The National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2008

Made: 4th June 2008

Laid before the Scottish Parliament: 5th June 2008

Coming into force: 28th June 2008

In accordance with section 10(4) of that Act, the Scottish Ministers have consulted with such representatives of persons likely to be affected by these Regulations as appear to them to be appropriate.

Citation, commencement and effect

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These Regulations may be cited as the National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2008 and come into force on 28th June 2008 but have effect from 1st April 2008[^f00003].

Amendment of the National Health Service Superannuation Scheme (Scotland) Regulations 1995

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The National Health Service Superannuation Scheme (Scotland) Regulations 1995[^f00004] are amended in accordance with regulations 3 to 64 of these Regulations.

Amendment of regulation A2

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• (1) Regulation A2(4) (interpretation) is amended as follows.

• (2) Insert the following definitions in the appropriate place in alphabetical order–

“scheme year”	A period of one year beginning on 1st April and ending on 31st March;
“section 9(2B) rights”	The same meaning as it has in the Occupational Pension Schemes (Contracting-out) Regulations 1996[^f00005];
---	---

; and

“tax year”	Any year beginning on 6th April and ending on 5th April the following year;

• (3) For the meaning of “final year’s pensionable pay” substitute “The meaning given in regulation C1”.

Replacement of regulation B2

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For regulation B2 (age limits and restrictions on membership) substitute–

(B2) (1) A person is not eligible to join the scheme if– (a) that person is– (i) under the age of 16; (ii) over the age of 75; or (iii) over the age of 70 on or before 31st March 2008; (b) that person is a special class officer over the age of 65; (c) that person is an officer in “contributory service” under the Teachers' Superannuation (Scotland) Regulations 2005[^f00006] in any hospital vested in the Scottish Ministers; (d) that person holds an honorary appointment and does not at the same time hold any other employment which entitles him to join the scheme; (e) that person, on or after 1st April 2008, enters NHS employment for the first time and has not previously been a member of the scheme; (f) that person, on or after 1st April 2008, returns to NHS employment and was entitled to a refund of contributions under regulation E9 (early leavers' entitlement to refund of contribution) when he last left employment, unless paragraph (4), but not paragraph (5), of regulation L1 (treatment of pensionable service of early leavers returning to pensionable employment) applies to that person; (g) that person– (i) leaves pensionable employment on, or after, 1st April 2008; and (ii) before returning to NHS employment, exercises his right to transfer out all of his benefits in the scheme in accordance with regulation M1 (member’s right to transfer or buy-out) or M2 (exercising a right to transfer or buy-out); or (iii) that person has been a member of the National Health Service Pension Scheme whose membership was determined by the National Health Service Pension Scheme Regulations 2008[^f00007]. (2) In paragraph (1), “pensionable employment” includes employment that qualified the member for a benefit under a health service scheme. (3) The Scottish Ministers may permit a person who would otherwise not be eligible to join the scheme in accordance with paragraph (1)(f) to (h) to do so if– (a) that person’s employment is transferred to an employing authority by virtue of a transfer of undertakings or by virtue of arrangements equivalent to a transfer of undertakings (whether or not the transferring employer is in the public sector provided that person’s employment was originally transferred out of the public sector); and (b) the employment from which the member is transferred– (i) qualified the member for benefits under an occupational pension scheme; and (ii) the rules of that scheme (in the opinion of the Scottish Ministers) entitle the member to receive benefits on retirement upon, or prior to, attaining the age of 60. (4) The reference in paragraph (3)(a) to arrangements equivalent to a transfer of undertakings is to arrangements– (a) which the Scottish Ministers consider to be equivalent to the transfer of an undertaking; and (b) under which the parties to the arrangements have agreed that the rights of the persons whose employments are being transferred should as far as practicable be treated in the same way as they would have been under a transfer of an undertaking. (5) For the purposes of paragraph (3)(b)(ii) a person is not to be treated as being entitled under the rules of a pension scheme to receive benefits upon, or prior to, attaining the age of 60 years, where such entitlement arises by virtue of any scheme rule making special provision– (a) as to early retirement on the grounds of ill health, redundancy or otherwise; or (b) for benefits to be reduced for early payment. (6) Before permitting a person referred to in paragraph (3) to join the scheme the Scottish Ministers must take advice from the scheme actuary.

Amendment of regulation B3

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• (1) Regulation B3 (restrictions on further participation in the scheme) is amended as follows.

• (2) For paragraph (1) substitute –

(1) Members who– (a) cease to satisfy the conditions for eligibility for membership specified in regulation B1(1); or (b) opt out of the scheme in accordance with regulation B4, may not continue to contribute to or accrue further pensionable service under the scheme.

• (3) In paragraph (2)–

• (a) omit “applies” where it first occurs; and

• (b) after “(further pensionable employment under the age of 50 after early retirement pension (ill health) becomes payable)” insert “, E2A(11) (ill health pension on early retirement) applies”.

Amendment of regulation C1

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• (1) Regulation C1 (meaning of “pensionable pay”) is amended as follows.

• (2) After paragraph (1) insert–

(1A) Paragraphs (2) to (4) and (5) to (6) apply in respect of pensionable employment before 1st April 2008.

• (3) After paragraph (4) insert–

(4A) Paragraphs (4B) to (6) apply in respect of pensionable employment on, or after, 1st April 2008. (4B) Subject to paragraph (4C), pensionable pay in excess of the permitted maximum will not be ignored. (4C) Pensionable pay in excess of the permitted maximum will be ignored in respect of additional service being bought under regulation Q1 (right to buy additional service) and an unreduced lump sum being bought under regulation Q2 (right to buy an unreduced retirement lump sum) if– (a) the member elected to make such a purchase under regulation Q6(3) (electing to buy additional service or unreduced retirement lump sum) from a birthday falling before 1st April 2008; (b) the member’s pensionable pay was restricted under paragraph (2) before that date; or (c) the member’s pensionable pay would have been restricted under that paragraph if it had exceeded the permitted maximum.

