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

(12) This regulation does not apply to– (a) practice staff in respect of whom a pension is payable under any of regulations E1 to E6 who were employed by a registered medical practitioner on both 31st August 1997 and 1st September 1997 and who– (i) were ineligible to rejoin the scheme with effect from 1st September 1997; or (ii) made an election not to rejoin the scheme with effect from that date and who have not cancelled that election; and (b) members who are transferred into NHS employment as a result of a transfer of an undertaking to the employer.

Insertion of new regulation S3A

58

After regulation S3 (benefits in respect of pensionable employment after pension becomes payable) insert–

(S3A) (1) This regulation applies to a member in respect of whom a pension is payable under regulation E2A and who subsequently returns to pensionable employment. (2) For the purposes of this regulation– (a) the member’s “previous service” means the pensionable service in respect of which the member became entitled to receive a pension under regulation E2A; and (b) the member’s “later service” means any pensionable service which accrues after becoming so entitled. (3) Subject to paragraph (4), the member’s benefits in respect of later service shall be calculated without regard to the member’s previous service. (4) For the purposes of regulation C2 (meaning of “pensionable service”) and regulation D1(3) and (4) (contributions by members), the member’s previous service and later service shall be aggregated. (5) Subject to the following provisions of this regulation, a member who– (a) is entitled to a lower tier pension in respect of his previous service; and (b) satisfies the lower tier condition or, as the case may be, the upper tier condition in respect of his later service, shall be entitled to the benefits described in paragraph (6). (6) Those benefits are– (a) the member’s original lower tier pension in respect of his previous service; and (b) a lower tier pension or, as the case may be, an upper tier pension in respect of his later service.

Amendment of regulation S4

59

• (1) Regulation S4 (benefits on death in pensionable employment after pension becomes payable), is amended as follows.

• (2) In the heading to regulation S4 after “pension” insert “under regulation E2”.

• (3) For paragraphs (4) to (10) substitute–

(4) If a member to whom this regulation applies leaves a surviving– (a) spouse or civil partner; or (b) nominated partner (if the member became entitled to the pension referred to in paragraph (1) on or after 1st April 2008), the amount of pension payable to the surviving spouse, civil partner or nominated partner shall be the aggregate of the amounts referred to in paragraphs (5) and (7). (5) Subject to paragraph (9), the amount payable in respect of the member’s previous service shall be equal to the amount of the member’s pension (if any) that was payable when he died. (6) The amount referred to in paragraph (5) shall be paid for– (a) the 3 months immediately following the member’s death; or (b) the 6 months immediately following the member’s death if he leaves a dependent child who is dependent on the surviving spouse, civil partner or nominated partner. (7) The amount payable in respect of the member’s later service shall be equal to the rate of the member’s pensionable pay when he died. (8) The amount referred to in paragraph (7) shall be paid for the 6 months immediately following the member’s death. (9) Paragraph (5) shall not apply if the aggregate of the spouse's, civil partner’s or nominated partner’s pension and any child allowance which would otherwise be payable under these Regulations in respect of the member’s previous service is greater. (10) Upon expiry of the 3 month or, as the case may be, 6 month period referred to in paragraph (6), the amount of the surviving spouse's, civil partner’s or nominated partner’s pension in respect of the member’s previous service shall be the amount determined in accordance with regulation G3 (widow’s pension when member dies after pension becomes payable). (11) Upon expiry of the 6 month period referred to in paragraph (8), the amount of the surviving spouse's, civil partner’s or nominated partner’s pension in respect of the member’s later service shall be equal to one-half of the rate of pension mentioned in paragraph (3A) that would have been payable to the member. (12) If a member to whom this regulation applies leaves a dependent child but– (a) does not leave a surviving spouse or civil partner; and (b) a nominated partner pension is not payable in respect of his later service, the child allowance, for the 6 months immediately following the member’s death, shall be equal to the aggregate of the member’s rate of pensionable pay when he died and the amount of the member’s pension (if any) that he was receiving at that time. (13) If a member to whom this regulation applies leaves a dependent child not dependent on a surviving spouse or civil partner and a nominated partner pension is not payable in respect of his later service, the child allowance, for the 6 months immediately following the member’s death, will be the aggregate of the member’s pensionable pay when he or she died and the amount of the member’s pension (if any) that he was receiving at the time. (14) Subject to paragraph (15), except where a child allowance is payable at the rate mentioned in paragraph (12) or (13), the child allowance in respect of the member’s later service shall– (a) be paid as a proportion of the rate of pension mentioned in paragraph (3A) that would have been payable to the member; and (b) such proportion shall be determined in accordance with the circumstances as described in regulation H3 (child allowance when member dies in pensionable employment). (15) If a member to whom this regulation applies leaves a child who was a dependent child both at the time the member terminated his previous service and when he died, any child allowance payable under these Regulations shall be calculated according to– (a) regulation H4 (child allowance when member dies after pension becomes payable) in respect of the pension already in payment; and (b) regulation H3 in respect of later pensionable employment. (16) If the aggregate of the pensionable service used in the calculation referred to in paragraph (15)(a) and that used in the calculation referred to in paragraph (15)(b) (“the member’s aggregated service”) is less than 10 years, additional service will be allocated to the later period of pensionable employment for the purpose of the calculation under regulation H3. (17) The amount of additional service referred to in paragraph (16) is the difference between 10 years pensionable service and the member’s aggregated service.

