The Local Government Pension Scheme (Administration) (Scotland) Regulations 2008

• (a) all amounts from time to time deducted from the pay of its employees under these Regulations;

• (b) any amount it has received by deduction or otherwise under regulation 15(5) (child related leave), 17 (trade dispute absence), 18(2) (absences with permission) or 22 (AVCs and SCAVCs) during the interval;

• (c) any extra charge payable under regulation 36 (employers payment following increase) or 37 (employers further payments) of which it has been notified by the administering authority during the interval; and

• (d) a contribution towards the cost of the administration of the fund.

• (2) But–

• (a) an employing authority must pay the amounts mentioned in paragraph (1)(a), not later than the time required under section 49(8) of the 1995 Act; and

• (b) paragraph (1)(d) does not apply where the cost of the administration of the fund is paid out of the fund under regulation 5(6) of the Local Government Pensions Scheme (Management and Investment of Funds) (Scotland) Regulations 1998[^f00033].

• (3) Every payment under paragraph (1)(a) must be accompanied by a statement showing–

• (a) the name, pay and band (as set out in column 1 of the table in regulation 4(2) (contributions payable by active members) of the Benefits Regulations) of each of the employing authority’s employees who is an active member;

• (b) which employees are paying contributions under regulation 20(1) (payment of additional regular contributions) or 22(1) (additional voluntary contributions and shared cost additional voluntary contributions);

• (c) the amounts which represent deductions from the pay of each of the employees and the periods covered by the deductions, distinguishing amounts representing deductions for any such voluntary contributions.

• (4) An appropriate administering authority may direct that the information mentioned in paragraph (3) shall be given to the authority instead in such form and at such intervals (not exceeding 12 months) as it specifies in the direction.

• (5) If an annual amount payable under paragraph (1)(d) cannot be settled by agreement, it must be determined by the Scottish Ministers.

• (6) Paragraphs (1) and (3) do not apply to an employing authority which is an appropriate administering authority.

• (7) An administering authority must pay to the fund of which it is the administering authority its fair share of any contribution towards the cost of the administration of the fund in circumstances where it has required a contribution towards such cost from employing authorities as referred to in paragraph (1)(d).

• (8) An administering authority must also pay any additional costs due to the fund which are incurred because of its level of performance in carrying out its functions under these Regulations.

Interest

39

• (1) An administering authority may require an authority from which payment of any amount due under regulations 35 to 38 (employers' contributions or payments) or 81 (changes of fund) is overdue to pay interest on that amount.

• (2) The date on which any amount due under regulations 35 to 37 is overdue is the date one month from the date specified by the administering authority for payment.

• (3) The date on which any amount due under regulation 38 (payment by employing authorities to appropriate administering authorities) is overdue is the day after the date when that payment is due.

• (4) Interest due under paragraph (1) or payable to a person under regulation 40(5) (deduction and recovery of member’s contributions), 41(2) (rights to return of contributions) or 47 (interest on late payment of certain benefits) must be calculated at one per cent. above base rate on a day to day basis from the due date to the date of payment and compounded with three monthly rests.

• (5) Interest on any amount due in respect of regulation 81 shall be calculated in accordance with guidance issued by the scheme actuary.

Deduction and recovery of member’s contributions

40

• (1) An employing authority may deduct from a person’s pay any contributions payable by him under these Regulations or the Benefits Regulations.

• (2) Sums payable under regulation 16(2) or (5)(b) (reserve forces) may be deducted by the member’s former employer from any payment made to the member under Part 5 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951[^f00034], to the extent that they are payable in respect of the same period.

• (3) The appropriate administering authority may recover any contributions or sum remaining due and not deducted under paragraph (1) or (2)–

• (a) as a debt arising under a contract in any court of competent jurisdiction; or

• (b) by deducting it from any payment by way of benefits to or in respect of the person in question under these Regulations or the Benefits Regulations.

• (4) But the sums mentioned in paragraph (2) are only recoverable under paragraph (3) if unpaid for 12 months after the person ceases to perform relevant reserve forces service.

• (5) If–

• (a) an employing authority deduct in error any amount in respect of contributions from a person’s pay or any other sum due to the person; and

• (b) the amount has not been repaid to the person before the expiry of the period of one month beginning with the date of deduction,

the appropriate body must pay the person interest on that amount; and the due date for the calculation of the interest under regulation 39(4) (interest) is the date of deduction.

• (6) Where the employee’s contributions have been paid into the appropriate fund, the repayment and interest must be made out of that fund.

• (7) The “appropriate body” for the purpose of paragraph (5) is–

• (a) the appropriate administering authority where the employee’s contributions have been paid into the appropriate fund; and

• (b) the person’s employing authority where the employee’s contributions have not yet been paid into the appropriate fund.

Rights to return of contributions

41

• (1) If a member with less than two years' membership ceases to be employed by an employing authority or to be an active member without becoming entitled to a retirement pension, the member is entitled to be repaid his or her contributions from the appropriate fund.

• (2) If repayment of the contributions has not been made before the expiry of the period of one year beginning with the date when active membership ceases, the person is entitled to interest on the repayment which should have been made, calculated as provided in regulation 39(4) (interest), the due date being the date when active membership ceased.

• (3) A person who is entitled to a repayment of contributions under paragraph (1) may waive his or her entitlement for any period and, if the person becomes an active member again before the expiry of that period, the person shall cease to be so entitled (but without prejudice to any entitlement arising later under that paragraph in respect of those contributions).

• (4) Where a person who continues as an active member in another employment held concurrently with the employment in which that person has ceased to be an active member, an amount equal to the repayment is to be treated as contributions to the Scheme as respects that person’s membership in that concurrent employment, entitling that person to a period of membership equal to the period of membership in the employment which has ceased, as reduced under regulation 8(3) (calculations of length of periods of membership) of the Benefit Regulations if the employment which has ceased was part time, multiplied by the fraction–

$$Whole-time rate of pay which has ceasedwhole-time rate of pay which is continuing$ where the rate of pay in each case is the annual rate of pay on the last day of employment in the employment which has ceased.$

Exclusion of rights to return of contributions

42

• (1) A person is not entitled to a repayment under regulation 41 (rights to return of contributions) if–

• (a) the person becomes a member again within one month and one day;

• (b) that person left the employment because of–

• (i) an offence of a fraudulent character; or

• (ii) grave misconduct,

in connection with that person’s employment; or

• (c) regulation 74(2) (right to payment out of fund authority’s pension fund) applies.

• (2) But where paragraph (1)(b) applies the employing authority may direct the payment out of the appropriate fund to the person or, in a case of an offence of a fraudulent character, to the person or to the person’s spouse, civil partner or any dependant of the person's, of a sum equal to all or part of the person’s contributions.