• (4) After paragraph (5) insert–

(5A) Subject to paragraph (5B), in these Regulations “final year’s pensionable pay” means pensionable pay in respect of the member’s last year of pensionable employment, ending on the date the member ceases to be in such employment, or dies, whichever occurs first, except– (a) if the member was in pensionable employment for less than 12 months, “final year’s pensionable pay” means– $Pensionable payNumber of days pensionable employment×365$ (b) ifFormula pensionable pay was greater in either or both of the two consecutive years immediately preceding the last year, “final year’s pensionable pay” means pensionable pay in respect of the year immediately preceding the last year or, if greater, pensionable pay in respect of the first of those two consecutive years. (5B) If the pensionable pay of a member credited with any period of pensionable service under regulation N2 (transfers made under the public sector transfer arrangements) or N4 (special terms for transfers in (bulk transfers etc.)) has exceeded the permitted maximum and either– (a) paragraph 20 of Schedule 6 to the Finance Act 1989[^f00008] applied to the member without the modification made by regulation 5 of the Retirement Benefits Schemes (Continuation of Rights of Members of Approved Schemes) Regulations 1990[^f00009] in respect of benefits derived from all or part of that service under the transferring scheme; or (b) any equivalent scheme provision applied to the member in respect of all or part of that service when that person was a member of the transferring scheme from which the transfer was accepted, that excess shall be ignored for the purposes of calculating the final year’s pensionable pay under paragraph (5A) in respect of the corresponding period of pensionable service credited under regulation N2 or N4.

• (5) For paragraph (6) substitute–

(6) In this regulation, “permitted maximum” means– (a) in relation to any tax year before the tax year 2006 07, the figure specified for that tax year in an order made under section 590C of the Income and Corporation Taxes Act 1988[^f00010]; or (b) subject to paragraphs (7) and (8), the figure for any later year is £108,600. (7) If the retail prices index for the month of September preceding the tax year 2007 08 or any later tax year is higher than it was for the previous September, the figure for that year is an amount arrived at by– (a) increasing the figure for the previous tax year by the same percentage as the percentage increase in the retail prices index; and (b) if the result is not a multiple of £600, rounding it up to the nearest amount which is such a multiple. (8) If the retail prices index for the month of September preceding the tax year 2007 08 or the month of September preceding any later tax year is not higher than it was for the previous September, the figure for that year shall be the same as for the previous tax year.

Amendment of regulation C2

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• (1) Regulation C2 (meaning of “pensionable service”) is amended as follows.

• (2) After paragraph (2)(f) insert–

(g) in the case of a member who is not a special class officer, any period of pensionable service in excess of 40 years that relates to a period before– (i) the member’s 60th birthday; and (ii) 1st April 2008.

• (3) For paragraph (4) substitute–

(4) Subject to paragraph (2), the benefits described in these Regulations will be calculated by reference to a maximum of– (a) 45 years' pensionable service in the case of a member who is not a special class officer; and (b) 45 years' pensionable service (of which only 40 years may relate to the period before the member reaches age 55) in the case of a member who is a special class officer), and if the member’s pensionable service exceeds these limits, the amount of the excess will be ignored.

Amendment of regulation C4

8

For regulation C4(6) (pensionable service in respect of part time employment) substitute–

(6) If a member with pensionable service in part-time employment becomes entitled to a pension under regulation E2 (early retirement pension (ill health)), E2A (ill health pension on early retirement), E3 (early retirement pension (redundancy etc.)) or E3A (early retirement pension (redundancy etc., new starters and post-transition))– (a) the member’s pensionable service in part-time employment will count at its full length for the purpose of calculating– (i) whether and (if so) to what extent, the pensionable service upon which the pension under regulation E2 or E2A is based should be increased under either of those regulations; or (ii) the qualifying service for the purposes of regulation E3(2)(a) or regulation E3A(2)(a); and (b) the pension will be based on the whole-time equivalent of the period of part time employment and, in the case of a pension under regulation E2 or E2A, the increase under either of those regulations will be limited to such amount as bears the same proportion to the amount that would have been paid had the pensionable service not been part-time as the whole time equivalent bears to comparable whole time employment.

Amendment of regulation D1

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• (1) Regulation D1 (contributions by members) is amended as follows.

• (2) For paragraphs (1) and (2) substitute–

(1) Each member in pensionable employment must contribute to the scheme in accordance with the following paragraphs of this regulation. (1A) For the 2008–2009 scheme year a member who meets one of the conditions referred to in paragraph (1B) must contribute 5 per cent of the member’s pensionable pay. (1B) The conditions referred to in paragraph (1A) are– (a) the member is in pensionable employment on both 31st March 2008 and 1st April 2008 with the same employer and that employment is by way of manual labour; or (b) the member returns to pensionable employment on or after 1st April 2008 and both that employment and the period of pensionable employment immediately preceding that employment is by way of manual labour. (1C) For the 2008–2009 scheme year paragraph (1D) applies to a member who does not meet any of the conditions referred to in paragraph (1B). (1D) For the 2008–2009 scheme year, a member whose pensionable pay falls into a pay band specified in column 1 of the following table must contribute the percentage of the member’s pensionable pay specified in column 2 of that table in respect of that amount.

