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

Type Scottish-Statutory-Instrument

Publication 2013-05-28

Last updated 2025-10-31

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(4) A claim under paragraph (1) must be made by notice in writing in such form as the Scottish Ministers require and takes effect from the date specified in the claim as the date on which the pension is to become payable.

(5) A pension credit member who has not reached age 65 is entitled to immediate payment of a reduced pension payable for life if the pension credit member has—

(a) reached age 55; and

(b) claimed payment of the pension.

(6) The amount of the annual pension under paragraph (5)—

(a) is first calculated as mentioned in paragraph (3); and

(b) then that amount is reduced by such amount as the Scottish Ministers determine, after consulting the scheme actuary, to be appropriate by reason of the payment of the pension before the member reaches age 65.

(7) A claim under paragraph (5) must be made by notice in writing in such form as the Scottish Ministers require and takes effect from the date specified in the claim as the date on which the pension is to become payable.

Late payment of pension with actuarial increase

3.D.3

(1) This regulation applies if a member becomes entitled to immediate payment of pension under regulation 3.D.1 (normal retirement pensions) after reaching age 65.

(2) So much of the amount of the pension to which the member would otherwise be entitled under that regulation (before any commutation under regulation 3.D.10 (general option to exchange part of pension for lump sum)) as is attributable—

(a) to the member’s pensionable service before that age; and

(b) to any contributions paid under regulations 3.C.6 or 3.C.9 before that age,

is increased.

(3) The amount of the increase must be calculated in accordance with guidance and tables provided by the scheme actuary to the Scottish Ministers for the purposes of this regulation.

(4) In preparing that guidance and those tables the scheme actuary must use such factors as the scheme actuary considers appropriate, having regard, in particular, to the period after reaching age 65 before the member becomes entitled to immediate payment of the pension and the life expectancy of the member.

(5) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.20.

Early payment of pension with actuarial reduction

3.D.4

(1) A member who has not reached age 65 is entitled to immediate payment of a reduced pension payable for life if the member—

(a) has reached age 55;

(b) meets the condition in regulation 3.D.1(2)(a) or (b) (normal retirement pensions);

(d) has claimed payment of the pension.

(2) The amount of the annual pension under this regulation—

(a) is first calculated as mentioned in regulation 3.D.1(4) (and, if additional pension is payable, in accordance with regulation 3.C.12(2) (effect of payment of additional contributions) or 3.C.14(2) (effect of part payment of periodical contributions)); and

(b) then that amount is reduced by such amount as the Scottish Ministers determine, after consulting the scheme actuary, to be appropriate by reason of the payment of the pension before the member reaches 65.

(3) A claim under paragraph (1) must be made by notice in writing in such form as the Scottish Ministers require and takes effect—

(a) in the case of a deferred member, from the date specified in the claim as the date on which the pension is to become payable; and

(b) in the case of an active member or a non-contributing member, from the day immediately following the day on which the member ceased to be employed in NHS employment.

(4) A member is not entitled to a pension under this regulation if the Scottish Ministers determine, having taken advice from the scheme actuary, that the pension, as reduced under paragraph (1), would be insufficient to meet their liability to provide a guaranteed minimum pension.

(5) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.10.

Partial retirement: members aged at least 55

3.D.5

(1) An active member or a non-contributing member may exercise an option under this regulation if—

(a) the member has reached age 55 and—

(i) continues to be employed in the employment in which the member is an active member or a non-contributing member; or

(ii) where the member has more than one such employment, in at least one of those employments;

(b) the member would be entitled to a pension for life, by virtue of regulation 3.D.1(1)(b)(i) (normal retirement pensions), if the member had—

(i) reached age 65;

(ii) ceased to be so employed; and

(iii) claimed payment of the pension;

(d) as a result of the change described in sub-paragraph (c), the member’s engagement in such employment reduces to 90% or less of its pre-change level.

(2) The option may only be exercised by notice in writing in such form as the Scottish Ministers require and must be accompanied by—

(a) appropriate supporting evidence; and

(b) a statement in writing approved by the contracting Health Board or someone appointed on its behalf that the conditions in paragraph (1)(c) and (d) are met.

(3) The option must specify—

(a) the percentage of the member’s pension (excluding any additional pension) in respect of which the member claims immediate payment (“the specified percentage”); and

(b) whether the member claims immediate payment of additional pension (if any).

(4) A member who duly exercises the option under this regulation is entitled—

(a) in the case of a member who has reached age 65, to immediate payment of the specified percentage of the pension to which the member would be entitled under regulation 3.D.1 (normal retirement pensions) if the member had ceased to be employed on the option day (disregarding any additional pension, but subject to any increase under regulation 3.D.3 (late payment of pension with actuarial increase));

(b) in the case of a member who has not reached age 65, to immediate payment of the specified percentage of the pension to which the member would be entitled under regulation 3.D.4 (early payment of pension with actuarial reduction) if the member had ceased to be employed on the option day (disregarding any additional pension); and

(c) if the option specifies that the member claims immediate payment of additional pension, the additional pension, subject—

(i) in a case within sub-paragraph (a), to an increase of the same percentage as would be made in that pension under regulation 3.D.3 if the member had ceased to be employed on the option day; and

(ii) in a case within sub-paragraph (b), to a reduction of the same amount as would have been made in that pension under regulation 3.D.4 if the member had so ceased.

(5) The specified percentage must be such that—

(a) the pension to which the member becomes entitled as a result of the option (before the exercise of the option under regulation 3.D.10 (general option to exchange part of pension for lump sum) and disregarding any additional pension)—

(i) is not less than 20% of the pension that would have been payable if the member had ceased to be employed in all the member’s employments at the end of the option day (disregarding any additional pension); and

(ii) taken together with any such increase to which the member becomes entitled as a result of the option (before any such commutation), is not less than 0.05% of the member’s lifetime allowance on the option day;

(b) the percentage of the pension (other than additional pension) in respect of which the member does not require immediate payment is not less than 20% of the amount of the pension that would have been payable if the member had ceased to be employed in all the member’s employments at the end of the option day (disregarding any additional pension).

(6) The option under this regulation may only be exercised on no more than two occasions and the Scottish Ministers must take advice from the scheme actuary regarding—

(a) any benefits to be paid after the exercise of the first option (but before the exercise of the second option);

(b) any benefits to be paid after the exercise of the second option; and

(7) In this regulation—

a member’s “employment” means practitioner service together with any concurrent NHS employment and “terms of employment” must be construed accordingly;

“the option day” means the day before the reduction referred to in paragraph (1)(d) by virtue of which the option is exercisable takes effect;

“pension” means the pension that a member would have been entitled to on the option day if the member had ceased to be employed in all of the member’s employments and, in the case of practitioner services, the pensionable earnings taken into account when working out the pension will be drawn from the latest certificate referred to in regulation 3.J.14, or the latest scheme year’s final pensionable earnings referred to in regulation 3.C.2 (members’ contribution rate), and agreed with each relevant Health Board or someone appointed to act on its behalf or employer; and

“pre-change level” means the level of the member’s engagement in the employment referred to in paragraph (1)(a) during the period of 12 months ending with the option day.

