Legalize / United Kingdom / Scotland / Scottish-Statutory-Instrument

The National Health Service Pension Scheme (Scotland) Regulations 2008

Type Scottish-Statutory-Instrument

Publication 2008-06-04

State In force

Jurisdiction Scotland

Department Queen's Printer for Scotland

Source legislation.gov.uk

PDF Download

articles Not indexed

Reform history JSON API

(4) In this regulation “the appropriate fraction” means–

(a) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult dependant’s pension is payable under regulation 2.E.1–

(i) one-quarter if there is only one dependent child; and

(ii) one-half if there are 2 or more dependent children;

(b) if there is such a parent or spouse or partner of a parent, but no surviving adult dependant’s pension is payable under regulation 2.E.1–

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are 2 or more dependent children; and

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are 2 or more dependent children.

(5) If–

(a) a surviving adult dependant’s pension is payable under regulation 2.E.1; and

(b) there is a dependent child who is not dependent on the person entitled to that pension,

the rate of the pension in respect of that child for the first 3 months after the deceased’s death is equal to the rate of the member’s pension at the date of death (disregarding any additional pension).

(6) In a case within paragraph (4)(b) or (c), the rate of the pension in respect of the dependent child or children for the period of 6 months beginning with the deceased’s death is equal to the rate of the member’s pension at the date of death (disregarding any reduction made under Chapter 2.H (abatement) and any additional pension).

(7) If the deceased member’s pension was payable under regulation 2.D.4 (early payment of pensions with actuarial reduction), the reference in paragraph (3)(a) and (b) to the member’s pension is a reference to the amount that the member’s pension would have been if it had been calculated without the reduction mentioned in paragraph (2)(b) of that regulation.

(8) For the purposes of paragraphs (3), (5) and (6) any reduction to the member’s pension under regulation 2.D.14 (general option to exchange part of pension for lump sum) will be ignored, except any reduction for the purposes of paragraph (3) where the benefits under this regulation form part of benefits payable under regulation 2.E.15.

Amount of children’s pension under regulation 2.E.8: deceased deferred members

2.E.12

(1) This regulation applies for determining the annual amount of the pension payable under regulation 2.E.8(1) (surviving children’s pensions) if at the date of death the deceased was a deferred member of the scheme who was not also an active member or a pensioner member.

(2) That amount is the appropriate fraction of the basic death pension.

(3) In this regulation “the basic death pension”–

(a) if the deceased died within 12 months after ceasing to be an active member, means the amount that would be the basic death pension for the purposes of regulation 2.E.10 if the deceased had died on the day of so ceasing (disregarding any additional pension); and

(b) otherwise, means the greater of–

(i) 75 per cent of the pension to which the deceased would have been entitled if the deceased had become entitled to a pension under regulation 2.D.1 (normal retirement pensions) on the date of death (disregarding any additional pension); and

(ii) 75 per cent of the pension to which the deceased would have been entitled if the deceased had become so entitled and the pension had been calculated on the assumption that the member was entitled to 10 years' pensionable service (disregarding any additional pension).

(4) In this regulation “the appropriate fraction” means–

(a) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult’s pension is payable–

(i) one-quarter if there is only one dependent child; and

(ii) one-half if there are 2 or more dependent children; and

(b) otherwise–

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are 2 or more dependent children.

Amount of children’s pension under regulation 2.E.8: recent leavers

2.E.13

(1) This regulation applies for determining the annual amount of the pension payable under regulation 2.E.8(1) (surviving children’s pensions) if at the date of death the deceased was a recent leaver (within the meaning of regulation 2.E.6.(3)).

(2) That amount is the appropriate fraction of the basic death pension.

(3) In this regulation–

(a) “the basic death pension” means 75 per cent of the pension to which the deceased would have been entitled if the deceased had become entitled to a pension under regulation 2.D.1 on the date of death and the pension had been calculated on the assumption that the member was entitled to 10 years' pensionable service (disregarding any additional pension); and

(b) “the appropriate fraction” means–

(i) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult’s pension is payable–

(aa) one-quarter if there is only one dependent child; and

(bb) one-half if there are 2 or more dependent children; and

(ii) otherwise–

(aa) one third if there is only one dependent child; and

(bb) two thirds if there are 2 or more dependent children.

Power to increase pension in respect of children not maintained by surviving parent etc.

2.E.14

(1) This regulation applies if–

(a) a member dies leaving a dependent child or children;

(b) there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children; and

(2) The Scottish Ministers may increase the amount of the pension that would otherwise be payable under this Chapter in respect of the dependent child or children.

(3) The increased amount may not exceed the amount that would have been payable under this Chapter if there had been no such surviving parent or spouse or partner of a parent.

Amount of children’s pension under regulation 2.E.8: re-employed pensioners

2.E.15

(1) This regulation applies for determining the annual amount of a pension payable under regulation 2.E.8(1) (surviving children’s pensions) if at the date of death the deceased was an active member who was also a pensioner member of the scheme.

(2) If there is no surviving adult dependant, the rate of the pension in respect of the dependent child or children for the period of 6 months beginning with the deceased’s death is equal to the sum of–

(a) the rate of the deceased’s pensionable pay at the date of death; and

(b) the rate of the pension being received by the deceased at the date of death (after taking account of any abatement under Chapter 2.H).

(3) Subject to paragraph (5), except where a pension is payable at the rate mentioned in paragraph (2), the pension in respect of the member’s later service shall be paid as the appropriate fraction of 75 per cent of the rate of pension described in–

(a) regulation 2.D.8(5) (early retirement on ill health (active members)) if the deceased has not reached the age of 65 on the date of death; or

(b) regulation 2.D.1 (normal retirement pensions) if the deceased has reached the age of 65 on the date of death.

(4) In this regulation “appropriate fraction” has the meaning given in regulation 2.E.10(5).

(5) If any dependent child was a dependent child both at the time when the pensionable service in respect of which the pension is payable ceased and at the date of death, the annual amount of the pension in respect of the dependent child or children is the sum of–

(a) the annual amount that would be payable in respect of the child under regulation 2.E.10 as a result of the member dying whilst an active member if that regulation applied to members who are also pensioner members (disregarding the pensionable service in respect of which the pension is payable (“the pension service”) and any additional pension); and

(b) the annual amount that would be payable in respect of the child under regulation 2.E.11 as a result of the member dying whilst a pensioner member if that regulation applied to members who are also active members (having regard only to the pension service and disregarding any additional pension).

(6) If, apart from this paragraph, the sum of–

(a) the relevant service (as defined in regulation 2.E.10(4)) for the purposes of the calculation of the annual amount referred to in paragraph (5)(a); and

(b) the pension service,

would be less than 10 years' pensionable service, the deceased’s relevant service for the purposes of that calculation is increased by the length of the shortfall.

Lump sum death benefits

Lump sum benefits on death: introduction

2.E.16

(1) If a member, a recent leaver or a deferred member dies before reaching the age of 75, a lump sum is payable in accordance with this Chapter.

