The National Health Service (Superannuation Scheme, Pension Scheme and Injury Benefits) (Scotland) Amendment (No. 2) Regulations 2009

• (a) the heading after “active members” insert “and non contributing members”; and

• (b) in paragraph (2) after “active member” insert “or a non contributing member”.

Amendment of regulation 2.D.9

29

In regulation 2.D.9(2) (re assessment of entitlement to an ill health pension determined under regulation 2.D.8)–

• (a) at the end of sub paragraph (b)(ii) omit “and”;

• (b) after sub paragraph (c), add–

• ; and the member has not become entitled to an upper tier ill health pension in respect of any later service under regulation 2.G.5.

Amendment of regulation 2.D.11

30

In regulation 2.D.11(1)(a) (early retirement on termination of employment by employing authority) after “active member” insert “or a non contributing member”.

Amendment of regulation 2.D.13

31

In regulation 2.D.13(2)(a) (exceptions to requirement that NHS employment must have ceased) after “active member” insert “or a non contributing member”.

Amendment of regulation 2.D.14

32

In regulation 2.D.14 (general option to exchange part of pension for lump sum)–

• (a) for paragraph (1) substitute–

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

• (b) in paragraph (7) at the start, add “Subject to paragraphs (8) and (9),”; and

• (c) after paragraph (7), add–

(8) If the pension is an ill health pension under regulation 2.D.8, the option under this regulation may only be exercised by giving notice in writing to the scheme administrator in such form as the Scottish Ministers require– (a) where the member is awarded– (i) a lower tier ill health pension under paragraph (2) of that regulation, at the time of claiming that lower tier ill health pension; (ii) an upper tier ill health pension under paragraph (3) of that regulation, at the time of claiming that upper tier ill health pension; or (b) before such later time as the Scottish Ministers specify in writing. (9) If the pension is an upper tier ill health pension under regulation 2.D.9, in substitution for a lower tier ill health pension under regulation 2.D.8, the option under this regulation may only be exercised– (a) in relation to the difference between the lower tier ill health pension that ceases to be payable in accordance with paragraph (3) of regulation 2.D.9 and the upper tier ill health pension to which the member becomes entitled under that paragraph; and (b) by giving notice in writing to the Scottish Ministers in such form as the Scottish Ministers require– (i) at the time of award of the upper tier ill health pension under that paragraph; or (ii) before such later time as the Scottish Ministers specify in writing.

Amendment of regulation 2.D.15

33

In regulation 2.D.15 (option for members in serious ill health to exchange whole pension for lump sum)–

• (a) in paragraph (1) after “active member” insert “or a non contributing member”;

• (b) in paragraph (4) after “active member” insert “or a non contributing member”; and

• (c) in paragraph (6) after “active member” insert “or a non contributing member”.

Amendment of regulation 2.D.17

34

In regulation 2.D.17 (pension credit member’s rights) omit paragraphs (2) and (3).

Amendment of regulation 2.D.21

35

In paragraphs (2)(a) and (4)(b) of regulation 2.D.21 (dual capacity membership) after “active member” insert “or a non contributing member”.

Amendment of regulation 2.E.1

36

In regulation 2.E.1(1) (surviving adult dependants' pensions) after “active member” insert “, a non contributing member”.

Amendment of regulation 2.E.3

37

In regulation 2.E.3 (amount of pensions under regulation 2.E.1: active members)–

• (a) in the heading after “active ” insert “and non contributing”;

• (b) for paragraph (1), substitute–

(1) In the case of an active member or a non contributing member, for the period of 6 months beginning with the day after the member’s death (“the initial period”) the rate of the pension payable under regulation 2.E.1 (if that amount is greater than the amount of the pension payable to the surviving adult under this Chapter apart from this paragraph), is equal to– (a) in the case of a deceased active member, the rate of the member’s pensionable pay at the time of death; (b) in the case of a deceased non contributing member, the rate of the deceased’s reckonable pay.

Amendment of regulation 2.E.4

38

In regulation 2.E.4(3) (amount of pensions under regulation 2.E.1: pensioner members) for “paragraph (1)” substitute “paragraphs (1) and (2)”.

Amendment of regulation 2.E.7

39

In regulation 2.E.7(3) (re employed pensioners: adult survivor pensions in initial period) for sub paragraphs (a) and (b), substitute–

(a) in the case of– (i) a deceased active member, the rate of the deceased’s pensionable pay at the time of death; and (ii) a deceased non contributing member, the rate of the deceased’s reckonable pay on the deceased’s last day of pensionable service; and (b) the rate of the deceased member’s pension payable at the time of death after taking account of any reduction in the rate of the pension under Chapter 2.H (abatement).

Amendment of regulation 2.E.10

40

In regulation 2.E.10 (amount of children’s pension under regulation 2.E.8: deceased active members)–

• (a) in the heading after “deceased active members” insert “and deceased non contributing members”;

• (b) in paragraph (1) after “active” insert “, or a non contributing member”;

• (c) for paragraph (4), substitute–

(4) For this purpose “relevant service” means– (a) in the case of an active member, the greater of– (i) the pensionable service the deceased was entitled to count on the date of death, increased by the enhancement period (if any) that would have applied for the purposes of regulation 2.D.8(5) if the deceased had become entitled to an upper tier ill health pension on the date of death; and (ii) 10 years' pensionable service; (b) in the case of a non contributing member, the pensionable service that the deceased was entitled to count on the date of death.

• (d) in paragraph (6) for “equal to the rate of the deceased’s pensionable pay at the date of death.” substitute–

• equal to– in the case of a deceased active member, the rate of the deceased’s pensionable pay at the date of death; and in the case of a deceased non contributing member, the rate of the deceased’s reckonable pay.

