) rights

E2

(1) This regulation applies where–

(a) a teacher has exercised his or her right to a cash equivalent;

(b) the other occupational pension scheme or personal pension scheme into which he or she has transferred or is in the course of transferring his or her cash equivalent is not willing or able to accept the cash equivalent of his or her guaranteed minimum pension or section 9(2B) rights; and

(c) that teacher has not transferred the cash equivalent of his or her guaranteed minimum pension or section 9(2B) pension rights into a policy described in section 19(4)(a)[^f00023] of the 1993 Act or a separate personal pension scheme.

(2) Where this regulation applies, the teacher is entitled–

(a) to a pension at a weekly rate equal to his or her guaranteed minimum from the date on which he or she attains state pensionable age; or

(b) to a lump sum and a pension in respect of his or her section 9(2B) rights from the date on which he or she attains the age of 60,

or to both.

Revaluation of guaranteed minimum in certain cases

E3

(1) This regulation applies where–

(a) a teacher has ceased to be employed in reckonable service; and

(b) the guaranteed minimum in relation to his or her pension is appropriately secured (within the meaning of section 19 of the 1993 Act).

(2) The earnings factors of such a teacher shall be determined for the purposes of section 14(2) of that Act–

(a) by reference to the last order under section 21 of the Pensions Act[^f00024] or section 148 of the Social Security Administration Act 1992[^f00025] to come into force before the end of the tax year in which he or she ceased to be a pensionable employee; and

(b) without reference to the last such order to come into force before the end of the final relevant year.

(3) The weekly equivalent mentioned in section 14(2) of the 1993 Act shall be increased by at least the prescribed percentage for each relevant year after the end of the tax year in which he or she ceased to be a pensionable employee and in accordance with such additional requirements as may be prescribed for the purposes of section 16(3)[^f00026] of that Act.

(4) In this regulation–

“relevant year” and “final relevant year” have the meanings given respectively in sections 14(8) and 16(5) of the 1993 Act[^f00027]; and

“prescribed percentage” has the meaning given in regulation 62 of the Occupational Pension Schemes (Contracting-out) Regulations 1996[^f00028].

Nature of retirement benefits

E4

Retirement benefits consist of–

(a) a retirement pension; and

(b) a retirement lump sum,

calculated in accordance with this Part.

Qualification for retirement benefits

E5

(1) A teacher shall qualify for retirement benefits if–

(a) immediately before 6th April 1988 that teacher would but for his or her age have been entitled under regulation 46 of the 1977 Regulations[^f00029] to payment of retirement benefits;

(b) immediately before the date these Regulations come into force, regulation E4(5) of the 1992 Regulations[^f00030] applied to that teacher; or

(2) A qualifying period, which may be discontinuous, comprises every period of a kind described in Schedule 8 but excludes any period in respect of which contributions have been returned to the teacher and not repaid to the Scottish Ministers.

(3) If a teacher was in pensionable employment by virtue of regulation B9, any period of one year in such employment is an appropriate qualifying period.

(4) If the teacher was in pensionable employment, or paying additional contributions to purchase current added years under regulation 28 of the 1977 Regulations, on 6th April 1988, any qualifying period of 2 years shall be an appropriate one.

(5) If paragraph (4) does not apply, a qualifying period of 2 years beginning after 5th April 1988 shall be an appropriate one; and any period of the kind described in paragraph 4 of Schedule 8 shall be treated for the purposes of this paragraph as having begun after 5th April 1988.

(6) If neither paragraph (4) nor paragraph (5) applies, and the teacher was in pensionable employment before 6th April 1988, any qualifying period of 5 years shall be an appropriate one.

(7) Notwithstanding that an appropriate qualifying period has not been completed, a teacher shall qualify for retirement benefits if–

(a) that teacher has been employed in pensionable employment during a period in respect of which he or she has a guaranteed minimum pension being a period in respect of which a contributions equivalent premium cannot be paid; or

(b) a transfer value was paid in respect of him or her by the Scottish Ministers to the superannuation scheme of the Commission of the European Communities and one has since been received by the Scottish Ministers from that scheme.