(2) Paragraph (1) is subject to the following provisions of this Chapter.

(3) This regulation does not apply if–

(a) the member is–

(i) a pensioner member; or

(ii) a pension credit member who dies after any benefits attributable to the pension credit have become payable; and

(b) the death takes place more than 5 years after the member’s pension becomes payable.

Amount of lump sum: single capacity members and recent leavers (disregarding regulation 2.D.5 employments)

2.E.17

(1) The lump sum payable on the death of an active member, who is not also a deferred member or a pensioner member, is an amount equal to twice the member’s reckonable pay.

(2) The lump sum payable on the death of a pensioner member, who is not also an active member or a deferred member, is, in respect of each pension to which the member is entitled, the lesser of–

(a) an amount equal to 5 times the annual rate of the pension (other than any additional pension), less the amount of the pension payments already made to the member; and

(b) an amount equal to twice the member’s reckonable pay by reference to which the pension was calculated, less any lump sum paid to the member when the pension came into payment as a result of the member exercising the option under regulation 2.D.14 (general option to exchange part of pension for lump sum).

(3) The lump sum payable on the death of a deferred member, who is not an active member or a pensioner member, is an amount equal to the member’s deferred annual pension, multiplied by 2.25.

(4) The lump sum payable on the death of a recent leaver is an amount equal to the deferred annual pension to which the person would have been entitled if the person were entitled to such a pension calculated by reference to the pensionable service the recent leaver was entitled to count in the service that has ceased, multiplied by 2.25.

(5) References in this regulation to a member’s deferred annual pension are to the annual pension, in respect of any period of pensionable service, to which the member would have been entitled under regulation 2.D.1 (normal retirement pensions) if on the date of death the member had become entitled to such a pension (other than any additional pension).

(6) If a pensioner member exercised the option under regulation 2.D.14, the reference in paragraph (2)(a) to the annual rate of the member’s pension is to the pension payable after the exercise of that option.

(7) If a pensioner member exercised the option under regulation 2.D.18 (election to allocate pension), the reference in paragraph (2)(a) to the amount of the pension payments already made to the member is a reference to the amount of the pension payments that would have been made apart from the election.

(8) For the purposes of this regulation, the fact that a person–

(a) is an active member in service in an employment in respect of which the member has exercised the option under regulation 2.D.5 (partial retirement: members aged at least 55);

(b) is a deferred member as a result of service in an employment in respect of which the member has exercised that option; or

is ignored.

Amount of lump sum: dual capacity members (disregarding regulation 2.D.5 employments)

2.E.18

(1) Paragraph (2) applies for determining the lump sum payable by virtue of this regulation on the death of a member who–

(a) was an active member otherwise than in service in an employment in respect of which the member had exercised the option under regulation 2.D.5 (partial retirement: members aged at least 55); and

(b) was also a pensioner member.

(2) The lump sum is an amount equal to the sum of–

(a) 5 times the annual rate of the pension–

(i) payable under regulation 2.D.8(4) (lower tier ill health pension), if the deceased had not reached the age of 65 on the date of death; or

(ii) payable under regulation 2.D.1 (normal retirement pensions), if the deceased had reached the age of 65 on the date of death,

to which the member would have been entitled on the date of death; and

(b) in respect of each pension to which the person has been entitled for less than 5 years, the lesser of–

(i) 5 times the annual rate of the pension payable after exercising any option under regulation 2.D.14 (general option to exchange part of pension for lump sum), less the amount of the pension payments already made to the member; and

(ii) an amount equal to twice the member’s reckonable pay by reference to which the pension was calculated, less any lump sum paid to the member when the pension came into payment as a result of the member exercising the option under regulation 2.D.14 (general option to exchange part of pension for lump sum).

(3) If the pensioner member exercised the option under regulation 2.D.18 (election to allocate pension), the reference in paragraph (2)(b) to the amount of the pension payments already made to the member is a reference to the amount of the pension payments that would have been made apart from the election.

Amount of lump sum: dual capacity members: members with pensions under regulation 2.D.5

2.E.19

(1) Paragraph (2) applies for determining the lump sum payable by virtue of this regulation on the death of a member who–

(a) is an active member in service in an employment in respect of which the member has exercised the option under regulation 2.D.5 (partial retirement: members aged at least 55); and

(b) is a pensioner member by virtue of being entitled to a pension under that regulation.

(2) The lump sum is an amount equal to the sum of–

(a) twice the appropriate fraction of the member’s final pensionable pay in that employment at the date of death; and

(b) if the member had been entitled to any pensions under regulation 2.D.5 for less than 5 years, the lesser of–

(i) the total of the guarantee amounts for each of those pensions (see paragraph (3)); and

(ii) the aggregate lump sum cap (see paragraph (4)).

(3) The guarantee amount for a pension under regulation 2.D.5 is 5 times the annual rate of the pension at the date of death, less the amount of the pension payments already made to the member in respect of the pension.

(4) The aggregate lump sum cap is equal to twice the appropriate fraction of the reckonable pay by reference to which the pension to which the member became entitled on last exercising the option under regulation 2.D.5 was calculated, less the total of any lump sums paid to the member in exchange for pensions under regulation 2.D.5 as a result of the member exercising the option under regulation 2.D.14 (general option to exchange part of pension for lump sum).

(5) In this regulation “the appropriate fraction” means–

$$DPSTDPS$ where– DPS is, where the member continues in pensionable service as an active member on the option day (or the last such option day if the option has been exercised more than once), the total number of days which do not form part of the specified percentage of pensionable service at the option day; and TDPS is the aggregate of DPS and the total number of days of pensionable service (at the option day or the last such option day if the option has been exercised more than once) which forms part of the specified percentage of pensionable service.$

Amount of lump sum: pension credit members

2.E.20

(1) The lump sum payable on the death of a pension credit member who dies before any benefits derived from the member’s pension credit have become payable is an amount equal to the amount of the annual pension to which the member would have become entitled under regulation 2.D.2 (pension credit members) if the member had reached the age of 65 on the date of death, multiplied by 2.25.

(2) The lump sum payable on the death of a pension credit member who dies after a pension under that regulation has become payable is equal to the lower of–

(a) the annual amounts of the pension that would have been payable to the member during so much of the period of 5 years beginning with the date on which the pension became payable as falls after the date of death; and

$$2RP-CLS,$ where– RP is the amount as at the valuation day of the reckonable pay of the debit member from whose rights the pension credit member’s pension credit is derived; and CLS is the amount of the lump sum (if any) paid to the pension credit member as a result of the member exercising the option under regulation 2.D.14 (general option to exchange part of pension for lump sum) on becoming entitled to the pension under regulation 2.D.2.$

(3) For the purposes of paragraph (2) the annual amount of the pension is taken to be the sum of–

(a) the annual amount of the pension as at the beginning date for that pension; and

(b) the increase (if any) in that annual amount under the Pensions (Increase) Act 1971 payable as at the date of death.