Column 1	Column 2
Pay band	Contribution percentage rate
Up to £19,682	5%
£19,683 to £65,002	6.5%
£65,003 to £102,499	7.5%
£102,500 to any higher amount	8.5%

(2) The Scottish Ministers may make a determination substituting any or all of the pay bands or contribution percentage rates specified in paragraphs (1A) and (1D) with effect from a date specified in the determination. (2A) Before making a determination under paragraph (2), the Scottish Ministers must consider– (a) the advice of the scheme actuary; and (b) in accordance with regulation U4 (cost sharing), advice from such employee and employer representatives as the Scottish Ministers consider appropriate. (2B) For the purposes of this regulation “primary employment” means a single pensionable employment for which an employing authority specifies the member’s working hours or working patterns. (2C) For the purposes of determining the relevant contribution percentage rate for the 2008–2009 scheme year paragraphs (2D) to (2J) apply to a member who is in pensionable employment with the same employing authority on both 31st March 2008 and 1st April 2008. (2D) For the purposes of paragraphs (2E) to (2J)– (a) a member shall be regarded as being in pensionable employment throughout the 2007–2008 scheme year regardless of any period in that year during which the member continues to be employed by the same employer but does not make contributions to the scheme; (b) for the purposes of calculating the member’s pensionable pay, contributions for any period referred to in sub-paragraph (a) shall be deemed to have been paid; (c) the amount of pensionable earnings determined in accordance with those paragraphs shall be rounded down to the nearest whole pound; and (d) if a member holds two or more pensionable employments at the same time– (i) the determinations referred to in those paragraphs apply to each such employment separately; and (ii) each such employment shall be treated separately for the purpose of paying contributions. (2E) If a member– (a) was in pensionable employment with an employing authority on a whole-time basis throughout the 2007–2008 scheme year; and (b) is employed by that authority on 1st April 2008, the member must pay contributions at the rate specified in column 2 of the table in paragraph (1D) in respect of the amount of pensionable pay referred to in column 1 of that table which corresponds to the member’s pensionable pay received during that year. (2F) If a member– (a) was in pensionable employment with an employing authority on a part-time basis throughout the 2007–2008 scheme year; and (b) is employed by that authority on 1st April 2008, the amount of the member’s pensionable pay shall be determined by reference to the amount the Scottish Ministers determine would have been paid in respect of a single comparable whole-time employment during that year. (2G) If a member– (a) was in pensionable employment with an employing authority on a combination of a whole-time and part-time basis throughout the 2007–2008 scheme year; and (b) is employed by that authority on 1st April 2008, the amount of the member’s pensionable pay shall be the aggregate of the member’s pensionable pay received during that year in respect of the member’s whole-time employment and the amount the Scottish Ministers determine would have been paid in respect of a single comparable whole-time employment for that period in respect of the member’s part-time employment. (2H) If a member– (a) commences pensionable employment with an employing authority on a whole-time basis during the 2007–2008 scheme year; and (b) is employed by that authority on 1st April 2008, the amount of the member’s pensionable pay shall be determined by the formula– $$RPPNDPE×365$ where– RPP is the pensionable pay received in respect of that employment during the 2007–2008 scheme year; and NDPE is the number of days of pensionable employment with that employer during the 2007–2008 scheme year.$ (2I) If a member– (a) commences pensionable employment with an employing authority on a part-time basis during the 2007–2008 scheme year; and (b) is employed by that authority on 1st April 2008, the amount of the member’s pensionable pay shall be determined by the formula– $$CWTENDPE×365$ where– CWTE is the amount the Scottish Ministers determine would have been paid for that employment during the 2007–2008 scheme year in respect of a single comparable whole-time employment; and NDPE is the number of days of pensionable employment with that employer during the 2007–2008 scheme year.$ (2J) If a member– (a) commences pensionable employment with an employing authority during the 2007–2008 scheme year and has since been employed on both a whole-time and part-time basis; and (b) is employed by that authority on 1st April 2008, the amount of the member’s pensionable pay shall be determined by the formula– $$(RPP+CWTE)NDPE×365$ where– RPP is the pensionable pay received for the whole-time employment with that employer during the 2007–2008 scheme year; CWTE is the amount the Scottish Ministers determine would have been paid in respect of a single comparable whole-time employment in respect of the member’s part-time employment with that employer during the 2007–2008 scheme year; and NDPE is the number of days of pensionable employment with that employer during the 2007–2008 scheme year.$ (2K) Subject to paragraph (2P), if a member– (a) commences primary employment at any time during the 2008–2009 scheme year; and (b) does not have a previous primary pensionable employment during that scheme year in respect of which the member paid contributions under this regulation, the member must pay contributions at the rate specified in column 2 of the table in paragraph (1D) in respect of the amount of pensionable pay referred to in column 1 of that table which corresponds to the member’s pensionable pay determined in accordance with paragraph (2O). (2L) If, at any time during the 2008–2009 scheme year, a member who is in a primary employment (“the earlier employment”) commences a further primary employment (“the later employment”) that is held concurrently with the earlier employment, the member must pay contributions at the rate specified in column 2 of the table in paragraph (1D) in respect of the amount of pensionable pay referred to in column 1 of that table which corresponds to the member’s pensionable pay determined in accordance with paragraph (2O). (2M) If a member– (a) ceases to be in a primary employment (“the earlier employment”) that is not held concurrently with another primary employment at any time during the 2008–2009 scheme year; (b) after so ceasing next commences a further primary employment (“the later employment”); and (c) that further employment is not held concurrently with another primary employment, the member must continue to pay contributions in respect of the later employment at the same rate as that which applied to the earlier employment. (2N) If a member– (a) at any time during the 2008–2009 scheme year ceases to be in two or more primary employments that were at one time held concurrently with each other (“the earlier employments”); (b) those earlier employments did not all cease on the same day; and (c) that member next commences a further primary employment (“the later employment”), the member must continue to pay contributions in respect of the later employment at the same rate as that which applied to whichever of the earlier employments was the last to cease. (2O) Where paragraph (2K) or (2L) apply the Scottish Ministers must determine the member’s pensionable pay– (a) by applying the formula– $$EPPNDPE×365$ where– EPP is the estimated pensionable pay that the member’s employing authority estimates will be payable to the member in respect of that employment during the 2008–2009 scheme year; and NDPE is the number of days of pensionable employment from the date employment commences to the end of 2008–2009 scheme year; and$ (b) if the later employment is part-time employment, by determining how much would be paid in respect of a single whole-time comparable employment, with the amount determined under sub-paragraph (a) being the member’s pensionable pay for the purposes of this regulation if the later employment is whole-time employment and the amount determined under sub-paragraph (b) being the member’s pensionable pay for the purposes of this regulation if the later employment is part-time employment. (2P) If a member– (a) at any time during the 2008–2009 scheme year is in pensionable employment in respect of which he pays contributions in accordance with paragraph (10) of Schedule 1 (“the earlier employment”); (b) ceases all such earlier pensionable employments; and (c) after so ceasing, next commences a primary employment which is the first primary employment held by the member during the 2008–2009 scheme year (“the later employment”), the member must continue to pay contributions in respect of the later employment at the same rate as that which applied to the earlier employment or, if there is more than one earlier employment, at the same rate as that which applied to whichever of those earlier employments was the last to cease. (2Q) Paragraph (2P) does not apply if, during the 2008–2009 scheme year, the member– (a) has pensionable employment both as a general medical practitioner and a dental practitioner; and (b) ceases both of those employments on the same day. (2R) If none of paragraphs (2E) to (2P) apply– (a) the Scottish Ministers must determine the amount of the member’s pensionable pay, and in doing so must, in addition to the matters referred to in paragraph (2A), have regard to the pensionable pay attributable to pensionable employment comparable to the member’s employment, prevailing pay scales and prevailing rates of pensionable allowances; and (b) the member must pay contributions at the rate specified in column 2 of the table in paragraph (1D) in respect of the amount of pensionable pay referred to in column 1 of that table which corresponds to the member’s pensionable pay determined in accordance with paragraph (a).