• (3) A person is not entitled to a repayment under regulation 41(1) if a transfer value has been credited to the appropriate fund for the person and the person ceases to be entitled to such a repayment if the person returns to local government employment before receiving it.

Permanent reductions in pay: certificates of protection of pension benefits

43

• (1) Where a certificate has been issued as respects a member’s pay under paragraph (3) or (5) and the date of reduction or, as the case may be, restriction specified in the certificate is not more than 10 years before the date on which the member ceases to be an active member, that member may elect that his or her final pay period should be–

• (a) a year ending with a day–

• (i) falling within in the period of five years ending with the last day on which the member was an active member; and

• (ii) of which that last day is the anniversary; or

• (b) any three consecutive years–

• (i) falling within the period of 13 years ending with the last day on which the member was an active member; and

• (ii) ending with a day of which that last day is the anniversary.

• (2) Where a member elects for the period specified in paragraph (1)(b), the member’s final pay is the annual average of the member’s pay during that period.

• (3) If, otherwise than by virtue of a member’s own circumstances (including the member’s ill health)–

• (a) the member’s rate of pay is reduced; or

• (b) the date at which it may be increased is restricted in such a way that it is likely that the rate of the member’s retirement pension will be adversely affected,

the member is entitled to be issued with a certificate to that effect by the employing authority (but see paragraph (5)).

• (4) A member is not entitled to be issued with a certificate under this regulation if the reduction in the member’s rate of pay–

• (a) is temporary; or

• (b) consists of the termination of, or a reduction in, temporary increase in the rate of pay.

• (5) The employing authority may issue a certificate without an application from the member, but need not issue a certificate if the member does not apply for one within 12 months after the date of reduction or restriction.

• (6) A certificate issued under this regulation must specify the date of the reduction or restriction.

• (7) The employing authority must send a copy of the certificate to the member’s appropriate administering authority.

• (8) The employing authority must keep a record of the certificate including such information as would be necessary for applying paragraph (1) for the period of 10 years beginning with the date of reduction or restriction specified in it.

• (9) An election under this regulation by a member must be made by notice in writing given to the appropriate administering authority before the expiry of the period of one month beginning with the date on which the member is notified of his or her entitlement to a benefit.

• (10) Where a member has died without having made an election under this regulation, the appropriate administering authority may make an election on the member’s behalf (whether or not the period within which the member could have elected has expired).

PART 5 — PAYMENT OF BENEFITS ETC

Pension increases under the Pension Schemes Act 1993

44

Any increase in a pension required by reason of Chapter 3 of Part 4 of the Pension Schemes Act 1993[^f00035] (protection of increases in guaranteed minimum pensions: anti franking) must be paid from the appropriate fund.

Contributions equivalent premiums

45

• (1) Where an employing authority pays a contributions equivalent premium under section 55 of the Pension Schemes Act 1993 in respect of a member, that employer may recover or, if an administering authority, may retain from the appropriate fund a sum not exceeding the premium.

• (2) But if the employing authority may recover or retain any sum under section 61 of that Act in respect of the premium, only the balance may be recovered or retained under paragraph (1).

• (3) Where a contributions equivalent premium is refunded under regulation 54(1)(c) of the Occupational Pension Schemes (Contracting out) Regulations 1996 (re entry into employment which is contracted out by reference to the same scheme)[^f00036], the authority to whom it is refunded must pay to the appropriate fund a sum equal to the amount of the premium.

Commencement of pensions

46

• (1) The first period for which any retirement pension which is payable immediately on a member leaving any employment is payable begins with the day after the date on which the employment ends.

• (2) In the case of a member who leaves local government employment and is not entitled to immediate payment of retirement pension under any of regulations 16 (retirement benefits) to 20 (early leavers: ill health) of the Benefits Regulations and does not make a choice under regulation 30 (choice of early payment of pension) of those Regulations the first period for which any retirement pension is payable begins, unless the member asks by notice in writing to the member’s administering authority to defer payment, with the member’s 65th birthday (but any such deferral shall not extend beyond the day before the member’s 75th birthday).

• (3) The first period for which any retirement pension under regulation 30 (choice of early payment of pension) of the Benefits Regulations is payable begins with the day on which the member chooses under paragraph (1) of that regulation.

• (4) The first period for which any retirement pension under regulation 31 (early payment of pension: ill-health) of the Benefits Regulations is payable begins on the date when the member became permanently incapable as determined under regulation 31 of those Regulations.

• (5) The first period for which any survivor’s benefits are payable under regulation 24 (survivor benefits: active members), 27 (children’s pensions), 33 (survivor benefits: deferred members), 34 (children’s pensions: deferred members), 36 (survivor benefits: pensioners) or 37 (children’s pensions: pensioner members) of the Benefits Regulations on the death of a member begins with the day after the date on which the member dies.

• (6) A person who is entitled to a retirement pension under regulation 16 (retirement benefits) or 17 (retirement after normal retirement date), of the Benefit Regulations may choose to defer payment until a date no later than the day before that person’s 75th birthday.

• (7) The person must notify his or her appropriate administering authority in writing of that person’s choice of date and such notice must be given not less than 3 months or such longer period as the administering authority agrees before the beginning of the first period for which the benefit would otherwise be payable.

• (8) A person may by notice in writing to the person’s administering authority alter the date specified in a notice referred to in paragraph (7) or any such subsequent notice but any such notice must be given not less than 3 months or such longer period as the administering authority agrees before the date specified in the preceding notice in order for the change of payment date to take effect.

Interest on late payment of certain benefits

47

• (1) Where all or part of a pension or lump sum payment due under these Regulations, the Benefits Regulations or the Earlier Regulations is not paid within the relevant period after the due date, the appropriate administering authority must pay interest on the unpaid amount to the person to whom it is payable (see regulation 39(4) (interest)).

• (2) The relevant period is–

• (a) in the case of a pension, one year;

• (b) in the case of a payment under regulation 24(1) (survivor benefits: active members), 27(1) (children’s pensions), 33(1) (survivor benefits: deferred members), or 36(1) (survivor benefits: pensioners) of the Benefits Regulations, the period ending one month after the date on which the administering authority receives notification of the member’s death; and

• (c) otherwise, one month.

• (3) The due date is–

• (a) in the case of a pension, the date on which it becomes payable;

• (b) in the case of a lump sum under the Transitional Regulations or regulation 21 of the Benefits Regulations (election for lump sum in lieu of pension), the benefit crystallisation date;

• (c) in the case of a death grant under regulations 23 (death grants: active members), 32 (death grants: deferred members), or 35 (death grants: pensioner members) of the Benefits Regulations, the date on which the member dies or, where notification of death is received more than two years after the date of death, the date of notification; and

• (d) in the case of a payment of a lump sum under regulation 39 (commutation: small pensions) of the Benefits Regulations, the date of the commutation election or, if later, the nominated date (within the meaning of paragraph 7(3) of Part I of Schedule 29 to the Finance Act 2004[^f00037]).