(4) In this regulation–

“valuation day” means the day referred to in section 29(7) (the pension and annuity requirements) of the 1999 Act; and

“the beginning date”, in relation to a pension, has the meaning given by section 8(2A) (meaning of “pension”, and other supplementary provisions) of the Pensions (Increase) Act 1971.

Payment of lump sums on death

2.E.21

(1) A lump sum payable under regulation 2.E.16 (lump sum benefits on death: introduction) must be paid in accordance with this regulation.

(2) The lump sum must be paid to the member’s personal representatives, except so far as it is payable to a different person under paragraph (4) or (6).

(3) A member may give notice to the Scottish Ministers–

(a) specifying–

(i) the member’s personal representatives;

(ii) one or more other individuals; or

(iii) one incorporated or unincorporated body,

to whom the lump sum is to be paid; and

(b) where 2 or more individuals are specified, the percentage of the payment payable to each of them.

(4) If the member–

(a) has given notice under paragraph (3) specifying a person; and

(b) has not revoked that notice,

the lump sum (or, as the case may be, the percentage of it specified in respect of the person) may be paid to the person, unless paragraph (5) or (7) applies.

(5) This paragraph applies if–

(a) the person specified in the notice has died before the payment can be made; or

(b) payment to that person is not, in the opinion of the Scottish Ministers, reasonably practicable.

(6) If the member–

(a) leaves a surviving adult dependant; and

(b) has not given notice under paragraph (3) or has revoked any notice so given,

the lump sum may be paid to that person unless paragraph (7) applies.

(7) This paragraph applies if the person to whom the lump sum (or a specified percentage of the lump sum) would otherwise be payable has been convicted of an offence specified in regulation 2.J.7(2) (forfeiture of rights to benefit) and the Scottish Ministers have directed, as a consequence of that conviction, that the person’s right to a payment in respect of the member’s death is forfeited.

(8) A notice under paragraph (3)–

(a) must be given in writing; and

(b) may be revoked at any time by a further notice in writing.

(9) The Scottish Ministers may pay the lump sum to any person claiming to be the member’s personal representative or otherwise to fall within paragraph (3)(a), without requiring proof that the person is such a person concerned, if the lump sum does not exceed–

(a) £5,000; or

(b) any higher amount specified in an order made under section 6(1) of the Administration of Estates (Small Payments) Act 1965[^f00066] as the amount to be treated as substituted for references to £500 in section 1 of that Act.

Tax treatment under the 2004 Act of lump sums payable on pensioners' deaths

2.E.22

(1) A pensioner’s lump sum (less any amount deducted under paragraph (4) where that applies) is treated for the purposes of the 2004 Act as a pension protection lump sum death benefit if the member has given the scheme administrator a statement in writing that any such lump sum is to be treated as such a benefit.

(2) In this regulation “pensioner’s lump sum” means–

(a) a lump sum payable under regulation 2.E.16 to which regulation 2.E.17(2) applies; or

(b) so much of a lump sum payable under regulation 2.E.16 as is calculated under regulation 2.E.18(2).

(3) Paragraph (4) applies if the person who is the scheme administrator for the purposes of section 206 of the 2004 Act (“the administrator”) is liable for tax under that section in respect of a pension protection lump sum death benefit.

(4) The administrator may deduct from the lump sum the tax payable in respect of it.

Miscellaneous and general provisions

Death during period of absence

2.E.23

(1) This regulation applies if a person dies during a period when the person–

(a) is absent from work because of illness or injury;

(b) is on ordinary maternity leave;

(d) is on paternity leave or parental leave,

and the earnings used to calculate the person’s pensionable pay have ceased to be paid before the person’s death.

(2) Any benefits payable under this Chapter must be calculated as if the person had died in pensionable service on the day before those earnings ceased.

Polygamous marriages

2.E.24

(1) This regulation applies if–

(a) a member dies without leaving a surviving adult dependant; and

(b) at the date of death the member was married to one or more persons under a law which permits polygamy.

(2) If, had the member left a surviving adult dependant, any benefit would have been payable to the surviving adult dependant as such, that benefit is payable–

(a) if there is one such person, to that person; or

(b) if there are 2 or more such persons, to those persons in equal shares.

(3) Such a person’s or persons' share of a pension will not be increased on the death of any other such person.

Dual capacity membership: death benefits

2.E.25

(1) This paragraph applies if the deceased member was–

(a) a member of the scheme of 2 or more of the kinds specified in paragraph (2);

(b) a pensioner member in respect of 2 or more pensions; or

(2) The kinds of member are–

(a) an active member;

(b) a deferred member;

(d) a pension credit member.

(3) If paragraph (1) applies, the general rule is that–

(a) benefits are payable in respect of the member under this Chapter as if 2 or more members of the kinds in question had died (so that 2 or more pensions or lump sums are payable in respect of the one deceased member); and

(b) the amounts payable are determined accordingly.

(4) Paragraph (3) does not apply where specific provision to the contrary is made about a person to whom that paragraph would otherwise apply.

(5) In relation to the specific provision mentioned in paragraph (4), see, in particular–

(a) regulation 2.E.3 (amount of pensions under regulation 2.E.1: active members);

(b) regulation 2.E.4 (amount of pensions under regulation 2.E.1: pensioner members);

(d) regulation 2.E.8 (surviving children’s pensions);

(e) regulation 2.E.15 (amount of children’s pension under regulation 2.E.8: re employed pensioners);

(f) regulation 2.E.16 (lump sum benefits on death: introduction);

(g) regulation 2.E.18 (amount of lump sum: dual capacity members (disregarding regulation 2.D.5 employments));

(h) regulation 2.E.19 (amount of lump sum: dual capacity members: members with pensions under regulation 2.D.5); and

(i) Chapter 2.G (re-employment and rejoining the scheme).

(6) If a person who is a pension credit member is entitled to 2 or more pension credits–

(a) benefits are payable in respect of the person under this Chapter as if the person were 2 or more persons, each being entitled to one of the pension credits (so that 2 or more pensions or lump sums are payable in respect of the one pension credit member); and

(b) the amounts of those benefits are determined accordingly.

Guaranteed minimum pensions for surviving spouses and civil partners

2.E.26

(1) If a person who is the surviving spouse or civil partner of a deceased active, deferred or pensioner member has a guaranteed minimum under section 17 of the 1993 Act in relation to benefits in respect of the deceased member under the scheme–

(a) nothing in this Part permits or requires anything that would cause requirements made by or under that Act in relation to such a person and such a person’s rights under a scheme not to be met in the case of the person;

(b) nothing in this Part prevents anything from being done which is necessary or expedient for the purposes of meeting such requirements in the case of the person; and

(2) If apart from this regulation–

(a) no pension would be payable to the surviving spouse or civil partner under this Chapter; or

(b) the weekly rate of the pensions payable would be less than the guaranteed minimum,

a pension the weekly rate of which is equal to the guaranteed minimum is payable to the surviving spouse or civil partner for life or, as the case may be, pensions the aggregate weekly rate of which is equal to the guaranteed minimum are so payable.