; and

• (e) in paragraph (7) for “equal to the rate of the deceased’s pensionable pay at the date of death.” substitute–

• equal to– in the case of a deceased active member, the rate of the deceased’s pensionable pay at the date of death; and in the case of a deceased non contributing member, the rate of the deceased’s reckonable pay.

Amendment of regulation 2.E.11

41

In regulation 2.E.11(1) (amount of children’s pension under regulation 2.E.8: deceased pensioner members) after “active member” insert “or a non contributing member”.

Amendment of regulation 2.E.12

42

In paragraphs (1) and (3)(a) of regulation 2.E.12 (amount of children’s pension under regulation 2.E.8: deceased deferred members) after “active member” insert “or a non contributing member”.

Amendment of regulation 2.E.13

43

In regulation 2.E.13(3) (amount of children’s pension under regulation 2.E.8: recent leavers) for sub paragraph (a) substitute–

(a) “the basic death pension” means 75 per cent of the pension to which the deceased would have been entitled if the deceased had become entitled to– (i) a pension under regulation 2.D.8(5) on the date of death; or (ii) if greater, the amount that the member’s pension would have been if it had been based on 10 years' pensionable service (disregarding any additional pension); and

Amendment of regulation 2.E.15

44

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

• (a) in paragraph (1) after “active member” insert “or a non contributing member”;

• (b) for paragraph (2)(a) substitute–

(a) in the case of– (i) a deceased active member, the rate of the deceased’s pensionable pay at the date of death; and (ii) a deceased non contributing member, the rate of the deceased’s reckonable pay, and

; and

• (c) in paragraph (5)–

• (i) in sub paragraph (a) after “active member” insert “or a non contributing member”; and

• (ii) in sub paragraph (b) after “active members” insert “or non contributing members”.

Amendment of regulation 2.E.17

45

In regulation 2.E.17 (amount of lump sum: single capacity members and recent leavers (disregarding regulation 2.D.5 employments))–

• (a) in paragraph (1) after “active member” insert “or a non contributing member”;

• (b) in paragraph (2)–

• (i) after “active member” insert “or a non contributing member”; and

• (ii) at the start insert “Subject to regulations 2.E.20A and 2.E.21”;

• (c) in paragraph (3) for “is not an active member” substitute “was not an active member or a non contributing member”; and

• (d) in paragraph (8)(a) for “is an active member” substitute “was an active member or a non contributing member”.

Amendment of regulation 2.E.18

46

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

• (a) in paragraph (1) after “active member” insert “or a non contributing member”; and

• (b) in paragraph (2) for sub paragraph (a) substitute–

(a) five times the annual rate of pension– (i) payable under regulation 2.D.8(5) (upper tier ill health pension), if the deceased had not reached the age of 65; (ii) payable under regulation 2.D.1 (normal retirement pensions), if the deceased had reached the age of 65, to which the member would have been entitled– (aa) in the case of a deceased active member, at the member’s date of death; and (bb) in the case of a deceased non contributing member, on the last day of the member’s pensionable service; and

Amendment of regulation 2.E.19

47

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

• (a) in paragraph (1)–

• (i) in sub paragraph (a) for “is an active member” substitute “was an active member or a non contributing member”; and

• (ii) in sub paragraph (b) for “is” substitute “was”;

• (b) in paragraph (2)(a) for “final pensionable pay” substitute “reckonable pay”; and

• (c) in paragraph (5), in the definition of “DPS” after “active member” insert “or a non contributing member”.

Amendment of 2.E.25

48

At the end of regulation 2.E.25 (5) (h) omit “and”.

Amendment of 2.F.8

49

At the end of regulation 2.F.8(2)(d ) omit “and”.

Amendment of regulation 2.G.5

50

In regulation 2.G.5 (re employed lower tier ill health pensioners)–

• (a) in paragraph (4) at the start insert “Subject to paragraph (5),”; and

• (b) after paragraph (4) add–

(5) If the re employed member– (a) ceases to be entitled to a lower tier ill health pension in respect of the earlier service; (b) becomes entitled to an upper tier ill health pension in respect of that earlier service in accordance with regulation 2.D.9(3); and (c) on the termination of the later service, the member becomes entitled to a lower tier or, as the case may be, an upper tier ill health pension in respect of that later service, the re employed member is entitled to the benefits set out in paragraph (6). (6) The benefits mentioned in paragraph (5) are– (a) an upper tier ill health pension paid in accordance with regulation 2.D.9 in respect of the member’s earlier service; and (b) a lower tier ill health pension in respect of the member’s later service.

Amendment of regulation 2.J.5

51

In regulation 2.J.5(2) (commutation of small pensions) omit sub paragraph (d).

Amendment of regulation 2.J.9

52

In regulation 2.J.9 (interest on late payment of benefits and refunds of contributions)–

• (a) in paragraph (2) after “interim” insert “or substitute”;

• (b) for paragraph (3) substitute–

(3) The Scottish Ministers must pay interest on the amount of a pension, lump sum, refund of contributions or an interim or substitute award which is unpaid (“the unpaid amount”) to the person to whom it should have been paid unless the Scottish Ministers are satisfied that the unpaid amount was not paid on the due date because of some act or omission on the part of the member or other person to whom it should have been paid.

• (c) in paragraph (5) after “unpaid amount” insert “(other than an unpaid amount in respect of an interim or substitute award)”;

• (d) for paragraph (6) substitute–

(6) The due date for an unpaid amount– (a) referred to in paragraph (5) in respect of which the Scottish Ministers were not in possession of all the information necessary for the calculation of the amount of the pension, lump sum or refund of contributions referred to in that paragraph on the date which would, in accordance with paragraph (5), be the due date; and (b) in respect of an interim or substitute award, shall be the first day on which the Scottish Ministers are in possession of all the information necessary to calculate that pension, lump sum, refund of contributions or interim or substitute award.

