The National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013

Made: 28th May 2013

Laid before the Scottish Parliament: 31st May 2013

Coming into force: 1st July 2013

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 10 and 12 of, and Schedule 3 to, the Superannuation Act 1972 and all other powers enabling them to do so.

In accordance with section 10(1) of that Act, these Regulations are made with the consent of the Treasury.

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

PART 1 — INTRODUCTORY AND GENERAL

CHAPTER 1.A — INTRODUCTION

Citation and commencement

1.A.1

• (1) These Regulations may be cited as the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013.

• (2) These Regulations come into force on 1st July 2013.

Application of remaining Parts

1.A.2

• (1) Part 2 provides for benefits to be payable in relation to service as an officer (as defined in that Part).

• (2) Part 3 provides for benefits to be payable in relation to service as—

• (a) a practitioner; or

• (b) an OOH provider,

(both as defined in that Part).

• (3) Part 4 modifies Parts 2 and 3 where a member has pensionable service under both Part 2 and Part 3.

CHAPTER 1.B — ACCOUNTS AND INFORMATION

Accounts

1.B.1

• (1) This regulation applies to the National Health Service superannuation scheme for Scotland (“the scheme”), the rules of which are set out in—

• (a) these Regulations; and

• (b) the National Health Service Superannuation Scheme (Scotland) Regulations 2011[^f00002] (“the 2011 Regulations”).

• (2) The Scottish Ministers must keep accounts of all income and expenditure of the scheme in a form approved by the Treasury.

• (3) The accounts must be open to examination by the Auditor General for Scotland.

Provision of information for tax purposes

1.B.2

• (1) A person who is entitled to a benefit under these Regulations must give the scheme administrator such information as will enable the scheme administrator to determine—

• (a) whether a lifetime allowance charge[^f00003] arises on the person becoming entitled to the benefit; and

• (b) if any such charge arises, the amount of the tax payable.

• (2) Paragraph (1) applies whether or not the person intends to rely on having given notice under any of the provisions specified in section 256(1) (enhanced lifetime allowance regulations) of the 2004 Act.

• (3) If a person applying for a benefit under these Regulations intends to rely on entitlement by virtue of any such notice, in addition to the information mentioned in paragraph (1), the person must give the scheme administrator the reference number issued by the Commissioners for Her Majesty’s Revenue and Customs[^f00004] under the Registered Pension Schemes (Enhanced Lifetime Allowance) Regulations 2006[^f00005] in respect of that entitlement.

• (4) If a person claiming a benefit under these Regulations intends to rely on entitlement to transitional protection against a lifetime allowance charge in accordance with paragraph 14 of Schedule 18 to the Finance Act 2011[^f00006], that person must give to the scheme administrator the reference number issued by the Commissioners under the Registered Pension Schemes (Lifetime Allowance Transitional Protection) Regulations 2011[^f00007] in respect of that entitlement.

• (5) The information that a person is required to give under this regulation must be given—

• (a) at the time the person makes a claim for a benefit; or

• (b) within such period ending after that time as the scheme administrator specifies in writing.

• (6) If a person fails to comply with paragraph (5)(b), the scheme administrator may calculate and pay tax due in respect of the lifetime allowance charge on the basis that the whole benefit is chargeable.

• (7) Paragraph (8) applies to members who are practitioners or non-GP providers (both as defined in Parts 2 and 3).

• (8) The members referred to in paragraph (7) must provide the information required by regulation 15A of the Registered Pension Schemes (Provision of Information) Regulations 2006[^f00008] in respect of their benefits under the scheme, in a manner prescribed from time to time by the Scottish Ministers.

• (9) In this regulation, “scheme administrator” means the scheme administrator, as the case may be, under regulation 2.J.1 or 3.J.1.

PART 2 — BENEFITS FOR OFFICERS

CHAPTER 2.A — INTRODUCTION

Preliminary

Interpretation of Part 2: general

2.A.1

In this Part—

• “the 1978 Act” means the National Health Service (Scotland) Act 1978[^f00202];

• “the 1993 Act” means the Pension Schemes Act 1993[^f00203];

• “the 1995 Act” means the Pensions Act 1995[^f00204];

• “the 1995 Section” means the part of the scheme, the rules of which are set out in the 2011 Regulations;

• “the 1997 Act” means the National Health Service (Primary Care) Act 1997[^f00205];

• “the 1999 Act” means the Welfare Reform and Pensions Act 1999[^f00206];

• “the 2004 Act” means the Finance Act 2004[^f00207];

• “the 2004 Regulations” means the National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004[^f00208];

• “the 2006 Act” means the National Health Service Act 2006[^f00209];

• “the 2008 Act” means the Pensions Act 2008[^f00210];

• “the 2008 Regulations” means the National Health Service Pension Scheme (Scotland) Regulations 2008[^f00211];

• “2008 Section Optant” has the meaning given in regulation 2.K.1 (application of Chapter 2.K);