• (3) In paragraph (4)–

• (a) for “70” substitute “75”; and

• (b) omit “and reaches age 65”.

Amendment of regulation D2

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• (1) Regulation D2 (contributions and other payments by employing authorities) is amended as follows.

• (2) In paragraph (3)–

• (a) omit “or E4 (early retirement pension (employer’s consent))”;

• (b) in sub-paragraph (a) after “E3” insert “(including any amount of pension that is exchanged for a lump sum under regulation E11)”.

• (3) In paragraph (5)(b)(i) and (ii) omit “or E4”.

Amendment of regulation E1

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• (1) Regulation E1 (normal retirement pension) is amended as follows.

• (2) In regulation E1(2), for “70” substitute “75”.

• (3) After paragraph (2) insert–

(3) Subject to paragraph (4), where a member who leaves pensionable employment on or after 1st April 2008 becomes entitled to a pension under this regulation, the Scottish Ministers may discharge their liability for that pension by the payment of a lump sum of an amount consistent– (a) with the contracting-out and preservation requirements of the 1993 Act; and (b) the lump sum rule. (4) A lump sum payment under paragraph (3) may be made only if the Scottish Ministers are satisfied that it is appropriate in all the circumstances having regard to the life expectancy of the member. (5) For the purposes of paragraph (4), the Scottish Ministers may require whatever medical evidence they consider necessary. (6) The amount of the lump sum payable under paragraph (3)– (a) is equal to 5 times the yearly rate of the member’s pension (calculated in accordance with this regulation); and (b) is payable in addition to the lump sum on retirement payable under regulation E7 (which is not subject to any reduction under regulation E8(1)) and the lump sum in place of part of a pension payable under regulation E11. (7) For the purposes of calculating the amount of the lump sum payable under paragraph (6), the member will be treated as if he had made an election under regulation E11 to receive the maximum amount of a further lump sum payable under that regulation.

Amendment of regulation E2

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• (1) Regulation E2 (early retirement pension (ill health)) is amended as follows.

• (2) Before paragraph (1) insert–

(A1) This regulation applies to a member who– (a) retires from pensionable employment on or after 1st April 2008 and submitted a claim together with supporting medical evidence pursuant to regulation T1 (claims for benefits) for benefits under this regulation which was received by the Scottish Ministers before 1st April 2008; or (b) returns to employment which attracts a pension in accordance with paragraph (11).

• (3) In paragraph (1) after “member” insert “to whom this regulation applies”.

• (4) In paragraph (10)(b), after “deductions from lump sum” insert “and the lump sum in place of part of pension payable under regulation E11”.

• (5) After paragraph (12) insert–

(13) For the purposes of calculating the amount of lump sum payable under paragraph (10), the member will be treated as if he had made an election under regulation E11 to receive the maximum amount of further lump sum payable under that regulation.