(8) For the purposes of this Part, a member who has exercised the option under this regulation—

(a) is a pensioner member as respects the specified percentage of the pension to which the member is immediately entitled as a result of exercising the option and the percentage of the pensionable service that represents as respects which the member is an active member on the option day;

(b) if the member continues in pensionable service after the option day, is an active member or a non-contributing member as respects—

(i) the pensionable service after that day in which the member continues; and

(ii) so much of the pensionable service as respects which the member is an active member or a non-contributing member on the option day as does not fall within sub-paragraph (a) (“the unspecified service”); and

(c) if the member does not continue in pensionable service after the option day, is a deferred member as respects the unspecified service.

(9) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.10.

Increase in level of engagement following exercise of option under regulation 3.D.5

3.D.6

(1) This regulation applies if, in a case where a member has exercised the option under regulation 3.D.5 (partial retirement: members aged at least 55)—

(a) during the period of 12 months beginning with the day after the option day, the terms on which the member holds the employment or employments referred to in regulation 3.D.5(1)(a) change again; and

(b) either—

(i) as a result, the level of the member’s engagement in that employment or those employments is increased to more than 90% of the member’s pre-change level; or

(ii) following an increase referred to in head (i), the member’s engagement in that employment or those employments is reduced to less than 90% of the member’s engagement during the period of 12 months ending with the option day.

(2) In the circumstances referred to in—

(a) paragraph (1)(b)(i), the amount of the member’s pension mentioned in regulation 3.D.5(4)(a) and (b) must be abated to zero from the first pension day immediately following the day on which the level of the member’s engagement increased; and

(b) paragraph (1)(b)(ii), subject to any adjustments in accordance with paragraph (3), the member is again entitled to receive payment of the full amount of the pension mentioned in sub-paragraphs (a) and (b) of that regulation as from the first pension day immediately following the day on which the level of the member’s engagement reduced.

(3) Where paragraph (2)(b) applies, before restoring the payment of a pension the Scottish Ministers must have regard to the advice of the scheme actuary as to whether the amount of the pension should be adjusted in view of the length of time during which it was abated to zero in accordance with paragraph (2)(a).

(4) For the purposes of this regulation, if during the period of 12 months beginning with the day after the option day the member enters a further employment or employments in which the member is an active member or a non-contributing member of this Section of the scheme—

(a) that event is to be treated as if the terms on which the member holds the employment or employments in respect of which the option was exercised (“the option employment”) had changed again; and

(b) the member’s level of engagement in the further employment or employments is to be treated as an increase in the level of the member’s engagement in the option employment or employments.

(5) In this regulation, a member’s “employment”, “the option day” and “pre-change level” have the same meanings as in regulation 3.D.5(7) (partial retirement: members aged at least 55).

(6) Where—

(a) a member’s pension is abated in accordance with paragraph (2)(a) in the circumstances described in paragraph (1)(b); and

(b) the member’s level of engagement does not reduce in the manner described in paragraph (1)(c),

the pension is (in any event) payable by the Scottish Ministers when the member retires, or partially retires again, from pensionable employment or attains age 75 and in doing so the Scottish Ministers must—

(i) have regard to any pensions already paid, including any lump sum paid as a result of the member exercising an option under regulation 3.D.10 (general option to exchange part of pension for lump sum); and

(ii) take the advice of the scheme actuary.

Early retirement on ill health: active members and non-contributing members

3.D.7

(1) A pension payable under this regulation (an “ill health pension”) may be paid at two different tiers to be known as a lower tier ill health pension and an upper tier ill health pension.

(2) An active member or a non-contributing member who has not reached age 65 and who has ceased to be employed in NHS employment is entitled to immediate payment of a lower tier ill health pension that is payable for life if—

(a) in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of discharging the duties of the member’s employment efficiently;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(d) the member has claimed the pension.

(3) An active member who has not reached age 65 is entitled to immediate payment of an upper tier ill health pension if—

(a) in addition to meeting the condition in paragraph (2)(a), in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of engaging in regular employment of like duration;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(d) the member has claimed the pension.

(4) The annual amount of a lower tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4) (normal retirement pensions).

(5) The annual amount of an upper tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4), but on the assumption that the member’s pensionable service—

(a) is increased by the enhancement period where the member has returned to pensionable employment 12 months or more after having a break in such service and it would be more favourable to the member to treat the member’s pensionable service before and after the break, and all such other breaks (if any), as continuous; and

(b) is not increased by the enhancement period in the circumstances referred to in sub-paragraph (a) if—

(i) the member’s pensionable service before and after the break is treated separately under regulation 3.G.2 (general rule: separate treatment of service etc.); or

(ii) the member’s pensionable service in respect of an earlier service credit is treated separately under regulation 3.K.7.

(6) Subject to paragraph (7), in this regulation “the enhancement period” means two-thirds of the member’s assumed pensionable service.

(7) If the member’s pensionable service includes both officer service and practitioner service—

(a) the member’s pensionable service must be increased by the enhancement period and the enhancement factor must be the proportion by which the member’s pensionable service is increased by that period;

(b) the length of the member’s officer service (under Part 2) and the member’s practitioner service are each to be increased by the enhancement factor; and

(c) the annual amount of an upper tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4) (normal retirement pensions), but on the assumption that the member’s uprated earnings are increased by the enhancement factor.

(8) Subject to paragraph (9), in this regulation “the member’s assumed service” means the further pensionable service that the member could have counted if the member had continued in service until reaching age 65.

(9) To the extent that any increase under paragraph (8) would cause a member’s pensionable service to exceed the limit of 45 years provided for in regulation 3.A.3(3) (meaning of “pensionable service”), the amount of any excess is to be reduced accordingly.

(10) This regulation is subject to—

(a) regulation 3.G.4 (effect of re-employment on upper tier ill health pensions); and

(b) regulation 3.G.5 (re-employed lower tier ill health pensioners).

(11) A member does not qualify for a pension under this regulation if the member’s NHS employment has been terminated by the member—

(a) being dismissed from such employment (unless the Scottish Ministers are satisfied that the member was dismissed because of the member’s infirmity);

(b) retiring or resigning from such employment at a time when the member was the subject of disciplinary proceedings or had been notified that such proceedings were being contemplated; or

(c) otherwise retiring or resigning from such employment unless at the time of doing so the member’s employing authority notified the Scottish Ministers in writing that the member’s physical or mental infirmity is the reason for the termination of that employment and the Scottish Ministers are satisfied that is the case.

(12) For the purposes of determining whether a member is permanently incapable of discharging the duties of the member’s employment efficiently under paragraph (2)(a), the Scottish Ministers must have regard to the factors in paragraph (14) (no one of which is decisive) and disregard the member’s personal preference for or against engaging in that employment.

(13) For the purposes of determining whether a member is permanently incapable of engaging in regular employment of like duration under paragraph (3)(a), the Scottish Ministers must have regard to the factors in paragraph (15) (no one of which is decisive) and disregard the factors in paragraph (16).

(14) The factors to be taken into account for paragraph (12) are—

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) the member’s—

(i) mental capacity; and

(ii) physical capacity;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of the member’s incapacity, irrespective of whether such rehabilitation is undergone; and

(d) any other matter which the Scottish Ministers consider appropriate.

(15) The factors to be taken into account for paragraph (13) are—

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) such reasonable employment as the member would be capable of engaging in if due regard is given to the member’s—

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience,

irrespective of whether or not such employment is actually available to the member;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of the member’s incapacity (irrespective of whether such rehabilitation is undergone) having due regard to the member’s—

(i) mental capacity; and

(ii) physical capacity;

(d) such type and period of training which it would be reasonable for the member to undergo in respect of the member’s incapacity (irrespective of whether such training is undergone) having due regard to the member’s—

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience; and

(e) any other matter which the Scottish Ministers consider appropriate.