(3) Paragraph (2) does not apply to a pension that is forfeited–

(a) as a result of a conviction for treason; or

(b) in a case where an offence within regulation 2.J.7(2)(b) (forfeiture of rights to benefits) is committed.

CHAPTER 2.F — TRANSFERS

Transfers out

Introduction: rights to transfer value payment

2.F.1

(1) This Chapter supplements the rights conferred by or under Chapter 4 of Part 4 of the 1993 Act (transfer values).

(2) This Chapter is without prejudice to that Chapter or Chapter 5 of that Part[^f00067] (early leavers: cash transfer sums and contribution refunds).

(3) Accordingly–

(a) a member to whom Chapter 4 of that Part applies (see section 93(1)(a) of that Act) is entitled to require the payment of a transfer value in respect of the rights to benefit that have accrued to or in respect of the member under the scheme; and

(b) a member to whom Chapter 5 of that Part applies (see section 101AA(1) of that Act) is entitled to a cash transfer sum or a contribution refund in accordance with that Chapter.

(4) Subject to paragraph (5) and the other provisions of this Chapter, any other member is entitled to require such a payment as if such rights had accrued to or in respect of him or her by reference to the pensionable service the member is entitled to count under the scheme (and references in this Chapter to the member’s accrued rights or benefits are to be read accordingly).

(5) Paragraph (4) does not–

(a) give any rights to an active member;

(b) give any rights to a pensioner member in respect of the pension to which the member has become entitled; or

Applications for statements of entitlement

2.F.2

(1) A member who requires a transfer value payment to be made must apply in writing to the Scottish Ministers for a statement of the amount of the cash equivalent of the member’s accrued benefits under the scheme at the guarantee date (a “statement of entitlement”).

(2) In this Part, “the guarantee date” means any date that–

(a) falls within the required period;

(b) is chosen by the Scottish Ministers,

(d) is within the period of 10 days ending with the date on which the member is provided with the statement of entitlement.

(3) The member may withdraw the application for a statement of entitlement by notice in writing at any time before the statement is provided.

(4) In paragraph (2) “the required period” means–

(a) the period of 3 months beginning with the date of the member’s application for a statement of entitlement; or

(b) such longer period beginning with that date (but not exceeding 6 months) as may reasonably be required if, for reasons beyond the control of the Scottish Ministers, the requisite information cannot be obtained to calculate the amount of the cash equivalent.

(5) In counting the period of 10 days referred to in paragraph 2(d), Saturdays, Sundays, Christmas Day, New Year’s Day and Good Friday are excluded.

Applications for transfer value payments: general

2.F.3

(1) A member who has applied for and received a statement of entitlement under regulation 2.F.2 may apply in writing to the Scottish Ministers for a transfer value payment to be made.

(2) On making such an application a member becomes entitled to a payment of an amount equal, or amounts equal in aggregate, to the amount specified in the statement of entitlement (or such other amount as may be payable by virtue of regulation 2.F.4(2)).

(3) In this Part such a payment is referred to as “the guaranteed cash equivalent transfer value payment”.

(4) The application must specify the pension scheme or other arrangement to which the payment or payments should be applied.

(5) The application must meet such other conditions as the Scottish Ministers may require.

(6) An application under this regulation may be withdrawn by notice in writing to the Scottish Ministers, unless an agreement for the application of the whole or part of the guaranteed cash equivalent transfer value payment has been entered into with a third party before the notice is given.

Applications for transfer value payments: time limits

2.F.4

(1) Subject to paragraph (4), an application under regulation 2.F.3(1) must be made before the end of the period of 3 months beginning with the guarantee date, and the payment must be made no later than–

(a) 6 months after that date; or

(b) if it is earlier, the date on which the member reaches 65.

(2) If the payment is made later than 6 months after the guarantee date, the amount of the payment to which the member is entitled must be increased by–

(a) the amount by which the amount specified in the statement of entitlement falls short of the amount it would have been if the guarantee date had been the date on which the payment is made; or

(b) if it is greater and there was no reasonable excuse for the delay in payment, interest on the amount specified in the statement of entitlement, calculated on a daily basis over the period from the guarantee date to the date when the payment is made at an annual rate of 1 per cent above the base rate.

(3) Paragraph (4) applies if–

(a) disciplinary or court proceedings against the member are begun within 12 months after the member leaves the employment which qualified the member to belong to the scheme; and

(b) it appears to the Scottish Ministers that the proceedings may lead to all or part of the member’s benefits being forfeited under regulation 2.J.7 (forfeiture of rights to benefit).

(4) The Scottish Ministers may defer doing what is needed to carry out what the member requires until the end of the period of 3 months beginning with the date on which those proceedings (including any proceedings on appeal) are concluded.

(5) In any case where a direction is given under regulation 2.J.7 for the forfeiture of a member’s benefits, this regulation applies as if the amount specified in the statement of entitlement were reduced by an amount equal to the value of the benefits forfeited, as determined by the scheme actuary.

(6) In respect of an applicant who does not fall within regulation 2.D.1(2 (normal retirement pension)–

(a) in the case of whose application requires the guaranteed cash equivalent transfer value payment to be made to a registered occupational pension scheme or a registered personal pension scheme, an application under paragraph (1) may only be made if–

(i) the applicant became a member of that scheme not later than the end of the period of 12 months beginning with the day after the date on which the member ceased to be in the pensionable service in which the rights accrued (“the leaving date”); and

(ii) the application is made not later than–

(aa) the end of the period of 12 months beginning with the day on which the applicant became a member of that scheme; or

(bb) if the applicant became a member of that scheme on or before the leaving date, the end of the period of 12 months beginning with the day after the leaving date.

(b) in any other case, an application under paragraph (1) may only be made before the end of the period of 12 months beginning with the day after the leaving date.

Ways in which transfer value payments may be applied

2.F.5

(1) A member may only require the Scottish Ministers to apply the guaranteed cash equivalent transfer value payment in one or more of the ways permitted under section 95 (ways of taking right to cash equivalent) of the 1993 Act.

(2) Paragraph (1) applies whether or not the member is entitled to a guaranteed cash equivalent transfer value payment under Chapter 4 of Part 4 of that Act.

(3) The whole of the guaranteed cash equivalent transfer value payment must be applied, unless paragraph (4) applies.

(4) The benefits attributable to–

(a) the member’s accrued rights to a guaranteed minimum pension; or

(b) the member’s accrued rights attributable to service in contracted-out employment on or after 6th April 1997,

may be excluded from the guaranteed cash equivalent transfer value payment if section 96(2) (further provisions concerning exercise of option under s.95) of the 1993 Act applies (trustees or managers of certain receiving schemes or arrangements able and willing to accept a transfer payment only in respect of the member’s other rights).