Insertion of new regulation S4A

60

After regulation S4 insert–

(S4A) (1) This regulation applies to a member in respect of whom a pension is payable under regulation E2A (ill health pension on early retirement) who– (a) returns to pensionable employment after that pension becomes payable; and (b) dies in pensionable employment. (2) For the purposes of this regulation, the member’s “previous service” means the pensionable service in respect of which the member became entitled to receive a lower or upper tier pension under regulation E2A and the member’s “later service” means any pensionable service which accrues after becoming so entitled. (3) Subject to paragraph (4), the member’s benefits in respect of later service shall be calculated without regard to the member’s previous service. (4) For the purposes of regulation C2 and regulation D1(3) and (4), the member’s previous service and later service shall be aggregated. (5) If this regulation applies, a lump sum payable on the member’s death shall be payable in addition to any lump sum payable under regulation F2 (lump sum when member dies after pension becomes payable). (6) The additional lump sum referred to in paragraph (5) shall be equal to 5 times the amount of the pension that would have been payable to the member had he left NHS employment and been entitled to an upper tier pension based on his later service under regulation E2A on the date of the member’s death. (7) If a member to whom this regulation applies leaves a surviving spouse, civil partner or nominated partner, the amount of pension payable to the surviving spouse, civil partner or nominated partner shall be the aggregate of the amounts referred to in paragraphs (8) and (10). (8) Subject to paragraph (12), the amount payable in respect of the member’s previous service shall be equal to the amount of the member’s pension (if any) that was payable when he died. (9) The amount referred to in paragraph (8) shall be paid for– (a) the 3 months immediately following the member’s death; or (b) the 6 months immediately following the member’s death if the member leaves a dependent child who is dependent on the surviving spouse, civil partner or nominated partner. (10) The amount payable in respect of the member’s later service shall be equal to the member’s rate of pensionable pay when he died. (11) The amount referred to in paragraph (10) shall be paid for the 6 months immediately following the member’s death. (12) Paragraph (8) shall not apply if the aggregate of the spouse's, civil partner’s or nominated partner’s pension and any child allowance which would otherwise be payable under these Regulations in respect of the member’s previous service is greater. (13) Upon expiry of the 3 month or, as the case may be, 6 month period referred to in paragraph (9), the amount of the surviving spouse's, civil partner’s or nominated partner’s pension in respect of the member’s previous service shall be the amount determined in accordance with regulation G3 (widows pension when member dies after pension becomes payable). (14) Upon expiry of the 6 month period referred to in paragraph (11), the amount of the surviving spouse's, civil partner’s or nominated partner’s pension in respect of the member’s later service shall be equal to one-half of the rate of pension that would have been payable to the member had he become entitled to the pension mentioned in paragraph (6). (15) If a member to whom this regulation applies leaves a dependent child but does not leave a surviving spouse, civil partner, or nominated partner, the child allowance, for the 6 months immediately following the member’s death, shall be equal to the aggregate of– (a) the member’s rate of pensionable pay when he died; and (b) the amount of the member’s pension (if any) that he was receiving at that time. (16) Subject to paragraph (17), except where a child allowance is payable at the rate mentioned in paragraph (15), the child allowance in respect of the member’s later service shall– (a) be paid as a proportion of the rate of pension that would have been payable to the member had he become entitled to the pension mentioned in paragraph (6); and (b) such proportion shall be determined in accordance with the circumstances as described in regulation H3 (child allowance when member dies in pensionable employment). (17) If a member to whom this regulation applies leaves a child who was a dependent child both at the time the member terminated his previous service and when he died, any child allowance payable under these Regulations shall be calculated according to– (a) regulation H4 (child allowance when member dies after pension becomes payable) in respect of the pension already in payment; and (b) regulation H3 in respect of later pensionable employment. (18) If the aggregate of the pensionable service used in the calculation referred to in paragraph (17)(a) and that used in the calculation referred to in paragraph (17)(b) (“the member’s aggregated service”) is less than 10 years, additional service will be allocated to the later period of pensionable employment for the purpose of the calculation under regulation H3. (19) The amount of additional service referred to in paragraph (18) is the difference between 10 years pensionable service and the member’s aggregated service.

Amendment of regulation T2A

61

• (1) Regulation T2A (deduction of tax: further provisions) is amended as follows.

• (2) In paragraph (2) for “Where” substitute “Subject to paragraph (2A), if”.

• (3) After paragraph (2) insert–

(2A) The member’s present or future benefits in respect of which any charge under paragraph (2) arises shall be reduced by an amount that fully reflects the amount of tax paid by the scheme administrator and shall be calculated by reference to advice provided by the scheme actuary for that purpose.