(16) The factors to be disregarded for paragraph (13) are—

(a) the member’s personal preference for or against engaging in any particular employment; and

(b) the geographical location of the member.

(17) In this regulation—

“appropriate medical treatment” means such medical treatment as it would be normal to receive in respect of the incapacity, but does not include any treatment that the Scottish Ministers consider— would be reasonable for the member to refuse; would provide no benefit to restoring the member’s capacity for— discharging the duties of the member’s employment efficiently under paragraph (2)(a); or engaging in regular employment of like duration under paragraph (3)(a), before the member reaches age 65; or that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches age 65;

“permanently” means— the period until age 65; and in the case of a 2008 Section Optant who, before joining this Section, was assessed by a medical adviser as being— permanently incapable of efficiently discharging the Optant’s duties for the purposes of regulation E3(2)(b)(i) (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations, that Optant must be deemed to be permanently incapable of discharging the duties of the Optant’s employment efficiently for the purposes of paragraph (2)(a); or permanently incapable of regular employment of like duration for the purposes of regulation E3(2)(b)(ii) of the 2011 Regulations, that Optant must be deemed to be permanently incapable of engaging in regular employment of like duration for the purposes of paragraph (3)(a); and

“regular employment of like duration” means such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s current pensionable service as a practitioner.

(18) In the case of a 2008 Section Optant, this regulation is subject to regulations 3.K.10, 3.K.12 to 3.K.15 and 3.K.16.

(19) In the case of a Waiting Period Joiner, this regulation is subject to regulation 3.L.3.

Re-assessment of entitlement to an ill health pension determined under regulation 3.D.7

3.D.8

(1) This regulation applies if—

(a) in the opinion of the Scottish Ministers a member meets the condition in regulation 3.D.7(2)(a) (early retirement on ill health: active members and non-contributing members); and

(b) at the time the member is awarded a pension under that regulation the Scottish Ministers give the member notice in writing that the member’s case may be considered once within a period of three years commencing with the date of that award to determine whether the member meets the condition in regulation 3.D.7(3)(a) at the date of such a consideration.

(2) A member to whom a notice under paragraph (1)(b) has been given may apply to the Scottish Ministers for a review of whether the member subsequently meets the condition in regulation 3.D.7(3)(a) if—

(a) the member makes the application in writing—

(i) within three years of the date of issue of the notice; or

(ii) in the case of a member who engages in further NHS employment during the period of three years referred to in paragraph (1)(b), before the first anniversary of the day on which that employment commences or, if sooner, before the end of that period;

(b) the application for a review is accompanied by further written medical evidence—

(i) relating to whether the condition in regulation 3.D.7(3)(a) is satisfied at the date of the Scottish Ministers’ review; and

(ii) that evidence relates to the same physical or mental impairment as a result of which the member met the condition in regulation 3.D.7(2)(a);

(iii) no previous application for a review has been made under this paragraph; and

(iv) the member has not become entitled to an upper tier ill health pension in respect of any later service under regulation 3.G.5 (re-employed lower tier ill health pensioners).

(3) If, after considering the further medical evidence provided by the member, the Scottish Ministers determine that the member meets the condition in regulation 3.D.7(3)(a), then as from the date on which that determination is made the member—

(a) ceases to be entitled to a lower tier ill health pension; and

(b) becomes entitled to an upper tier ill health pension under regulation 3.D.7, which is to be calculated as if paragraph (8) of that regulation included the words “from the date of the Scottish Ministers’ determination under regulation 3.D.8” after “continued in service”.

(4) In the case of a 2008 Section Optant, this regulation is subject to regulations 3.K.14 and 3.K.15.

Early retirement on ill health: deferred members

3.D.9

(1) A deferred member who has not reached age 65 is entitled to immediate payment of a pension that is payable for life if—

(a) in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of engaging in regular employment of like duration; and

(b) the member has left that employment and claimed the pension.

(2) A deferred member who is in NHS employment and has not reached age 65 is entitled to immediate payment of a pension that is payable for life if—

(a) in the opinion of the Scottish Ministers the member—

(i) does not fall within paragraph (1)(a); and

(ii) suffers from physical or mental infirmity as a result of which the member is permanently incapable of discharging the duties of the member’s employment efficiently; and

(b) the member has claimed the pension.

(3) The amount of the annual pension payable under this regulation (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4) (normal retirement pensions).

(4) For the purposes of determining whether a member is permanently incapable of discharging the duties of the member’s employment efficiently under paragraph (2)(a)(ii), the Scottish Ministers must have regard to the factors in paragraph (6) (no one of which is decisive) and disregard the member’s personal preference for or against engaging in that employment.

(5) For the purposes of determining whether a member is permanently incapable of engaging in regular employment of like duration under paragraph (1)(a), the Scottish Ministers must have regard to the factors in paragraph (7) (no one of which is decisive) and disregard the factors in paragraph (8).

(6) The factors to be taken into account for paragraph (4) are—

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) the member’s—

(i) mental capacity; and

(ii) physical capacity;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of the member’s incapacity, irrespective of whether such rehabilitation is undergone; and

(d) any other matter which the Scottish Ministers consider appropriate.

(7) The factors to be taken into account for paragraph (5) are—

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) such reasonable employment as the member would be capable of engaging in if due regard is given to the member’s—

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience,

irrespective of whether or not such employment is actually available to the member;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of the member’s incapacity (irrespective of whether such rehabilitation is undergone) having due regard to the member’s—

(i) mental capacity; and

(ii) physical capacity;

(d) such type and period of training which it would be reasonable for the member to undergo in respect of the member’s incapacity (irrespective of whether such training is undergone) having due regard to the member’s—

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience; and

(e) any other matter which the Scottish Ministers consider appropriate.

(8) The factors to be disregarded for paragraph (5) are—

(a) the member’s personal preference for or against engaging in any particular employment; and

(b) the geographical location of the member.

(9) In this regulation—

“appropriate medical treatment” means such medical treatment as it would be normal to receive in respect of the incapacity, but does not include any treatment that the Scottish Ministers consider— would be reasonable for the member to refuse; would provide no benefit to restoring the member’s capacity for— discharging the duties of the member’s employment efficiently under paragraph (2)(a)(ii); or engaging in regular employment of like duration under paragraph (1)(a), before the member reaches age 65; or would, through no fault on the part of the member, not be possible for the member to receive before the member reaches age 65;

“permanently” means the period until age 65; and

“regular employment of like duration” means such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s pensionable service as a practitioner immediately before that service ceased.

(10) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.10.

Options to exchange pension for lump sum

General option to exchange part of pension for lump sum

3.D.10

(1) A member (other than a pension credit member whose rights under the scheme are attributable to a disqualifying pension credit for the purpose of paragraph 2 of Schedule 29 to the 2004 Act) may opt to exchange part of a pension to which the member would otherwise be entitled for a lump sum.

(2) If a member so opts, for every £1 by which the member’s annual amount of a pension is reduced, the member is to be paid a lump sum of £12.

(3) An option under paragraph (1) must relate to an annual amount of pension that is a whole number of pounds (and accordingly the lump sum must be exactly divisible by 12).

(4) In paragraphs (2) and (3) “annual amount”, in relation to a pension, means the amount of the annual pension to which the member would be entitled under this Chapter apart from the option, together with any increases payable under the Pensions (Increase) Act 1971[^f00586], calculated as at the time payment would first be due.