; and

• (e) in paragraph (7)–

• (i) for “interim award” substitute “interim or substitute award”;

• (ii) at the end of sub paragraph (a) omit “and”; and

• (iii) at the end of sub paragraph (b) add–

• ; and any amount paid that increases the amount of an earlier payment due to the payment of an upper tier ill health pension under regulation 2.D.8 paid to a member in substitution for a lower tier ill health pension under that regulation following a determination by the Scottish Ministers under regulation 2.D.9.

Amendment of regulation 2.J.13

53

For regulation 2.J.13 (employing authority and certain member record keeping contribution estimates) substitute–

(2.J.13) (1) As regards a member who is a non GP provider who derives practitioner income from the contracts, agreements or payments referred to in regulation 2.A.8(6), in respect of each scheme year, the member shall provide the contracting Health Board or someone appointed to act on their behalf with a certificate of his or her pensionable earnings based on– (a) the accounts drawn up in accordance with generally accepted accounting practice by the practice of which the member is a member; and (b) the return that member has made to Her Majesty’s Revenue & Customs in respect of their earnings for that year, no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs. (2) As regards a GMS practice, a section 17C agreement provider or an HBPMS contractor, in respect of each scheme year, the practice or contractor shall provide the Scottish Ministers with a statement of estimated pensionable earnings in respect of any non GP provider that is a section 17C agreement provider or HBPMS contractor or who assists in the provisions of NHS services provided by that GMS practice, section 17C agreement provider or an HBPMS contractor, at least 1 month before the beginning of that scheme year. (3) Subject to paragraphs (4) and (5) if, in respect of a scheme year, a non GP provider has failed to comply with the requirements of paragraph (1), the non GP provider’s pensionable earnings for that scheme year shall be zero. (4) If, in respect of a scheme year– (a) a non GP provider has failed to comply with the requirements of paragraph (1); (b) a benefit is payable for, or in respect of his or her non GP provider service; and (c) the non GP provider’s employing authority is in possession of a figure representing all or part of the non GP provider’s pensionable earnings for that year, the Scottish Ministers may treat that figure as the amount of the non GP provider’s pensionable earnings for that year. (5) If, in respect of a scheme year, a non GP provider– (a) dies without complying with the requirements of paragraph (1); or (b) is, in the opinion of the Scottish Ministers, unable to look after his or her own affairs by reason of illness or mental disorder, the Scottish Ministers may require that non GP provider’s personal representatives to provide the relevant certificate– (i) within the period referred to in paragraph (1); or (ii) within such other period as the Scottish Ministers permit. (6) All employing authorities under this Part of the Regulations shall, for each scheme year– (a) provide the Scottish Ministers with a statement of estimated total contributions due to the scheme under regulation 2.C.1 (contributions by members) and 2.C.5 (contributions by employing authorities: general); and (b) maintain records of contributions to the scheme made under regulations 2.C.1 and 2.C.5. (7) The statement referred to in paragraph (6)(a) shall be provided to the Scottish Ministers no later than 2 months after the end of each scheme year. (8) Except where the Scottish Ministers waive such requirement, an employing authority shall provide the Scottish Ministers with a statement of contributions to the scheme recorded in accordance with paragraph (6)(b) no later than 2 months after the end of each scheme year. (9) The certificates and statements referred to in this regulation– (a) shall be in such form as the Scottish Ministers may from time to time require; (b) may be provided to the Scottish Ministers in such manner as the Scottish Ministers may from time to time permit.

Amendment of regulation 3.A.1

54

In regulation 3.A.1 (interpretation of Part 3 : general)–

• (a) in the definition of “active member” for “3.D.5(9)” substitute “3.D.5(8)”;

• (b) in the definition of “member” after “active member,” insert “a non contributing member,”; and

• (c) at the appropriate place in the alphabetical order insert–

• “non contributing member” means a member who– is under the age of 75 and in NHS employment; is no longer required to make contributions to the scheme in accordance with regulation 3.C.1(1); and will be entitled to a pension under these Regulations– on ceasing to be employed in NHS employment and making a claim for the pension; or upon reaching age 75;

Amendment of regulation 3.B.2

55

In regulation 3.B.2 (restrictions on eligibility: general) after paragraph (5), add–

(6) Subject to paragraph (7), a person is not eligible to be an active member of the scheme in any future employment if the person– (a) ceases to be entitled to a lower tier ill health pension under regulation 3.D.7; and (b) becomes entitled to an upper tier ill health pension under that regulation on the date the Scottish Ministers makes a determination under regulation 3.D.8(3). (7) A person to whom paragraph (6) applies is eligible to be an active member of the scheme in any further employment after the first anniversary of that person’s first day of such employment following the date of the Scottish Ministers' determination under regulation 3.D.8.

Amendment of regulation 3.B.5

56

In regulation 3.B.5(7) (opting out of the scheme) after the word “practitioner” (where it second occurs) omit the word “but”.

Amendment of regulation 3.C.2

57

For regulation 3.C.2 (members' contribution rate) substitute–

(3.C.2) (1) Contributions under regulation 3.C.1(1) must be paid in accordance with the following paragraphs of this regulation. (2) Subject to paragraph (3), for the 2009 2010 scheme year and each subsequent scheme year, a member’s contribution rate is the percentage specified in column 2 of the following table in respect of the corresponding pensionable earnings band specified in column 1 of the table into which the member’s earnings fall.