New regulation U4

62

After regulation U3 (accounts and actuarial reports) insert–

(U4) (1) The actuarial report referred to in regulation U3 (accounts and actuarial reports) must specify– (a) a recommended contribution rate (RCR); and (b) a projected yield from members' contributions (PYM). (2) Where the member contribution rate or benefits in England and Wales provided by the National Health Service Pension Scheme Regulations 1995[^f00023] have changed as a consequence of determinations made by the Secretary of State under regulation U4 of those regulations, the actuarial report referred to in regulation U3 (accounts and actuarial reports) must also specify– (a) a recommended contribution rate (RCR1), as if the changes in England and Wales had been applied in Scotland; and (b) a projected yield from members' contributions (PYM1) as if the changes in England and Wales had been applied in Scotland. (3) Where the member contribution rate or benefits in England and Wales provided by the National Health Service Pension Scheme Regulations 1995 have changed as a consequence of determinations made by the Secretary of State under regulation U4 of those regulations, the initial employers' contribution rate (IECR) shall be calculated as RCR1 minus PYM1. (4) Where the member contribution rate or benefits in England and Wales provided by the National Health Service Pension Scheme Regulations 1995 have not changed as a consequence of determinations made by the Secretary of State under regulation U4 of those regulations, the initial employers' contribution rate (IECR) shall be calculated as RCR minus PYM. (5) Subject to paragraph (6) employing authorities shall pay contributions under regulation D2 (contributions and other payments by employing authorities) at the rate of IECR. (6) In the event that IECR is more than one percentage point greater than or less than the rate payable by employing authorities in England and Wales under regulation U4 of the National Health Service Pension Scheme Regulations 1995, for the same period, the relevant member contribution rates and employer contribution rates will be subject to review by Scottish Ministers having– (a) taken advice from the scheme actuary; and (b) consulted with Her Majesty’s Treasury and such employee and employer representatives as appear to the Scottish Ministers to be appropriate.

Amendment of Schedule 1

63

• (1) Schedule 1 (medical and dental practitioners) is amended as follows.

• (2) In paragraph 2A (membership: locum practitioners)–

• (a) sub-paragraph (4) is omitted; and

• (b) in sub-paragraph (5), for “Except where sub paragraph (4) applies, no” substitute “No”.

• (3) In paragraph 8(2) (limit on pensionable earnings – dental practitioners) after “1995” insert “and ending before 1st April 2008”.

• (4) In paragraph 9(5) (officer service treated as practitioner service) after “E2” insert “or E2A”.

• (5) For paragraph 10(2) (contributions to the scheme) substitute–

(2) The contribution rate for practitioners and non GP providers is as set out in the following tables.

