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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

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(b) this regulation–

(i) “pension” means the pension that a member would have been entitled to on the option day if the member had ceased to be employed in all of his or her employments and, in the case of practitioner services, the pensionable earnings taken into account when working out the pension will be drawn from the latest GP certificate referred to in regulation 3.J.13 and agreed with the Health Board or someone acting on its behalf in the case of a principal medical practitioner or non-GP provider or the most recent finalised years earnings in any other case;

(ii) “the option day” means the day before the reduction referred to in paragraph (1)(d) by virtue of which the option is exercisable takes effect; and

(iii) and regulation 3.D.6, a member’s “employment” means practitioner service together with any concurrent NHS employment and “terms of employment” shall be construed accordingly.

(8) For the purposes of this Part, a member who has exercised the option under this regulation–

(a) is a pensioner member as respects the specified percentage of pension to which the member is immediately entitled as a result of exercising the option and the percentage of the pensionable service that represents, as respects which the member is an active member on the option day;

(b) if the member continues in pensionable service after the option day, is an active member as respects–

(i) the pensionable service after that day in which the member continues; and

(ii) so much of the pensionable service as respects which the member is an active member on the option day as does not fall within sub-paragraph (a) (“the unspecified service”); and

(c) if the member does not continue in pensionable service after the option day, is a deferred member as respects the unspecified service.

Increase in pensionable earnings following exercise of option under regulation 3.D.5

3.D.6

(1) This regulation applies if, in a case where a member has exercised the option under regulation 3.D.5–

(a) during the period of 12 months beginning with the day after the option day the terms on which the member holds the employment or employments referred to in regulation 3.D.5(1)(a) change again; and

(b) as a result of the level of the member’s engagement in that employment or those employments–

(i) is increased to more than 90 per cent of the member' pre-change level; or

(ii) following an increase referred to in head (i), the member’s engagement in that employment or those employments is reduced to less than 90 per cent of the member’s engagement during the period of 12 months ending with the option day.

(2) In the circumstances referred to in–

(a) paragraph (1)(b)(i), the amount of the member’s pension mentioned in regulation 3.D.5(4)(a) and (b) shall be abated to zero from the first pension day immediately following the day on which the level of the member’s engagement increased; and

(b) paragraph (1)(b)(ii), subject to any adjustments in accordance with paragraph (3), the member is again entitled to receive payment of the full amount of the pension mentioned in sub paragraphs (a) and (b) of that regulation as from the first pension day immediately following the day on which the level of the member’s engagement reduced.

(3) Where paragraph (2)(b) applies, before restoring the payment of a pension the Scottish Ministers must have regard to the advice of the scheme actuary as to whether the amount of the pension should be adjusted in view of the length of time during which it was abated to zero in accordance with paragraph (2)(a).

(4) For the purposes of this regulation, if during the period of 12 months beginning with the day after the option day the member enters further employment or employments in which the member is an active member of the scheme–

(a) that event is treated as if the terms on which the member holds the employment or employments in respect of which the option was exercised (“the option employment”) had changed again; and

(b) the member’s level of engagement in the further employment or employments is treated as an increase in the level of the member’s engagement in the option employment or employments.

(5) In this regulation “the option day” has the same meaning as in regulation 3.D.5 (see paragraph (7) of that regulation).

(6) Where–

(a) a member’s pension is abated in accordance with paragraph (2)(a) in the circumstances described in paragraph (1)(b); and

(b) the member’s level of engagement does not reduce in the manner described in paragraph (1)(c) of this regulation,

the pension will (in any event) be payable by the Scottish Ministers when the member retires, or partially retires again, from pensionable employment or attains the age of 75 and in doing so the Scottish Ministers must–

(i) have regard to any pensions already paid, including any lump sum paid as a result of the member exercising an option under regulation 3.D.10; and

(ii) take the advice of the scheme actuary.

Early retirement on ill health (active members)

3.D.7

(1) A pension payable under this regulation is to be known as an ill health pension and may be paid at 2 different tiers known as a lower tier ill health pension and an upper tier ill health pension.

(2) An active member who has not reached the age of 65 and who has ceased to be employed in NHS employment is entitled to immediate payment of a lower tier ill health pension that is payable for life if–

(a) in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of discharging the duties of the member’s employment efficiently;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(d) the member has claimed the pension.

(3) An active member who has not reached the age of 65 is entitled to immediate payment of an upper tier ill health pension if–

(a) in addition to meeting the condition in paragraph (2)(a), in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of engaging in regular employment of like duration;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(d) the member has claimed the pension.

(4) The annual amount of a lower tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4).

(5) The annual amount of an upper tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4), but on the assumption that the member’s pensionable service–

(a) is increased by the enhancement period where the member has returned to pensionable employment 12 months or more after having a break in such service and it would be more favourable to the member to treat the member’s pensionable service before and after the break, and all such other breaks (if any), as continuous; and

(b) is not increased by the enhancement period in the circumstances referred to in sub paragraph (a) if the member’s pensionable service before and after the break is treated separately.

(6) Subject to paragraph (7) in this regulation “the enhancement period” means two-thirds of the member’s assumed pensionable service.

(7) If the member’s pensionable service includes both officer service and practitioner service–

(a) the member’s pensionable service shall be increased by the enhancement period and the enhancement factor shall be the proportion by which the member’s pensionable service is increased by that period;

(b) the length of the member’s officer service (under Part 2 of these Regulations) and the member’s practitioner service will each be increased by the enhancement factor; and

(c) the annual amount of an upper tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4), but on the assumption that the member’s uprated earnings are increased by the enhancement factor.