Payments due in respect of deceased persons

48

• (1) Paragraph (2) applies if, when a person dies, the total amount due to the person’s executors under the Scheme (including anything due to the person at the person’s death) (“the amount due”) does not exceed the amount specified in any order for the time being in force under section 6 of the Administration of Estates (Small Payments) Act 1965[^f00038] and applying in relation to the person’s death.

• (2) The appropriate administering authority may pay the whole or part of the amount due from its pension fund to–

• (a) the person’s executors; or

• (b) any person or persons appearing to the authority to be beneficially entitled to the estate,

without the production of confirmation, probate or letters of administration of the person’s estate.

• (3) Such a payment discharges that authority from accounting for the amount paid.

Non-assignability

49

• (1) Every benefit to which a person is entitled under the Scheme is payable to or in trust for the person.

• (2) No such benefit is assignable or chargeable with that or any other person’s debts or other liabilities.

• (3) On the bankruptcy of a person entitled to a benefit under the Scheme no part of the benefit passes to any trustee or other person acting on behalf of the creditors, except in accordance with an income payments order under section 32(2) of the Bankruptcy (Scotland) Act 1985[^f00039].

PART 6 — DETERMINATION OF QUESTIONS AND DISPUTES

Interpretation of Part

50

In this Part a reference to the employing authority or the appropriate administering authority of a prospective member is a reference to the body that would be the prospective member’s employer or appropriate administering authority if the prospective member were to become an active member in the employment by virtue of which the prospective member would be eligible to join the Scheme.

First instance decisions

51

• (1) Any question concerning the rights or liabilities under the Scheme of any person other than an employing authority must be decided in the first instance by the person specified in this regulation.

• (2) In relation to any employment in which a person is a member or prospective member, the appropriate administering authority must decide–

• (a) any question concerning the person’s previous service or employment;

• (b) any question about counting additional periods as membership or crediting additional pension.

• (3) Such a decision must be made as soon as is reasonably practicable after the person becomes a member in the employment.

• (4) Where a person is or may become entitled to a benefit payable out of a pension fund, the administering authority maintaining that fund must decide its amount.

• (5) That decision must be made as soon as is reasonably practicable after the event by virtue of which the entitlement arises or may arise.

• (6) Any question whether a person is entitled to a benefit under the Scheme must be decided by the employing authority who last employed the person.

• (7) That decision must be made as soon as is reasonably practicable after the earlier of–

• (a) the date the employment ends; or

• (b) the date specified in the notification mentioned in regulation 11(4) (ending of membership).

• (8) In paragraphs (4) and (6) “benefit” includes a return of contributions.

• (9) Any question concerning what rate of contribution a member is liable to pay to the appropriate fund must be decided by the member’s employing authority.

• (10) Other questions in relation to any member or prospective member must be decided by the member’s employer as soon as is reasonably practicable after the member or prospective member becomes a member or a material change affects his or her employment.

First instance determinations: ill-health

52

• (1) The independent registered medical practitioner referred to in regulation 20(6) (early leavers: ill health) of the Benefit Regulations must be in a position to certify that the practitioner–

• (a) has not previously advised, or given an opinion on, or otherwise been involved in the particular case for which the certificate has been requested; and

• (b) is not acting, and has not at any time acted, as the representative of the member, the employing authority or any other party in relation to the same case.

• (2) If the employing authority is not the member’s appropriate administering authority, it must first obtain that authority’s approval to its choice of registered medical practitioner for the purposes of regulation 20 (early leavers: ill health) and 31 (early payment of pension: ill health) of the Benefit Regulations.

Notification of first instance decisions

53

• (1) Every person whose rights or liabilities are affected by a decision under regulation 51 (first instance decisions) must be notified of it in writing by the body which made it as soon as is reasonably practicable.

• (2) A notification of a decision that the person is not entitled to a benefit must include the grounds for the decision.

• (3) A notification of a decision about the amount of a benefit must include a statement showing how it is calculated.

• (4) Every notification must contain a conspicuous statement giving the address from which further information about the decision may be obtained.

• (5) Every notification must also–

• (a) refer to the rights available under regulations 54 (applications to resolve disagreements) and 56 (reference of disagreement);

• (b) specify the time limits within which the rights under those regulations may be exercised; and

• (c) specify the job title and the address of the person to whom applications under regulation 54 may be made.

Applications to resolve disagreements

54

• (1) This regulation applies where there is a disagreement about a matter in relation to the Scheme between a member (or an alternative applicant) and an employing authority or the administering authority.

• (2) These persons are alternative applicants–

• (a) a widow, widower or surviving civil partner or nominated cohabiting partner (as defined in regulation 25 of the Benefits Regulations) of a deceased member;

• (b) a dependant of a deceased member or any other person to whom benefits in respect of him or her may be paid;

• (c) a prospective member;

• (d) a person who ceased to be a member, or to fall within any of sub paragraphs (a) to (c), during the period of six months ending with the date of the application; and

• (e) in the case of a disagreement relating to the question whether a person claiming to be a member or to fall within any of sub paragraphs (a) to (d) does so, the claimant.

• (3) The member or, as the case may be, the alternative applicant may apply to–

• (a) the person specified under regulation 53(5)(c) (notification of first instance decision) to give a decision on the disagreement; or

• (b) the appropriate administering authority for that authority to refer the disagreement to a person for decision.

• (4) An application for a decision must–

• (a) set out the applicant’s full name, address and date of birth;

• (b) include a statement giving details of the nature of the disagreement and the reasons why the applicant is aggrieved;

• (c) be signed by or on behalf of the applicant; and

• (d) be accompanied by a copy of any written notification under regulation 53 (notification of first instance decision).

• (5) An application by–

• (a) a member or prospective member;

• (b) a person who ceased to be a member or prospective member during the period of six months ending with the date of the application; or

• (c) a person claiming to be a person within sub paragraph (a) or (b),

must also set out his or her national insurance number (if any) and the name of his or her employing authority.

• (6) An application by any other person must also set out–

• (a) that person’s relationship to the member; and

• (b) the member’s full name, address, date of birth and national insurance number (if any) and the name of the member’s employing authority.

• (7) An application must be made before the end of–

• (a) the period of six months beginning with the relevant date; or

• (b) such longer period as the person giving the decision on the disagreement considers reasonable.

• (8) The relevant date is–

• (a) in the case of a disagreement relating to a decision under regulation 51 (first instance decisions), the date notification of the decision is given under regulation 53 (notification of first instance decision); and

• (b) in any other case, the date of the act or omission which is the cause of the disagreement or, if there is more than one, the last of them.

• (9) Paragraph (7)(b) does not apply where an appeal has been made under regulation 59(1) (appeals by administering authorities) in respect of a matter that is the subject of an application under this regulation.