Entitlement to payment of retirement benefits

E6

(1) A teacher who has qualified for retirement benefits shall be entitled to payment of them if he or she–

(a) has attained the age of 60 and has ceased to be in pensionable employment;

(b) has attained the age of 70 and is in employment which would be pensionable employment but for regulation B6(1);

(i) has not attained the age of 60;

(ii) has ceased after 31st March 1972 to be in pensionable employment;

(iii) has become incapacitated;

(iv) in the case of a teacher registered or formerly registered with the General Teaching Council for Scotland and who has ceased after 31st March 1997 to be in pensionable employment, has not had his or her name removed from the Council’s register following a direction by the Council’s Disciplinary Committee and is not under an investigation which might result in such removal; and

(v) in any other case, where he or she has ceased after 31st March 1997 to be in pensionable employment, and has not ceased to be in pensionable employment as a result of dismissal on grounds of misconduct;

(d) –

(i) has not attained the age of 60;

(ii) has attained the age of 50;

(iii) has ceased after attaining that age to be in pensionable employment, or in excluded employment, or in employment which would have been pensionable employment had an election been made under regulation B2, and that teacher’s employer has certified in writing to the Scottish Ministers that his or her employment has been terminated as a result of their redundancy or in the interests of the efficient exercise of the employer’s functions; and

(iv) has not received, and is not to receive, compensation under Part IIIA of the Teachers (Compensation for Premature Retirement and Redundancy) (Scotland) Regulations 1996[^f00031] and that teacher’s employer has agreed that he or she should become entitled to retirement benefits under this paragraph; or

(e) –

(i) has attained the age of 55;

(ii) has ceased on or after 30th June 2002 and before attaining the age of 60 to be in pensionable employment or excluded employment; and

(iii) is not entitled to payment of retirement benefits by virtue of paragraph (1)(c) or (1)(d),

and the conditions specified in paragraph (4) are satisfied.

(2) Entitlement under–

(a) paragraph (1)(a) and (b) takes effect as soon as the teacher meets the conditions prescribed therein;

(b) paragraph (1)(c) takes effect–

(i) as from the day after the end of pensionable employment; or

(ii) if the date of the teacher’s application for payment of retirement benefits on grounds of incapacity is later, that date or such other date as the Scottish Ministers, having regard to all the circumstances, think appropriate; and

(c) paragraph (1)(d) takes effect, unless the teacher entitled to receive payment has waived his or her right to such payment in terms of paragraph (3), as from the day after the end of the employment;

(d) paragraph (1)(e) takes effect–

(i) where, at the time of the application for benefits under regulation E36, the teacher was in pensionable employment or excluded employment, as from the day after the end of the employment; and

(ii) in any other case on a date determined by the teacher making the application for benefits under regulation E36 being a date no earlier than 6 weeks after the date of such application.

(3) A teacher entitled to payment of retirement benefits by virtue of paragraph (1)(d), who is also a teacher to whom the provisions of regulation 7 of the Local Government (Education Administration) (Compensation for Redundancy or Premature Retirement on Reorganisation) (Scotland) Regulations 1995[^f00032] applies, may waive his or her entitlement to such payment under paragraph (1)(d) by notice in writing to their employer, but such waiver shall not prejudice his or her entitlement to benefit under any other provision of this regulation.

(4) The conditions referred to in paragraph (1)(e) are–

(a) where the teacher has a guaranteed minimum pension in respect of employment before 6th April 1997, or an equivalent pension benefit relating to employment undertaken during the period starting on 3rd April 1961 and ending on 5th April 1975 (or both) that the annual rate of the teacher’s retirement benefits in the opinion of the Government Actuary is equal to or exceeds the equivalent pension benefit or the value of the guaranteed minimum pension (or if both the aggregate); and

(b) where, at the time of the application for payment of benefits under regulation E36, the teacher was in pensionable employment (otherwise than by virtue of regulation B9) or excluded employment that–

(i) his or her employer has consented to the application; or

(ii) 6 months have elapsed since the date on which the teacher requested his or her employer to give consent and such consent has not been given.

Amount of retirement pension

E7

(1) Subject to paragraphs (2) to (4) and regulations E9 to E13, the annual rate of a teacher’s retirement pension shall be 1/80th of that teacher’s pensionable salary multiplied by his or her effective reckonable service.

(2) If–

(a) the teacher is entitled to count a period as reckonable service by virtue of regulation D3; and

(b) by reason of regulation E35(5) part of that period does not count in calculating his or her retirement lump sum,

the annual rate calculated in accordance with paragraph (1) is, in respect of each year comprised in that part, increased by 1/350th of his or her pensionable salary.

(3) If a contributions equivalent premium has been paid in respect of the teacher and has not been refunded (and the teacher’s entitlement to a guaranteed minimum pension is therefore extinguished), the annual rate of his or her retirement pension is reduced by the annual equivalent of the guaranteed minimum pension to which he or she would otherwise have been entitled.

(4) Where this paragraph applies the annual rate of a teacher’s retirement pension shall be the annual rate, calculated in accordance with the foregoing provisions of this regulation, of the retirement pension to which he or she would be entitled apart from this paragraph and ignoring the effect of regulation E12 multiplied by the appropriate factor.

(5) Subject to sub paragraph (b), paragraph (4) applies where–

(a) a teacher is entitled to payment of retirement benefits under regulation E6(1)(d) and ceased to be in pensionable employment or in excluded employment on or after 1st September 1997; or

(b) a teacher has become entitled to payment of retirement benefits by virtue of regulation E6(1)(e).