(8) Subject to paragraph (9) in this regulation “the member’s assumed service” means the further pensionable service that the member could have counted if the member had continued in service until reaching the age of 65.

(9) To the extent that any increase under paragraph (8) would cause a member’s pensionable service to exceed the limit of 45 years provided for in regulation 3.A.3(3) (meaning of “pensionable service”), the amount of any excess will be reduced accordingly.

(10) This regulation is subject to–

(a) regulation 3.G.4 (effect of re-employment on upper tier ill health pensions); and

(b) regulation 3.G.5 (re-employed lower tier ill health pensioners).

(11) A member does not qualify for a pension under this regulation if the member’s NHS employment has been terminated by the member–

(a) being dismissed from such employment (unless the Scottish Ministers are satisfied that the member was dismissed because of the member’s infirmity);

(b) retiring or resigning from such employment at a time when the member was the subject of disciplinary proceedings or had been notified that such proceedings were being contemplated; or

(c) otherwise retiring or resigning from such employment unless at the time of doing so the member’s employing authority notified the Scottish Ministers in writing that the member’s physical or mental infirmity is the reason for the termination of that employment and the Scottish Ministers are satisfied that is the case.

(12) For the purposes of determining whether a member is permanently incapable of discharging the duties of the member’s employment efficiently under paragraph (2)(a), the Scottish Ministers must have regard to the factors in paragraph (14) (no one of which is decisive) and disregard the member’s personal preference for or against engaging in that employment.

(13) For the purposes of determining whether a member is permanently incapable of engaging in regular employment of like duration under paragraph (3)(a), the Scottish Ministers must have regard to the factors in paragraph (15) (no one of which is decisive) and disregard the factors in paragraph (16).

(14) The factors to be taken into account for paragraph (12) are–

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) the member's–

(i) mental capacity; and

(ii) physical capacity;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of his incapacity, irrespective of whether such rehabilitation is undergone; and

(d) any other matter which the Scottish Ministers consider appropriate.

(15) The factors to be taken into account for paragraph (13) are–

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) such reasonable employment as the member would be capable of engaging in if due regard is given to the member's–

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience,

irrespective of whether or not such employment is actually available to the member;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of his or her incapacity (irrespective of whether such rehabilitation is undergone) having due regard to the member's–

(i) mental capacity; and

(ii) physical capacity;

(d) such type and period of training which it would be reasonable for the member to undergo in respect of his or her incapacity (irrespective of whether such training is undergone) having due regard to the member's–

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience; and

(e) any other matter which the Scottish Ministers consider appropriate.

(16) The factors to be disregarded for paragraph (13) are–

(a) the member’s personal preference for or against engaging in any particular employment; and

(b) the geographical location of the member.

(17) For the purpose of this regulation–

“appropriate medical treatment” means such medical treatment as it would be normal to receive in respect of the incapacity, but does not include any treatment that the Scottish Ministers consider– that it would be reasonable for the member to refuse; would provide no benefit to restoring the member’s capacity for– discharging the duties of the member’s employment efficiently under paragraph (2)(a); or engaging in regular employment of like duration under paragraph (3)(a), before the member reaches age 65; or that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches age 65;

“permanently” means the period until age 65; and

“regular employment of like duration” means such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s current pensionable service as a practitioner.

Re-assessment of entitlement to an ill health pension determined under regulation 3.D.7

3.D.8

(1) This regulation applies if–

(a) in the opinion of the Scottish Ministers a member meets the condition in regulation 3.D.7(2)(a); and

(b) at the time the member is awarded a pension under that regulation the Scottish Ministers give the member notice in writing that the member’s case may be considered once within a period of 3 years commencing with the date of that award to determine whether the member meets the condition in regulation 3.D.7(3)(a) at the date of such a consideration.

(2) A member to whom such a notice under paragraph (1)(b) has been given may apply to the Scottish Ministers for a review of whether he or she subsequently meets the condition in regulation 3.D.7(3)(a) if–

(a) the member makes the application in writing within 3 years of the date of issue of the notice;

(b) the request is accompanied by further written medical evidence–

(i) relating to whether the condition in regulation 3.D.7(3)(a) is satisfied at the date of the Scottish Ministers' review; and

(ii) that relates to the same physical or mental infirmity as a result of which the member met the condition in regulation 3.D.7(2)(a); and

(3) If, after considering the further medical evidence provided by the member, the Scottish Ministers determine that the member meets the condition in regulation 3.D.7(3)(a), then as from the date on which that determination is made the member–

(a) ceases to be entitled to a lower tier ill health pension; and

(b) becomes entitled to an upper tier ill health pension under regulation 3.D.7, which shall be calculated as if paragraph (8) of that regulation included the words “from the date of the Scottish Ministers' determination under regulation 3.D.8” after “continued in service”.

Early retirement on ill health (deferred members)

3.D.9

(1) A deferred member who has not reached the age of 65 is entitled to immediate payment of a pension that is payable for life if–

(a) in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is incapable of engaging in regular employment of like duration; and

(b) the member has claimed the pension.

(2) A deferred member who is in NHS employment and has not reached the age of 65 is entitled to immediate payment of a pension that is payable for life if–

(a) in the opinion of the Scottish Ministers the member–

(i) does not fall within paragraph (1)(a); but

(ii) suffers from physical or mental infirmity as a result of which the member is permanently incapable of discharging the duties of the member’s employment efficiently; and

(b) the member has claimed the pension.