(5) A transfer payment may only be made to–

(a) a pension scheme that is registered under Chapter 2 of Part 4 of the 2004 Act; or

(b) an arrangement that is a qualifying recognised overseas pension scheme for the purposes of that Part (see section 169(2) (recognised charges) of that Act).

Calculating amounts of transfer value payments

2.F.6

(1) Subject to paragraphs (3) and (5), the amount of the guaranteed cash equivalent transfer value payment is to be calculated in accordance with guidance and tables provided by the scheme actuary to the Scottish Ministers for use at the guarantee date.

(2) In preparing those tables the scheme actuary must use such factors as the scheme actuary considers appropriate, having regard to section 97 of the 1993 Act and regulations made under that Act (whether or not the payment is in respect of a person entitled to a guaranteed cash equivalent transfer value payment under that Act).

(3) Subject to paragraph (5), if the amount calculated in accordance with paragraph (1) is less than the member’s minimum transfer value (if any), the amount of the guaranteed cash equivalent transfer value payment is to be equal to that value instead.

(4) In paragraph (3) “minimum transfer value”, in relation to any person, means the sum of–

(a) any transfer value payments that have been made to the scheme in respect of the person as a result of which the person is entitled to count any pensionable service under the scheme by reference to which the accrued rights subject to the transfer are calculated; and

(b) any contributions paid by the person under Chapter 2.C (contributions) as a result of which the person is entitled to count such service.

(5) If the transfer value payment is made under the public sector transfer arrangements, the amount of the transfer value payment is calculated–

(a) in accordance with those arrangements rather than paragraphs (1) and (3); and

(b) by reference to the guidance and tables provided by the scheme actuary for the purposes of this paragraph that are in use on the date used for the calculation.

Effect of transfers-out

2.F.7

(1) If a transfer value payment is made under this Chapter in respect of a person’s rights under the scheme, those rights are extinguished.

Transfers in

Right to apply for acceptance of transfer value payment from another scheme

2.F.8

(1) Subject to the provisions of this Chapter, an active member may apply for a transfer value payment in respect of some or all of the rights that have accrued to or in respect of him or her under any kind of scheme or arrangement to which paragraph (2) applies, other than a FSAVC, to be accepted by the scheme.

(2) This paragraph applies to–

(a) a registered occupational pension scheme;

(b) a registered personal pension scheme;

(d) a corresponding health service scheme.

(3) Paragraph (1) does not apply to rights that are directly attributable to a pension credit.

(4) In this regulation “FSAVC” means–

(a) a scheme which–

(i) immediately before 6th April 2006 was approved by the Commissioners for Her Majesty’s Revenue and Customs by virtue of section 591(2)(h) of the Income and Corporation Taxes Act 1988 (free-standing AVC schemes)[^f00068]; and

(ii) became a registered scheme for the purposes of that Act by virtue of Schedule 36 to that Act; or

(b) a scheme established on or after that date as a registered free-standing AVC scheme.

Procedure for applications under regulation 2.F.8

2.F.9

(1) An application under regulation 2.F.8–

(a) must be made in writing;

(b) must specify the scheme or arrangement from which the transfer value payment is to be made and the anticipated amount of the payment;

(c) except in the case of a member whose transfer value payment is from a corresponding health service scheme may only be made during the period of one year beginning with the day on which the applicant becomes eligible to be an active member of the scheme;

(d) must be made before the applicant reaches the age of 65;

(e) if the Scottish Ministers so require, may only be made if the member has first requested a statement–

(i) in the case of a transfer made under the public sector transfer arrangements, of the service that the member will be entitled to count as a result of the transfer if the payment is accepted by the Scottish Ministers; and

(ii) in a case where the transfer is not made under those arrangements, of the service that member will be entitled so to count if the payment is so accepted by the Scottish Ministers within such period as is specified in the statement; and

(f) must meet such other conditions as the Scottish Ministers may require.

(2) A statement given to the member in pursuance of a such a request as is mentioned in paragraph (1)(e)–

(a) in the case mentioned in paragraph (1)(e)(i), must inform the member of the effect (if any) of regulation 2.A.12 (restriction on reckonable pay used for calculating benefits in respect of capped transferred-in service) in the member’s case; and

(b) in the case mentioned in paragraph (1)(e)(ii), must specify such amount as is calculated in accordance with guidance and tables provided by the scheme actuary for the purpose.

Acceptance of transfer value payments

2.F.10

(1) If an application is duly made by a member under regulation 2.F.8, the Scottish Ministers may accept the transfer value payment if such conditions as the Scottish Ministers may require are met, unless paragraph (5) applies.

(2) If the Scottish Ministers accept the payment–

(a) the member is entitled to count the appropriate period of pensionable service for the purposes of calculating benefits payable to or in respect of the member under the scheme; and

(b) in the case of a member any of whose service falls to be treated as capped transferred-in service, with such period as so falls counting as such service.

(3) In paragraph (2)(a) “the appropriate period” means the period calculated in accordance with regulation 2.F.11.

(4) For the meaning of “capped transferred-in service”, see regulation 2.F.12.

(5) The Scottish Ministers may not accept a transfer value payment if–

(a) it would be applied in whole or in part in respect of the member’s or the member’s spouse’s entitlement to a guaranteed minimum pension; and

(b) it is less than the amount required for that purpose, as calculated in accordance with guidance and tables prepared by the scheme actuary for the purposes of this paragraph.

(6) Paragraph (5) does not apply if the transfer would be paid under the public sector transfer arrangements.

Calculation of transferred-in pensionable service

2.F.11

(1) Subject to this regulation, the period of service that the member is entitled to count under regulation 2.F.10 as the result of a transfer is to be calculated in accordance with any guidance and tables provided by the scheme actuary for that purpose.

(2) For the purposes of the calculation under paragraph (1) the member’s annual pensionable pay is to be taken to be the amount of that pay as at the day on which the member’s pensionable service begins (“the starting day”), unless paragraph (3) applies.

(3) If the transfer payment is received by the Scottish Ministers more than 12 months after the starting day, the member’s annual pensionable pay is to be taken to be the amount of that pay as at the day on which the transfer payment is received.

(4) But paragraph (3) does not apply if–

(a) a written statement estimating the pensionable service that the member would be entitled to count as result of the transfer was given to the member by the Scottish Ministers during the period of 3 months ending 12 months after the starting day; and

(b) the transfer payment is received by the Scottish Ministers less than 3 months after the date of the statement.

(5) If the transfer value payment is accepted under the public sector transfer arrangements, the period of pensionable service the member is entitled to count is calculated–

(a) in accordance with those arrangements; and

(b) by reference to the guidance and tables provided by the scheme actuary for the purposes of this paragraph, that are in use on the date that is used by the transferring scheme for calculating the transfer value payment.