• “the 2010 Regulations” means the Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010[^f00212];

• “the 2011 Regulations” means the National Health Service Superannuation Scheme (Scotland) Regulations 2011[^f00213];

• “active member” has the meaning given in section 124(1) (interpretation of Part 1) of the 1995 Act and, except where the context otherwise requires, refers to membership of this Section of the scheme (but see regulation 2.D.5(9) (partial retirement: members aged at least 55));

• “additional pension”, in relation to a member, except where the context otherwise requires, means so much of any pension payable to a member as is payable by virtue of contributions made under regulations 2.C.8 (option to pay additional periodical contributions), 2.C.10 (option to pay lump sum contribution) and 2.C.11 (additional lump sum contributions by employing authority);

• “additional services” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “assistant practitioner” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “automatic enrolment date” means the date referred to in section 3(7) (automatic enrolment) of the 2008 Act;

• “automatic re-enrolment date” means the date determined in accordance with regulation 12 (opting out) of the 2010 Regulations (as modified by regulation 14 (jobholders excluded from automatic re-enrolment) of those Regulations[^f00214]);.

• “base rate” means the Bank of England base rate— announced from time to time by the Monetary Policy Committee of the Bank of England as the official dealing rate, being the rate at which the Bank is willing to enter into transactions for providing short term liquidity in the money markets; or where an order under section 19 (reserve powers) of the Bank of England Act 1998[^f00215] is in force, any equivalent rate determined by the Treasury under that section;

• “buy-out policy” means a policy of insurance or annuity contract that is appropriate for the purposes of section 19 (extinguishment of liability of scheme for pensions secured by insurance policies or annuity contracts) of the 1993 Act[^f00216] and “buy-out” is to be construed accordingly;

• “capped transferred-in service” is to be construed in accordance with regulation 2.F.12;

• “cash equivalent” is to be construed in accordance with Chapter 4 (transfer values) of Part 4 of the 1993 Act;

• “certification services” means services related to the provision of the medical certificates listed in Schedule 3 (list of prescribed medical certificates) to the 2004 Regulations;

• “collaborative services” means primary medical services provided by a GP performer, a GMS practice, a section 17C agreement provider, an HBPMS contractor or an OOH provider under or as a result of an arrangement between— Scottish Ministers or a Health Board; and a local authority, under section 15(2) (supply of goods and services to local authorities, etc.) of the 1978 Act[^f00217], under which Scottish Ministers or the Health Board is responsible for providing services for purposes related to the provision of health care;

• “commissioned services” means services provided under a contract between— a GP performer, a GMS practice, a section 17C agreement provider, an HBPMS contractor or an OOH provider; and either— a Special Health Board, which relates to the provision of health care; or Scottish Ministers or a Health Board under section 16(1) (assistance to voluntary organisations) of the 1978 Act, which is for the purposes of the health service;

• “contracting Health Board” means— in the case of a non-GP provider who is— a partner in a partnership that is— a GMS practice (under a GMS contract); a section 17C agreement provider (under a section 17C agreement); or an HBPMS contractor (under an HBPMS contract); a shareholder in a company limited by shares that is— a GMS practice (under a GMS contract); a section 17C agreement provider (under a section 17C agreement); or an HBPMS contractor (under an HBPMS contract); or an individual who is— a GMS practice (under a GMS contract); a section 17C agreement provider (under a section 17C agreement); or an HBPMS contractor (under an HBPMS contract), the Health Board with which the partnership, company or (in the case of sub-paragraph (iii)) practice, provider or contractor entered into the contract or agreement referred to; in the case of a principal practitioner, the Health Board on whose medical performers list the practitioner’s name appears; and in the case of an assistant practitioner or a locum practitioner, the Health Board engaging the practitioner under a contract of employment or a contract for services and on whose medical performers list the practitioner’s name appears;

• “contracting-out requirements” means the requirements mentioned in section 9(2) (requirements for certification of schemes: general) of the 1993 Act[^f00218];

• “contribution option period” has the meaning given in regulation 2.C.8(8) (member’s option to pay additional periodical contributions to purchase additional pension);

• “core hours” means the period beginning at 8.00 a.m. and ending at 6.30 p.m. on any day from Monday to Friday except Good Friday, Christmas Day and a bank holiday;

• “corresponding health service scheme” means— a superannuation scheme provided under regulations made under section 10 of the Superannuation Act 1972[^f00219] and having effect in England and Wales; a superannuation scheme provided under article 12 of the Superannuation (Northern Ireland) Order 1972[^f00220]; a scheme made under section 2 of the Superannuation Act 1984 (an Act of Tynwald)[^f00221], in the case of a member who entered NHS employment on or before 31st March 2012; or any other occupational pension scheme approved for this purpose by the Scottish Ministers;

• “corresponding 1995 scheme” means a corresponding health service scheme the provisions of which the Scottish Ministers have determined correspond to the 1995 Section;