(3) The amount of the annual pension payable under this regulation (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4).

(4) For the purposes of determining whether a member is permanently incapable of discharging the duties of the member’s employment efficiently under paragraph (2)(a)(ii), the Scottish Ministers must have regard to the factors in paragraph (6) (no one of which is decisive) and disregard the member’s personal preference for or against engaging in that employment.

(5) For the purposes of determining whether a member is permanently incapable of engaging in regular employment of like duration under paragraph (1)(a), the Scottish Ministers must have regard to the factors in paragraph (7) (no one of which is decisive) and disregard the factors in paragraph (8).

(6) The factors to be taken into account for paragraph (4) are–

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) the member's–

(i) mental capacity; and

(ii) physical capacity;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of his or her incapacity, irrespective of whether such rehabilitation is undergone; and

(d) any other matter which the Scottish Ministers consider appropriate.

(7) The factors to be taken into account for paragraph (5) are–

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) such reasonable employment as the member would be capable of engaging in if due regard is given to the member's–

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience,

irrespective of whether or not such employment is actually available to the member;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of his or her incapacity (irrespective of whether such rehabilitation is undergone) having due regard to the member's–

(i) mental capacity; and

(ii) physical capacity;

(d) such type and period of training which it would be reasonable for the member to undergo in respect of his or her incapacity (irrespective of whether such training is undergone) having due regard to the member's–

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience; and

(e) any other matter which the Scottish Ministers consider appropriate.

(8) The factors to be disregarded for paragraph (5) are–

(a) the member’s personal preference for or against engaging in any particular employment; and

(b) the geographical location of the member.

(9) For the purpose of this regulation–

“appropriate medical treatment” means such medical treatment as it would be normal to receive in respect of the incapacity, but does not include any treatment that the Scottish Ministers consider– that it would be reasonable for the member to refuse; would provide no benefit to restoring the member’s capacity for– discharging the duties of the member’s employment efficiently under paragraph (2)(a)(ii); or engaging in regular employment of like duration under paragraph (1)(a), before the member reaches age 65; or that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches age 65;

“permanently” means the period until age 65; and

“regular employment of like duration” means such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s pensionable service as a practitioner immediately before that service ceased.

Options to exchange pension for lump sum

General option to exchange part of pension for lump sum

3.D.10

(1) A member, other than a pension credit member, may opt to exchange part of a pension to which the member would otherwise be entitled for a lump sum.

(2) If a member so opts, for every £1 by which the member’s annual amount of a pension is reduced, the member is to be paid a lump sum of £12.

(3) An option under paragraph (1) must relate to an annual amount of pension that is a whole number of pounds (and accordingly the lump sum will be exactly divisible by 12).

(4) In paragraphs (2) and (3) “annual amount”, in relation to a pension, means the amount of the annual pension to which the member would be entitled under this Chapter apart from the option, together with any increases payable under the Pensions (Increase) Act 1971, calculated as at the time payment would first be due.

(5) A member may not exchange pension for lump sum under this regulation to the extent that it would result in a scheme chargeable payment for the purposes of Part 4 (pension schemes etc.) of the Finance Act 2004 (see, in particular, section 241 of, and paragraph 1 of Schedule 29 to, that Act).

(6) If the member has a guaranteed minimum under section 14 (earner’s guaranteed minimum) of the 1993 Act in relation to the whole or part of a pension, paragraph (1) only applies to so much of the pension as exceeds that guaranteed minimum, multiplied by such factor as is indicated for a person of the member’s description in tables provided by the scheme actuary.

(7) The option under this regulation may only be exercised by giving notice in writing to the scheme administrator in such form as the Scottish Ministers require–

(a) at the time of claiming the pension; or

(b) before such later time as the scheme administrator specifies in writing.

Option for members in serious ill health to exchange whole pension for lump sum

3.D.11

(1) An active member, a deferred member or a pension credit member may opt to exchange a relevant pension for a lump sum if the Scottish Ministers are satisfied that the conditions for the lump sum to be a serious ill health lump sum for the purposes of the 2004 Act will be met (see paragraph 4 of Schedule 29 to that Act).

(2) For the purposes of paragraph (1), a “relevant pension” is a pension payable to that member under regulation–

(a) 3.D.1 (normal retirement pensions);

(b) 3.D.2 (pension credit members' pensions);

(d) 3.D.9 (early retirement on ill health (deferred members)).

(3) The option may only be exercised–

(a) in the case of a pension payable under regulation 3.D.1 or 3.D.2, before or at the time when the pension becomes payable; and

(b) in the case of a pension payable under regulation 3.D.7 or 3.D.9, before the pension becomes payable to the member.

(4) An active member aged 65 or over who exercises the option is to be paid, as soon as is reasonably practicable and before reaching the age of 75, an amount equal to the sum of–

(a) the maximum lump sum to which the member could have become entitled on exercising the option under regulation 3.D.10 if at the appropriate time the member had become entitled to a pension under regulation 3.D.1; and

(b) the total annual amount of the pension to which the member would have been entitled under regulation 3.D.1 after exercising that option, multiplied by 5.

(5) A pension credit member who exercises the option is to be paid, as soon as is reasonably practicable and before reaching the age of 75, an amount equal to the annual amount of the pension to which the member would have been entitled under regulation 3.D.2, multiplied by 5.