(6) For the avoidance of doubt, references in regulations E9 to E11 to “retirement benefits” and “retirement pension” are references to such benefits as calculated before any actuarial reduction required by paragraph (4).

Amount of retirement lump sum

E8

(1) Subject to paragraphs (2) and (3) and regulations E9 and E10, the amount of a teacher’s retirement lump sum shall be A × (B + C) where–

A is 3/80ths of the teacher’s pensionable salary;

B is his or her effective reckonable service (except any falling within C); and

C is any period which he or she is entitled to count as reckonable service by virtue of regulation D3.

(2) If the teacher’s effective reckonable service is restricted by regulation E35(2), the part of that teacher’s retirement lump sum that is attributable to service before he or she attained the age of 60 shall not exceed their pensionable salary multiplied by 1.5.

(3) Subject to paragraph (4), where–

(a) a teacher who has become entitled to the payment of retirement benefits by virtue of regulation E6(1)(d) has ceased to be in pensionable or excluded employment on or after 1st September 1997; or

(b) a teacher has become entitled to payment of retirement benefits by virtue of regulation E6(1)(e),

the amount of the teacher’s retirement lump sum shall be the amount calculated in accordance with paragraphs (1) and (2) multiplied by the appropriate factor.

(4) References in regulations E9 and E10 to “retirement benefits” and “retirement lump sum” are references to such benefits as calculated before any actuarial reduction required by paragraph (3).

Limitation of retirement benefits in certain cases

E9

(1) Paragraphs (2) to (5) apply to a teacher who has made an election–

(a) under regulation C1(8) of the 1992 Regulations[^f00033] and whose pensionable salary falls to be calculated by reference to the notional rate as described in that provision; or

(b) under regulation C2(1) and whose pensionable salary falls to be calculated by reference to regulation C2(4).

(2) The annual rate of the teacher’s retirement pension is not to exceed the fraction of the appropriate sum ascertained, by reference to the relevant age, from Table 1 below.

Relevant age	Fraction
Under 50	1/2
50	2/5
51	3/10
52	1/5
53	1/10
54	1/14

(3) Where the teacher has been in pensionable employment for less than 20 years, his or her retirement lump sum is not to exceed 3/80ths of the appropriate sum multiplied by the total of his or her reckonable service and the period ascertained, by reference to the number of complete years he or she has been in pensionable employment, from Table 2 below.

Years in pensionable employment	Period in years
19	17
18	15
17	13
16	11
15	9
14	7
13	5
12	4
11	3
10	2
9	1
Fewer than 9	0

(4) Where the teacher has been in pensionable employment for 20 years or more his or her retirement lump sum is not to exceed the appropriate sum multiplied by 1½.

(5) The appropriate sum is the greater of–

(a) the teacher’s contributable salary for the best one of his or her last 5 years in pensionable employment; and

(b) one third of that teacher’s aggregate contributable salary for his or her best 3 consecutive years in pensionable employment within the 10 years ending with its cessation,

and, for the purpose of paragraph (2), the relevant age is the teacher’s age when he or she first entered pensionable employment, unless he or she was not continuously in pensionable employment in which case it is the figure obtained by subtracting the number of years in pensionable employment from 60.

(6) In this regulation, references to “retirement pension” and “retirement lump sum” are references to such pension and lump sum before any actuarial reduction required by regulation E7(4) or E8(3).

Enhancement of retirement benefits in case of incapacity

E10

(1) Subject to paragraph (2), this regulation applies to a teacher who has become entitled to payment of retirement benefits by virtue of regulation E6(1)(c) by reason of his or her becoming incapacitated while employed in pensionable employment, but only if–

(a) –

(i) where his or her pensionable employment terminates before 1st October 2001, he or she had completed periods of the kind described in Schedule 8 totalling at least 5 years, excluding any period in respect of which contributions have been returned to him or her and not repaid to the Scottish Ministers; or

(ii) where his or her pensionable employment terminates on or after 1st October 2001, he or she had completed periods of the kind described in Schedule 8 totalling at least 2 years, excluding any period in respect of which contributions have been returned to him or her and not repaid to the Scottish Ministers; and

(b) the application for payment of retirement benefits under regulation E6(1)(c) is made within 12 months after the end of his or her pensionable employment or such longer period as may be approved by the Scottish Ministers.

(2) In relation to a teacher who was in part time service which was pensionable employment, this regulation shall not apply unless the aggregate of the periods of contract of employment during which the part time service was given and the period of full time service, if any, extends to at least 5 years, where pensionable employment terminates before 1st October 2001 and 2 years where pensionable employment terminates after that date.

(3) Subject to regulation E35(2), for the purpose of calculating his or her retirement benefits the effective reckonable service of a teacher to whom this regulation applies shall be treated as having been increased by the appropriate period.