(5) A member may not exchange pension for lump sum under this regulation to the extent that it would result in a scheme chargeable payment for the purposes of Part 4 (pension schemes etc.) of the 2004 Act (see, in particular, section 241 of, and paragraph 1 of Schedule 29 to, that Act).

(6) If the member has a guaranteed minimum under section 14 (earner’s guaranteed minimum) of the 1993 Act in relation to the whole or part of a pension, paragraph (1) only applies to so much of the pension as exceeds that guaranteed minimum, multiplied by such factor as is indicated for a person of the member’s description in tables provided by the scheme actuary.

(7) Subject to paragraphs (8) and (9), 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) at the time of claiming the pension; or

(b) before such later time as the scheme administrator specifies in writing.

(8) If the pension is an ill health pension under regulation 3.D.7 (early retirement on ill health: active members and non-contributing members), 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 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 3.D.8 (re-assessment of entitlement to an ill health pension), 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 regulation 3.D.8(3) 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.

(10) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.8(4) (pension debit members) and regulation 3.K.10 (amount of pension and lump sum to be paid).

Option for members in serious ill health to exchange whole pension for lump sum

3.D.11

(1) An active member or a non-contributing member, a deferred member or a pension credit member may opt to exchange a relevant pension for a lump sum if the Scottish Ministers are satisfied that the conditions for the lump sum to be a serious ill health lump sum for the purposes of the 2004 Act will be met (see paragraph 4 of Schedule 29 to that Act).

(2) In paragraph (1), “relevant pension” means a pension payable to that member under regulation—

(a) 3.D.1 (normal retirement pensions);

(b) 3.D.2 (pension credit members);

(d) 3.D.9 (early retirement on ill health: deferred members).

(3) The option may only be exercised—

(a) in the case of a pension payable under regulation 3.D.1 or 3.D.2, before or at the time when the pension becomes payable; and

(b) in the case of a pension payable under regulation 3.D.7 or 3.D.9, before the pension becomes payable to the member.

(4) An active member or a non-contributing member aged 65 or over who exercises the option is to be paid, as soon as is reasonably practicable, an amount equal to the sum of—

(a) the maximum lump sum to which the member could have become entitled on exercising the option under regulation 3.D.10 if at the appropriate time the member had become entitled to a pension under regulation 3.D.1; and

(b) the total annual amount of the pension to which the member would have been entitled under regulation 3.D.1 after exercising that option, multiplied by 5.

(5) A pension credit member who exercises the option is to be paid, as soon as reasonably practicable, an amount equal to the sum of—

(a) the maximum lump sum (if any) to which the pension credit member could have become entitled on exercising the option under regulation 3.D.10 at the appropriate time; and

(b) the total annual amount of the pension to which the pension credit member is entitled under regulation 3.D.2 after exercising that option, multiplied by 5.

(6) An active member or a non-contributing member entitled to a pension under regulation 3.D.7 who exercises the option is to be paid, as soon as is reasonably practicable, an amount equal to the sum of—

(a) the maximum lump sum to which the member could have become entitled on exercising the option under regulation 3.D.10 at the appropriate time; and

(b) the total annual amount of the pension to which the member is entitled under regulation 3.D.7 after exercising that option, multiplied by 5.

(7) A deferred member entitled to a pension under regulation 3.D.9 who exercises the option is to be paid, as soon as is reasonably practicable, an amount equal to the sum of—

(a) the maximum lump sum to which the member could have become entitled on exercising the option under regulation 3.D.10 at the appropriate time; and

(b) the total annual amount of the pension to which the member is entitled under regulation 3.D.9 after exercising that option, multiplied by 5.

(8) In this regulation “the appropriate time” means—

(a) for the purposes of paragraphs (4) and (5) the time when the option under this regulation is exercised; and

(b) for the purposes of paragraphs (6) and (7) the time payment of the pension under regulation 3.D.7 or, as the case may be, regulation 3.D.9 would otherwise first be due.

(9) In this regulation references to the “annual amount” of a pension are to the amount of the annual pension to which the member would be entitled, together with any increases payable under the Pensions (Increase) Act 1971[^f00587], calculated as at the appropriate time.

(10) The option under this regulation may only be exercised by notice in writing to the Scottish Ministers in such form as the Scottish Ministers require.

Pension debit members and pension credit members

Reduction in pension debit member's benefits

3.D.12

(1) The benefits to which a pension debit member is entitled under this Chapter are subject to the reduction to be made under section 31 (reduction under pension sharing order following divorce or nullity of marriage) of the 1999 Act.

(2) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.8(2).

Allocation

Election to allocate pension

3.D.13

(1) A member may elect to allocate a part of the annual amount of the member’s pension under this Section of the scheme for the provision of a pension after the member’s death to a single person who is the member’s spouse or civil partner or another person who is the member’s dependant within the meaning of paragraph 15 of Schedule 28 (registered pension schemes: authorised pensions - supplementary) to the 2004 Act if conditions A and B are met.

(2) Condition A is that the member has not become entitled to the payment of any pension under this Section of the scheme other than a pension payable under regulation 3.D.5 (partial retirement: members aged at least 55).

(3) Condition B is that in the case of a member who is not making the election on claiming the pension, the member—

(a) has reached age 65 and has completed 45 years of pensionable service; or

(b) the member has reached age 70.

(4) Any pension provided as a result of such an election must be calculated in accordance with tables prepared by the scheme actuary.

(5) The member may not elect to allocate more than one-third of the member’s relevant annual pension.

(6) The member may not elect to allocate an amount that would result in—

(a) the allocated annual pension exceeding the member’s unallocated relevant annual pension;

(b) the allocated pension exceeding such amount as the Scottish Ministers may determine for the purposes of this paragraph, after consultation with the scheme actuary, having regard to any restrictions imposed under Part 4 (pension schemes etc.) of the 2004 Act; or

(c) the value of the allocated annual pension being such that a lump sum could be paid under regulation 3.J.6 (commutation of small pensions) by way of commutation of a pension of that amount if the person entitled to the pension was not entitled to any other benefits under this Section of the scheme.

(7) The annual pension that is allocated must be an exact number of pounds.

(8) If a member—

(a) elects to allocate a part of the member’s pension under paragraph (1) after reaching age 65 and whilst in pensionable service; and

(b) dies before the pension becomes payable,

for the purposes of paragraphs (5) to (7) the member is to be treated as entitled to the relevant pension to which the member would have been entitled if the member had become entitled to the pension immediately before death.

(9) In this regulation references to the member’s relevant pension, in relation to any pension, are references to so much of the pension as would be payable if the member had exercised the option under regulation 3.D.10 (general option to exchange part of pension for lump sum) so as to obtain the maximum lump sum possible.

Procedure for election under regulation 3.D.13

3.D.14

(1) An election under regulation 3.D.13 (election to allocate pension) in respect of a member’s pension must be made—

(a) at the time when the member claims the pension or, if the member does not become entitled to the pension at that time, when the member does become so entitled; or

(b) if the member is in pensionable service after reaching age 65, at any time after reaching that age and before reaching age 75.

(2) The election must be made by giving notice in writing to the Scottish Ministers.

(3) The notice must be in such form and contain such information as the Scottish Ministers require.

(4) Subject to paragraphs (6) and (7), an election under regulation 3.D.13 takes effect when it is accepted by the Scottish Ministers.