(6) An active member entitled to a pension under regulation 3.D.7 who exercises the option is to be paid, as soon as is reasonably practicable, an amount equal to the sum of–

(a) the maximum lump sum to which the member could have become entitled on exercising the option under regulation 3.D.10 at the appropriate time; and

(b) the total annual amount of the pension to which the member is entitled under regulation 3.D.7 after exercising that option, multiplied by 5.

(7) A deferred member entitled to a pension under regulation 3.D.9 who exercises the option is to be paid, as soon as is reasonably practicable, an amount equal to the sum of–

(a) the maximum lump sum to which the member could have become entitled on exercising the option under regulation 3.D.10 at the appropriate time; and

(b) the total annual amount of the pension to which the member is entitled under regulation 3.D.9 after exercising that option, multiplied by 5.

(8) In this regulation “the appropriate time” means–

(a) for the purposes of paragraph (4) and (5) the time when the option under this regulation is exercised; and

(b) for the purposes of paragraphs (6) and (7) the time payment of the pension under regulation 3.D.7 or, as the case may be, 3.D.9 would otherwise first be due.

(9) In this regulation references to the “annual amount” of a pension are to the amount of the annual pension to which the member would be entitled, together with any increases payable under the Pensions (Increase) Act 1971, calculated as at the appropriate time.

(10) The option under this regulation may only be exercised by notice in writing to the Scottish Ministers in such form as the Scottish Ministers require.

Pension debit members and pension credit members

Reduction in pension debit member’s benefits

3.D.12

The benefits to which a pension debit member is entitled under this Chapter are subject to the reduction to be made under section 31 (reduction of benefit) of the 1999 Act.

Pension credit member’s rights

3.D.13

(1) If regulation 7(5) of the Pension Sharing (Pension Credit Benefit) Regulations 2000[^f00137] (early or deferred retirement) applies, the Scottish Ministers must be reasonably satisfied that the requirements of that regulation have been met.

(2) Section 68A(2)(a)[^f00138] of the 1993 Act (safeguarded rights) applies to the safeguarded rights of pension credit members.

(3) Safeguarded rights must be identified as being the safeguarded percentage of the pension credit rights.

Allocation

Election to allocate pension

3.D.14

(1) A member may elect to allocate a part of the annual amount of the member’s pension under the scheme for the provision of a pension after the member’s death for a single person who is the member’s spouse or civil partner or another person who is the member’s dependant within the meaning of paragraph 15 of Schedule 28 (registered pension schemes: authorised pensions – supplementary) to the 2004 Act if conditions A and B are met.

(2) Condition A is that the member has not become entitled to the payment of any pension under the scheme other than a pension payable under regulation 3.D.5 (partial retirement: members aged at least 55).

(3) Condition B is that in the case of a member who is not making the election on claiming the pension, the member–

(a) has reached the age of 65 and has completed 45 years of pensionable service; or

(b) the member has reached the age of 70.

(4) Any pension provided as a result of such an election must be calculated in accordance with tables prepared by the scheme actuary.

(5) The member may not elect to allocate more than one-third of the member’s relevant annual pension.

(6) The member may not elect to allocate an amount that would result in–

(a) the allocated annual pension exceeding the member’s unallocated relevant annual pension;

(b) the allocated pension exceeding such amount as the Scottish Ministers may determine for the purposes of this paragraph, after consultation with the scheme actuary, having regard to any restrictions imposed under Part 4 of the 2004 Act; or

(c) the value of the allocated annual pension being such that a lump sum could be paid under regulation 3.J.5 (commutation of small pensions) by way of commutation of a pension of that amount if the person entitled to the pension was not entitled to any other benefits under the scheme.

(7) The annual pension that is allocated must be an exact number of pounds.

(8) If a member–

(a) elects to allocate a part of the member’s pension under paragraph (1) after reaching the age of 65 and whilst in pensionable service; and

(b) dies before the pension becomes payable,

for the purposes of paragraphs (5) to (7) the member is treated as entitled to the relevant pension to which the member would have been entitled if the member had become entitled to the pension immediately before death.

(9) References in this regulation to the member’s relevant pension, in relation to any pension, are references to so much of the pension as would be payable if the member had exercised the option under regulation 3.D.10 (general option to exchange part of pension for lump sum) so as to obtain the maximum lump sum possible.

Procedure for election under regulation 3.D.14

3.D.15

(1) An election under regulation 3.D.14 in respect of a member’s pension must be made–

(a) at the time when the member claims the pension or, if the member does not become entitled to the pension at that time, when the member does become so entitled; or

(b) if the member is in pensionable service after reaching the age of 65, at any time after reaching that age and before reaching the age of 75.

(2) The election must be made by giving notice in writing to the Scottish Ministers.

(3) The notice must be in such form and contain such information as the Scottish Ministers require.

(4) Subject to paragraphs (6) and (7), an election under regulation 3.D.14 takes effect once it has been accepted by the Scottish Ministers.

(5) The election may not be withdrawn, amended or revoked after it has taken effect.

(6) The election does not take effect if–

(a) the member or the person in whose favour the election was made (“the beneficiary”) dies on or before the day on which the Scottish Ministers accept it; or

(b) the Scottish Ministers are not satisfied that at the time when the election is made the member is in good health.

(7) The election is treated as not having taken effect if the beneficiary dies before the member is notified in writing that the Scottish Ministers have accepted the election.