Notice of decisions on disagreements

55

• (1) Subject to paragraph (2), a decision on a disagreement to which an application under regulation 54 (applications to resolve disagreements) relates must be given by notice in writing to–

• (a) the applicant;

• (b) the employing authority; and

• (c) if the employing authority is not the appropriate administering authority, to that authority,

by notice in writing before the expiry of the period of two months beginning with the date the application was received.

• (2) If no such notice is given before the expiry of that period, an interim reply must immediately be sent to the persons mentioned in paragraph (1)(a) to (c) setting out–

• (a) the reasons for the delay; and

• (b) an expected date for giving the decision (“the expected decision date”).

• (3) A notice under paragraph (1) must include–

• (a) a statement of the decision;

• (b) a reference to any legislation or provisions of the Scheme on which the person making the decision relied;

• (c) in a case where the disagreement relates to the exercise of a discretion, a reference to the provisions of the Scheme conferring the discretion;

• (d) a reference to the rights of the applicant and the employing authority’s right to refer the disagreement for reconsideration by the Scottish Ministers under regulation 56 (reference of disagreement for reconsideration by Scottish Ministers) and to the time within which the applicant may do so; and

• (e) a statement that the Pensions Advisory Service is available to give assistance in connection with any difficulty with the Scheme that remains unresolved including the address at which it may be contacted.

Reference of disagreement for reconsideration by Scottish Ministers

56

• (1) This regulation applies where an application about a disagreement has been made under regulation 54 (applications to resolve disagreements) and–

• (a) notice of a decision has been given under regulation 55(1) (notice of decision on disagreements); or

• (b) an interim reply has been sent under regulation 55(2) but no such notice has been given before the expiry of the period of one month beginning with the expected decision date; or

• (c) no such notice has been given or interim reply sent before the expiry of the period of three months beginning with the date the application was made.

• (2) The applicant under regulation 54 may, before the expiry of the period of six months beginning with the relevant date, make an application to the Scottish Ministers to reconsider the disagreement.

• (3) The relevant date is–

• (a) in a case falling within paragraph (1)(a), the date of the notice given under regulation 55(1);

• (b) in a case falling within paragraph (1)(b), the date on which the period mentioned in that sub paragraph expires; and

• (c) in a case falling within sub paragraph (1)(c), the date on which the period mentioned in that sub paragraph expires.

• (4) The application must–

• (a) set out the applicant’s full name, address and date of birth;

• (b) set out details of the grounds on which it is made (including any relevant supporting documentation);

• (c) include a statement that the applicant wishes the disagreement to be reconsidered by the appropriate administering authority;

• (d) be accompanied by a copy of any written notification under regulation 53; and

• (e) be signed by or on behalf of the applicant.

• (5) An application by a member or prospective member or a person claiming to be such must also set out his or her national insurance number (if any) and the name of the employing authority.

• (6) An application by any other person must also set out–

• (a) the person’s relationship to the member; and

• (b) the member’s full name, address, date of birth and national insurance number (if any) and the name of the member’s employing authority.

• (7) Where notice of a decision on the disagreement has been given under regulation 55, the application must also–

• (a) state why the applicant is dissatisfied with that decision; and

• (b) be accompanied by a copy of that notice.

• (8) The Scottish Ministers must determine–

• (a) the procedure to be followed when exercising its functions under this regulation;

• (b) the manner in which those functions are to be exercised.

Notice of decisions on reconsideration of disagreement

57

• (1) Subject to paragraph (2), the Scottish Ministers must give their decision on an application under regulation 56 by notice in writing to–

• (a) the applicant; and

• (b) the employing authority,

before the expiry of the period of two months beginning with the date the application was received.

• (2) If no such notice is given before the expiry of that period an interim reply must immediately be sent to those parties setting out–

• (a) the reasons for the delay; and

• (b) an expected date for giving the decision.

• (3) A notice under paragraph (1) must include–

• (a) a statement of the decision;

• (b) in a case where a decision was given under regulation 55, an explanation of whether and, if so, the extent to which that decision is confirmed or replaced;

• (c) a reference to any legislation or provisions of the Scheme on which the authority relied;

• (d) in a case where the disagreement relates to the exercise of a discretion, a reference to the provisions of the Scheme conferring the discretion;

• (e) a statement that the Pensions Advisory Service is available to give assistance in connection with any difficulty with the Scheme which remains unresolved including the address at which it may be contacted; and

• (f) a statement that the Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the Scheme made or referred in accordance with the Pension Schemes Act 1993 including the address at which the Pensions Ombudsman may be contacted.

Rights of representation

58

• (1) An application under regulation 54 (applications to resolve) or 56 (reference of disagreements) may be made or continued on behalf of the applicant by a representative nominated by the applicant.

• (2) Where a person who has the right to make or has made such an application dies, the application may be made or continued on the person’s behalf by the person’s executor.

• (3) Where such a person is under a legal disability because of non age or is or becomes otherwise incapable of acting for himself or herself, the application may be made or continued on the person’s behalf by a member of the person’s family or some other person suitable to represent the person.

• (4) Where a representative is nominated before an application is made, the application must specify the representatives full name and address and whether that address is to be used for service on the applicant of any documents in connection with the application.

• (5) Where a representative’s address is not to be so used the representative must be sent a copy of–

• (a) a notice under regulation 55(1) or 57(1); or

• (b) an interim reply under regulation 55(2) or 57(2).

Appeals by administering authorities

59

• (1) This regulation applies where an employing authority–

• (a) has decided, or failed to decide, any question falling to be decided by that employer under regulation 51 (first instance decisions) (otherwise than in the exercise of a discretion); and

• (b) is not an administering authority.

• (2) The administering authority maintaining the pension fund to which the employing authority pays contributions may appeal to the Scottish Ministers to decide the question.

• (3) Such an appeal must be made by notice in writing given before the end of–

• (a) the period of six months beginning with the relevant date; or

• (b) such longer period as the Scottish Ministers consider reasonable.

• (4) The relevant date is–

• (a) in the case of an appeal relating to a decision notified under regulation 53(1), the date of the notification of the decision; and

• (b) in the case of an appeal relating to a failure to decide any question, the date of that failure.

• (5) For the purposes of paragraph (4)(b), an employing authority is to be taken to have failed to decide a question at the expiry of the period of three months beginning with the date on which the administering authority have requested a decision in writing.

• (6) The Scottish Ministers must issue their decision on the appeal by notice in writing to the appellant and to any other person appearing to them to be affected by it.

• (7) Paragraph (8) applies where any other person–

• (a) has made an application under regulation 54 or 56 which has not been determined in respect of any of the matters which are the subject of an appeal under this regulation, or

• (b) makes such an application–

• (i) at the same time as such an appeal is made; or

• (ii) after such an appeal is made and before it is determined.