(2A) The Scottish Ministers may make a determination substituting any or all of the amounts of pensionable earnings or contribution rates specified in the tables in sub-paragraph (2) with effect from the date specified in the determination, and before making a determination 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 considers appropriate. (2B) If, apart from this paragraph, the earnings for a scheme year in respect of a member’s practitioner or non-GP provider service would not be a whole number of pounds, those earnings will be rounded down to the nearest whole pound. (2C) If in the 2008–2009 scheme year a member is in practitioner and non-GP provider service as well as (concurrently) employment other than as a practitioner in respect of which he is liable to pay contributions in accordance with regulation D1, the contributions payable in respect of the member's– (a) practitioner or non-GP provider service, shall be determined in accordance with the provisions of these Regulations that apply to a practitioner or non-GP provider; and (b) employment as an officer, shall be determined in accordance with the provisions of these Regulations that apply to an officer. (2D) Sub-paragraphs (2E) to (2N) apply to practitioners (other than a dentist performer) and non-GP providers. (2E) If the practitioner or non GP provider– (a) was in pensionable employment throughout the 2007–2008 scheme year or began such employment during that year; and (b) was in such employment on 1st April 2008, sub-paragraphs (2F) to (2H) apply. (2F) If the practitioner or non-GP provider– (a) was engaged in pensionable employment as a practitioner or non-GP provider throughout the whole of the 2006–2007 scheme year; (b) has, in accordance with paragraph 23, certified his pensionable earnings for the 2006–2007 scheme year; and (c) forwarded a record of those earnings to– (i) the contracting Health Board; or (ii) someone appointed on its behalf, or is not required to certify earnings in accordance with that paragraph but the contracting Health Board or someone appointed on its behalf has the member’s final pensionable earnings figure, the contributions payable for the 2008–2009 scheme year shall be those specified in column 2 of table 2 in respect of the amount of pensionable earnings referred to in column 1 of that table which correspond to the certified or final earnings for the aggregated total of all practitioner or provider sources for the 2006–2007 scheme year. (2G) If the practitioner or non-GP provider– (a) was engaged in pensionable employment as practitioner or non-GP provider throughout the whole of the 2005–2006 scheme year; and (b) has, in accordance with paragraph 23, certified the member’s pensionable earnings for the 2005–2006 scheme year and forwarded a record of those earnings to the contracting Health Board or someone appointed on its behalf, or is not required to certify earnings in accordance with that paragraph but the contracting Health Board or someone appointed on its behalf has the member’s final pensionable earnings figure, the contributions payable for the 2008–2009 scheme year shall be those specified in column 2 of table 3 in respect of the amount of pensionable earnings referred to in column 1 of that table which correspond to the certified or final earnings for the aggregated total of all practitioner or provider sources for the 2005–2006 scheme year. (2H) If sub-paragraph (2F) or (2G) does not apply– (a) that practitioner’s or, as the case may be, non-GP provider’s pensionable earnings in respect of the 2008–2009 scheme year shall be the amount agreed between– (i) the contracting Health Board or someone appointed on its behalf on the one hand; and (ii) the practitioner or provider on the other, as representing their estimate of the practitioner’s or non-GP provider’s earnings from all practitioner or provider sources for that year; and (b) contributions payable for that year shall be those specified in column 2 of table 1 in respect of the amount of pensionable earnings referred to in column 1 of that table which corresponds to those estimated earnings. (2I) If the practitioner or non GP provider commences pensionable employment for the first time (having no earlier practitioner or non-GP provider service) at any time during the 2008–2009 scheme year– (a) that practitioner’s or, as the case may be, non-GP provider’s pensionable earnings for that scheme year shall be the amount agreed between the contracting Health Board or someone appointed on their behalf on the one hand and the practitioner or provider on the other as representing their estimate of the practitioner’s or non-GP provider’s earnings from all practitioner or provider sources for that year; and (b) contributions payable for the 2008–2009 scheme year shall be those specified in column 2 of table 1 in respect of the amount of pensionable earnings referred to in column 1 of that Table which corresponds to those estimated earnings. (2J) If the practitioner or non-GP provider– (a) commences further pensionable employment as a practitioner or non-GP provider at any time during the 2008–2009 scheme year (“the later employment”); (b) has existing or previous employment during that scheme year as a practitioner or as a non-GP provider in respect of which he is, or was, liable to pay contributions in accordance with this paragraph (“the earlier employment”); and (c) regardless of whether or not the practitioner or non-GP provider also is, or previously was, in NHS employment other than as a practitioner during the 2008–2009 scheme year, that practitioner or non-GP provider must pay contributions in respect of the later employment at the same rate as that which applied to the earlier employment. (2K) If the practitioner or non-GP provider– (a) commences employment as a practitioner or non-GP provider at any time during the 2008–2009 scheme year (“the later employment”); (b) has previous employment during that scheme year in respect of which he was liable to pay contributions to the scheme as a dentist performer in accordance with this paragraph (“the earlier employment”); (c) has ceased the earlier employment prior to commencing the later employment; and (d) regardless of whether or not the practitioner or non-GP provider also is, or previously was, in NHS employment other than as a practitioner during the 2008–2009 scheme year, that practitioner or non-GP provider must pay contributions in respect of the later employment at the same rate as that which applied to the earlier employment. (2L) If the practitioner or non-GP provider– (a) commences employment as a practitioner or non-GP provider at any time during the 2008–2009 scheme year (“the later employment”); (b) has no previous practitioner or non-GP provider employment in that scheme year; (c) has previous employment as an officer on a whole-time or part-time basis employment during that scheme year (excluding any employment under a zero hours contract) in respect of which he was liable to pay contributions to the scheme in accordance with regulation D1 (“the earlier employment”); and (d) has ceased the earlier officer employments prior to commencing the later employment, that practitioner or non-GP provider must pay contributions in respect of the later employment at the same rate as that which applied to the earlier officer employment. (2M) Where sub-paragraph (2L) applies and the practitioner or non-GP provider had two or more earlier officer employments, that practitioner or non-GP provider must pay contributions in respect of the later employment at the same rate as that which applied to whichever of the earlier officer employments was the last to cease. (2N) Where sub-paragraph (2M) applies and all earlier officer employments or the last two of them cease on the same day– (a) that practitioner’s or non-GP provider’s pensionable earnings in respect of the later employment referred to in sub-paragraph (2L)(a) shall be the amount agreed between the contracting Health Board or someone appointed on its behalf on the one hand and the practitioner or provider on the other as representing their estimate of the practitioner’s or provider’s pensionable earnings from all practitioner or provider sources for that year; and (b) contributions payable for the 2008–2009 scheme year shall be those specified in column 2 of table 1 in respect of the amount of pensionable earnings referred to in column 1 of that table which corresponds to those estimated earnings. (2O) For the purposes of determining the relevant contribution rate for the 2008–2009 scheme year for a practitioner (other than a registered medical practitioner who is a locum practitioner, a GP provider or GP performer) who for the purposes of paragraphs 2P to 2W shall be referred to as a dental practitioner and who is in pensionable employment as a dental practitioner on both 31st March 2008 and 1st April 2008. (2P) If– (a) a dental practitioner was in pensionable employment throughout the 2007–2008 scheme year; (b) a dental practitioner is in pensionable employment on 1st April 2008; and (c) full details of that dental practitioners 2007/08 pensionable pay are known, the member must pay contributions at the rate specified in column 2 of table 1 in sub paragraph (2) 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. (2Q) If– (a) a dental practitioner commences pensionable employment during the 2007–2008 scheme year; (b) a dental practitioner is in that pensionable employment on 1st April 2008; and (c) full details of that dental practitioners 2007/08 pensionable pay are known, the amount of the member’s pensionable pay shall be determined by the formula– $$RPPNDPE×365$ where– RPP is the pensionable pay received in respect of that employment during the 2007–2008 scheme year; and NDPE is the number of days of pensionable employment during the 2007–2008 scheme year$ (2R) If sub-paragraphs (2P) and (2Q) do not apply or a dental practitioner member commences pensionable employment for the first time (having no earlier pensionable employment at any time during the 2008–2009 scheme year)– (a) that members pensionable earnings for that scheme year shall be determined by applying the formula– $$EPENDPE×365$ where– EPE is an estimate of the dental practitioner’s pensionable earnings for the days of pensionable employment in the 2008–2009 scheme year; and NDPE is the number of days of pensionable employment; and$ (b) the dental practitioner must pay contributions at the rate specified in column 2 of the table in respect of the amount of pensionable pay referred to in column 1 of that table in sub-paragraph (2) which corresponds to the member’s pensionable pay calculated in accordance with this sub-paragraph. (2S) If a dental practitioner– (a) commences further pensionable employment as a dental practitioner at any time during the 2008–2009 scheme year (“the later employment”); and (b) has existing or previous pensionable employment during that scheme year as a dental practitioner in respect of which he is, or was, liable to pay contributions in accordance with this paragraph (“the earlier employment”), that dental practitioner must pay contributions in respect of the later employment at the same rate as that which applied to the earlier employment. (2T) If a dental practitioner– (a) commences employment as a dental practitioner at any time during the 2008–2009 scheme year (“the later employment”); (b) has previous employment during that scheme year in respect of which he was liable to pay contributions to the scheme as a practitioner (other than as a dental practitioner) or non GP provider in accordance with this sub-paragraph (“the earlier employment”); (c) has ceased the earlier employment prior to commencing the later employment; and (d) regardless of whether or not that dental practitioner also is, or previously was, in NHS employment other than as a practitioner during the 2008–2009 scheme year, that dental practitioner must pay contributions in respect of the later employment at the same rate as that which applied to the earlier employment. (2U) If a dental practitioner– (a) commences employment as a dental practitioner at any time during the 2008–2009 scheme year (“the later employment”); (b) has no previous dental practitioner employment in that scheme year; (c) has previous employment as an officer on a whole-time or part-time basis employment during that scheme year in respect of which he was liable to pay contributions to the scheme in accordance with regulation D1 (“the earlier employment”); and (d) has ceased the earlier officer employments prior to commencing the later employment, that dental practitioner must pay contributions in respect of the later employment at the same rate as that which applied to the earlier officer employment. (2V) Where sub-paragraph (2U) applies and the dental practitioner had two or more earlier officer employments, that dental practitioner must pay contributions in respect of the later employment at the same rate as that which applied to whichever of the earlier officer employments was the last to cease. (2W) Where sub-paragraph (2V) applies and all of earlier officer employments or the last two of them cease on the same day– (a) that dental practitioner’s pensionable earnings in respect of the later employment referred to in sub-paragraph (2U)(a) shall be the amount estimated as in sub-paragraph (2R) as representing an estimate of that dental practitioner’s pensionable earnings for that year; and (b) contributions payable for the 2008–2009 scheme year shall be those specified in column 2 of table 1 in respect of the amount of pensionable earnings referred to in column 1 of that table which corresponds to those estimated earnings. (2X) If none of the previous sub-paragraphs of this paragraph apply, for the purpose of determining a member’s relevant contribution rate– (a) the Scottish Ministers must determine the amount of the member’s pensionable pay to be attributed to the 2008–2009 scheme year; and (b) in so doing must, in addition to the matters referred to in sub-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.