Insertion of new regulations E2A, E2B and E2C

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After regulation E2 insert–

(E2A) (1) This regulation applies to a member who– (a) retires from pensionable employment on or after 1st April 2008; (b) did not submit a claim together with supporting medical evidence pursuant to regulation T1 (claims for benefits) for benefits under regulation E2 which was received by the Scottish Ministers before 1st April 2008; and (c) is not in receipt of a pension under regulation E2. (2) A member to whom this regulation applies who retires from pensionable employment before normal benefit age is entitled to a pension under this regulation if– (a) (i) he has at least 2 years qualifying service; or (ii) he qualifies for a pension under regulation E1; and (b) his employment is terminated because of physical or mental infirmity as a result of which he is– (i) permanently incapable of efficiently discharging the duties of that employment (the “lower tier condition”); or (ii) permanently incapable of any regular employment of like duration (the “upper tier condition”) in addition to meeting the lower tier condition. (3) Subject to paragraph (4), the pension to which a member is entitled– (a) upon satisfaction of the lower tier condition (“the lower tier pension”); or (b) upon satisfaction of the upper tier condition in addition to meeting the lower tier condition (“the upper tier pension”), will be calculated as described in regulation E1. (4) Subject to paragraphs (5) and (6), if the member meets the upper tier condition in addition to meeting the lower tier condition, the pensionable service on which the pension is based will be increased by two-thirds of the pensionable service the member could have completed had he stayed in pensionable employment until normal benefit age. (5) If the member’s employment is terminated on or before 31st March 2016, the minimum amount by which his pensionable service will be increased under paragraph (4) will be the lesser of– (a) 4 years pensionable service; and (b) the pensionable service the member could have completed if he had stayed in pensionable employment until normal benefit age. (6) To the extent that any increase under paragraph (4) or (5) would cause a member’s pensionable service to exceed the limit provided for in regulation C2(4) (meaning of “pensionable service”), the amount of any excess will be reduced accordingly. (7) Subject to paragraph (8), where a member becomes entitled to a pension by virtue of meeting the upper tier condition, the Scottish Ministers may discharge their liability for that pension by the payment of a lump sum of an amount consistent– (a) with the contracting-out requirements and preservation requirements of the 1993 Act; and (b) the lump sum rule. (8) A lump sum payment under paragraph (7) may be made only if the Scottish Ministers are satisfied that it is appropriate in all the circumstances having regard to the life expectancy of the member. (9) For the purpose of paragraph (8), the Scottish Ministers may require whatever medical evidence they consider necessary. (10) The amount of the lump sum payable under paragraph (7)– (a) is equal to 5 times the yearly rate of the member’s pension (calculated in accordance with this regulation); and (b) is payable in addition to the lump sum on retirement payable under regulation E7 (which is not subject to any reduction under regulation E8) and the lump sum in place of part of pension payable under regulation E11. (11) The employment of a member to whom a pension is payable under this regulation may be pensionable under the scheme if he is under age 50– (a) on the date the member returns to NHS employment if the member became entitled to receive a pension under a lower tier condition on the day the member retired from pensionable employment; (b) on the day after the protection period in regulation E2C(6)(b) ends if– (i) the member became entitled to receive a pension under an upper tier condition on the day he retired from pensionable employment; and (ii) the Scottish Ministers did not discharge their liability for that pension by the payment of a lump sum in accordance with paragraph (7) of this regulation; or (c) on the day after the protection period in regulation E2C(6)(b) ends if– (i) the member became entitled to receive a pension under an upper tier condition in place of a pension under a lower tier condition on the date of the Scottish Ministers determination under regulation E2B; and (ii) the Scottish Ministers did not discharge their liability for that pension by the payment of a lump sum in accordance with paragraph (7) of this regulation. (12) For the purposes of calculating the amount of lump sum payable under paragraph (10), the member will be treated as if the member had made an election under regulation E11 to receive the maximum amount of a further lump sum payable under that regulation. (13) For the purposes of determining whether a member is permanently incapable of efficiently discharging the duties of the member’s employment under paragraph (2)(b)(i), the Scottish Ministers must have regard to the factors in paragraph (15) and disregard the member’s personal preferences for or against engaging in that employment. (14) For the purposes of determining whether a member is permanently incapable of regular employment under paragraph (2)(b)(ii), the Scottish Ministers must have regard to the factors in paragraph (16) and disregard the factors in paragraph (17). (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) 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 the member’s incapacity, irrespective of whether such rehabilitation is undergone; and (d) any other matter which the Scottish Ministers consider appropriate. (16) The factors to be taken into account for paragraph (14) 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 the member’s incapacity (irrespective of whether such rehabilitation is undergone) having 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 the member’s incapacity (irrespective of whether such training is undergone) having 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. (17) The factors to be disregarded for paragraph (14) are– (a) the member’s personal preference for or against engaging in any particular employment; and (b) the geographical location of the member. (18) 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– efficiently discharging the duties of the member’s employment under paragraph (2)(b)(i); or regular employment of like duration under paragraph (2)(b)(ii), before the member reaches normal benefit age; and that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches normal benefit age; - “permanently” means the period until normal benefit age; and - “regular employment of like duration” means– in the case of a non-GP provider, such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s current pensionable service as a non-GP provider; and in all other cases, where prior to retiring from employment that is pensionable the member was employed– on a whole-time basis, regular employment on a whole-time basis; or on a part-time basis, regular employment on a part-time basis, having regard to the number of hours, half days and sessions the member worked in that pensionable employment. (E2B) (1) This regulation applies to a member in receipt of a lower tier pension under regulation E2A. (2) A member to whom this regulation applies may ask the Scottish Ministers to consider whether the member subsequently meets the upper tier condition if– (a) by notice in writing at the time of award of the pension, the Scottish Ministers informed the member that the member’s case may be considered once within a period of three years commencing with the date of that award to determine whether the member satisfies the upper tier condition at the date of such a consideration; (b) within that three year period the member provides further medical evidence to the Scottish Ministers relating to the satisfaction of the upper tier condition at the date of Scottish Minister’s consideration; and (c) that further medical evidence relates to the same physical or mental infirmity that qualified the member for the member’s lower tier pension. (3) If, after considering the further medical evidence provided by a member the Scottish Ministers determine that the member satisfies the upper tier condition– (a) the Scottish Ministers must pay from the date of that determination an upper tier pension under regulation E2A(2) in place of the lower tier pension being paid to that member; and (b) that pension is calculated in accordance with regulation E2A(4) as if that paragraph included the words “from the date of the Scottish Ministers determination under regulation E2B” after “employment”. (4) Only one consideration of a member’s case may be undertaken under this regulation. (E2C) (1) This regulation applies to a member who– (a) is in receipt of an upper tier pension under regulation E2A (“the original pension”); and (b) enters into further employment. (2) Such a member shall be paid a lower tier pension (“a substitute pension”) in place of the original pension– (a) from the next substitute pension payment date following the day on which the member’s annual earnings from further employment (whether NHS employment or otherwise) in any tax year exceed the lower earnings limit for national insurance contributions applicable to that year; or (b) in the case of a member who enters into further NHS employment, from the next substitute pension payment date following the first day on which he is so employed which falls after the anniversary of his entry into the further NHS employment (whether or not that day is part of a continuous period of further NHS employment beginning with his entry into that employment), if sooner. (3) A member who is in receipt of a substitute pension may ask the Scottish Ministers to consider reinstating the original pension if– (a) the member is under normal benefit age; (b) the member makes such a request in writing and provides supporting medical evidence to the Scottish Ministers before the end of the protection period; and (c) the member’s further employment is terminated before the end of the protection period. (4) If, after considering that evidence the Scottish Ministers determine that the member again satisfies an upper tier condition in respect of his earlier employment, the Scottish Ministers must recommence paying, from the day after the date that the further employment is terminated, the original pension in place of the substitute pension. (5) A member to whom this regulation applies who is in receipt of an upper tier pension must– (a) notify the Scottish Ministers immediately and in writing if either of the following apply– (i) the member’s annual earnings in any tax year exceed the lower earnings limit for national insurance contributions applicable to that year; or (ii) the member is engaged in further NHS employment after the end of the protection period in paragraph (6)(b); and (b) provide any other information in connection with the member’s earnings or further employment requested by the scheme administrator or any other person that the Scottish Ministers may specify. (6) In this regulation “the protection period” means– (a) a period of one year beginning with the day on which the member’s annual earnings from further employment that is not NHS employment first exceed the lower earnings limit for national insurance contributions applicable to that year; or (b) a period of one year beginning with the first day the member enters into further NHS employment.