(6) If the transfer value payment is accepted from a corresponding health service scheme, the period of pensionable service the member is entitled to count is the period that the member would be entitled to count if–

(a) the member’s employment to which that scheme applied were NHS employment in respect of which the member was a member of the scheme; and

(b) the member’s contributions to that scheme were contributions to the scheme.

(7) In this Part “corresponding health service scheme” means–

(a) a superannuation scheme provided under regulations made under section 10 of the Superannuation Act 1972[^f00069] and having effect in England and Wales;

(b) a superannuation scheme provided under Article 12 of the Superannuation (Northern Ireland) Order 1972[^f00070];

(d) any other occupational pension scheme approved for the purposes of this regulation by the Scottish Ministers.

Meaning of “capped transferred-in service”

2.F.12

(1) This regulation applies if–

(a) the Scottish Ministers accept a transfer value payment in respect of a member under a transfer to which the public sector transfer arrangements apply; and

(b) the service in respect of which the transfer is made was, or included, capped service in employment to which the scheme from which the transfer value payment is made (“the transferring scheme”) applied.

(2) For the purposes of this Part, the same proportion of the service that the member is entitled to count under regulation 2.F.10(2)(a) as the capped service bears to the whole of the service in respect of which the transfer is made is capped transferred-in service.

(3) For the purposes of paragraph (1)(b), the service in respect of which the transfer is made was capped service so far as–

(a) in the case of service before 6th April 2006, the member was an active member of the transferring scheme whose pension under that scheme in respect of the service was to be calculated by reference to remuneration limited in each tax year to the permitted maximum for that year within the meaning of section 590C(2) (earnings cap) of the Income and Corporation Taxes Act 1988[^f00072]; or

(b) in the case of service on or after 6th April 2006, the member was an active member of the transferring scheme whose pension under that scheme in respect of the service was to be calculated by reference to remuneration limited in each tax year to an amount calculated in the same manner as the permitted maximum under that section was calculated for tax years ending before that date.

(4) For the purposes of paragraph (3), it does not matter whether, apart from the application of the limit, the member’s remuneration in any tax year would have exceeded the amount of the limit.

Public sector transfer arrangements

2.F.13

(1) This Chapter applies in the case of a transfer to which the public sector transfer arrangements apply as it applies in other cases, except to the extent that–

(a) any provision in this Chapter provides otherwise; or

(b) the arrangements themselves make different provision.

Bulk transfers out

2.F.14

(1) This regulation applies if–

(a) the employment of one or more active members (“the transferring employees”) is transferred without their consent to a new employer;

(b) on that transfer the transferring employees cease to be eligible to be active members of the scheme;

(c) after that transfer the transferring employees become active members of another occupational pension scheme (“the new employer’s scheme”);

(d) the Scottish Ministers have agreed special terms for the making of transfer value payments in respect of the transferring employees to the new employer’s scheme, after consultation with the scheme actuary; and

(e) the transferring employees have consented in writing to their rights being transferred in accordance with those terms.

(2) In the case of the transferring members or the transferred members the transfer value payment to be paid–

(a) is not calculated in accordance with regulation 2.F.6; and

(b) is to be such amount as the Scottish Ministers determine to be appropriate in accordance with the special terms after consulting the scheme actuary.

(3) This Chapter has effect with such modifications as are necessary to give effect to those terms.

(4) If the transfer is directly or indirectly attributable to an enactment, this Chapter has effect with such modifications as the Scottish Ministers consider necessary in consequence of the transfer.

(5) Where a member to whom this regulation applies is also a member to whom Part 3 applies, a bulk transfer under this regulation also operates as a transfer of that member’s rights under Part 3.

Bulk transfers in

2.F.15

(1) This regulation applies if–

(a) the employment of one or more persons (“the transferred employees”) is transferred without their consent to a new employer;

(b) on that transfer the transferred employees cease to be active members of an occupational pension scheme (“the former employer’s scheme”);

(d) the Scottish Ministers have agreed special terms for the acceptance of transfer value payments in respect of the transferred employees from the former employer’s scheme, after consulting the scheme actuary; and

(e) the transferred employees have consented in writing to their rights being transferred in accordance with those terms.

(2) The scheme has effect with such modifications as are necessary to give effect to the terms mentioned in paragraph (1)(e).

(3) If the transfer is directly or indirectly attributable to an enactment, the scheme has effect with such modifications as the Scottish Ministers consider necessary in consequence of the transfer.

EU and other overseas transfers

2.F.16

(1) This regulation applies in the case of a member whose transfer is subject to transfer arrangements concluded with any scheme for the provision of retirement benefits established outside the United Kingdom.

(2) The scheme applies in relation to the member with such modifications as the Scottish Ministers consider necessary to comply with–

(a) the terms of those arrangements;

(b) any applicable provision contained in or made under any enactment; and

CHAPTER 2.G — RE-EMPLOYMENT AND REJOINING THE SCHEME

Preliminary

Application of Chapter 2.G

2.G.1

(1) Subject to paragraphs (4) to (7), this Chapter applies to persons who–

(a) have been active members of the scheme in respect of their service in an employment;

(b) have ceased to be employed in that employment and have become deferred members or pensioner members of the scheme because of their rights in respect of that service;

(d) become active members of the scheme in respect of their service in that employment.

(2) In these regulations a member to whom this Chapter applies is referred to as a “re-employed member”.

(3) In this Chapter, in relation to any re-employed member–

(a) the service referred to in paragraph (1)(a) is referred to as “the earlier service”; and

(b) the service referred to in paragraph (1)(d) is referred to as “the later service”.

(4) This Chapter also applies to members who–

(a) cease to be active members in respect of their service in an employment as the result of exercising the option under regulation 2.B.5 (opting out of the scheme); and

(b) later become active members in that or another employment,

as it applies to members who cease to be employed in the employment in which they are active members, and paragraph (3) must be read accordingly.

(5) This Chapter does not apply if the earlier service and the later service are treated as a single continuous period of pensionable service under regulation 2.A.4(5) (pensionable service: breaks in service).

(6) Regulation 2.G.4 applies whether or not the employment mentioned in paragraph (1)(c) is employment that qualifies the member to belong to the scheme.

(7) Regulation 2.G.6 (deferred pension becoming payable during NHS re-employment as a result of a transfer of undertaking) applies whether or not the deferred member becomes an active member in the NHS employment in which the deferred member is re-employed.

(8) If a re-employed member ceases to be an active member again, this Chapter applies again in respect of the later service as if it were the earlier service (and so on).

General rule: separate treatment of service etc. except where unfavourable to member

General rule: separate treatment of service etc.

2.G.2

(1) The general rule is that, in accordance with regulations 2.D.21 (dual capacity membership) and 2.E.25 (dual capacity membership: death benefits)–

(a) the re-employed member’s pensionable service in respect of the earlier service and the later service are treated separately; and

(b) the re-employed member’s reckonable pay in respect of the earlier service and the later service are determined separately.

(2) This regulation is subject to the provisions mentioned in regulations 2.D.21(4) and 2.E.25(5).