Column 1	Column 2
Pensionable earnings band	Contribution percentage rate
Up to £20,709	5%
£20,710 to £68,392	6.5%
£68,393 to £107,846	7.5%
£107,847 to any higher amount	8.5%

(3) The Scottish Ministers may, with the consent of the Treasury, make a determination substituting any or all of the earnings bands or contribution percentage rates specified in the table in paragraph (2) with effect from a date specified in the determination. (4) Before making a determination under paragraph (3), the Scottish Ministers must consider– (a) the advice of the scheme actuary; and (b) in accordance with regulation 1.B.2 (cost sharing), advice from such employee and employer representatives as the Scottish Ministers consider appropriate. (5) If, in respect of a scheme year, a practitioner has– (a) certified their pensionable earnings in accordance with regulation 3.J.13 and forwarded a record of those earnings to the contracting Health Board or someone appointed to act on its behalf; or (b) was not required to certify their earnings in accordance with that regulation but the Contracting Health Board or someone appointed to act on its behalf or employing authority has the figure that represents the practitioner’s pensionable earnings for that scheme year, contributions payable for that scheme year, shall be those specified in column 2 of the table in paragraph (2) in respect of the amount of pensionable earnings referred to in column 1 of that table which corresponds to aggregate of– (i) the certified or final pensionable earnings from all practitioner sources; and (ii) any additional pensionable earnings the practitioner is treated as having received during a break in service in accordance with regulation 3.A.8. (6) Subject to paragraph (7), if paragraph (5) does not apply to a practitioner in respect of a scheme year, contributions are payable for that scheme year at the rate in column 2 of the table in paragraph (2), which– (a) have been agreed between the contracting Health Board or someone appointed on its behalf or employer, or employing authority on the one hand and the practitioner on the other hand; (b) corresponds to the practitioner’s most recent certified or final pensionable earnings referred to in paragraph (5); or (c) corresponds to the estimate of the practitioner’s pensionable earnings from all practitioner sources for that year. (7) If paragraph (6) applies to a practitioner in respect of a scheme year and paragraph (5)(a) or (b) is subsequently satisfied in respect of that scheme year, that practitioner shall pay contributions at the rate determined in accordance with paragraph (5). (8) A contracting Health Board or someone appointed on its behalf or employing authority may adjust a practitioner’s contribution rate for any scheme year determined in accordance with paragraph (6) or (9)– (a) by agreement between the contracting Health Board or someone appointed on its behalf or employing authority, on the one hand and the practitioner on the other hand; or (b) without such agreement, if the contracting Health Board or someone appointed to act on its behalf or employing authority, is satisfied that pensionable earnings will exceed the amount used to determine the contribution rate in accordance with those paragraphs. (9) If a member is in practitioner service and concurrently in NHS employment in respect of which the member is liable to pay contributions in accordance with regulation 3.C.1, contributions payable in respect of the member’s practitioner service shall be determined under this Part and contributions payable in respect of the member’s NHS employment shall be determined under Part 2. (10) In determining the contributions payable in accordance with paragraph (2), a contracting Health Board or someone appointed to act on its behalf or the employing authority must take account of all pensionable earnings as a practitioner. (11) If a principal practitioner provides services as a locum practitioner to a health board other than the contracting Health Board, or other employer, that health board or other employer must apply member contribution of 6.5 per cent. (12) The contracting Health Board or someone appointed to act on its behalf must apply the correct member contribution rate in terms of paragraph (5) or (6) whichever is appropriate once in receipt of certified earnings for the scheme year from the member. (13) If, apart from this paragraph, the earnings for a scheme year in respect of a member’s practitioner service would not be a whole number of pounds, those earnings must be rounded down to the nearest whole pound.

Amendment of regulation 3.C.3

58

For regulation 3.C.3(5) (payment by contribution authorities: general) substitute–

(5) The rate commencing 1 April 2009 is 13.5 per cent

Amendment of regulation 3.D.4

59

In regulation 3.D.4(3)(b) (early payment of pensions with actuarial reduction) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.D.5

60

In regulation 3.D.5 (partial retirement (members aged at least 55))–

• (a) in paragraph (1) after “active member” wherever it occurs insert “or a non contributing member”;

• (b) in paragraph (7)(b)(i) for the words from “latest GP certificate referred to in regulation 3.J.13” to the end, substitute “latest certificate referred to in regulation 3.J.13, or the latest scheme year’s final pensionable earnings referred to in regulation 3.C.2, and agreed with each relevant Health Board or someone appointed to act on its behalf or employer”; and

• (c) in paragraph (8)(b) after “active member” wherever it occurs insert “or a non contributing member”.

Amendment of regulation 3.D.6

61

In regulation 3.D.6(4) (increase in pensionable earnings following exercise of option under regulation 3.D.5) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.D.7

62

In regulation 3.D.7 (early retirement on ill health (active members)) in–

• (a) the heading after “active members” insert “and non contributing members”; and

• (b) paragraph (2) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.D.8

63

In regulation 3.D.8(2) (re assessment of entitlement to an ill health pension determined under regulation 3.D.7)–

• (a) at the end of sub paragraph (b)(ii) omit “and”; and

• (b) after sub paragraph (c) add–

• ; and the member has not become entitled to an upper tier pension in respect of any later service under regulation 3.G.5.

Amendment of regulation 3.D.10

64

In regulation 3.D.10 (general option to exchange part of pension for lump sum)–

• (a) in paragraph (7) at the start, insert “Subject to paragraphs (8) and (9),”; and

• (b) after paragraph (7), add–

(8) If the pension is an ill health pension under regulation 3.D.7, the option under this regulation may only be exercised by giving notice in writing to the Scottish Ministers in such form as the Scottish Ministers require– (a) where the member is awarded– (i) a lower tier ill health pension under paragraph (2) of that regulation, at the time of claiming that lower tier ill health pension; (ii) an upper tier pension under paragraph (3) of that regulation, at the time of claiming that upper tier ill health pension; or (b) before such later time as the Scottish Ministers specifies in writing. (9) If the pension is an upper tier ill health pension under regulation 3.D.8, in substitution for a lower tier ill health pension under regulation 3.D.7, the option under this regulation may only be exercised– (a) in relation to the difference between the lower tier ill health pension that ceases to be payable in accordance with paragraph (3) of regulation 3.D.8 and the upper tier ill health pension to which the member becomes entitled under that paragraph; and (b) by giving notice in writing to the Scottish Ministers in such form as the Scottish Ministers require– (i) at the time of award of the upper tier ill health pension under that paragraph; or (ii) before such later time as the Scottish Ministers specify in writing.