Amendment of regulation E3

14

After regulation E3(1)(a)(ii) (early retirement pension (redundancy etc.)) insert–

(iia) returns to pensionable employment on or after that date that attracts a pension in accordance with regulation E2(11) or E2A(11);

Omission of regulation E4

15

Regulation E4 (early retirement pension (employer’s consent)) is omitted.

Amendment of regulation E6

16

• (1) Regulation E6 (preserved pension) is amended as follows.

• (2) In paragraph (2)(b) after “E1” insert “as if it were a pension under that regulation”.

• (3) In paragraph (3)(b) after “regular employment” insert “of like duration”.

• (4) For paragraph (4) substitute–

(4) Except in a case to which paragraph (4A) applies– (a) if the member is in NHS employment at the relevant time (whether with the same or another employing authority), the pension and lump sum on retirement will not become payable until the member leaves NHS employment or, if sooner– (i) when he attains the age of 70, if he attains that age on or before 31st March 2008; or (ii) when he attains the age of 75, if he attains the age of 70 on or after 1st April 2008; and (b) the relevant time– (i) in the case of a member to whom paragraph (3)(d) applies, is when he makes the application referred to in head (iii) of that sub paragraph; or (ii) in any other case, when he attains the age of 60.

• (5) After paragraph (8) insert–

(9) For the purposes of determining whether a member is permanently incapable of efficiently discharging the duties of the member’s employment under paragraph (3)(a), the Scottish Ministers must have regard to the factors in paragraph (11) and disregard the member’s personal preferences for or against engaging in that employment. (10) For the purposes of determining whether a member is permanently incapable of regular employment under paragraph (3)(b), the Scottish Ministers must have regard to the factors in paragraph (12) (no one of which is decisive) and disregard the factors in paragraph (13). (11) The factors to be taken into account for paragraph (9) 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 the member’s incapacity, irrespective of whether such rehabilitation is undergone; and (d) any other matter which the Scottish Ministers considers appropriate. (12) The factors to be taken into account for paragraph (10) are– (a) whether the member has received appropriate medical treatment in respect of the incapacity; and (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 the member’s incapacity (irrespective of whether such rehabilitation is undergone) having 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 the member’s incapacity (irrespective of whether such training is undergone) having 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 considers appropriate. (13) The factors to be disregarded for paragraph (10) are– (a) the member’s personal preference for or against engaging in any particular employment; and (b) the geographical location of the member. (14) 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– would be reasonable for the member to refuse; would provide no benefit to restoring the member’s capacity for– efficiently discharging the duties of the member’s employment under paragraph (3)(a); or regular employment of like duration under paragraph (3)(b), before the member reaches normal benefit age; and that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches normal benefit age; - “permanently” means the period until normal benefit age; and - “regular employment of like duration” means– in the case of a member who was a non-GP provider, such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s pensionable service as a non-GP provider immediately before that service ceased; and in all other cases, where prior to leaving pensionable employment the member was employed– on a whole-time basis, regular employment on a whole-time basis; or on a part-time basis, regular employment on a part-time basis, having regard to the number of hours, half days and sessions the member worked in that pensionable employment.

Amendment of regulation E9

17

For regulation E9(3) (early leavers' entitlement to refund of contributions) substitute–

(3) If the member’s employment was contracted-out by reference to the scheme, the member (and the member’s spouse or civil partner, if any) will remain entitled to a guaranteed minimum pension and section 9(2B) rights under the scheme, unless the Scottish Ministers discharge their liability in respect of that entitlement by paying a contributions equivalent premium under section 55(2) (payment of state scheme premiums on termination of certified status) of the 1993 Act[^f00011].

Insertion of new regulation E11

18

After regulation E10 (payment of interest with refund of contributions) insert–

(E11) (1) This regulation applies to a member who is in pensionable employment on or after 1st April 2008. (2) A member may opt to exchange part of a pension to which the member would otherwise be entitled for a lump sum, which must be an evenly divisible multiple of £12. (3) If a member so opts, for every £1 by which the member’s annual pension is reduced, the member is to be paid a lump sum of £12. (4) An option under paragraph (2) 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). (5) In paragraph (4) “annual amount” in relation to a pension means the amount of the annual pension to which the member would be entitled under these regulations apart from the option, together with any increases payable under the Pensions (Increase) Act 1971[^f00012], calculated as at the time the payment would be first due. (6) A member may not exchange pension for a lump sum under this regulation to the extent that it would result in a scheme chargeable payment for the purposes of Part 4 of the 2004 Act [^f00013]. (7) If the member has a guaranteed minimum under section 14 of the 1993 Act in relation to the whole or part of a pension, paragraph (2) 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. (8) The option under this regulation may only be exercised by giving notice in writing to the scheme administrator in the form required by the Scottish Ministers– (a) at the time of claiming the pension; or (b) before a later time specified in writing by the scheme administrator.