Exception to general rule in regulation 2.G.2

2.G.3

(1) The general rule in regulation 2.G.2 does not apply if–

(a) at the time that the member first becomes entitled to a pension under the scheme in respect of the earlier service or the later service; or

(b) if it is earlier, at the time of the member’s death,

in the opinion of the Scottish Ministers the benefits payable to or in respect of the member would be more valuable if that general rule were disregarded.

(2) Accordingly, in a case within paragraph (1)–

(a) the member’s pensionable service in respect of the earlier service and the later service are treated as one single continuous period;

(b) the member’s qualifying service in respect of the earlier service and the later service are each treated as one single continuous period;

(d) the member’s reckonable pay in respect of the later period may be determined by reference to the earlier period as well as the later period (as a result of regulation 2.A.10(8) (meaning of “reckonable pay”: general)).

(3) This regulation is subject to regulation 2.G.6.

Special rules about re-employment of ill health pensioners

Effect of re-employment on upper tier ill health pensions

2.G.4

(1) This regulation applies if a member who is entitled to an upper tier ill health pension under regulation 2.D.8 in respect of earlier service–

(a) did not opt to exchange that pension for a lump sum in accordance with regulation 2.D.15 (option for members in serious ill health to exchange whole pension for lump sum); and

(b) has re-entered further employment (the “further employment”).

(2) Subject to paragraphs (3) and (4), the member ceases to be entitled to the upper tier ill health pension under regulation 2.D.8 (early retirement on ill health (active members)), and becomes entitled to a lower tier ill health pension under that regulation.

(3) In a case where the further employment is–

(a) not NHS employment; and

(b) an excluded employment,

paragraph (2) does not apply.

(4) In a case where the further employment is–

(a) NHS employment; and

(b) an excluded employment,

paragraph (2) does not apply during the initial period.

(5) As regards a further employment in NHS employment–

(a) paragraph (2) applies from the first lower tier ill health pension payment date which falls after the first anniversary of the member’s re-entry into NHS employment, whether or not that day is part of a continuous period of further NHS employment beginning with entry into that employment; and

(b) the member may not rejoin the scheme in respect of that employment or any other NHS employment until after the first anniversary of the member’s re-entry into NHS employment, whether or not that or any other NHS employment is an excluded employment.

(6) For the purposes of this regulation–

(a) an employment is an excluded employment at any time in a tax year, in relation to a member, if the member’s earnings at that time for the purposes of national insurance from the employment and any other employments are such that the lower earnings limit for that year is not exceeded;

(b) for the purposes of paragraph (2) an employment that has been an excluded employment in a tax year is not treated as ceasing to be such an employment until the first day following the end of the pension pay period for the upper tier ill health pension in which the limit described in sub paragraph (a) is first exceeded; and

(c) “the initial period” means the period of 12 months beginning with the day on which the member first enters an employment which results in this regulation applying.

(7) A member who, before attaining the age of 65, has ceased to be entitled to an upper tier ill health pension under paragraph (2), and who–

(a) is in further NHS employment and ceases to be employed at all during the initial period; or

(b) is in further employment that is not NHS employment and ceases to be employed in that further employment within a period of one year beginning with the day on which that further employment ceased to be an excluded employment,

may apply to the Scottish Ministers under this paragraph to become entitled to an upper tier ill health pension.

(8) An application under paragraph (7)–

(a) where paragraph (7)(a) applies, must–

(i) state that the member has ceased to be employed at all;

(ii) be made within the initial period; and

(iii) be made in writing and be accompanied by evidence from a registered medical practitioner that the member meets the condition in regulation 2.D.8(3)(a); and

(b) where paragraph (7)(b) applies, must–

(i) state that the member has ceased to be employed at all;

(ii) be made within a period of one year beginning with the day on which that employment ceased to be an excluded employment; and

(iii) be made in writing and be accompanied by evidence from a registered medical practitioner that the member meets the condition in regulation 2.D.8(3)(a).

(9) If on an application under paragraph (7) the Scottish Ministers are satisfied that the member meets the condition in regulation 2.D.8(3)(a), from the day following that on which the member’s last employment ceased–

(a) the member ceases to be entitled to the lower tier ill health pension under regulation 2.D.8; and

(b) becomes entitled to an upper tier ill health pension under that regulation in respect of the earlier service.

(10) A member who falls within paragraph (1) must–

(a) notify the Scottish Ministers if the member is in NHS employment at the end of the initial period;

(b) notify the Scottish Ministers if the member’s aggregate earnings for the purposes of national insurance from employments held in a tax year are such that the lower earnings limit for that year is exceeded; and

(c) provide the Scottish Ministers or any other person specified by the Scottish Ministers with such further information as the Scottish Ministers specify concerning any further employment.

(11) This regulation is subject to regulation 2.G.5.

Re-employed lower tier ill health pensioners

2.G.5

(1) This regulation applies to re-employed members who are entitled to a lower tier ill health pension under regulation 2.D.8 in respect of the earlier service.

(2) For the purposes of determining whether a member can count 45 years of pensionable service for any purpose, the earlier service and the later service are aggregated.

(3) If the re-employed member became entitled to a lower tier ill health pension for the earlier service, and on the termination of the later service the member becomes entitled to–

(a) a lower tier ill health pension; or

(b) an upper tier ill health pension,

under regulation 2.D.8 in respect of the later service, the re-employed member is entitled to the benefits set out in paragraph (4).

(4) The benefits mentioned in paragraph (3) are–

(a) the member’s original lower tier ill health pension in respect of his or her earlier service; and

(b) a lower tier or, as the case may be, upper tier ill health pension in respect of the later service.

Special rule for members transferred out on transfer of undertaking

Deferred pension becoming payable during NHS re-employment as a result of a transfer of undertaking

2.G.6

(1) This regulation applies if a re-employed member becomes entitled to a pension under regulation 2.D.1 (normal retirement pensions) or 2.D.4 (early payment of pensions with actuarial reduction) by virtue of the application of regulation 2.D.13(2)(a) (transfer of undertaking to employing authority).

(2) Regulation 2.G.3 does not apply.

(3) Subject to paragraph (4), accordingly, any benefits payable in respect of the later service are calculated without regard to pensionable service in respect of the earlier service.

(4) For the purposes of determining whether a member can count 45 years pensionable service for any purpose, the earlier service and the later service are aggregated.

CHAPTER 2.H — ABATEMENT

Application of Chapter 2.H

2.H.1

(1) This Chapter applies if–

(a) a person who is a pensioner member of the scheme is employed in NHS employment;

(b) the person’s employment is not employment to which the person was transferred as a result of a transfer of an undertaking to the person’s employer;

(i) regulation 2.D.8 (early retirement on ill health: active members);

(ii) regulation 2.D.10 (early retirement on ill health: deferred members); or

(iii) regulation 2.D.11(1)(d)(ii) (early retirement on termination of employment by employing authority) in a case where the Scottish Ministers certified that the member’s employment was terminated in the interests of the efficiency of the service in which the member was employed; and

(d) the person has not reached the age of 65.