• (8) The appeal must be sisted–

• (a) pending notification of a decision under regulation 55 or 57; or

• (b) until the application is withdrawn.

PART 7 — POLICY STATEMENTS AND INFORMATION

Exchange of information by authorities

60

• (1) An employing authority which is not an administering authority must–

• (a) inform the appropriate administering authority of all decisions made by the employer under this Part concerning members; and

• (b) give that authority such other information as it requires for discharging its Scheme functions.

• (2) If–

• (a) an administering authority makes any decision under this Part about a person for whom it is not the employing authority; and

• (b) information about the decision is required by that person’s employing authority for discharging that employer’s Scheme functions,

that authority must give that employer that information.

Statements of policy about exercise of discretionary functions

61

• (1) Each employing authority must prepare a written statement of its policy in relation to the exercise of its functions under regulations 12 (power of employing authority to increase total membership of active members), 13 (power of employing authority to award additional pension), 18 (flexible retirement) and 30 (choice of early payment of pension) of the Benefits Regulations.

• (2) Before the expiry of the period of three months beginning with the commencement date each employing authority must send a copy of its statement to each relevant administering authority and must publish its statement.

• (3) An employing authority must–

• (a) keep its statement under review; and

• (b) make such revisions as are appropriate following a change in its policy.

• (4) Before the expiry of the period of one month beginning with the date any such revisions are made each employing authority must send a copy of its revised statement to each relevant administering authority and must publish its statement as revised.

• (5) In preparing, or reviewing and making revisions to, its statement an employing authority must have regard to the extent to which the exercise of any of the functions mentioned in paragraph (1) in accordance with its policy could lead to a serious loss of confidence in the public service.

• (6) In this regulation a relevant administering authority, in relation to an employing authority, is any authority which is an appropriate administering authority for that employer’s employees.

Annual benefit statements

62

• (1) An administering authority must issue an annual benefit statement to each of its active, deferred and pension credit members.

• (2) The first such statement must be issued on or before 1st April 2011 and subsequent statements must be issued on or before 1st April in each year after that year.

• (3) A statement must contain an illustration of the amount of benefit entitlement, in respect of the rights that may arise under the Scheme, which–

• (a) has been accrued by the member at the relevant date; and

• (b) in the case of an active member, is capable of being accrued by the active member if the active member remains in the Scheme until the active member’s normal retirement age.

• (4) The illustration must be calculated–

• (a) in the case of active members on the member’s pay (or as respects part time employees the whole time equivalent) for the 12 month period ending with the relevant date;

• (b) in the case of deferred members, on the member’s final pay; and

• (c) in the case of pension credit members, in accordance with regulation 95(3) (“appropriate rights”/ “pension credit benefits” under the scheme).

• (5) The relevant date is–

• (a) 31st March before the date that the statement is issued, or

• (b) such later date as the authority may choose.

Information to be supplied by employees

63

• (1) Before the expiry of the period of three months beginning with the date a person becomes a member, the employing authority must ask the person in writing for the documents specified in paragraph (2).

• (2) Those documents are–

• (a) a statement in writing listing all the person’s previous periods of employment; and

• (b) copies of all notifications previously given to the person under these Regulations and the Earlier Regulations.

• (3) It must also ask for those documents before the expiry of the period of three months beginning with the occurrence of any change as respects the person’s employment which is material for the Scheme.

• (4) A request under paragraph (1) or (3) must include a conspicuous statement that it is important that the member gives full and accurate information, especially for ascertaining the member’s rights under the Scheme.

• (5) The employing authority need not request any documents if satisfied that it, or the appropriate administering authority (if different), already has all material information.

PART 8 — SPECIAL ADJUSTMENTS

Statements of policy concerning abatement of retirement pensions in new employment

64

• (1) Each administering authority must formulate and keep under review its policy concerning abatement (that is, the extent, if any, to which the amount of retirement pension payable to a member from any pension fund maintained by it under the Scheme should be reduced (or whether it should be extinguished) where the member has entered a new employment with a Scheme employer, other than one in which it is eligible to belong to a teachers scheme).

• (2) Before formulating that policy an administering authority must consult with the authorities who employ active members for whom it is the appropriate administering authority.

• (3) Before the expiry of the period of three months beginning with the 1st April 2009, each administering authority shall publish a statement as to the policy which is being applied by it where a member who is so entitled enters such a new employment on or after that date.

• (4) Where, as a result of reviewing its policy concerning abatement, an administering authority determines to amend it, it must publish a statement of the amended policy before the expiry of the period of one month beginning with the date it determines to do so.

• (5) In formulating its policy concerning abatement, an administering authority must have regard to–

• (a) the level of potential financial gain at which it wishes abatement to apply;

• (b) the administrative costs which are likely to be incurred as a result of abatement in the different circumstances in which it may occur; and

• (c) the extent to which a policy not to apply abatement could lead to a serious loss of confidence in the public service.

• (6) In paragraph (5)(a) the reference to financial gain is a reference to the financial gain which it appears to the administering authority may be obtained by a member as a result of the member’s entitlement both to a pension and to pay under the new employment.

Application of abatement policy to individual cases

65

• (1) Where a member who is entitled to the payment of a retirement pension proposes to enter a new employment with an employing authority, the member must inform the employer about that entitlement.

• (2) If such a member enters such a new employment the member must immediately notify in writing the body from whom the member has become entitled to receive the pension.

• (3) Paragraphs (1) and (2) do not apply where the new employment is employment in which the person is eligible to belong to a teachers scheme.

• (4) The authority which is the member’s appropriate administering authority as respects the retirement pension to which the member is entitled–

• (a) must have regard to regulation 12 (application of abatement policy) of the Transitional Regulations;

• (b) must apply the policy published by them under regulation 64 (statements of policy) to the member; and

• (c) may reduce the annual rate of that pension or, as the case may be, may cease to pay it, during the period while the member holds the new employment, in accordance with that policy.

• (5) Any retirement pension paid following a request under regulation 18(1) of the Benefits Regulations (flexible retirement) is not subject to abatement under regulation 64 in respect of any subsequent employment with the person who is the member’s employer at the date of the request.

Forfeiture of pension rights after conviction of employment-related offences

66

• (1) If a member is convicted of a relevant offence, the Scottish Ministers may issue a forfeiture certificate.

• (2) Where a forfeiture certificate is issued the member’s former employing authority may direct that any of the rights in respect of the member under the Benefits Regulations, these Regulations or the Earlier Regulations as respects the member’s previous membership are forfeited.

• (3) A relevant offence is an offence, committed in connection with an employment in which the person convicted is a member, and because of which the member has left that employment.

• (4) A forfeiture certificate is a certificate that the offence–

• (a) was gravely injurious to the State; or

• (b) is liable to lead to serious loss of confidence in the public service.