(5) The election may not be withdrawn, amended or revoked after it has taken effect.

(6) The election does not take effect if—

(a) the member or the person in whose favour the election was made (“the beneficiary”) dies on or before the day on which the Scottish Ministers accept it; or

(b) the Scottish Ministers are not satisfied that at the time when the election is made the member is in good health.

(7) The election is to be treated as not having taken effect if the beneficiary dies before the member is notified in writing that the Scottish Ministers have accepted the election.

Effect of allocation

3.D.15

(1) If an election under regulation 3.D.13 (election to allocate pension) for the allocation of a member’s pension to another person (“the beneficiary”) has taken effect—

(a) the member’s pension is to be reduced accordingly (even if the beneficiary predeceases the member); and

(b) if the beneficiary survives the member, on the member’s death the beneficiary becomes entitled to the payment of a pension for life of such amount as is determined in accordance with regulation 3.D.13.

(2) An allocation is disregarded for the purposes of this regulation if it would result in a pension being paid under this regulation to a beneficiary who is neither—

(a) the member’s spouse or civil partner on the date when the member becomes entitled to the pension or dies; nor

(b) a dependant of the member for the purposes of paragraph 15(2) or (3) (meaning of “dependant”) of Schedule 28 to the 2004 Act when the member dies.

(3) References in this Part to pensions under this Chapter do not include pensions under this regulation except where the context otherwise requires.

(4) Any such pension is payable in addition to any pension payable to the beneficiary in respect of the member’s death under Chapter 3.E (death benefits).

Dual capacity membership

3.D.16

(1) This paragraph applies if a member is—

(a) a member of this Section of the scheme of two or more of the kinds specified in paragraph (2);

(b) a pensioner member in respect of two or more pensions; or

(2) The kinds of member are—

(a) an active member or a non-contributing member;

(b) a deferred member;

(d) a pension credit member.

(3) If paragraph (1) applies, the general rule is that—

(a) benefits are payable to the member under this Chapter (or to any person to whom the member has opted to allocate pension under regulation 3.D.13 (election to allocate pension)) as if the member were two or more members of the kinds in question (so that two or more pensions or lump sums are payable in respect of the one member); and

(b) the amounts payable are to be determined accordingly.

(4) The rule in paragraph (3) is subject to any indication to the contrary and, in particular, does not affect the interpretation of—

(a) regulation 3.A.3(3) (meaning of “pensionable service”);

(b) regulation 3.D.5(8) (partial retirement: members aged at least 55) in a case where a member is both an active member or a non-contributing member and a pensioner member by virtue of that regulation;

(d) regulation 3.G.4 (effect of re-employment on upper tier ill health pensions);

(e) regulation 3.G.5 (re-employed lower tier ill health pensioners); or

(f) Chapter 3.H (abatement).

(5) If a person who is a pension credit member is entitled to two or more pension credits—

(a) benefits are payable to the person under this Section of the scheme (or to any person to whom the member has opted to allocate pension under regulation 3.D.13) as if the person were two or more persons, each being entitled to one of the pension credits (so that two or more pensions or lump sums are payable to the one pension credit member); and

(b) the amounts of those benefits are to be determined accordingly.

Contracting-out obligations (GMPs, etc.)

Guaranteed minimum pensions etc.

3.D.17

(1) If a member has a guaranteed minimum under section 14 (earner’s guaranteed minimum) of the 1993 Act in relation to benefits under this Section of the scheme—

(a) nothing in this Part permits or requires anything that would cause requirements made by or under the 1993 Act in relation to such a member and such a member’s rights under this Section of the scheme not to be met in the case of the member;

(b) nothing in this Part prevents anything from being done which is necessary or expedient for the purposes of meeting such requirements in the case of the member; and

(2) If apart from this rule—

(a) no pension would be payable to the member under this Section of the scheme; or

(b) the weekly rate of the pensions payable would be less than the guaranteed minimum,

a pension at a weekly rate equal to the guaranteed minimum is payable to the member for life from the date on which the member reaches State pension age or, as the case may be, pensions the aggregate weekly rate of which is equal to the guaranteed minimum are so payable.

(3) Subject to paragraph (4)—

(a) if on reaching State pension age the member is still in employment (whether or not it is scheme employment); and

(b) if it is not scheme employment, the member consents to a postponement of the member’s entitlement under paragraph (2),

paragraph (2) does not apply until the member leaves employment.

(4) If the member continues in employment for a further 5 years after reaching State pension age and does not then leave employment, the member is entitled from the end of that period to so much of the member’s pension under this Chapter as equals the member’s guaranteed minimum (or, as the case may be, to so much of the member’s pensions under this Chapter as together have a weekly rate equal to the member’s guaranteed minimum), unless the member consents to a further postponement of the entitlement.

(5) If paragraph (3) or (4) applies, the amount of the guaranteed minimum to which the member is entitled under this rule is increased in accordance with section 15 (increase of guaranteed minimum where commencement of guaranteed minimum pension postponed) of the 1993 Act.

(6) If—

(a) before State pension age the member becomes entitled to the immediate payment of a pension; and

(b) the member has a guaranteed minimum under section 14 (earner’s guaranteed minimum) of the 1993 Act in relation to the whole or part of the pension,

the weekly rate of the pension, so far as attributable to that service, must not be less than that guaranteed minimum, multiplied by such factor as is indicated in tables provided by the scheme actuary for a person of the member’s age and sex at the date on which the pension becomes payable.

(7) This paragraph applies if a person has ceased to be in employment that is contracted-out by reference to this Section of the scheme, and either—

(a) all the person’s rights to benefits under this Section of the scheme, except the person’s rights in respect of the person’s guaranteed minimum or rights under section 9(2B) of the 1993 Act (“the person’s contracting-out rights”), have been transferred under Chapter 3.F (transfers); or

(b) the person has no rights to benefits under this Section of the scheme apart from the person’s contracting-out rights.

(8) If paragraph (7) applies—

(a) from the date on which the person reaches State pension age the person is entitled to a pension payable for life at a weekly rate equal to the person’s guaranteed minimum, if any; and

(b) from the date on which the person reaches pension age the person is entitled to a pension in respect of the person’s rights under section 9(2B) of the 1993 Act,

but a person falling within paragraph (7) is not to be regarded as a pensioner for the purposes of Chapter 3.E (death benefits).

(9) Paragraphs (2) to (8) do not apply to—

(a) a pension that is forfeited—

(i) as a result of a conviction for treason; or

(ii) in a case where an offence within regulation 3.J.8(2)(b) (forfeiture of rights to benefits) is committed;

(b) a pension that is commuted under regulation 3.D.11 (option for members in serious ill health to exchange whole pension for lump sum); or

(c) a pension that is commuted under regulation 3.J.6 (commutation of small pensions) where the conditions in regulation 60 of the Occupational Pension Schemes (Contracting-out) Regulations 1996[^f00602] are met,

but if any other provision of this Section of the scheme is inconsistent with this rule, this rule prevails.

(10) For the purposes of this regulation—

(a) “scheme employment”, in relation to a member, means employment in the employment by virtue of which the member is eligible for membership of this Section of the scheme; and

(b) references to the amount of a pension are to its amount—

(i) disregarding any additional pension;

(ii) after the subtraction of any amount exchanged under regulation 3.D.10 (general option to exchange part of pension for lump sum); and

(iii) before the subtraction of any amount allocated under regulation 3.D.13 (election to allocate pension).