• “corresponding 2008 scheme” means a corresponding health service scheme the provisions of which the Scottish Ministers have determined correspond to the provisions of this Section of the scheme;

• “deferred member” has the meaning given in section 124(1) (interpretation of Part 1) of the 1995 Act and, except where the context requires otherwise, refers to membership of this Section of the scheme (but see regulation 2.A.2 (interpretation: further provisions) and regulation 2.D.5(9) (partial retirement: members aged at least 55));

• “dentist” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “dependent child” is to be construed in accordance with regulation 2.E.9;

• “dispensing services” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “employing authority” means— a Health Board, a Special Health Board, the Common Services Agency for the Scottish Health Service (constituted by section 10 of the 1978 Act[^f00222]) or Healthcare Improvement Scotland (established by section 10A of the 1978 Act[^f00223]); the Mental Welfare Commission for Scotland established under section 4 of the Mental Health (Care and Treatment) (Scotland) Act 2003[^f00224]; an OOH provider; an HBPMS contractor; a GMS practice; a section 17C agreement provider; any other body constituted under an Act relating to health services and which the Scottish Ministers agree to treat as an employing authority for the purposes of this Section of the scheme; or in relation to a person who is subject to a direction made under section 7 (extension of superannuation provisions of National Health Service Acts) of the Superannuation (Miscellaneous Provisions) Act 1967[^f00225] and subject to such modifications to these Regulations as the Scottish Ministers may in any particular case direct, any employer of such a person whom the Scottish Ministers agree to treat as an employing authority for the purposes of these Regulations;

• “employment” includes an office or appointment (other than an honorary office or appointment), and related expressions are to be read accordingly;

• “enhanced services” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “essential services” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “GMS contract” means a contract under section 17J (health boards’ power to enter into general medical services contract) of the 1978 Act[^f00226] or under article 13 (provision of immediately necessary treatment) of the General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004[^f00227];

• “GMS practice” means— a registered medical practitioner[^f00228] who is a principal practitioner; two or more such individuals practising in a partnership; or a company limited by shares, with whom a Health Board has entered into a GMS contract;

• “GP performer” means a registered medical practitioner, other than a GP registrar or a locum practitioner, whose name is included in a medical performers list and who performs essential services, additional services, enhanced services, dispensing services, collaborative services, commissioned services, OOH services or certification services (or any combination of those services)— under a GMS contract, section 17C agreement or HBPMS contract; on behalf of an OOH provider; or under a contract of employment or a contract for services with a Health Board which relates to arrangements by which it provides services under section 2C (functions of Health Boards: primary medical services) of the 1978 Act[^f00229];

• “GP provider” means a GP performer who is— a GMS practice, a section 17C agreement provider or an HBPMS contractor; a partner in a partnership that is a GMS practice, a section 17C agreement provider or an HBPMS contractor; or a shareholder in a company limited by shares that is a GMS practice, section 17C agreement provider or an HBPMS contractor, and who performs medical services as or on behalf of that practice, provider or contractor;

• “GP registrar” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “GP trainer” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “guarantee date” has the meaning given in regulation 2.F.2(2) (applications for statements of entitlement);

• “guaranteed cash equivalent transfer value payment” has the meaning given in regulation 2.F.3(3) (applications for transfer value payments: general);

• “guaranteed minimum pension” means guaranteed minimum pension, or accrued rights to guaranteed minimum pension, under section 14 (earner’s guaranteed minimum) or 17 (minimum pensions for widows and widowers) of the 1993 Act as the case may be;

• “HBPMS contract” means a contractual arrangement for the provision of services in accordance with section 2C(2) (functions of health boards: primary medical services) of the 1978 Act between a Health Board and a HBPMS contractor;

• “HBPMS contractor” means a person with whom a Health Board has made arrangements under section 2C(2) (functions of health boards: primary medical services) of the 1978 Act, but only if that person is also a person who would be eligible to enter into a GMS contract or a section 17C agreement for the provision of primary medical services and that person has not entered into such a GMS contract or section 17C agreement;

• “Health Board” means a Health Board constituted under section 2(1)(a) of the 1978 Act;

• “the health service” has the meaning given in section 108(1) (interpretation and construction) of the 1978 Act;

• “lifetime allowance”, in relation to a person, has the meaning given in section 218 (individual’s lifetime allowance and standard lifetime allowance) of the 2004 Act[^f00230];

• “lifetime allowance charge” has the meaning given in section 214(1) of the 2004 Act;

• “local authority” means a council constituted under section 2 (constitution of councils) of the Local Government etc. (Scotland) Act 1994[^f00231];

• “locum practitioner” has the meaning given in regulation 3.A.1 (interpretation of Part 3: general);

• “lower earnings limit” is to be construed in accordance with section 5 (earnings limits and thresholds for Class 1 contributions) of the Social Security Contributions and Benefits Act 1992[^f00232];