• (5) If the former employing authority incurred loss as a direct consequence of the relevant offence, it may only give a direction under paragraph (2) if it is unable to recover its loss under regulation 68 (recovery or retention where former member has misconduct obligation) or 70 (transfer of sums from pension fund to compensate) or otherwise, except after an unreasonable time or at disproportionate cost.

• (6) A direction under paragraph (2) may only be given if an application for a forfeiture certificate has been made by the former employing authority before the expiry of the period of three months beginning with the date of the conviction.

• (7) Where a former employing authority applies for a forfeiture certificate, it must at the same time send the convicted person and the appropriate administering authority a copy of the application.

Interim payments directions

67

• (1) If–

• (a) a person leaves an employment in which the person was a member, because of an offence in connection with that employment; and

• (b) a forfeiture certificate has been issued under regulation 66(1) (forfeiture of pension rights) in respect of that offence,

the person’s former employing authority may give an interim payments direction to the appropriate administering authority.

• (2) But it may not give such a direction if it has–

• (a) notified the person of a decision under regulation 51 (first instance decisions) on any question as to entitlement to benefit; or

• (b) given any direction under regulation 66(2) (“a forfeiture direction”).

• (3) An interim payments direction is a direction to make interim payments to any person who appears to the former employing authority to be a person who would be entitled to receive payment of a benefit under the Scheme if no forfeiture direction were given.

• (4) The person to whom payments must be made and the amounts must be specified in the direction.

• (5) The amounts must not exceed the amounts which the person specified would be entitled to be paid if no forfeiture direction were given.

• (6) An interim payments direction is not a decision under regulation 51 as to any person’s entitlement to a benefit.

• (7) Payments in accordance with an interim payments direction shall be deemed to be payments in respect of a benefit to which the recipient was entitled (regardless of any contrary forfeiture direction or decision under regulation 51).

Recovery or retention where former member has misconduct obligation

68

• (1) This regulation applies where a person–

• (a) has left an employment, in which the person was or had at some time been a member, in consequence of a criminal, negligent or fraudulent act or omission on the person’s part in connection with that employment;

• (b) has incurred some monetary obligation, arising out of that act or omission, to the body that was the person’s employing authority in that employment; and

• (c) is entitled to benefits under the Benefits Regulations.

• (2) The former employing authority may recover or retain out of the appropriate fund–

• (a) the amount of the monetary obligation; or

• (b) the value at the time of the recovery or retention of all rights in respect of the former employee under the Scheme with respect to the employee’s previous membership (as determined by an actuary),

whichever is less.

• (3) The rights specified in paragraph (2)(b) do not include rights enjoyed by virtue of the receipt of a transfer value or credited by virtue of AVCs or SCAVCs.

• (4) The former employing authority must give the former employee–

• (a) not less than three months' notice of the amount to be recovered or retained under paragraph (2); and

• (b) a certificate showing the amount recovered or retained, how it is calculated, and the effect on the former employee’s benefits or prospective benefits.

• (5) If there is any dispute over the amount of the monetary obligation specified in paragraph (1)(b), the former employing authority may not recover or retain any amount under paragraph (2) until the obligation is enforceable under an order of a competent court or the award of an arbitrator.

Protection of guaranteed minimum pension rights

69

• (1) The power–

• (a) to give directions under regulation 66(2); or

• (b) to recover or retain amounts under regulation 68(2),

may not be exercised so as to deprive a person of the person’s guaranteed minimum pension or any widow's, widower’s or surviving civil partner’s guaranteed minimum pension.

• (2) But such a power may be so exercised if the person left his or her employment–

• (a) because of the offence of treason; or

• (b) because of one or more offences under the Official Secrets Act 1911 to 1989 for which the former member has been sentenced on the same occasion–

• (i) to a term of imprisonment of at least 10 years; or

• (ii) to two or more consecutive terms amounting in the aggregate to at least 10 years.

Transfer of sums from the pension fund to compensate for former member’s misconduct

70

• (1) This regulation applies where–

• (a) a person has left an employment in which the person was a member because of–

• (i) an offence involving fraud; or

• (ii) grave misconduct,

in connection with that employment;

• (b) the person’s former employing authority in that employment has suffered direct financial loss by reason of the offence or misconduct; and

• (c) either–

• (i) the former employee became entitled to benefits under the Benefits Regulations and these Regulations or the 1998 Regulations and a forfeiture direction has been given; or

• (ii) the former employee did not become so entitled and on leaving the employment became entitled to a return of contributions under regulation 41 (rights to return of contributions) (whether or not the former employee has waived his or her right).

• (2) If the former employing authority is an administering authority, it may transfer an appropriate amount from its pension fund to the appropriate fund or account.

• (3) Otherwise, the appropriate administering authority must pay the former employing authority an appropriate amount out of the pension fund, if requested to do so.

• (4) But if a payment in lieu of contributions is due or has been made in respect of the former employee, the administering authority may reduce a payment under paragraph (3) by half the amount of the payment in lieu of contributions.

• (5) An appropriate amount is an amount not exceeding–

• (a) the amount of the direct financial loss; or

• (b) the amount of any contributions which could have been returned to the former employee, or paid to his spouse, civil partner or a dependant, under regulation 42(2) (exclusion of rights to return of contributions) of these Regulations or regulation 87(2) of the 1998 regulations, less the amount of any which have been so returned or paid,

whichever is the less.

• (6) If after making a payment under paragraph (3) the appropriate administering authority is required to make any transfer payment under Chapter 4 or Chapter 5 of Part 4 of the 1993 Act or to make a payment under regulation 81 (changes of fund) for a former employee, the former employing authority must repay it, if requested to do so.

Members of local authorities

71

These Regulations apply to councillor members in respect of their councillor membership with the modifications set out in Schedule 5.

PART 9 — TRANSFERS

Interpretation of Part

72

In this Part–

• “the 1993 Act” means the Pension Schemes Act 1993[^f00040];

• “Chapters 4 and 5” means Chapters 4 and 5 of Part 4 of that Act (transfer values and early leavers)

• “club scheme” means an occupational pension scheme which– (except where it is established and maintained in the Channel Islands or the Isle of Man) is a registered scheme; provides benefits calculated by reference to final pay; is open to new participants, or is a closed scheme the trustees or managers of which also provide an open scheme which is a club scheme for new employees of the same employer and of the same grade or level of post as the participants in the closed scheme; and complies with reciprocal arrangements for the payment and receipt of transfer values with the schemes made under section 7 of the Superannuation Act 1972.

Application of Chapter 4 etc

73

• (1) For the purposes of–

• (a) sections 12C (requirements as to transfer, commutation etc. for contracting out), 19 (discharge of liability) and 20 (transfer of accrued rights);

• (b) Chapters 4 and 5; and

• (c) any regulations made under any of those sections or Chapters 4 and 5,

of the 1993 Act, the managers of the Scheme in relation to a member are the fund authority.