CHAPTER 3.E — DEATH BENEFITS

Pensions for surviving dependent adults

Surviving dependent adult's pension

3.E.1

(1) If an active member, a non-contributing member, a deferred member or a pensioner member dies leaving a surviving adult dependant, the surviving adult dependant is entitled to a pension that is payable for life[^f00603].

(2) In this Part “surviving adult dependant”, in relation to a deceased member or former member, means the member’s or former member’s surviving spouse, civil partner or nominated partner.

Meaning of “surviving nominated partner”

3.E.2

(1) A person is a surviving nominated partner in relation to a member for the purposes of this Part if—

(a) the person and the member jointly made and signed a declaration in such form as the Scottish Ministers require that remains effective at the member’s death; and

(b) the person satisfies the Scottish Ministers that for a continuous period of two years ending with the member’s death—

(i) the person and the member were living together in an exclusive relationship as if they were husband and wife or civil partners;

(ii) the person and the member were not prevented from marrying or forming a civil partnership; and

(iii) the person was financially dependent on the member or the person and the member were financially interdependent.

(2) A declaration for the purposes of paragraph (1)(a) ceases to have effect if—

(a) it is revoked by the member or other person by a signed notice in writing to the Scottish Ministers in such form as the Scottish Ministers may require or are willing to accept;

(b) the member makes a further declaration for the purpose of paragraph (1)(a); or

(3) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.19.

(4) In the case of a Waiting Period Joiner, this regulation is subject to regulation 3.L.2.

Amount of surviving adult's pension: active members and non-contributing members

3.E.3

(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 (surviving dependent adult’s pension) (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.

(2) Subject to paragraph (3), after the initial period, if the member dies with two or more years of qualifying service, the annual amount of the pension payable under regulation 3.E.1—

(a) if the member has not reached age 65, is equal to 37.5% of the upper tier ill health pension under regulation 3.D.7 (early retirement on ill health: active members and non-contributing members) to which the member would have been entitled if on the date of death the member had become entitled to such a pension; and

(b) subject to paragraph (7), if the member has reached age 65, is equal to 37.5% of the pension under regulation 3.D.1 (normal retirement pensions) to which the member would have been entitled if on the date of death the member had become entitled to such a pension in respect of any period of pensionable service that the member is entitled to count.

(3) Subject to paragraph (7), after the initial period, if the member dies with less than two years of qualifying service but after reaching age 65, the annual amount of the pension payable under regulation 3.E.1 is equal to 37.5% of the pension to which the member would have been entitled (disregarding any additional pension) if on the date of death the member had become entitled to a pension under regulation 3.D.1 (normal retirement pensions) in respect of any period of pensionable service that the member is entitled to count.

(4) After the initial period, if—

(a) the member dies with less than two year’s qualifying service and before reaching age 65; and

(b) the surviving adult has a guaranteed minimum under section 17 (minimum pensions for widows and widowers) of the 1993 Act in relation to benefits in respect of the deceased member under this Section of the scheme,

the annual amount of the pension payable under regulation 3.E.1 is equal to that guaranteed minimum, unless paragraph (5) applies.

(5) This paragraph applies if the Scottish Ministers’ liability to provide a guaranteed minimum pension in respect of the surviving adult is discharged by the payment of a contributions equivalent premium under section 55(2) (payment of state scheme premiums on termination of certified status) of the 1993 Act.

(6) This regulation is subject to regulation 3.E.7 (amount of surviving adult’s pension: re-employed pensioners).

(7) For the purposes of paragraphs (2)(b) and (3), no account is to be taken of any increase under—

(a) regulation 3.D.3 (late payment of pension with actuarial increase); or

(b) regulation 3.K.20.

Amount of surviving adult's pension: pensioner members

3.E.4

(1) In the case of a pensioner member, for the initial period the rate of the pension payable under regulation 3.E.1 (surviving dependent adult’s pension) is equal to the rate of the member’s pension in payment at the time of death if that amount is greater than the sum of—

(a) the amount of the pension payable to the surviving adult dependant under this Chapter apart from this paragraph; and

(b) the amount of the children’s pensions otherwise payable under this Part.

(2) At any time when the rate is not the rate mentioned in paragraph (1), the rate of the surviving adult dependant’s pension in the case of the death of a pensioner member is equal to 37.5% of the pension to which the member was entitled on the date of death (disregarding any additional pension).

(3) For the purposes of paragraph (1), any reduction in the rate of the member’s pension under—

(a) Chapter 3.H (abatement);

(b) regulation 3.D.10 (general option to exchange part of pension for lump sum); or

is to be ignored.

(4) For the purposes of paragraph (2)—

(a) any reduction in the rate of the member’s pension under—

(i) regulation 3.D.4 (early payment of pension with actuarial reduction);

(ii) regulation 3.D.10; or

(iii) regulation 3.K.10; and

(b) any increase in the rate of the member’s pension under—

(i) regulation 3.D.3 (late payment of pension with actuarial increase); or

(ii) regulation 3.K.20,

is to be ignored.

(5) In this regulation “the initial period” means—

(a) if the member leaves one or more dependent children who are dependent on the surviving adult dependant, the period of 6 months beginning with the day after the member’s death; and

(b) otherwise the period of three months beginning with that day.

(6) For the purposes of paragraph (5), a child born after the member’s death is to be treated as having been born before it.

(7) If a member who has had an upper tier ill health retirement pension under regulation 3.D.7 (early retirement on ill health: active members and non-contributing members) replaced by a lower tier ill health retirement pension (by virtue of regulation 3.G.4(2) (effect of re-employment on upper tier ill health pensions))—

(a) is in further NHS employment and dies before the end of “the initial period” (within the meaning of regulation 3.G.4(6)(c)); or

(b) is in further employment that is not NHS employment and dies within a period of one year beginning with the day on which that further employment ceased to be an “excluded employment” (within the meaning of regulation 3.G.4(6)(a)),

the member’s pension referred to in paragraph (1) means that member’s original upper tier ill health pension.

(8) This regulation is subject to regulation 3.E.7 (amount of surviving adult’s pension: re-employed pensioners).

Amount of surviving adult's pension: deferred members

3.E.5

(1) In the case of a deferred member—

(a) who left pensionable service less than 12 months before the date of death; and

(b) whose surviving adult dependant would have been the member’s surviving adult dependant if the member had died on the member’s last day of pensionable service,

the rate of the pension payable under regulation 3.E.1 (surviving dependent adult’s pension) is equal to 37.5% of the upper tier ill health pension under regulation 3.D.7 (early retirement on ill health: active members and non-contributing members) to which the member would have been entitled if on the date the member’s pensionable service ceased the member had become entitled to such a pension under regulation 3.D.7 (but disregarding any additional pension).

(2) In the case of any other deferred member whose surviving adult dependant would have been the member’s surviving adult dependant if the member had died on the member’s last day of pensionable service, the rate of the pension payable under regulation 3.E.1 is equal to 37.5% of the pension under regulation 3.D.1 (normal retirement pensions) in respect of any period of pensionable service to which the member would have been entitled if on the date of death the member had become entitled to such a pension.

Amount of surviving adult's pension: recent leavers

3.E.6

(1) If—

(a) a recent leaver dies leaving a surviving spouse or civil partner who has a guaranteed minimum under section 17 (minimum pensions for widows and widowers) of the 1993 Act in relation to benefits in respect of the recent leaver under this Section of the scheme; and

(b) the recent leaver has died before reaching age 65,

the surviving spouse or civil partner is entitled to a pension that is payable for life of an amount equal to that person’s guaranteed minimum pension (disregarding any additional pension), unless paragraph (2) applies.