• (6) In paragraph 10(3)(a) omit “and reaches age 65”.

• (7) For paragraph 11(2) (normal retirement pension) substitute–

(2) In respect of– (a) any scheme year prior to the 2008–2009 scheme year, the member’s uprated earnings are to be calculated in the manner determined by the Scottish Ministers having consulted such professional organisations as the Scottish Ministers consider appropriate; and (b) the 2008–2009 scheme year and any later scheme year the member’s uprated earnings are to be calculated by uprating the member’s pensionable earnings by the amount of the annual increase due under the provisions of the Pensions (Increase) Act 1971[^f00024] and Section 59 of the Social Security Pensions Act 1975, plus 1.5% annually. (3) Nothing in this paragraph shall be taken to require the Scottish Ministers to revisit the calculation of uprated earnings referred to in sub-paragraph (2)(a).

• (8) In paragraph 12–

• (a) for “regulation E2 (early retirement pension (ill health) is” substitute “regulations E2 and E2A are”;

• (b) for “that regulation” substitute “regulation E2 or regulation E2A(4) to (6)”; and

• (c) after sub paragraph (2) insert–

(3) Regulation E2A is modified so that the definition of “regular employment of like duration” in paragraph (18) of that regulation means such employment as the Scottish Ministers consider would involve a similar level of engagement in the member’s current pensionable service as a practitioner.