(2) In this Chapter “NHS employment” includes–

(a) employment with an employer in respect of whom a direction has been made under section 7 of the Superannuation (Miscellaneous Provisions) Act 1967[^f00073];

(b) employment to which regulations made under section 10 of the Superannuation Act 1972[^f00074] and having effect in England and apply;

(c) employment to which regulations made under Article 12 of the Superannuation (Northern Ireland) Order 1972 apply[^f00075];

(d) employment to which a scheme made under section 2 of the Superannuation Act 1984 (an Act of Tynwald) applies[^f00076]; and

(e) employment with an employer with whom an agreement has been made under section 235 of the 2006 Act.

(3) In this Chapter, subject to paragraph (4)–

(a) a person to whom this Chapter applies is referred to as an “employed pensioner”;

(b) the pension to which the employed pensioner is entitled is referred to as the “old service pension”;

(d) the employment in which the employed pensioner is employed is referred to as the “new employment”.

(4) This Chapter applies whether or not the person is an active member of the scheme in the new employment.

(5) For the purposes of this Chapter, so much of any pension as is additional pension is ignored.

Information

2.H.2

(1) A person who becomes an employed pensioner must inform–

(a) the person’s employer in the new employment; and

(b) any other person that the Scottish Ministers may specify,

that the old service pension is payable.

(2) A person who ceases to be an employed pensioner in one new employment and becomes an employed pensioner in another new employment must inform–

(a) the person’s employer in the other new employment; and

(b) any other person that the Scottish Ministers may specify,

that the old service pension is payable.

Reduction of pension

2.H.3

(1) If the condition in paragraph (2) is met, the amount of the old service pension for any scheme year is reduced.

(2) The condition is that the employed pensioner’s relevant income for the scheme year exceeds the employed pensioner’s previous pay.

(3) The amount of the reduction under paragraph (1) is equal to that excess but cannot exceed the enhancement amount.

(4) For the meaning of “relevant income” and “enhancement amount” see regulation 2.H.4.

(5) For the meaning of “previous pay” see regulation 2.H.5.

(6) If the employed pensioner holds the new employment for only part of any scheme year, this regulation applies as if–

(a) the reference in paragraph (2) to the employed pensioner’s relevant income were a reference to the appropriate proportion of that income; and

(b) the reference in that paragraph to the employed pensioner’s previous pay were a reference to the appropriate proportion of that pay.

(7) In paragraph (6) “the appropriate proportion” means the same proportion as the period during which the new employment is held bears to the whole scheme year.

(8) If the member has a guaranteed minimum pension in relation to the old service pension, nothing in this regulation requires the reduction of the old service pension below the amount of the member’s guaranteed minimum pension in relation to it.

Meaning of “relevant income”

2.H.4

(1) The employed pensioner’s relevant income for a scheme year is the aggregate of–

(a) the amount of pay received by the employed pensioner during that year from the new employment (assuming, in any case where the employed pensioner is not an active member of the scheme in the new employment, that the employed pensioner is such a member); and

(b) the enhancement amount in relation to the old service pension.

(2) The enhancement amount, in relation to an old service pension, is the difference between–

(a) the amount of that pension for that year; and

(b) the amount that that pension would have been had it been payable under regulation 2.D.4 (early payment of pension with actuarial reduction).

(3) If the old service pension is payable under regulation 2.D.8 (early retirement on ill health (active members)) or 2.D.10 (early retirement on ill health (deferred members) to an employed pensioner who had not reached the age of 55 at the time when entitlement to the pension arose, for the purposes of paragraph (2)(b)–

(a) the fact that entitlement to a pension under regulation 2.D.4 depends on reaching that age is ignored; and

(b) the employed person’s actual age at the relevant time is taken into account in determining the reduction to be made under regulation 2.D.4(2).

(4) If the old service pension is an upper tier ill health pension, for the purposes of paragraph (2)(b), only the employed pensioner’s actual pensionable service at the time when entitlement to the pension arose is taken into account in determining the amount that would have been payable under regulation 2.D.4.

(5) If the employed pensioner exercised the option under regulation 2.D.14 (general option to exchange part of pension for lump sum) in relation to the old service pension, the resulting reduction in the pension is ignored for the purposes of this regulation.

(6) If the employed pensioner exercised the option under regulation 2.D.18 (election to allocate pension) in relation to the old service pension, the resulting reduction in the pension is taken into account for the purposes of this regulation.

(7) References in this regulation to the amount of a pension for any scheme year are to its amount for that year after any increases payable under the Pensions (Increase) Act 1971type=start time=1224494681191(a)[^f00153]type=end time=1224494681191 in respect of that pension, including the increases that would have been payable in respect of any amount not paid because of a reduction ignored under paragraph (5).

Meaning of “previous pay”: general

2.H.5

(1) For the purposes of this Chapter and subject to paragraph (3) and regulation 2.H.6, an employed pensioner’s previous pay is the greater of–

(a) the employed pensioner’s reckonable pay for the purposes of the old service pension; and

(b) the annual rate of pay for the old employment at the time it ceased.

(2) In this regulation “annual rate of pay” means the sum of–

(a) the annual rate of so much of the employed pensioner’s pensionable pay immediately before the old service pension became payable as consisted of–

(i) salary;

(ii) wages; or

(iii) other regular payments,

of a fixed nature; and

(b) so much of any fees and other regular payments not of a fixed nature as–

(i) was payable to the employed pensioner during the period of 12 months ending with the day the old employment ceased; and

(ii) formed part of the employed pensioner’s pensionable pay.

(3) Subject to regulation 2.H.6 (members with concurrent employments), the amount to be taken as the employed pensioner’s previous pay must be adjusted in each scheme year for inflation.

(4) The reference in paragraph (3) to adjusting that amount in each scheme year for inflation is to increasing it by the same amount as that by which an annual pension equal to that amount would have been increased under the Pensions (Increase) Act 1971 at 6th April in that scheme year if–

(a) that pension was eligible to be so increased; and

(b) the beginning date for that pension were the same as the beginning date for the old service pension.

(5) In this regulation “the beginning date”, in relation to a pension, means the date on which it is treated as beginning for the purposes of the Pensions (Increase) Act 1971 (see section 8(2) (meaning of “pension” and other supplementary provisions) of that Act).

Meaning of “previous pay”: members with concurrent employments

2.H.6

(1) In the case of an employed pensioner who held one or more other NHS employments at the same time as the old employments, the amount to be taken as the employed pensioner’s previous pay is the sum of–

(a) the amount of the employed pensioner’s previous pay, in accordance with regulation 2.H.5;

(b) in respect of any of the other NHS employments which is held in the scheme year mentioned in regulation 2.H.3(2), the annual rate of pay for those employments in that scheme year; and

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.