Amendment of regulation F1

19

• (1) Regulation F1 (lump sum when member dies in pensionable employment) is amended as follows.

• (2) In paragraph (1) for “70” substitute “75”.

• (3) In paragraph (1A)(c) after “pay contributions” insert “from a date before 1st April 2008”.

• (4) After paragraph (1A) insert–

(1B) A lump sum on death shall be payable in accordance with regulation F5 where, on the day the member died, the member is– (a) under the age of– (i) 75 if not a special class officer; or (ii) 70 if a special class officer; (b) in NHS employment; (c) no longer required to pay contributions on or after 1st April 2008 pursuant to regulation D1(3) or (4) (contributions by members); and (d) except where regulations E2(11) (early retirement pension (ill health)), E2A(11) (ill health pension on early retirement) or R4(4) (members doing more than one job) apply, not in receipt of a pension under any of regulations E1 to E5.

Amendment of regulation F2

20

• (1) Regulation F2 (lump sum when member dies after pension becomes payable) is amended as follows.

• (2) In paragraph (2) for the words “the member’s retirement lump sum” to the end substitute–

• the aggregate of– the member’s retirement lump sum paid under regulation E7 (lump sum on retirement); and any lump sum paid to the member under regulation E11 (general option to exchange part of pension for lump sum).

• (3) After paragraph (5) insert–

(6) If a member who was in receipt of a substitute pension under regulation E2C (further employment after a benefit is paid under regulation E2A) dies before the end of the protection period that applies to him under regulation E2C(6)(a) or (b), the member’s pension referred to in paragraph (2) means that member’s original upper tier pension.

Replacement of regulation F5

21

For regulation F5 (payment of lump sum) substitute–

(F5) (1) A lump sum payable under any of regulations F1 to F4 shall be paid in accordance with the following paragraphs. (2) If a member dies without leaving a surviving partner and without having made a nomination in favour of another person, the lump sum shall be paid to the member’s personal representatives. (3) If a member dies leaving a surviving partner and without having made a nomination in favour of another person, the lump sum shall be paid to that surviving partner unless– (a) the member has given notice to the Scottish Ministers that the surviving partner is not to receive the payment and has not revoked that notice; (b) the surviving partner has been convicted of an offence specified in regulation T6(1A) (loss of rights to benefits) and the Scottish Ministers have directed, as a consequence of that conviction, that the surviving partner’s right to payment in respect of the member’s death is forfeited; or (c) payment to the surviving partner is not, in the opinion of the Scottish Ministers, reasonably practicable, in which case the lump sum shall be paid to the member’s personal representatives. (4) If a member dies having made a nomination in favour of one person (whether or not he also leaves a surviving partner), the lump sum shall be paid to that nominee unless– (a) the member has given notice to the Scottish Ministers revoking that nomination; (b) the nominee has died before the payment could be made; (c) the nominee has been convicted of an offence specified in regulation T6(1A) and the Scottish Ministers have directed, as a consequence of that conviction, that his right to payment in respect of the member’s death is forfeited; or (d) payment to the nominee is not, in the opinion of the Scottish Ministers, reasonably practicable, in which case the lump sum shall be paid to the member’s personal representatives. (5) If a member dies having made a nomination in favour of two or more persons (whether or not he also leaves a surviving partner) and has not given notice to the Scottish Ministers revoking that notice, the lump sum shall be paid to those nominees, unless– (a) one or more of those nominees has– (i) died before the payment could be made; or (ii) been convicted of an offence specified in regulation T6(1A) and the Scottish Ministers have directed, as a consequence of that conviction, that his or their right to payment in respect of the member’s death is forfeited; or (b) the Scottish Ministers are of the opinion that payment to one or more of the nominees is not reasonably practicable, in which case the percentage of the lump sum due to that nominee, or as the case may be, those nominees shall be paid to the member’s personal representatives. (6) A nomination may only be made by a member– (a) who is in pensionable employment in the scheme at the time of making the nomination; or (b) whose pensionable employment in the scheme ceased on, or after, 1st April 2008. (7) A nomination must specify one or more persons who may be– (a) an individual; (b) a body corporate; (c) an unincorporated body; or (d) the member’s personal representatives, but is not entitled to specify one or more persons referred to in sub-paragraph (a) together with a body referred to in either of sub-paragraphs (b) or (c). (8) A nomination or notice referred to in this regulation is only valid– (a) if addressed to the Scottish Ministers; (b) upon receipt by the Scottish Ministers; (c) if made (or revoked) in writing; and (d) if it nominates the whole of the lump sum to a nominee and, in the case of a nomination specifying more than one person, if it also specifies the percentage of the lump sum to be paid to each such individual. (9) A member who has any pensionable employment in the scheme on or after 1st April 2008 cannot give a notice referred to in paragraph (3)(a). (10) If the lump sum on death does not exceed the specified amount, the Scottish Ministers may pay it to any person claiming to be the member’s personal representative or to be entitled to a share of it, without requiring proof of the title of the person concerned. (11) In paragraph (10), “the specified amount” means £5,000 or any higher amount specified in an order made under section 6(1) of the Administration of Estates (Small Payments) Act 1965[^f00014] as the amount to be treated as substituted for references to £500 in section 1 of that Act. (12) In this regulation “surviving partner” means a– (a) widow; (b) widower; (c) civil partner; or (d) nominated partner, who survives the member.