• (9) After paragraph 16A (increased surviving civil partner’s pension) insert–

(16B) In the case of a member who made a nomination under regulation G15 (dependent surviving nominated partner’s pension) that regulation is modified so that the lump sum payable on the member’s retirement will be reduced by 1.96 per cent of uprated earnings for each complete year of practitioner service before 6th April 1988 plus the relevant daily proportion for each additional day. (16C) In the case of a member who made an election under regulation G17 (increased surviving partner’s pension) that regulation is modified so that the lump sum payable on the member’s retirement will be reduced by 1.96 per cent of uprated earnings for each complete year of practitioner service before 6th April 1988 plus the relevant daily proportion for each additional day.

• (10) For paragraph 17 (child allowance – member dies in pensionable employment) substitute–

(17) In the case of a member who dies in pensionable employment as a practitioner– (a) regulation H3(4C), (4D), (6) and (7) is modified so that the references to the rate of the member’s pensionable pay when he died is treated, in relation to the member’s employment as a practitioner, as references to the average rate of the member’s pensionable earnings during the last complete quarter before the member died; and (b) regulation H3(10) and (12) is modified so that the reference to the member’s final year’s pensionable pay when he died is treated as a reference to the yearly average of the member’s uprated earnings at the date of death. (17A) Regulation E6 (preserved pension) is modified so that the definition of “regular employment of like duration” in paragraph (14) 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.

• (11) Paragraph 18(6) (members away from work and maternity absence) is omitted.

• (12) After paragraph 22 (reduction of pension) insert–

(22A) The following provisions are modified so that the reference to the member’s rate of pensionable pay when he dies is treated as a reference to the average rate of the member’s pensionable earnings during the last complete quarter before the member died– (a) regulation S4(7) and (12) (benefits on death in pensionable employment after pension becomes payable); and (b) regulation S4A(10) and (15)(a) (benefits on death in pensionable employment after pension under regulation E2A becomes payable).

Amendment of Schedule 1A

64

• (1) Schedule 1A (pension sharing on divorce or nullity of marriage) is amended as follows.

• (2) After paragraph 2(b) (lump sum on death), insert–

(c) the reference in regulation F5(2) and (4) to “member’s personal representative” shall be a reference to “personal representative of the person entitled to a pension credit or, as the case may be, the pension credit member”; (d) for regulation F5(6) substitute– (6) A nomination may only be made by a person entitled to a pension credit, or as the case may be, a pension credit member under the scheme. (e) for regulation F5(9) substitute– (9) A person entitled to a pension credit, or as the case may be, a pension credit member whose credit was implemented on, or after, 1st April 2008 cannot give a notice referred to in paragraph (3)(a). (f) in regulation F5(12) omit sub-paragraph (d).

Signed

JOHN SWINNEY — A member of the Scottish Executive — 29th May 2008

We consent

CLAIRE WARD — FRANK ROY — Two of the Lord’s Commissioners of Her Majesty’s Treasury — 4th June 2008

Explanatory note

(This note is not part of the Regulations)

This Instrument further amends the National Health Service Pension Scheme Regulations 1995 (“the 1995 Regulations”).

Regulation 3 amends Part A of the 1995 Regulations by inserting new definitions including a definition of “scheme year”.

Regulations 4 and 5 amend Part B of the 1995 Regulations. Regulation 4 provides for new restrictions for those covered by the 1995 Regulations and, in particular, provides that a person over the age of 75 or a person over the age of 70 on or before 31st March 2008 cannot be a member of the Scheme. Regulation 5 makes consequential amendments.

Regulations 6, 7 and 8 amend Part C of the 1995 Regulations. Regulation 6 provides for the calculation of pensionable pay and makes provision for the calculation of pay of a member credited with pensionable service under another public sector pension scheme. Regulation 7 provides that benefits are to be calculated by a maximum period of pensionable service (45 years in most cases) and provides that pensionable service in excess of the maxima will be ignored. Regulation 8 amends regulation C4 to take account of the new tier 2 ill health pension.

Regulations 9 and 10 amend Part D of the 1995 Regulations. Regulation 9 introduces new contribution rates linked to bands of pensionable pay. Those rates run from 5 per cent to 8.5 per cent (depending on the pay band). This regulation also provides for how contribution tiers should be allocated for 2008/09 Regulation 10 makes consequential amendments to regulation D2 in respect of contributions payable by employing authorities.

Regulations 11 to 18 amend Part E of the 1995 Regulations. Regulation 11 amends regulation E1 so as to provide that the Scottish Ministers can discharge their liability for a pension by the payment of a lump sum and in doing so must have regard to the life expectancy of a member. Regulation 12 amends regulation E2 so as to limit its application to a member who retires from pensionable employment on or after 1 April 2008 but submitted an application for the benefit prior to that date.

Regulation 13 inserts new regulations (E2A to E2C) which introduce a new two tier ill health pension on early retirement, reassessment of an ill health pension awarded on early retirement and the effect of further employment on such a benefit. Regulation 14 makes a consequential amendment to regulation E3, regulation 15 omits regulation E4. Regulation 16 amends regulation E6 to provide when a pension and lump sum will be payable in respect of those who have a preserved pension and to determine when a member with a preserved pension shall be treated as being incapable of any regular employment. Regulation 17 amends regulation E9 in consequence of the amendments made to Part K (contracting-out) of the 1995 Regulations. Regulation 18 inserts a new regulation (E11) which enables a member to opt to exchange part of a pension for a lump sum payment.