Amendment of regulation 3.D.11

65

In regulation 3.D.11 (option for members in serious ill health to exchange whole pension for lump sum)–

• (a) in paragraph (1) after “active member” insert “or a non contributing member”;

• (b) in paragraph (4) after “active member” insert “or a non contributing member”; and

• (c) in paragraph (6) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.D.13

66

In regulation 3.D.13 (pension credit member’s rights) omit paragraphs (2) and (3).

Amendment of regulation 3.D.17

67

In paragraphs (2)(a) and (4)(b) of regulation 3.D.17 (dual capacity membership) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.E.1

68

In regulation 3.E.1 (surviving adult dependants' pensions)–

• (a) in paragraph (1) after “active member” insert “, a non contributing member”; and

• (b) in paragraph (3) for “3.C.14(4) and 3.C.16(3)” substitute “3.C.12(4) and 3.C.14(3)”.

Amendment of regulation 3.E.3

69

In regulation 3.E.3 (amount of pensions under regulation 3.E.1: active members)–

• (a) in the heading after “active ” insert “and non contributing”; and

• (b) for paragraph (1), substitute–

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

Amendment of regulation 3.E.4

70

For regulation 3.E.4(3) (amount of pensions under regulation 3.E.1: pensioner members) substitute–

(3) Any reduction made in the rate of the pension– (a) under Chapter 3.H (abatement) is ignored for the purposes of paragraphs (1) and (2); and (b) under regulation 3.D.4 (early payment of pensions with actuarial reduction) is ignored for the purposes of paragraph (2).

Amendment of regulation 3.E.7

71

In regulation 3.E.7(3) (re employed pensioners: adult survivor pensions in initial period) for sub paragraphs (a) and (b), substitute–

(a) in the case of– (i) a deceased active member, the rate of the deceased’s pensionable earnings during the last complete quarter before the member’s death; or (ii) a deceased non contributing member, the rate of the monthly average of the deceased’s uprated earnings on the member’s last day of pensionable service; and (b) the rate of the deceased member’s pension (if any) payable at the time of death.

Amendment of regulation 3.E.8

72

In regulation 3.E.8(10) (surviving children’s pensions) for “3.C.14(4) and 3.C.16(3)”, substitute “3.C.12(4) and 3.C.14(3)”.

Amendment of regulation 3.E.10

73

In regulation 3.E.10 (amount of children’s pension under regulation 3.E.8: deceased active members)–

• (a) in the heading after “deceased active members” insert “and deceased non contributing members”;

• (b) in paragraph (1) after “active” insert “, or a non contributing member”;

• (c) for paragraph (3) substitute–

(3) In this regulation “the basic death pension” means twice the appropriate proportion of the deceased member’s pension under regulation 3.D.1 and– (a) in the case of an active member, that pension will include the greater of– (i) any increase due to such enhancement period (if any) that would have applied for the purposes of regulation 3.D.7(5) if the deceased had become entitled to an upper tier ill health pension on the date of death; and (ii) 10 years' pensionable service; (b) in the case of a non contributing member, will be based on the pensionable service that the deceased was entitled to count on the date of death;

• (d) in paragraph (5) for “equal to the average rate of the member’s pensionable earnings during the complete quarter before he died.” substitute–

• equal to– in the case of a deceased active member, the average rate of the deceased’s pensionable earnings during the last complete quarter before the member died; and in the case of a deceased non contributing member, the rate of the monthly average of the deceased’s uprated earnings on the member’s last day of pensionable service.

; and

• (e) for paragraph (6) substitute

(6) In a case within paragraph (4)(b) or (c), the rate of pension in respect of the dependant child or children for the period of 6 months beginning with the deceased’s death is equal to– (a) in the case of a deceased active member, the average rate of the deceased’s pensionable earnings during the last complete quarter before the member died; (b) in the case of a deceased non contributing member, the rate of the monthly average of the deceased’s uprated earnings on the member’s last day of pensionable service.

Amendment of regulation 3.E.11

74

In regulation 3.E.11(1) (amount of children’s pension under regulation 3.E.8: deceased pensioner members) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.E.12

75

In paragraphs (1) and (3)(a) of regulation 3.E.12 (amount of children’s pension under regulation 3.E.8: deceased deferred members) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.E.13

76

In regulation 3.E.13(3) (amount of children’s pension under regulation 2.E.8: recent leavers) for sub paragraph (a), substitute–

(a) “the basic death pension” means twice the appropriate proportion of the pension to which the deceased would be entitled to– (i) if the deceased had become entitled to a pension under regulation 3.D.7(5); or (ii) if greater, the amount that the member’s pension would have been if it had been based on 10 years' pensionable service (disregarding any additional pension); and

Amendment of regulation 3.E.15

77

In regulation 3.E.15 (amount of children’s pension under regulation 3.E.8: re employed pensioners)–

• (a) in paragraph (1) after “active member” insert “or a non contributing member”;

• (b) for paragraph (2)(a) and (b) substitute–

(a) in the case of– (i) a deceased active member, the rate of the deceased’s pensionable earnings during the last complete quarter before the member died; or (ii) a deceased non contributing member, the rate of the monthly average of the deceased’s uprated earnings on the last day of the member’s pensionable service; and (b) the rate of the pension being received by the deceased (if any) at the date of death.