(2) This paragraph applies if the Scottish Ministers’ liability to provide a guaranteed minimum pension in respect of the surviving adult is discharged by the payment of a contributions equivalent premium under section 55(2) (payment of state scheme premiums on termination of certified status) of the 1993 Act.

(3) In this Part “recent leaver” means a person—

(a) who left pensionable service less than 12 months before the date of death;

(b) who is not a deferred member or a pensioner member because of rights resulting from that employment; and

Amount of surviving adult's pension: re-employed pensioners

3.E.7

(1) This regulation applies if, apart from this regulation, both regulations 3.E.3(1) (active members and non-contributing members) and 3.E.4(1) (pensioner members) would apply on the death of a member.

(2) Where this regulation applies, the rate of pension payable by virtue of regulations 3.E.3(1) and 3.E.4(1) during the initial period (as defined in the respective regulations) is instead the rate provided in paragraph (3).

(3) Subject to paragraph (4), for the relevant initial period the rate of the pension payable under regulation 3.E.1 (surviving dependent adult’s pension) is equal to the sum of—

(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 payable at the time of death after taking account of any reduction in the rate of the pension under—

(i) Chapter 3.H (abatement);

(ii) regulation 3.D.10 (general option to exchange part of pension for lump sum); and

(iii) regulation 3.K.10 (amount of pension and lump sum to be paid to a 2008 Section Optant).

(4) Paragraph (3)(a) does not apply if—

(a) the rate of the pension payable to the surviving adult in respect of later service; and

(b) any children’s pension that would otherwise be payable in respect of later service under this Part,

would be greater.

Pensions for surviving dependent children

Surviving dependent child's pension

3.E.8

(1) If a member or a recent leaver dies leaving one or more dependent children, a pension is payable in respect of them[^f00604].

(2) This is subject to paragraphs (7) to (9).

(3) If a dependent child ceases to be a dependent child after the date of death, the pension ceases to be payable in respect of that child.

(4) If a dependent child is born after the date of death, the same pension is payable in respect of the child as if the child had been born on the date of death.

(5) If a member or a recent leaver dies leaving two or more dependent children, they are entitled to such shares of the pension as the Scottish Ministers may from time to time decide.

(6) An amount payable under this regulation in respect of a dependent child is payable to the dependent child or, if the Scottish Ministers so decide, to another person for the dependent child’s benefit.

(7) No pension is payable in respect of any dependent children who on the deceased’s death are dependent on an adult who is entitled to a surviving adult’s pension whilst that pension is payable at the rate mentioned in regulation 3.E.4(1) (pensioner members) or 3.E.7(3)(b) (re-employed pensioners), except so much of that pension as is additional pension.

(8) If a dependent child is incapable of earning a living because of physical or mental infirmity for any period and the child is maintained out of money provided by Parliament in a hospital or other institution for a period exceeding one month, no pension is payable in respect of the child for any part of that period after the first month.

(9) If, apart from this paragraph, a pension would be payable in respect of any person as a dependent child of three or more persons who were deceased members or recent leavers—

(a) a pension is only payable in respect of two of them; and

(b) the amount payable is equal to the sum of the two highest pensions.

Meaning of “dependent child”

3.E.9

(1) In this Part “dependent child”, in relation to a deceased member or recent leaver, means a person who—

(a) meets the relationship condition in paragraph (2);

(b) either—

(i) has not reached age 23; or

(ii) in the opinion of the scheme administrator was financially dependent on the deceased at the date of death because of physical or mental infirmity and remains so;

(i) before the deceased ceased to be an active member; or

(ii) within one year after the deceased ceased to be an active member;

(d) in the case of a person within sub-paragraph (c)(i), was dependent on the deceased—

(i) at the date of death; and

(ii) if the deceased died after ceasing to be an active member, when the deceased ceased to be an active member; and

(e) in the case of a person within sub-paragraph (c)(ii)—

(i) was dependent on the deceased both at birth and at the deceased’s death; or

(ii) if the person was born after the deceased’s death, would have been dependent on the deceased had the deceased not died before the person’s birth.

(2) A person meets the relationship condition if the person is—

(a) a natural child or natural grandchild of the deceased;

(b) an adopted child of the deceased who was adopted whilst the deceased was an active member;

(c) a step-child of the deceased whose natural or adoptive parent is the deceased’s surviving spouse or civil partner from a marriage entered into, or a civil partnership formed, whilst the deceased was an active member;

(d) in a case where the deceased left a surviving nominated partner with whom the deceased was living as mentioned in regulation 3.E.2(1)(b)(i) (meaning of “surviving nominated partner”) when the deceased ceased to be an active member, a person whose natural or adoptive parent is the deceased’s surviving nominated partner;

(e) a brother or sister, or a child of a brother or sister, of the member or the member’s spouse or civil partner or nominated partner;

(f) a half-brother or half-sister, or a child of a half-brother or half-sister, of the member or the member’s spouse or civil partner or nominated partner;

(g) a person whom, in the opinion of the scheme administrator, the deceased intended when the deceased ceased to be an active member to adopt; or

(h) a person who had been dependent on the deceased for at least two years or (if less) at least half the person’s life when the deceased ceased to be an active member.

Amount of surviving child's pension: active members and non-contributing members

3.E.10

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was an active member or a non-contributing member of this Section of the scheme who was not also a pensioner member.

(2) Subject to paragraphs (5) and (6), that amount is the appropriate fraction of the basic death pension.

(3) In this regulation “the basic death pension” means 75% of the deceased member’s pension under regulation 3.D.1 (normal retirement pensions) and—

(a) in the case of an active member, that pension is to 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) (early retirement on ill health: active members and non-contributing members) 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, is to be based on the pensionable service that the deceased was entitled to count on the date of death,

and, in the case of a 2008 Section Optant, this is subject to regulation 3.K.23 (children’s pensions payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E3 of the 2011 Regulations) and, in the case of a Waiting Period Joiner, this is subject to regulation 3.L.5 (children’s pensions payable on the death).

(4) In this regulation “the appropriate fraction” means—

(a) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult dependant’s pension is payable under regulation 3.E.1—

(i) one-quarter if there is only one dependent child; and

(ii) one-half if there are two or more dependent children;

(b) if there is a such a parent or spouse or civil partner of a parent, but no surviving adult dependant’s pension is payable under regulation 3.E.1—

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children; and

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children.

(5) If—

(a) a surviving adult dependant’s pension is payable under regulation 3.E.1; and

(b) there is a dependent child who is not dependent on the person entitled to that pension,

the rate of the pension payable in respect of that child for the first three months after the deceased’s death is equal to—

(i) 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

(ii) 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.

(6) In a case within paragraph (4)(b) or (c), the rate of pension in respect of the dependent 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.

Amount of surviving child's pension: pensioner members

3.E.11

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was a pensioner member of this Section of the scheme who was not also an active member or a non-contributing member.

(2) Subject to paragraphs (5), (6) and (7), that amount is the appropriate fraction of the basic death pension.