Regulations 19 to 21 amend Part F of the 1995 Regulations. Regulation 19 amends regulation F1 so as to provide when a lump sum on death is payable, regulation 20 amends regulation F2 to take account of the new two tier ill health pension and regulation 21 substitutes regulation F5 to provide for an order of priority in respect of the payment of a lump sum death benefit.

Regulations 22 to 32 amend Part G of the 1995 Regulations. In particular, they make provision for the period over which a widow’s pension is paid and the rate at which is payable.

Regulation 25 amends regulation G3 to take account of the new two tier ill health pension. Regulation 26 amends regulation G4 to provide that where a member dies with a preserved pension, the dependant’s rate will be determined by reference to an ill health pension he would have received had he retired through ill health on the day he left pensionable employment. Regulation 27 amends regulation G7 to provide that the whole of the member’s pensionable service will be taken into account when calculating a widower’s pension. Regulation 28 amends regulation G9 to provide for the payment of a pension to a surviving partner of a female member. Regulation 29 amends regulation G10 to take account of the two tier ill health pension. Regulation 30 amends regulation G11 to take account of the two tier ill health pension. Regulation 31 amends regulation G13 to provide for the devolution of a surviving civil partner’s pension in cases where the member dies without leaving a civil partner but leaving a surviving widower or nominated partner.

Regulation 32 inserts new regulations G14 to G17 to make provision for a surviving nominated partner’s pension on the same basis as a surviving civil partner’s or surviving spouse’s pension.

Regulation 33 to 37 amends Part H of the 1995 Regulations. Regulation 33 amends regulation H1 so as to take account of nominated partner’s pensions and to define a dependant child. Regulation 34 amends regulation H3 to provide for the destination of a pension payable in respect of dependents where the member dies in pensionable employment. Regulation 35 amends regulation H4 to provide for the calculation of a pension in circumstances where a member dies after the pension becomes payable. Regulation 36 amends regulation H5 to make similar provision where a member dies with a preserved pension and regulation 37 amends regulation H7 to take account of nominated partner pensions.

Regulation 38 amends regulation J1 of the 1995 Regulations to take account of the 45 year pensionable service limit in the scheme.

Regulations 39 and 40 amend Part K of the 1995 Regulations. Regulation 39 substitutes regulation K1 so as to provide that the scheme will be administered in conformity with the contracting-out conditions applicable to occupational pension schemes and regulation 40 amends regulation K2 so as to carry that principle forward in relation to both guaranteed minimum pensions and rights under section 9(2B) of the Pensions Act 1995.

Regulation 41 amends regulation L1 to take account of the two tier ill health pension.

Regulation 42 substitutes the whole of Part M of the 1995 Regulations. Substituted regulation M1 deals with the member’s right to a transfer or buy-out, M2 with exercising the right to transfer or buy-out, M3 with the amount of the member’s cash equivalent on such a transfer or buy-out, M4 on the mechanism for applying for a transfer value payment, M5 with the time limits involved in making such an application and M6 with bulk transfers.

Regulations 43 and 44 amend Part N of the 1995 Regulations. The amendments are consequential and in the case of regulation 44 omit regulation N5 (waiver of transfer payments).

Regulation 45 amends regulation P3 of the 1995 Regulations to provide that a period of absence continues to count as pensionable service but it does not exceed 6 months and the member continues to contribute to the scheme.

Regulations 46 to 52 amend Part Q of the 1995 Regulations. Regulation 46 amends regulation Q1 to provide when a member can increase his rights to benefit by purchasing additional service. Regulation 48 amends regulation Q3 to provide new time limits for the purchasing of additional service and the cost of doing so. Regulation 49 amends regulation Q4 to impose time limits for the making of an election to pay for an unreduced lump sum by a single payment and regulation 50 amends regulation Q5 to provide for the limits on the amount of pensionable pay which may be used to purchase additional service or unreduced retirement lump sum by regular contribution payments. Regulation 52 inserts new regulations Q8 to Q17 which provide for the facility to purchase additional pension. New regulation Q8 deals with an option to purchase additional pension, Q9 with the effect of being absent or leaving and rejoining the scheme during the option period referred to in Q8, Q10 deals with the facility to purchase additional pension by the payment of a lump sum (as does Q11 in respect of employing authorities), Q12 with the procedure for and effect of making an option under regulations Q8, Q10 and Q11, Q13 with the cancellation and cessation of an option, Q14 with the effect of the payment of additional contributions, Q15 with the effect of death or early payment of a pension after an option has been exercised, Q16 with the effect of part payment of periodical contributions and Q17 with the revaluation of increases bought under options.

Regulations 53 to 55 amend Part R of the 1995 Regulations. Regulation 53 amends regulation R3 to take account of the new 2 tier ill health pension. Regulation 54 amends regulation R4 to allow for a pension to come into payment at age 75. Regulation 55 amends regulation R8 to provide for the protection of pension rights if a member approaching retirement takes up less demanding duties.