• (c) in paragraph (5)–

• (i) in sub paragraph (a) after “active member” insert “or a non-contributing member”; and

• (ii) in sub paragraph (b) after “active members” insert “or non contributing members”; and

• (d) for paragraph (6)(a) substitute–

(a) the service taken into account (in regulation 3.E.10(3)) for the purposes of the calculation of the amount referred to in paragraph (5)(a); and

Amendment of regulation 3.E.17

78

In regulation 3.E.17 (amount of lump sum: single capacity members and recent leavers (disregarding regulation 3.D.5 employments))–

• (a) for paragraph (1) substitute–

(1) The lump sum payable on death of an active member or a non contributing member, who is not a deferred member or a pensioner member, is an amount equal to– (a) in the case of a deceased active member, twice the annual average of the member’s uprated earnings at the date of death; or (b) in the case of a deceased non contributing member, twice the annual average of the member’s uprated earnings on the member’s last day of pensionable service.

• (b) in paragraph (2)–

• (i) at the start insert “Subject to regulations 3.E.20A and 3.E.21,”;

• (ii) after “active member” insert “or a non contributing member”; and

• (iii) in sub paragraph (b) for “at the date of death” substitute “by which the pension was calculated”;

• (c) in paragraph (3) for “is not an active member” substitute “was not an active member or a non contributing member”; and

• (d) in paragraph (8)(a) for “is an active member” substitute “was an active member or a non contributing member”.

Amendment of regulation 3.E.18

79

In regulation 3.E.18 (amount of lump sum: dual capacity members (disregarding regulation 3.D.5 employments))–

• (a) in paragraph (1)–

• (i) in sub paragraph (a) for “is an active member” substitute “was an active member or a non contributing member”; and

• (ii) in sub paragraph (b) for “is” substitute “was”; and

• (b) in paragraph (2) for sub paragraph (a) substitute–

(a) five times the annual rate of pension– (i) payable under regulation 3.D.7(5) (upper tier ill health pension), if the deceased had not reached the age of 65; or (ii) payable under regulation 3.D.1 (normal retirement pensions), if the deceased had reached the age of 65, to which the member would have been entitled– (aa) in the case of a deceased active member, at the member’s date of death; or (bb) in the case of a deceased non contributing member, on the last day of the member’s pensionable service; and

Amendment of regulation 3.E.19

80

In regulation 3.E.19 (amount of lump sum: dual capacity members: members with pensions under regulation 3.D.5)–

• (a) in paragraph (1)–

• (i) in sub paragraph (a) for “is an active member” substitute “was an active member or a non contributing member”; and

• (ii) in sub paragraph (b) for “is” substitute “was”;

• (b) for paragraph (2) substitute–

(2) The lump sum is an amount– (a) equal to the sum of– (i) in the case of a deceased active member, twice the appropriate fraction of the annual average of the member’s uprated earnings at the date of death; (ii) in the case of a deceased non contributing member, twice the appropriate fraction of the annual average of the member’s uprated earnings at the member’s last day of pensionable service; and

; and

• (c) in paragraph (5) (in the definition of “DPS”) after “active member” insert “or a non contributing member”.

Amendment of regulation 3.E.25

81

At the end of regulation 3.E.25(5)(h) omit “and”.

Amendment of regulation 3.F.8

82

At the end of regulation 3.F.8(2)(d omit “and”.

Amendment of regulation 3.G.5

83

In regulation 3.G.5 (re employed lower tier ill health pensioners)–

• (a) in paragraph (4) at the start insert “Subject to paragraph (5),”; and

• (b) after paragraph (4) add–

(5) If the re employed member– (a) ceases to be entitled to a lower tier ill health pension in respect of the earlier service; (b) becomes entitled to an upper tier ill health pension in respect of that earlier service in accordance with regulation 3.D.8(3); and (c) on the termination of the later service, the member becomes entitled to a lower tier or, as the case may be, upper tier ill health pension in respect of that later service, the re employed member is entitled to the benefits set out in paragraph (6). (6) The benefits mentioned in paragraph (5) are– (a) an upper tier ill health pension paid in accordance with regulation 3.D.7 in respect of the member’s earlier service; and (b) a lower tier ill health pension in respect of the member’s later service.

Amendment of regulation 3.J.5

84

In regulation 3.J.5(2) (commutation of small pensions) omit sub paragraph (d).

Amendment of regulation 3.J.9

85

In regulation 3.J.9 (interest on late payment of benefits and refunds of contributions)–

• (a) in paragraph (2) after “interim” insert “or substitute”;

• (b) for paragraph (3) substitute–

(3) The Scottish Ministers must pay interest on the amount of a pension, lump sum, refund of contributions or an interim or substitute award which is unpaid (“the unpaid amount”) to the person to whom it should have been paid unless the Scottish Ministers are satisfied that the unpaid amount was not paid on the due date because of some act or omission on the part of the member or other person to whom it should have been paid.

• (c) in paragraph (5) after “unpaid amount” insert “(other than an unpaid amount in respect of an interim or substitute award)”;

• (d) for paragraph (6) substitute–

(6) The due date for an unpaid amount– (a) referred to in paragraph (5) in respect of which the Scottish Ministers were not in possession of all the information necessary for the calculation of the amount of the pension, lump sum or refund of contributions referred to in that paragraph on the date which would, in accordance with paragraph (5) be the due date; (b) in respect of an interim or substitute award, shall be the first day on which the Scottish Ministers were in possession of all the information necessary to calculate that pension, lump sum, refund of contributions or interim or substitute award.