Effect of allocation

3.D.16

(1) If an election under regulation 3.D.14 for the allocation of a member’s pension to another person (“the beneficiary”) has taken effect–

(a) the member’s pension is reduced accordingly (even if the beneficiary predeceases the member); and

(b) if the beneficiary survives the member, on the member’s death the beneficiary becomes entitled to the payment of a pension for life of such amount as is determined in accordance with regulation 3.D.14.

(2) An allocation is disregarded for the purposes of this regulation if it would result in a pension being paid under this regulation to a beneficiary who is neither–

(a) the member’s spouse or civil partner on the date when the member becomes entitled to the pension or dies; nor

(b) a dependant of the member for the purposes of paragraph 15(2) or (3) of Schedule 28 to the 2004 Act when the member dies.

(3) References in this Part to pensions under this Chapter do not include pensions under this regulation except where the context otherwise requires.

(4) Any such pension is payable in addition to any pension payable to the beneficiary in respect of the member’s death under Chapter 3.E (death benefits) of this Part.

Dual capacity membership

3.D.17

(1) This paragraph applies if a member is–

(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 to the member under this Chapter (or to any person to whom the member has opted to allocate pension under regulation 3.D.14) as if the member were 2 or more members of the kinds in question (so that 2 or more pensions or lump sums are payable in respect of the one member); and

(b) the amounts payable are determined accordingly.

(4) The rule in paragraph (3) is subject to any indication to the contrary and, in particular, does not affect the interpretation of–

(a) regulation 3.A.3(3) (45 year limit);

(b) regulation 3.D.5(9) in a case where a member is both an active member and a pensioner member by virtue of that regulation;

(d) regulation 3.G.4 (effect of re-employment on upper tier ill health pensions);

(e) regulation 3.G.5 (re-employed lower tier ill health pensioners); or

(f) Chapter 3.H (abatement).

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

(a) benefits are payable to the person under the scheme (or to any person to whom the member has opted to allocate pension under regulation 3.D.14) 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 to the one pension credit member); and

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

Contracting-out obligations (GMPs, etc.)

Guaranteed minimum pensions etc.

3.D.18

(1) If a member has a guaranteed minimum under section 14 (earner’s guaranteed minimum) of the 1993 Act in relation to benefits 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 member and such a member’s rights under the scheme not to be met in the case of the member;

(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 member; and

(2) If apart from this rule–

(a) no pension would be payable to the member under the scheme; or

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

a pension at a weekly rate equal to the guaranteed minimum is payable to the member for life from the date on which the member reaches State pension age or, as the case may be, pensions the aggregate weekly rate of which is equal to the guaranteed minimum are so payable.

(3) If–

(a) on reaching State pension age the member is still in employment (whether or not it is scheme employment); and

(b) if it is not scheme employment, the member consents to a postponement of the member’s entitlement under paragraph (2),

paragraph (2) does not apply until the member leaves employment.

(4) If the member continues in employment for a further 5 years after reaching State pension age and does not then leave employment, the member is entitled from the end of that period to so much of the member’s pension under this Chapter as equals the member’s guaranteed minimum (or, as the case may be, to so much of the member’s pensions under this Chapter as together have a weekly rate equal to the member’s guaranteed minimum), unless the member consents to a further postponement of the entitlement.

(5) If paragraph (3) or (4) applies, the amount of the guaranteed minimum to which the member is entitled under this rule is increased in accordance with section 15 (increase of guaranteed minimum where commencement of guaranteed minimum pension postponed) of the 1993 Act.

(6) If–

(a) before State pension age the member becomes entitled to the immediate payment of a pension; and

(b) the member has a guaranteed minimum under section 14 of the 1993 Act in relation to the whole or part of the pension,

the weekly rate of the pension, so far as attributable to that service, must not be less than that guaranteed minimum, multiplied by such factor as is indicated in tables provided by the scheme actuary for a person of the member’s age and sex at the date on which the pension becomes payable.

(7) This paragraph applies if a person has ceased to be in employment that is contracted-out by reference to the scheme, and either–

(a) all the person’s rights to benefits under the scheme, except the person’s rights in respect of the person’s guaranteed minimum or rights under section 9(2B) of the 1993 Act (“the person’s contracting-out rights”), have been transferred under Chapter 3.F (transfers); or

(b) the person has no rights to benefits under the scheme apart from the person’s contracting-out rights.

(8) If paragraph (7) applies–

(a) from the date on which the person reaches State pension age the person is entitled to a pension payable for life at a weekly rate equal to his or her guaranteed minimum, if any; and

(b) from the date on which the person reaches pension age the person is entitled to a pension in respect of his or her rights under section 9(2B) of the 1993 Act,

but a person falling within paragraph (7) is not to be regarded as a pensioner for the purposes of Chapter 3.E (death benefits).

(9) Paragraphs (2) to (8) do not apply to–

(a) a pension that is forfeited–

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

(ii) in a case where an offence within regulation 3.J.7(2)(b) (forfeiture of rights to benefits) is committed;

(b) a pension that is commuted under regulation 3.D.11 (option for members in serious ill health to exchange whole pension for lump sum); or

(c) a pension that is commuted under regulation 3.J.5 (commutation of small pensions) where the conditions in regulation 60 of the Occupational Pension Schemes (Contracting out) Regulations 1996[^f00139] are met,

but if any other provision of the scheme is inconsistent with this rule, this rule prevails.