Replacement of heading to Part G

22

For the heading to Part G substitute–

• SURVIVING PARTNER PENSIONS

Amendment of regulation G1

23

After regulation G1(1) (widow’s pension) insert–

(1A) Paragraphs (2) to (7) apply if a member’s pensionable employment ceases before 1st April 2008.

Amendment of regulation G2

24

• (1) Regulation G2 (widow’s pension when member dies in pensionable employment) is amended as follows.

• (2) In paragraph (1) for “70” substitute “75”.

• (3) After paragraph (3) insert–

(3A) Paragraphs (3B) to (5) apply if a member dies on or after 1st April 2008. (3B) The widow’s pension for the first 6 months after the member’s death will be equal to the rate of the member’s pensionable pay when he died if that amount is greater than the amount of widow’s pension that would otherwise be payable under these Regulations. (3C) Except while the widow’s pension is payable at the rate mentioned in paragraph (3B), if the member dies with 2 years or more qualifying service, the widow’s pension will be equal to one-half of the pension to which the member would have been entitled if, on the date of death, the member had become entitled to an upper tier pension under regulation E2A (ill health pension on early retirement).

• (4) In paragraphs (4) and (5), after “paragraph (2)” insert “or (3B)”.

• (5) After paragraph (7) insert–

(8) The widow’s pension payable on a member’s death if, on the day the member died, the member is– (a) under the age of 75 if not a special class officer or under the age of 70 if a special class officer; (b) in NHS employment; (c) no longer required to pay contributions on or after 2nd April 2008 pursuant to regulation D1(3) or (4) (contributions by members); and (d) except where regulation R4(6) (members doing more than one job) applies, not in receipt of a pension under any of regulations E1 to E5, will be as described in paragraphs (3B) and (3C), but with the modifications set out in paragraph (9). (9) The modifications referred to in paragraph (8) are– (a) in paragraph (3B), for “member’s pensionable pay when he died” substitute “member’s final year’s pensionable pay”; and (b) in paragraph (3C), for “ on the date of death” substitute “on the member’s last day of pensionable employment”.

Amendment of regulation G3

25

After regulation G3(4) (widow’s pension when member dies after pension becomes payable) insert–

(5) If a member who was in receipt of a substitute pension under regulation E2C (further employment after a benefit is paid under regulation E2A) dies before the end of the protection period that applies to him under regulation E2C(6)(a) or (b), the member’s pension referred to in paragraph (2) means that member’s original upper tier pension. (6) For the purposes of paragraphs (2) and (4), no account will be taken of any reduction to the member’s pension under regulation E11 (general option to exchange part of pension for lump sum).

Amendment of regulation G4

26

For regulation G4(2) (widow’s pension when member dies with preserved pension) substitute–

(2) If a member leaves pensionable employment before 1st April 2008 and dies within 12 months after leaving, the widow’s pension will be equal to one-half of the pension that would have been payable to the member under the scheme if the member had retired through ill health with a pension under regulation E2 (early retirement pension (ill health) on the day he left pensionable employment. (2A) If a member leaves pensionable employment on or after 1st April 2008 and dies within 12 months after leaving, the widow’s pension will be equal to one half of the pension that would have been payable to the member under the scheme if the member had retired through ill health with an upper tier pension under regulation E2A (ill health pension on early retirement) on the day he left pensionable employment.

Amendment of regulation G7

27

For regulation G7(4) (widower’s pension) substitute–

(4) If regulation G2(3), G2(3C), G4(2) or G(4)(2A) applies to the calculation of the widower’s pension on a member’s death in pensionable employment or with a preserved pension– (a) the whole of the member’s pensionable service will be taken into account when calculating whether and (if so) to what extent there would have been an increase, by virtue of regulation E2(3) (early retirement pension (ill health) or E2A(4) (ill health pension or early retirement), in the pensionable service on which the member’s pension under regulation E2 or E2A would have been based; and (b) the whole period (if any) by which the member’s pension would have been increased will be treated as pensionable service after 5th April 1988.

Amendment of regulation G9

28

• (1) Regulation G9 (increased widower’s pension) is amended as follows.

• (2) After paragraph (3) insert–

(4) If a female member who has made an election under this regulation– (a) is in pensionable employment on 1st April 2008, or returns to such employment after that date; and (b) dies without leaving a widower but leaving a surviving civil partner or, as the case may be, a surviving nominated partner, the widower’s pension described in paragraph (1) shall be paid to that surviving partner.

Amendment of regulation G10

29

For regulation G10(4) (surviving civil partner’s pension) substitute–

(4) If regulation G2(3), G2(3C), G4(2) or G4(2A) applies to the calculation of the surviving civil partner’s pension on a member’s death in pensionable employment or with a preserved pension– (a) the whole of the member’s pensionable service will be taken into account when calculating whether and (if so) to what extent there would have been an increase, by virtue of regulation E2(3) or E2A(4), in the pensionable service on which the member’s pension under regulation E2 or E2A would have been based; and (b) the whole period (if any) by which the member’s pension would have been increased will be treated as pensionable service after 5th April 1988.

Amendment of regulation G11

30

In regulation G11(6) (dependent surviving civil partner’s pension), after “regulation E2(10)” insert “, regulation E2A(10)”.

Amendment of regulation G13

31

• (1) Regulation G13 (increased surviving civil partner’s pension) is amended as follows.

• (2) In paragraph (3), after “regulation E2(10)” insert “, regulation E2A(10)”.

• (3) After paragraph (5) insert–

(6) If a member who has made an election under this regulation– (a) is in pensionable employment on 1st April 2008, or returns to such employment after that date; and (b) dies without leaving a civil partner but leaving a surviving widower or, as the case may be, a surviving nominated partner, the surviving civil partner’s pension described in paragraph (1) shall be paid to that surviving widower, or as the case may be, that surviving nominated partner.

Insertion of new regulations G14 to G17

32

After regulation G13 insert–