; and

• (e) in paragraph (7)–

• (i) for “interim award” substitute “interim or substitute award”;

• (ii) at the end of sub paragraph (a) omit “and”; and

• (iii) at the end of sub paragraph (b) add–

• ; and any amount paid that increases the amount of an earlier payment due to the payment of an upper tier ill health pension under regulation 3.D.7 paid to a member in substitution for a lower tier ill health pension under that regulation following a determination by the Scottish Ministers under regulation 3.D.8.

Amendment of regulation 3.J.13

86

For regulation 3.J.13 (employing authority and certain member record keeping and contribution estimates) substitute–

(3.J.13) (1) As regards a principal medical practitioner, in respect of each scheme year, the member shall provide the contracting Health Board or someone appointed on its behalf with a certificate of their pensionable earnings based on– (a) the accounts drawn up in accordance with generally accepted accounting practice by the practice of which the member is a member; and (b) the return that member has made to Her Majesty’s Revenue & Customs in respect of their earnings for that year, no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs. (2) As regards an assistant practitioner or salaried GP, in respect of each scheme year, the member shall provide each employing authority with a certificate of their pensionable earnings based on– (a) the payments they receive from all employing authorities for practitioner services; and (b) the return that member has made to Her Majesty’s Revenue & Customs in respect of their earnings for that year, no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs. (3) In relation to a member who is an assistant practitioner or a salaried GP– (a) in respect of each scheme year, and in order that a correct contribution tier can be allocated to the member, the member will be required to provide each employer with a an estimate of pensionable practitioner earnings from all employments and to provide a copy of this information to the scheme administrator; (b) at the end of each scheme year, the member will be required to provide the Scottish Ministers with verification from each employer of actual pensionable practitioner earnings from all employments and to provide a copy of this information to the scheme administrator; and (c) the information required in sub paragraphs (a) and (b) shall be in such form as the Scottish Ministers require. (4) All employing authorities shall, for each scheme year– (a) provide the Scottish Ministers with a statement of estimated total contributions due to the Scheme under regulation 3.C.1 (contributions by members) and 3.C.3 (contributions by employing authorities: general); and (b) maintain records of contributions to the scheme made under regulation 3.C.1 and regulation 3.C.3. (5) The statement referred to in paragraph (4)(a) shall be provided to the Scottish Ministers no later than 2 months after the end of each scheme year. (6) Except where the Scottish Ministers waive such requirement, an employing authority shall provide the Scottish Ministers with a statement of contributions to the scheme recorded in accordance with paragraph (4)(b) no later than 2 months after the end of each scheme year. (7) Subject to paragraph (10), if, in respect of a scheme year, a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to that member, the member’s pensionable earnings for that scheme year shall be zero. (8) If, in respect of a scheme year– (a) a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to the member; (b) a benefit is payable to, or in respect of that member, under this Part of these Regulations; and (c) the member’s employing authority is in possession of a figure representing all or part of the member’s pensionable earnings for that year, the Scottish Ministers may treat that figure as the amount of the member’s pensionable earnings for that year. (9) If, in respect of a scheme year, a member– (a) dies without complying with the requirements of whichever of paragraphs (1) to (4) applies to the member; or (b) is, in the opinion of the Scottish Ministers, unable to look after the member’s own affairs by reason of illness or mental disorder, the Scottish Ministers may require that member’s personal representatives to provide the relevant certificate– (i) within the period referred to in whichever of paragraphs (1) to (4) was or is applicable to the member; or (ii) within such other period as the Scottish Ministers permit. (10) The certificates and statements referred to in this regulation– (a) shall be in such form as the Scottish Ministers shall from time to time require; (b) shall be provided to the Scottish Ministers in such manner as the Scottish Ministers may from time to time permit.

PART 4 — Amendment of the National Health Service (Injury Benefits) (Scotland) Regulations 1998

Interpretation of Part 4

87

In this Part an alphanumerical reference to a regulation is a reference to a provision of the National Health Service (Injury Benefits) (Scotland) Regulations 1998[^f00005] bearing that designation.

Amendment of regulation 2

88

In regulation 2(1) (interpretation) at the appropriate place in the alphabetical order insert–

• “ophthalmic provider” has the same meaning as in whichever of the 1995 Regulations or 2008 Regulations apply to that provider;

Amendment of regulation 4

89

In regulation 4(6) (scale of benefits), after sub paragraph (b)(v), add–

(vi) employment and support allowance payable under section 1(2)(a) of the Welfare and Reform Act 2007, in respect of the injury or disease, during the ‘assessment phase’ referred to in section 2 of that Act, or as the case may be, after that phase has ended.

Amendment of regulation 13

90

In regulation 13 (review and adjustment of allowance ), after paragraph (1) insert–

(1A) For the purposes of paragraph (1)(b)– (a) employment and support allowance payable during the assessment phase for that benefit and employment and support allowance payable after that phase has ended shall be treated as separate benefits; and (b) where employment and support allowance was awarded to a person prior to 1st April 2009 and that person continues to be entitled to that allowance on that day, payment of that allowance shall be deemed to have commenced on that day.

PART 5 — Miscellaneous

Option to persons detrimentally affected by these Regulations

91

• (1) This regulation applies in relation to any benefit which is being paid or may become payable under the Regulations amended by these Regulations to or in respect of a person who, having served in an employment or office, service in which qualified the person to participate in the benefits provided under the Regulations amended by these Regulations, ceased to serve therein before these Regulations came into force.

• (2) Where, in a case to which this regulation applies, any provision of these Regulations would operate in relation to any person so as to place that person in a worse position than that person would have been if that provision had not applied, that person may elect that the provision shall not apply by giving notice in accordance with paragraph (3).