(10) In this regulation–

(a) “scheme employment”, in relation to a member, means employment in the employment by virtue of which the member is eligible for membership of the scheme; and

(b) references to the amount of a pension are to its amount–

(i) disregarding any additional pension;

(ii) after the subtraction of any amount exchanged under regulation 3.D.10 (general option to exchange part of pension for lump sum); and

(iii) before the subtraction of any amount allocated under regulation 3.D.14 (election to allocate pension).

CHAPTER 3.E — DEATH BENEFITS

Pensions for surviving adults

Surviving adult dependants' pensions

3.E.1

(1) If an active member, a deferred member or a pensioner member dies leaving a surviving adult dependant, the surviving adult dependant is entitled to a pension that is payable for life.

(2) In this Part “surviving adult dependant”, in relation to a deceased member or former member, means the member’s or former member’s surviving spouse, civil partner or nominated partner.

(3) For the rate at which the pension referred to in paragraph (1) is payable see regulations 3.E.3 to 3.E.7 and, in any case where that pension includes additional pension, regulations 3.C.14(4) (effect of payment of additional contributions under this Chapter) and 3.C.16(3) (effect of part payment of periodical contributions).

Meaning of “surviving nominated partner”

3.E.2

(1) A person is a surviving nominated partner in relation to a member for the purposes of this Part if–

(a) the person and the member jointly made and signed a declaration in such form as the Scottish Ministers require that remains effective at the member’s death; and

(b) the person satisfies the Scottish Ministers that for a continuous period of 2 years ending with the member’s death–

(i) the person and the member were living together in an exclusive relationship as if they were husband and wife or civil partners;

(ii) the person and the member were not prevented from marrying or forming a civil partnership; and

(iii) the person was financially dependent on the member or the person and the member were financially interdependent.

(2) A declaration for the purposes of paragraph (1)(a) ceases to have effect if–

(a) it is revoked by the member or other person by a signed notice in writing to the Scottish Ministers in such form as the Scottish Ministers may require or are willing to accept;

(b) the member makes a further declaration for the purpose of paragraph (1)(a); or

Amount of pensions under regulation 3.E.1: active members

3.E.3

(1) In the case of an active member, for the period of 6 months beginning with the day after the member’s death (“the initial period”) the rate of the pension payable under regulation 3.E.1(1)(a) is equal to the average rate of the member’s pensionable earnings during the last complete quarter before he or she died if that amount is greater than the amount of the pension payable to the surviving adult under this Chapter apart from this paragraph.

(2) Subject to paragraph (3), after the initial period, if the member dies with 2 or more years of qualifying service, the annual amount of the pension payable under regulation 3.E.1–

(a) if the member has not reached the age of 65, is equal to the appropriate proportion of the upper tier ill health pension under regulation 3.D.7 to which the member would have been entitled if on the date of death the member had become entitled to such a pension; and

(b) if the member has reached the age of 65, is equal to the appropriate proportion of the pension under regulation 3.D.1 (normal retirement pensions) to which the member would have been entitled if on the date of death the member had become entitled to such a pension in respect of any period of pensionable service that the member is entitled to count.

(3) After the initial period, if the member dies with less than 2 years of qualifying service but after reaching the age of 65, the annual amount of the pension payable under regulation 3.E.1 is equal to the appropriate proportion of the pension to which the member would have been entitled (disregarding any additional pension) if on the date of death the member had become entitled to a pension under regulation 3.D.1 (normal retirement pensions) in respect of any period of pensionable service that the member is entitled to count.

(4) After the initial period, if–

(a) the member dies with less than 2 year’s qualifying service and before reaching the age of 65; and

(b) the surviving adult has a guaranteed minimum under section 17 (minimum pension for widows and widowers) of the 1993 Act in relation to benefits in respect of the deceased member under the scheme,

the annual amount of the pension payable under regulation 3.E.1 is equal to that guaranteed minimum, unless paragraph (5) applies.

(5) This paragraph applies if the Scottish Ministers' liability to provide a guaranteed minimum pension in respect of the surviving adult is discharged by the payment of a contributions equivalent premium under section 55(2) (payment of state scheme premiums on termination of certified status) of the 1993 Act.

(6) This regulation is subject to regulation 3.E.7.

Amount of pensions under regulation 3.E.1: pensioner members

3.E.4

(1) In the case of a pensioner member, for the initial period the rate of the pension payable under regulation 3.E.1(1)(a) is equal to the rate of the member’s pension in payment at the time of death if that amount is greater than the sum of–

(a) the amount of the pension payable to the surviving adult dependant under this Chapter apart from this paragraph; and

(b) the amount of the children’s pensions otherwise payable under this Part.

(2) At any time when the rate is not the rate mentioned in paragraph (1), the rate of the surviving adult dependant’s pension in the case of the death of a pensioner member is equal to the appropriate proportion of the pension to which the member was entitled on the date of death (disregarding any additional pension).

(3) For the purposes of paragraph (1)–

(a) any reduction in the rate of the pension under Chapter 3.H (abatement); and

(b) if the member was in receipt of a pension payable under regulation 3.D.4 (early payment of pensions with actuarial reduction), any reduction made under that regulation by reason of the payment of the pension before the age of 65,

is ignored.

(4) In this regulation “the initial period” means–

(a) if the member leaves one or more dependent children who are dependant on the surviving adult dependant, the period of 6 months beginning with the day after the member’s death; and

(b) otherwise the period of 3 months beginning with that day.

(5) For the purposes of paragraph (4) a child born after the member’s death is treated as having been born before it.