• (2) Despite regulation 2 of the Occupational Pension Schemes (Transfer Values) Regulations 1996[^f00041] (pre 1986 leavers), Chapter 4 shall apply to all members of the Scheme regardless of the date of termination of their pensionable service.

• (3) A member with a period of membership of under three months shall have the same rights to a cash transfer sum as if the three month condition in section 101AA(1)(b)(i) of the 1993 Act[^f00042] were satisfied and Chapter 5 applied to that member.

• (4) Regulation 5 of those Regulations (treatment of a number of employments as a single employment) only applies if the employments are treated as a single employment for the purposes of the Scheme.

• (5) Regulation 10(2)(a) of those Regulations (interest on late payment of cash equivalents) does not apply where the member has required the cash equivalent to be paid to a club scheme.

• (6) Regulation 18 of those Regulations (termination of pensionable service in certain circumstances to be disregarded) only applies if, in any case, no election has been made under regulation 13(1) (re-employed and rejoining deferred members) or regulation 14 (concurrent employments) to have the service which terminated aggregated with later or concurrent service or regulation 41(4) (rights to return of contributions) of these Regulations does not apply.

• (7) For this regulation and regulation 74 (rights to payment out of fund authority’s pension funds)–

• (a) the fund authority, in relation to a member, is the body maintaining the pension fund to which the member was contributing immediately before the member’s pensionable service terminated; but

• (b) if that fund has been closed, the fund authority is the body which would be liable to pay to the member the member’s pension for that employment if the member had been entitled to receive payment of such a pension when the member’s pensionable service terminated.

• (8) In this regulation “pensionable service” has the same meaning as in section 70 of the 1993 Act.

Rights to payment out of fund authority’s pension fund

74

• (1) A member may apply for a transfer under Chapters 4 or 5 (as modified by regulation 73) and where the member does so the amount of any transfer payment due in respect of the member under the relevant Chapter may only be paid by the fund authority from its pension fund if it is a recognised transfer (within the meaning of section 169 of the Finance Act 2004[^f00043]).

• (2) Where such a transfer payment is to be or has been paid from a fund, no other payment or transfer of assets may be made from the fund as respects the accrued rights covered by the transfer payment.

• (3) Paragraph (2) overrides anything to the contrary in–

• (a) the former regulations;

• (b) any local Act scheme;

• (c) the Earlier Regulations;

• (d) the Local Government Pension Scheme (Transitional Provisions) (Scotland) Regulations 1998[^f00044]; or

• (e) any other provision of these Regulations, the Benefits Regulations or the Transitional Regulations.

Contracting-out requirements affecting transfers out

75

• (1) Subject to paragraph (2), there must be deducted from the transfer payment to be made in respect of any person–

• (a) the amount of any contributions equivalent premium payable pursuant to section 55 of the 1993 Act; or

• (b) an amount sufficient to meet the liability in respect of the person’s contracted out rights.

• (2) The amount mentioned in paragraph (1) may not be deducted where the transfer payment is made to a registered pension scheme which is contracted out.

• (3) Where the amount mentioned in paragraph (1)(a) is deducted, the appropriate administering authority must use that amount to pay the premium.

• (4) Where the amount mentioned in paragraph (1)(b) is deducted, the appropriate administering authority may use the amount in preserving the liability mentioned in that paragraph in the appropriate fund, unless the member wishes a transfer payment in respect of it to be paid to the trustees or managers of a non contracted out registered pension scheme.

• (5) Contracted out rights, in relation to a member, are–

• (a) the member and the member’s surviving spouse’s or civil partner’s or nominated cohabiting partner’s rights to guaranteed minimum pensions; and

• (b) the member’s section 9(2B) rights (as defined in regulation 1(2) of the Occupational Pension Schemes (Contracting out) Regulations 1996[^f00045]).

Bulk transfers (transfers of undertakings etc.)

76

• (1) This regulation applies where–

• (a) two or more members' active membership ends on their joining a registered non local government scheme (“the new scheme”);

• (b) it is agreed by–

• (i) the members' appropriate administering authority;

• (ii) the members' employing authorities (if different); and

• (iii) the trustees or managers of the new scheme,

that a payment should be made under this regulation; and

• (c) the members–

• (i) agree in writing that that payment should be made instead of any payment which they otherwise might require to be made under Chapter 4 or 5; and

• (ii) waive any rights they might have under those Chapters by virtue of the cessation of their active membership.

• (2) The appropriate administering authority must not give its agreement under paragraph (1)(b) unless it is satisfied that the rights that each of the members will acquire under the new scheme are at least equivalent to those which each of the members would have obtained if a transfer value had been paid to the same scheme under Chapter 4 or 5, as it applies by virtue of regulation 73 (application of chapter 4) (assuming in any case where the member would not be entitled to such a payment that the member was).

• (3) The appropriate administering authority must provide each member with sufficient information in writing to check that fact before each member agrees as mentioned in paragraph (1)(c).

• (4) The appropriate administering authority must–

• (a) set aside (whether in cash or in assets or both) such part of the appropriate fund (“the transfer payment”) as an actuary appointed by the authority and an actuary appointed by the scheme managers of the new scheme for the purpose may agree as appropriate for the acquisition of such rights in that scheme as they may so agree; and

• (b) pay or transfer it to the trustees or managers of the new scheme for the benefit of the relevant members.

• (5) The appropriate administering authority must certify to the new scheme’s trustees or managers the amount included in the transfer payment which represents each member’s contributions and interest on them.

• (6) Where a transfer payment is to be or has been made under this regulation, no other payment or transfer of assets shall be made from the pension fund by reason of membership covered by the transfer payment.

• (7) Paragraph (6) overrides anything to the contrary in–

• (a) the former regulations;

• (b) any local Act scheme;

• (c) the Earlier Regulations;

• (d) the Local Government Pension Scheme (Scotland) (Transitional Provisions) Regulations 1998[^f00046]; or

• (e) these Regulations or the Benefits Regulations.

Calculation of amount of transfer payment under regulation 76

77

• (1) The amount of the transfer payment to be paid under regulation 76 is the amount determined by an actuary appointed by the members' appropriate administering authority to be equal to the value at the date they join the new scheme of the actual and potential liabilities payable from its fund which have then accrued in respect of the members and the persons who are or may become entitled to benefits under the Scheme through them.

• (2) The actuary may make such adjustments as the actuary thinks fit in calculating that amount and, in particular, as respects the period from that date to the date of actual payment of the transfer value.

• (3) The actuary must specify in the valuation the actuarial assumptions the actuary has used in making it.

• (4) The employing authority shall bear the costs of determining the appropriate part of the fund and apportioning the fund.