• (3) A notice given pursuant to paragraph (2) shall be in writing and shall be delivered to the Scottish Ministers within 6 months of the coming into force of these Regulations or such longer period as the Scottish Ministers may allow.

• (4) An election pursuant to paragraph (2) shall have effect in relation to the benefit referred to in paragraph (1) only to the extent that such benefit has accrued by virtue of periods of service rendered prior to the cessation referred to in paragraph (1) (or, if there has been more than one such cessation, the last of them before the coming into force of these Regulations) and in determining entitlement to, and the amount of, the benefit to that extent, such person shall be treated as if that person had never recommenced service at any time after that cessation (or, as the case may be, the last such cessation).

Signed

JOHN SWINNEY — A member of the Scottish Executive — 21st May 2009

We consent

TONY CUNNINGHAM — FRANK ROY — Two of the Lord’s Commissioners of Her Majesty’s Treasury — 1st June 2009

Explanatory note

(This note is not part of the Regulations)

These Regulations amend the National Health Service Superannuation Scheme (Scotland) Regulations 1995 (S.I. 1995/365) (“the 1995 Regulations”) which establishes the National Health Service Superannuation Scheme for Scotland, the National Health Service Pension Scheme (Scotland) Regulations 2008 (S.S.I.

2008/224) (“the 2008 Regulations”) which establishes the National Health Service Pension Scheme for Scotland and the National Health Service (Injury Benefits) (Scotland) Regulations 1998 (S.I. 1998/1594) (“the Injury Benefits Regulations”).

Regulation 1 provides for citation, commencement and effect, including that certain provisions of this instrument are to take effect from various dates before the date of commencement through use of the power in section 12(1) of the Superannuation Act 1972.

The remainder of these Regulations are divided into four Parts, with Parts 2 to 4 amending the 1995 Regulations, the 2008 Regulations and the Injury Benefits Regulations respectively, and Part 5 providing that certain persons detrimentally affected by provisions in these Regulations having retrospective effect may elect for the provisions not to apply to them.

Parts 2 and 3 make parallel amendments in respect of both the 1995 Regulations and the 2008 Regulations. Part 2 also introduces amendments specific to the 1995 Regulations and Part 3 makes amendments specific to the 2008 Regulations.

The changes dealing with parallel issues in Parts 2 and 3 comprise the following. The introduction of changes to the way tiered contributions rates for members are assessed for the Scheme year 2009–10 and subsequently (regulations 4, 13, 20, 21, 22 and 57); the introduction of new estimates and end-of-year certificates of NHS Scheme pensionable earnings and contributions, for assistant and salaried medical practitioner completion (regulations 3, 57 and 86); the clarification of the benefits payable in respect of a period of re-employment following ill health retirement and the benefits payable in respect of ill health pensioners whose lower tier ill health pension is replaced by an upper tier ill health pension including, where appropriate, the payment of statutory interest (regulations 3, 5, 7, 8, 10, 11, 19, 29, 32(b) and (c), 50, 52, 55, 63, 64(b), 83 and 85); the clarification of the pay on which a lump sum death benefit is paid in respect of a practitioner (regulations 13(3), 69, 71, and 80); the deletion of references to “safeguarded rights” which were abolished by S.S.I.

2009/598 (regulations 14, 34, 66 and 84).

The changes specific to Part 2 are the inclusion of a reference to nominated partners in regulations providing for child pensions paid following the death of a pensioner (regulation 9); the inclusion of a reference to the requirements of the lump sum rule in the Finance Act 2004 in connection with benefits to be commuted on terminal illness (regulation 6); and preserved pensions become subject to the Scottish Ministers' determination on whether the member is entitled to commutation of their benefits because of terminal illness (regulation 12).

The changes specific to Part 3 are the introduction of a new definition of “non-contributing member” and the revision of the existing definition of “member” to include “non-contributing members” (regulations 16 and 59); a new employer contribution rate from 1st April 2009 (regulations 23 and 58); provision for the benefits to be paid on the retirement or death of a non-contributing member (regulations 18, 24, 25, 26, 27, 28, 30, 31, 33, 35, 36, 37, 39, 40(a), (b), (d) and (e), 41, 42, 44, 45, 46, 47, 59, 60, 61, 62, 65, 67, 68(a), 69, 71, 73(a), (b), (d) and (e), 74, 75, 77, 78, 79, and 80); provision for the amount of service to be used when calculating a child’s pension (regulations 40(c), 43, 73(c) and 76); provision for abatement to be disregarded in certain circumstances following the death of a pensioner (regulations 38 and 70); changes to cross references in regulations dealing with breaks in service and children’s pensions (regulation 17 and 42); and changes to a cross reference in the definition of “active member” (regulation 54(a)).

The changes made to the Injury Benefits Regulations by Part 4 are the following: inserting a definition of “ophthalmic provider” (regulation 88); providing for the employment and support allowance payable under section 1(2)(a) of the Welfare and Reform Act 2007 (c. 5) to be taken into account in calculating benefits under the Injury Benefits Regulations (regulation 89); and providing for when employment and support allowance payable is taken into account in that calculation (regulation 90).

Part 5 provides that deferred members, or members in receipt of a relevant benefit, who are detrimentally affected by these Regulations may elect for the provisions not to apply to them by giving notice within six months of the coming into force of these Regulations (regulation 91).

Footnotes

[^f00001]: 1972 c. 11; 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 and by the Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 2001 (S.I. 2001/3649), Article 108. 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]: 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, 2008/92 and 226 and 2009/19.

[^f00004]: S.S.I. 2008/224 as amended by S.S.I. 2009/19.

[^f00005]: S.I. 1998/1594 as amended by S.I. 1999/195 and 444, S.S.I. 2001/437, 2004/212, 2005/512, 2008/92 and 225 and 2009/19.