(6) If a member who has had an upper tier ill health retirement pension under regulation 3.D.8 (reassessment of entitlement to ill health pension determined under regulation 3.D.7) replaced by a lower tier ill health retirement pension (by virtue of regulation 3.G.4(2))–

(a) is in further NHS employment and dies before the end of the initial period (within the meaning of that regulation); or

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

the member’s pension referred to in paragraph (1) means that member’s original upper tier ill health pension.

(7) This regulation is subject to regulation 3.E.7.

(8) For the purposes of paragraphs (1) and (2), any reduction to the member’s pension under regulation 3.D.10 (general option to exchange part of pension for lump sum) will be ignored, except any reduction for the purposes of paragraph (1) where the benefits under this regulation form part of benefits payable under regulation 3.E.7.

Amount of pensions under regulation 3.E.1: deferred members

3.E.5

(1) In the case of a deferred member–

(a) who left pensionable service less than 12 months before the date of death; and

(b) whose surviving adult dependant would have been the member’s surviving adult dependant if the member had died on the member’s last day of pensionable service,

the rate of the pension payable under regulation 3.E.1 is equal to the appropriate proportion of the upper tier ill health pension under regulation 3.D.7 to which the member would have been entitled if on the date the member’s pensionable service ceased the member had become entitled to such a pension under regulation 3.D.7 (but disregarding any additional pension).

(2) In the case of any other deferred member, the rate of the pension payable under regulation 3.E.1 is equal to the appropriate proportion of the pension under regulation 3.D.1 (normal retirement pensions) in respect of any period of pensionable service to which the member would have been entitled if on the date of death the member had become entitled to such a pension.

Recent leavers

3.E.6

(1) If–

(a) a recent leaver dies leaving a surviving spouse or civil partner who has a guaranteed minimum under section 17 of the 1993 Act in relation to benefits in respect of the recent leaver under the scheme; and

(b) the member has died before reaching the age of 65,

the surviving spouse or civil partner is entitled to a pension that is payable for life of an amount equal to that person’s guaranteed minimum pension (disregarding any additional pension) , unless paragraph (2) applies.

(2) This paragraph applies if the Scottish Ministers liability to provide a guaranteed minimum pension in respect of the surviving adult is discharged by the payment of a contributions equivalent premium under section 55(2) of the 1993 Act.

(3) In this Part “recent leaver” means a person–

(a) who left pensionable service less than 12 months before the date of death;

(b) who is not a deferred member or a pensioner member because of rights resulting from that employment; and

Re-employed pensioners: adult survivor pensions in initial period

3.E.7

(1) This regulation applies if, apart from this regulation, both regulations 3.E.3(1) and 3.E.4(1) would apply on the death of a member.

(2) Where this regulation applies, the rate of pension payable by virtue of regulation 3.E.3(1) and 3.E.4(1) during the initial period (as defined in the respective regulations) is instead the rate provided in paragraph (3).

(3) Subject to paragraph (4), for the relevant initial period the rate of the pension payable under regulation 3.E.1 is equal to the sum of–

(a) the average rate of the member’s pensionable earnings during the last complete quarter before he or she died; and

(b) the member’s pension payable at that time after taking account of any reduction in the rate of the pension under Chapter 3.H (abatement).

(4) Paragraph (3)(a) does not apply if–

(a) the rate of the pension payable to the surviving adult in respect of later service; and

(b) any children’s pension that would otherwise be payable in respect of later service under this Part,

would be greater.

Pensions for dependent children

Surviving children’s pensions

3.E.8

(1) If a member or a recent leaver dies leaving one or more dependent children, a pension is payable in respect of them.

(2) This is subject to paragraphs (7) to (9).

(3) If a dependent child ceases to be a dependent child after the date of death, the pension ceases to be payable in respect of that child.

(4) If a dependent child is born after the date of death, the same pension is payable in respect of the child as if the child had been born on the date of death.

(5) If a member or a recent leaver dies leaving 2 or more dependent children, they are entitled to such shares of the pension as the Scottish Ministers may from time to time decide.

(6) An amount payable under this regulation in respect of a dependent child is payable to the dependent child or, if the Scottish Ministers so decide, to another person for the dependent child’s benefit.

(7) No pension is payable in respect of any dependant children who on the deceased’s death are dependant on an adult who is entitled to a surviving adult’s pension whilst that pension is payable at the rate mentioned in regulation 3.E.4(1) or 3.E.7(3)(b), except so much of that pension as is additional pension.

(8) If a dependent child is incapable of earning a living because of physical or mental infirmity for any period and the child is maintained out of money provided by Parliament in a hospital or other institution for a period exceeding one month, no pension is payable in respect of the child for any part of that period after the first month.

(9) If, apart from this paragraph, a pension would be payable in respect of any person as a dependent child of three or more persons who were deceased members or recent leavers–

(a) a pension is only payable in respect of 2 of them; and

(b) the amount payable is equal to the sum of the 2 highest pensions.

(10) For the rate at which the pension referred to in paragraph (1) is payable, see regulations 3.E.10 to 3.E.15 and, in any case where that pension includes additional pension, regulations 3.C.14(4) (effect of part payment of additional contributions) and 3.C.16(3) (repayment of contributions).