• (5) But if there is more than one employing authority involved, each shall bear such part of the costs as the actuary determines to be appropriate.

Inward transfers of pension rights

78

• (1) If a person who becomes an active member has relevant pension rights, the person may request the fund authority to accept a transfer value for some or all those rights from the relevant transferor.

• (2) Relevant pension rights are accrued rights under a registered scheme but do not include rights to benefits under the scheme which are attributable (directly or indirectly) to a pension credit.

• (3) Accrued rights include rights to preserved benefits and rights appropriately secured under section 19 of the 1993 Act.

• (4) For the purposes of this regulation and regulation 79 (right to count credited period), the fund authority, in relation to a transferring person, is the body maintaining the pension fund of the Scheme to which the person is contributing.

• (5) The relevant transferor is the trustees or managers of the scheme under which the transferring person’s relevant pension rights arise.

• (6) But the relevant transferor for the rights specified in paragraph (3) is the trustees or managers of the scheme, or the insurance company, to which a payment in respect of his accrued rights has been made.

• (7) A request from a transferring person under paragraph (1) must be made by notice in writing.

• (8) That notice must be given before the expiry of the period of 12 months beginning with the date the person became an active member (or such longer period as the person’s employer may allow).

• (9) Where a request under paragraph (1) is duly made the fund authority may accept the transfer value and credit it to its pension fund.

Right to count credited period

79

• (1) Where a transfer value has been accepted under regulation 78 (inward transfers of pension rights), the member may count the credited period as a period of membership for these Regulations[^f00047].

• (2) If the transfer value–

• (a) is paid by the trustees or managers of a club scheme and the member has made the request under regulation 78 before the expiry of 12 months beginning with the date the member became an active member;

• (b) represents all the rights relating to the member in that scheme; and

• (c) has been calculated–

• (i) in a case where Chapter 4 or Chapter 5 applies, in accordance with that Chapter; and

• (ii) otherwise, in a manner consistent with that prescribed under the relevant Chapter,

the credited period is the period which, if used to calculate a transfer value to be paid by the Scheme, would produce an amount equal to the transfer value received.

• (3) If paragraph (2) does not apply, the credited period must be calculated in a manner consistent with Chapter 4 or Chapter 5.

• (4) In calculating the credited period under paragraph (3) due allowance must be given for the expected increase in the member’s pensionable pay between the date the member became a member (or, if more than twelve months later, the date on which the transfer value is received) and the member’s normal retirement age.

• (5) The fund authority must give the member a written notice–

• (a) stating the period of membership the member may count under paragraph (1); and

• (b) containing a conspicuous statement giving the address from which further information may be obtained.

Community scheme transferees

80

• (1) The persons mentioned in paragraph (2) are entitled to such rights under the Scheme as are specified in guidance issued by the scheme actuary.

• (2) Those persons are–

• (a) a person who became employed by a Community institution after having been employed in local government employment; or

• (b) a surviving spouse, civil partner, nominated cohabiting partner or dependant or child of such a person.

• (3) In this regulation–

• (a) “Community institution” means a body treated as one of the Communities' institutions for the purposes of the Communities' scheme; and

• (b) “the Communities' scheme” means the pension scheme provided for officials and other servants of the Communities in accordance with regulations adopted by the Council of the European Communities.

Changes of fund

81

• (1) This regulation applies where–

• (a) a pension fund becomes an active member’s appropriate fund;

• (b) immediately before it does so, another fund was the member’s appropriate fund; and

• (c) in a case where regulation 13 (re-employed and rejoining deferred members), 14 (concurrent employment) or 41(4) (rights to return of contributions) applies to the member, the member has made a choice or election under the relevant regulation.

• (2) Where the member’s appropriate administering authority has also changed, the authority which has ceased to be the member’s appropriate administering authority must make such payment to the member’s later appropriate administering authority as is indicated in guidance issued by the scheme actuary for this regulation.

• (3) Where paragraph (2) applies as respects 10 or more members by virtue of a single event, the amount of the payment under that paragraph shall be determined by agreement between the actuary appointed by the administering authority by which the payment must be made and the actuary appointed by the administering authority to which it must be made.

• (4) Where the actuaries cannot agree on the amount within 12 months of the date of transfer or, where there is more than one date of transfer, the date of the last transfer which relates to the single event–

• (a) the matter shall be referred to a third actuary, chosen by agreement between the actuaries or, in default of agreement, by the President of the Scottish Faculty of Actuaries; and

• (b) that actuary’s determination shall be final.

• (5) The costs of determining the amount to be transferred shall be paid in equal shares by the members' former appropriate fund and the members' new appropriate fund.

• (6) Any payment under paragraph (2) must be credited to the new appropriate administering authority’s fund.

• (7) Where the member’s appropriate administering authority has not changed, it must arrange for a payment such as is indicated in guidance issued by the scheme actuary for this regulation to be made from the member’s former appropriate fund to the member’s new appropriate fund.

• (8) Paragraph (1) does not apply where a member enters an employment which is concurrent with another in which the member is also an active member.

Changes of fund and variable time employees

82

• (1) An inter fund transfer under regulation 81(2) in respect of a member who is a variable time employee prior to the transfer and who remains a variable time employee after the transfer shall be on the basis that his period of membership transfers on a day for day basis.

• (2) An inter fund transfer under regulation 81(2) in respect of a member who is a variable time employee prior to the transfer and who becomes a whole time or part time employee after the transfer shall be on the basis that his period of membership transfers on a pro rata basis using the formula–

$periodofmembership×annualrateofpayinthevariable-time employmentannual rate of pay in the employment post transfer=period of membership credited in the post transfer employment.$

PART 10 — PENSION SHARING

CHAPTER I — PRELIMINARY PROVISIONS

Pension debit member

83

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

• (2) The amount of the reduction shall be calculated in accordance with guidance issued for this purpose by the scheme actuary.

CHAPTER II — SHARING OF RIGHTS

Pension sharing mechanism in the Scheme

84

• (1) Pension sharing is available under the Scheme in respect of any of a person’s shareable rights under the Scheme except as otherwise provided in this regulation.

• (2) Excluded from shareable rights for the purposes of this Part of these Regulations are any rights under the Scheme in respect of which a person is in receipt of a pension by virtue of being the surviving spouse or other dependant of a deceased member with pension rights under the Scheme[^f00048].

Pension sharing order activates pension sharing creating pension debits and credits

85

On the coming into effect of a pension sharing order–

• (a) the transferor’s shareable rights under the Scheme become subject to a debit of the appropriate amount (“pension debit”[^f00049]) as defined in regulation 86 (calculation of “appropriate amount”); and

• (b) the transferee becomes entitled to a credit of that amount (“pension credit”[^f00050]) as against the administering authority.

Calculation of “appropriate amount”

86