Regulations 56 to 61 amend Part S of the 1995 Regulations. Regulation 56 amends regulation S1 to provide that a pension which has been suspended on return to NHS employment may again become payable in certain specified circumstances. Regulation 57 amends regulation S2 to set out the circumstances when certain pensions payable under other parts of the 1995 Regulations will be reduced upon return to NHS employment and the amount by which they will be so reduced. Regulation 58 inserts a new regulation S3A to deal with the effect of a return to service on a lower tier or upper tier ill health pension. Regulation 59 makes consequential amendments to S4. This amends regulation S4 detailing the amount of and length of a payment made to a surviving spouse or civil partner or nominated partner. Regulation 60 inserts a new regulation S4A to deal with benefits on death in pensionable employment after a pension under regulation E2A becomes payable.

Regulation 61 amends regulation T2A of the 1995 Regulations to provide that present or future benefits of a member are to be reduced by an amount which fully reflects the amount of tax paid by the scheme administrator.

Regulation 62 inserts a new regulation U4 to provide for cost sharing of scheme expenses between members of the scheme and employing authorities.

Regulation 63 amends Schedule 1 to the 1995 Act which modifies the application of the 1995 Regulations in respect of practitioners. In particular, the amendments to Schedule 2 introduce a new contribution rate for practitioners based on pensionable earnings. Those rates run from 5 per cent to 8.5 per cent. The amendments also give effect to nominated partner’s pensions, increase in surviving partner pensions and increases in the amounts of child allowance payable where a practitioner dies whilst in pensionable employment. It also provides for how contribution tiers should be allocated for 2008-09.

Regulation 64 amends Schedule 2A to the 1995 Regulations which deals with pension sharing on divorce. The amendments are consequential on changes made elsewhere in the scheme.

A full regulatory impact assessment has not been produced for this instrument as it has no impact on the costs of business, charities or the voluntary sector.

Footnotes

[^f00001]: 1972 c. 11; section 10 was amended by the National Health Service (Scotland) Act 1972 (c. 58), Schedule 7, Part II; sections 10 and 12 were amended by the Pensions (Miscellaneous Provisions) Act 1990 (c. 7), sections 4(2), 8(5) and 10; section 10(6) was amended by the Pension Schemes Act 1993 (c. 48), Schedule 8, paragraph 7; the functions of the Secretary of State were transferred to the Scottish Ministers by virtue of article 2 of and Schedule 1 to the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).

[^f00002]: See the Superannuation Act 1972, section 10(1). This function was transferred to the Treasury by virtue of the Transfer of Functions (Minister for the Civil Service and Treasury) Order 1981 (S.I. 1981/1670), article 2 and is still exercisable by virtue of S.I. 1999/1750, article 2 and Schedule 1.

[^f00003]: Section 12(1) of the Superannuation Act 1972 provides that Regulations may be framed so as to have effect from a date earlier than that of their making.

[^f00004]: S.I. 1995/365 amended by S.I. 1997/1434 and 1916, 1998/1593, 1999/443, 2001/3649 and 2005/2011 and S.S.I. 2001/437 and 465, 2003/55, 270 and 517, 2005/512 and 544, 2006/307 and 561 and 2008/92.

[^f00005]: S.I. 1996/1172. Regulation 1 was amended by S.I. 1997/786 and 3198, 2000/2975, 2005/2050 and 3377, 2006/744, 2007/60, 814 and 1154.

[^f00006]: S.S.I. 2005/393, to which there are amendments not relevant to these Regulations.

[^f00007]: S.I. 2008/653.

[^f00008]: 1989 c. 26. Paragraph 20 of Schedule 6 was repealed by the 2004 Act, Schedule 42, paragraph 1.

[^f00009]: S.I. 1990/2101. Regulation 5 was repealed by implication on the repeal of the enabling provision subject to transitional provisions and savings by the 2004 Act, Schedule 42, paragraph 1.

[^f00010]: 1988 c. 1. Section 590C was repealed by the 2004 Act, Schedule 42, paragraph 1.

[^f00011]: Section 55 was amended by S.I. 2005/2050, Schedule 1, paragraph 16.

[^f00012]: 1971 c. 56.

[^f00013]: See in particular section 241 of and paragraph 1 of Schedule 29 to that Act.

[^f00014]: 1965 c. 32.

[^f00015]: Sub-paragraph (c) was amended by S.S.I. 2005/544.

[^f00016]: Paragraph (3) was amended by S.S.I. 2006/307.

[^f00017]: To which there are amendments not relevant to these Regulations.

[^f00018]: 1971 c. 56.

[^f00019]: 1998 c. 11.

[^f00020]: Paragraph (1) was amended by S.S.I. 2005/544.

[^f00021]: The functions of the Commissioners for Inland Revenue were transferred to the Commissioners for Her Majesty’s Revenue and Customs by the Commissioners for Revenue and Customs Act 2005 (c. 11), section 5.

[^f00022]: 1971 c. 56.

[^f00023]: S.I. 1995/360, to which there are amendments not relevant to these Regulations.

[^f00024]: 1971 c. 56.