Meaning of “dependent child”

3.E.9

(1) In this Part “dependent child”, in relation to a deceased member or recent leaver, means a person who–

(a) meets the relationship condition (see paragraph (2));

(b) either–

(i) has not reached the age of 23; or

(ii) in the opinion of the scheme administrator was financially dependant on the deceased at the date of death because of physical or mental infirmity and remains so;

(i) whilst the deceased was an active member; or

(ii) within one year after the deceased ceased to be an active member;

(d) in the case of a person within sub-paragraph (c)(i), was dependent on the deceased–

(i) at the date of death; and

(ii) if the deceased died after ceasing to be an active member, when the deceased ceased to be an active member; and

(e) in the case of a person within sub-paragraph (c)(ii)–

(i) was dependent on the deceased both at birth and at the deceased’s death; or

(ii) if the person was born after the deceased’s death, would have been dependant on the deceased had the deceased not died before the person’s birth.

(2) A person meets the relationship condition if the person is–

(a) a natural child or natural grandchild of the deceased;

(b) an adopted child of the deceased who was adopted whilst the deceased was an active member;

(c) a step-child of the deceased whose natural or adoptive parent is the deceased’s surviving spouse or civil partner from a marriage entered into, or a civil partnership formed, whilst the deceased was an active member;

(d) in a case where the deceased left a surviving nominated partner with whom the deceased was living as mentioned in regulation 3.E.2(1)(b)(i) when the deceased ceased to be an active member, a person whose natural or adoptive parent is the deceased’s surviving nominated partner;

(e) a brother or sister, or a child of a brother or sister, of the member or the member’s spouse or civil partner or nominated partner;

(f) a half-brother or half-sister, or a child of a half-brother or half-sister, of the member or the member’s spouse or civil partner or nominated partner;

(g) a person whom, in the opinion of the scheme administrator, the deceased intended when the deceased ceased to be an active member to adopt; or

(h) a person who had been dependant on the deceased for 2 years or (if less) half the person’s life when the deceased ceased to be an active member.

Amount of children’s pension under regulation 3.E.8: deceased active members

3.E.10

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) (surviving children’s pensions) if at the date of death the deceased was an active member of the scheme who was not also a pensioner member.

(2) Subject to paragraphs (6) and (7), that amount is the appropriate fraction of the basic death pension.

(3) In this regulation “the basic death pension” means twice the appropriate proportion of the deceased member’s pension under regulation 3.D.1 inclusive of any increase due to such enhancement period, if any, as would have applied for the purposes of regulation 3.D.7(5) if the deceased is entitled to an upper tier ill health pension on the date of death.

(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 3.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 a such a parent or spouse or partner of a parent, but no surviving adult dependant’s pension is payable under regulation 3.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 3.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 payable in respect of that child for the first 3 months after the deceased’s death is equal to the average rate of the member’s pensionable earnings during the last complete quarter before the member died.

(6) In a case within paragraph (4)(b) or (c), the rate of the pension in respect of the dependant 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 H (abatement) and any additional pension).

Amount of children’s pension under regulation 3.E.8: deceased pensioner members

3.E.11

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) (surviving children’s pensions) if at the date of death the deceased was a pensioner member of the scheme who was not also an active member.

(2) Subject to paragraphs (5), (6) and (7), that amount is the appropriate fraction of the basic death pension.

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

(a) twice the appropriate proportion of the deceased’s annual pension (disregarding any additional pension); and

(b) twice the appropriate proportion of the annual pension to which the deceased would have been entitled if the deceased had been entitled to count 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 dependant’s pension is payable under regulation 3.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 3.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 3.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 3.H (abatement) and any additional pension).

(7) If the deceased member’s pension was payable under regulation 3.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 paragraph (3), (5) and (6), any reduction to the member’s pension under regulation 3.D.10 (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 3.E15.

Amount of children’s pension under regulation 3.E.8: deceased deferred members

3.E.12

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) 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 3.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) twice the appropriate proportion of the pension to which the deceased would have been entitled if the deceased had become entitled to a pension under 3.D.1 on the date of death (disregarding any additional pension); and

(ii) twice the appropriate proportion 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 3.E.8: recent leavers

3.E.13

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) if at the date of death the deceased was a recent leaver.

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

(3) In this regulation–

(a) “the basic death pension” means twice the appropriate proportion of the pension to which the deceased would have been entitled if the deceased had become entitled to a pension under regulation 3.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 type=start time=1224495140426dependenttype=end time=1224495140426 child or children or a surviving spouse or civil partner of a parent of the dependant child or children and a surviving adult’s pension is payable–

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

(bb) one-half if there are two or more dependant children; and

(ii) otherwise–

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

(bb) two-thirds if there are two or more dependant children.

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

3.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 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 3.E.8: re-employed pensioners

3.E.15

(1) This regulation applies for determining the annual amount of a pension payable under regulation 3.E.8(1) 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 average rate of the member’s pensionable earnings during the last complete quarter before he or she died; 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 3.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 the appropriate proportion of the rate of pension described in–

(a) regulation 3.D.7(5) of this Part if the deceased has not reached the age of 65 on the date of death; or

(b) regulation 3.D.1 of this Part 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 3.E.10(4).

(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 3.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 3.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 3.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

3.E.16

(1) If a member or a recent leaver 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 3.D.5 employments)

3.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 annual average of the member’s uprated earnings at the date of death.

(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 five 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 annual average of the member’s uprated earnings at the date of death, 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 3.D.10 (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 3.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 3.D.10 (general option to exchange part of pension for lump sum), 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 3.D.14 (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 3.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 3.D.5 employments)

3.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) is an active member otherwise than in service in an employment in respect of which the member has exercised the option under regulation 3.D.5; and

(b) is 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–

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