(4) If the teacher’s relevant service amounts to at least 2 years but less than 10 years, the appropriate period is the shorter of–

(a) the length of that teacher’s relevant service; and

(b) the period beginning when that teacher’s pensionable employment ended and ending immediately before his or her 65th birthday, or, if he or she is entitled to retirement benefits by virtue of regulation E6(1)(e) and subsequently becomes entitled to retirement benefits by virtue of regulation E6(1)(c) with reference to his or her reckonable service in further employment which is pensionable by virtue of regulation B9, his or her 60th birthday.

(5) If his or her relevant service amounts to 10 years or more, the appropriate period is the longer of periods A and B.

(6) Period A is the shortest of–

(a) the period by which his or her relevant service falls short of 40 years;

(b) the period beginning when his or her pensionable employment ended and ending immediately before his or her 60th birthday; and

(7) Period B is so much of the period beginning when that teacher’s pensionable employment ended and ending immediately before his or her 65th birthday as would not cause his or her effective reckonable service to be increased to more than 20 years.

(8) A teacher’s relevant service is so much of his or her effective reckonable service as does not consist of periods that count by virtue of regulation D3.

(9) For the purposes of this regulation a teacher is to be treated as having been in pensionable employment during any period for which he or she was paying additional contributions under regulation C8 or C9.

Avoidance of duplicate pensions

E11

(1) Subject to paragraph (2), this regulation applies where a teacher’s effective reckonable service includes a period that also counts towards another pension payable directly or indirectly out of monies provided by Parliament or paid out of the Scottish Consolidated Fund or the non domestic rates and council tax levied by local authorities (“the double period”).

(2) This regulation does not apply where the other pension is subject to reduction under regulation 33 of the Local Government Pension Scheme (Scotland) Regulations 1998[^f00034] or where the other pension is payable under regulation 16C of the Teachers (Compensation for Premature Retirement and Redundancy) (Scotland) Regulations 1996[^f00035].

(3) Subject to paragraphs (4) and (5), where this regulation applies the teacher’s retirement benefits are reduced by so much as is necessary to secure that A is reduced by B, where–

A is the actuarial value of the retirement benefits in respect of the double period; and

B is the actuarial value of the other pension in respect of that period.

(4) A is not to be reduced to less than the actuarial value of (C + D), where–

C is the contributions paid by the teacher in respect of the double period, including any paid under regulation C8; and

D is interest on those contributions at 3 per cent per annum, compounded with yearly rests, from the first day of the financial year following that in which they were paid to the date on which he or she became entitled to payment of the retirement pension.

(5) A retirement pension is not to be reduced so that so much of it as is attributable to the double period falls below the rate of any equivalent pension benefits attributable to that period.

(6) The other pension mentioned in this regulation includes any sum payable, whether as a continuing allowance or as a lump sum, by way of pension, superannuation allowance, compensation for loss or abolition of office or otherwise in respect of retirement.

Modification for national insurance

E12

Part I of Schedule 9 has effect for modifying the retirement pensions of teachers who were in pensionable employment before 1st April 1980 including retirement pensions that have been actuarially reduced under regulation E7(4).

Pension debit member

E13

(1) The amount of a retirement pension or retirement lump sum payable to a pension debit member shall be reduced to take into account the debit to which the shareable rights of the pension debit member are subject under a pension sharing order.

(2) The amount of the reduction shall be in accordance with the guidance issued for this purpose by the Government Actuary.

Allocation of part of retirement pension

E14

(1) A teacher who has become qualified for retirement benefits may, unless he or she becomes entitled to payment of them by virtue of regulation E6(1)(c), allocate part of his or her retirement pension to the provision of an alternative benefit.

(2) The alternative benefit may be either–

(a) an annuity for life, commencing on the death of the teacher making the allocation (“the allocator”), for a surviving spouse or dependant; or

(b) an annuity payable to the allocator while the allocator and a spouse are both alive, and if the spouse is the survivor a subsequent annuity for life, at twice the rate of the first annuity, for the spouse.

(3) The rates of the annuities mentioned in paragraph (2) are to be determined in accordance with tables prepared by the Government Actuary.

(4) An allocation is to be made by delivering a declaration to the Scottish Ministers, and in paragraph (2) “spouse” refers to status at the time of its delivery.

(5) Further provisions as to allocations under this regulation are contained in Schedule 11.

Duration of retirement pension

E15

Subject to regulations E16 to E19 and E22, a retirement pension under regulation E7 continues to be payable until the death of the person entitled to it.

Suspension and resumption of incapacity pensions

E16

(1) This regulation applies where a teacher who became entitled to payment of a pension on or before 31st March 1997 by virtue of regulation E5(1)(e) of the 1992 Regulations[^f00036] ceases to be incapacitated.

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