(3) In this regulation, “the basic death pension” means the greater of—

(a) 75% of the deceased’s annual pension (disregarding any additional pension); and

(b) 75% of the annual pension to which the deceased would have been entitled if the deceased had been entitled to count 10 years’ pensionable service (disregarding any additional pension),

(4) In this regulation “the appropriate fraction” means—

(a) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult dependant’s pension is payable under regulation 3.E.1—

(i) one-quarter if there is only one dependent child; and

(ii) one-half if there are two or more dependent children;

(b) if there is such a parent or spouse or civil partner of a parent, but no surviving adult dependant’s pension is payable under regulation 3.E.1—

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children; and

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children.

(5) If—

(a) a surviving adult dependant’s pension is payable under regulation 3.E.1; and

(b) there is a dependent child who is not dependent on the person entitled to that pension,

the rate of the pension in respect of that child for the first three months after the deceased’s death is equal to the rate of the member’s pension at the date of death (disregarding any additional pension).

(6) In a case within paragraph (4)(b) or (c), the rate of the pension in respect of the dependent child or children for the period of 6 months beginning with the deceased’s death is equal to the greater of—

(a) the rate of the member’s pension at the date of death disregarding any reduction made under Chapter 2.H (abatement) and any additional pension; and

(b) the amount of children’s pension that would otherwise be payable under these Regulations.

(7) If the deceased member’s pension was payable under regulation 3.D.4 (early payment of pension with actuarial reduction), the reference in paragraph (3)(a) and (b) to the member’s pension is a reference to the amount that the member’s pension would have been if it had been calculated without the reduction mentioned in paragraph (2)(b) of that regulation.

(8) For the purposes of paragraphs (1) and (2), any reduction in the member’s pension under regulation 3.D.10 (general option to exchange part pension for lump sum) and regulation 3.K.10 (amount of pension and lump sum to be paid to a 2008 Section Optant) is to be ignored.

Amount of surviving child's pension: deferred members

3.E.12

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was a deferred member of this Section of the scheme who was not also an active member, a non-contributing member or a pensioner member.

(2) That amount is the appropriate fraction of the basic death pension.

(3) In this regulation, “the basic death pension” means—

(a) if the deceased died within 12 months after ceasing to be an active member or a non-contributing member, the amount that would be the basic death pension for the purposes of regulation 3.E.10 (amount of surviving child’s pension: active members and non-contributing members) if the deceased had died on the day of so ceasing (disregarding any additional pension); and

(b) otherwise, the greater of—

(i) 75% of the pension to which the deceased would have been entitled if the deceased had become entitled to a pension under regulation 3.D.1 (normal retirement pensions) on the date of death (disregarding any additional pension); and

(ii) 75% of the pension to which the deceased would have been entitled if the deceased had become so entitled and the pension had been calculated on the assumption that the member was entitled to 10 years’ pensionable service (disregarding any additional pension),

(4) In this regulation “the appropriate fraction” means—

(a) if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult’s pension is payable—

(i) one-quarter if there is only one dependent child; and

(ii) one-half if there are two or more dependent children; and

(b) otherwise—

(i) one-third if there is only one dependent child; and

(ii) two-thirds if there are two or more dependent children.

Amount of surviving child's pension: recent leavers

3.E.13

(1) This regulation applies for determining the annual amount of the pension payable under regulation 3.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was a recent leaver (within the meaning of regulation 3.E.6(3) (recent leavers)).

(2) That amount is the appropriate fraction of the basic death pension.

(3) In this regulation—

“the basic death pension” means 75% of the pension to which the deceased would have been entitled if the deceased had become entitled to— a pension under regulation 3.D.7(5) (early retirement on ill health: active members and non-contributing members) on the date of death; or 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

“the appropriate fraction” means— if there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children and a surviving adult’s pension is payable— one-quarter if there is only one dependent child; and one-half if there are two or more dependent children; and otherwise— one-third if there is only one dependent child; and two-thirds if there are two or more dependent children.

Amount of surviving child's pension: re-employed pensioners

3.E.14

(1) This regulation applies for determining the annual amount of a pension payable under regulation 3.E.8(1) (surviving dependent child’s pension) if at the date of death the deceased was an active member or a non-contributing member who was also a pensioner member of this Section of the scheme.

(2) If there is no surviving adult dependant, the rate of the pension in respect of the dependent child or children for the period of 6 months beginning with the deceased’s death is equal to the sum of—

(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.

(3) Subject to paragraph (5), except where a pension is payable at the rate mentioned in paragraph (2), the pension in respect of the member’s later service must be paid as the appropriate fraction of 75% of the rate of pension described in—

(a) regulation 3.D.7(5) (early retirement on ill health: active members and non-contributing members) if the deceased has not reached age 65 on the date of death; or

(b) regulation 3.D.1 (normal retirement pensions) if the deceased has reached age 65 on the date of death.

(4) In this regulation “appropriate fraction” has the meaning given in regulation 3.E.10(4) (amount of surviving child’s pension: active member and non-contributing members).

(5) If any dependent child was a dependent child both at the time when the pensionable service in respect of which the pension is payable ceased and at the date of death, the annual amount of the pension in respect of the dependent child or children is the sum of—

(a) the annual amount that would be payable in respect of the child under regulation 3.E.10 (active members and non-contributing members) as a result of the member dying whilst an active member or a non-contributing member if that regulation applied to members who are also pensioner members (disregarding the pensionable service in respect of which the pension is payable (“the pension service”) and any additional pension); and

(b) the annual amount that would be payable in respect of the child under regulation 3.E.11 (amount of surviving child’s pension: pensioner members) as a result of the member dying whilst a pensioner member if that regulation applied to members who are also active members or non-contributing members (having regard only to the pension service and disregarding any additional pension).

(6) If, apart from this paragraph, the sum of—

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

(b) the pension service,

would be less than 10 years’ pensionable service, the deceased’s relevant service for the purposes of that calculation is increased by the length of the shortfall.

Amount of surviving child's pension: power to increase

3.E.15

(1) This regulation applies if—

(a) a member dies leaving a dependent child or children;

(b) there is a surviving parent of the dependent child or children or a surviving spouse or civil partner of a parent of the dependent child or children; and

(2) The Scottish Ministers may increase the amount of the pension that would otherwise be payable under this Chapter in respect of the dependent child or children.

(3) The increased amount may not exceed the amount that would have been payable under this Chapter if there had been no such surviving parent or spouse or civil partner of a parent.

Lump sum death benefits

Lump sum benefits on death: introduction

3.E.16

(1) A lump sum is payable in accordance with this Chapter if—

(a) a member, a recent leaver or a deferred member dies before reaching age 75; or

(b) a pensioner member, on or after reaching age 75, dies except in the circumstances described in regulation 3.E.21 (pension payable when member dies on or after reaching age 75).

(2) Paragraph (1) is subject to the following provisions of this Chapter.

(3) This regulation does not apply if—

(a) the member is—

(i) a pensioner member; or

(ii) a pension credit member who dies after any benefits attributable to the pension credit have become payable; and

(b) the death takes place more than 5 years after the member’s pension becomes payable.

Amount of lump sum: single capacity members and recent leavers (disregarding regulation 3.D.5 employments)

3.E.17

(1) The lump sum payable on the death of an active member or a non-contributing member, who is not also 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.

(2) In the case of a 2008 Section Optant, paragraph (1) is subject to regulation 3.K.22 (lump sum payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E3 of the 2011 Regulations) and, in the case of a Waiting Period Joiner, paragraph (1) is subject to regulation 3.L.4 (lump sum payable on death).

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