The National Health Service Pension Scheme (Scotland) Regulations 2015

Made: 2nd March 2015

Laid before the Scottish Parliament: 3rd March 2015

Coming into force: 1st April 2015

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 1(1) and (2)(e) of, and paragraph 5(b) of Schedule 2 to, the Public Service Pensions Act 2013 and all other powers enabling them to do so.

In accordance with section 21(1) of that Act, the Scottish Ministers consulted the representatives of such persons as appeared to the Scottish Ministers likely to be affected by these Regulations.

In accordance with section 3(5) of that Act, these Regulations are made with the consent of the Treasury.

PART 1 — Preliminary

Citation, extent and commencement

1

• (1) These Regulations may be cited as the National Health Service Pension Scheme (Scotland) Regulations 2015 and extend to Scotland.

• (2) These Regulations come into force on 1st April 2015.

Establishment of the NHS Pension Scheme (Scotland) 2015

2

• (1) A scheme is established for the payment of pensions and other benefits to or in respect of—

• (a) health service workers mentioned in regulation 18(1);

• (b) such other persons as are mentioned in regulation 18(2).

• (2) This scheme is to be known as the NHS Pension Scheme (Scotland) 2015.

PART 2 — Governance

CHAPTER 1 — Management

Scheme manager

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• (1) The Scottish Ministers are the scheme manager for this scheme and any connected scheme.

• (2) The scheme manager is responsible for managing and administering this scheme and any connected scheme.

• (3) The scheme manager may delegate any functions under these Regulations, including this power to delegate.

Pension board

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• (1) There is to be a pension board (“The Scottish NHS Pension Board”) which is constituted in accordance with Schedule 1 and has responsibility for assisting the scheme manager in relation to—

• (a) securing compliance with these Regulations and other legislation relating to the governance and administration of—

• (i) this scheme; and

• (ii) any statutory pension scheme that is connected with it;

• (b) securing compliance with any requirements imposed by the Pensions Regulator in relation to—

• (i) this scheme; and

• (ii) any statutory pension scheme that is connected with it.

Scheme advisory board

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There is to be a scheme advisory board which is constituted in accordance with Schedule 2 and has responsibility for providing advice where requested to the Scottish Ministers on the desirability of changes to this scheme.

CHAPTER 2 — Actuary and valuation

Appointment of scheme actuary

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• (1) The Scottish Ministers must appoint a person (the scheme actuary) for the purposes of carrying out—

• (a) actuarial valuations of this scheme and connected schemes required by Treasury directions given under section 11 of the 2013 Act; and

• (b) such other actuarial functions as may be required in relation to this scheme or a connected scheme.

• (2) Before making an appointment under paragraph (1), the Scottish Ministers must be satisfied that the person to be appointed is appropriately qualified.

Actuarial valuations

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• (1) The scheme actuary must carry out an actuarial valuation of this scheme and connected schemes as at the effective date.

• (2) The scheme actuary must provide a valuation report to the scheme manager not later than such a date as may be agreed by the scheme manager.

• (3) The effective date is—

• (a) in respect of the first valuation under paragraph (1), 31st March 2016;

• (b) in respect of subsequent valuations, such dates as enable the scheme to comply with the Treasury directions as to valuations.

Employer cost cap

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• (1) The employer cost cap for this scheme is 11.5%of the pensionable earnings of members of the scheme.

• (2) “Employer cost cap” has the same meaning as in section 12 of the 2013 Act.

Cost of scheme exceeds margins

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The scheme actuary must give notice to the Scottish Ministers if the actuarial valuation shows that the cost of this scheme would be outside the margins specified in Treasury regulations pursuant to section 12(5) of the 2013 Act.

Procedure for agreeing steps to achieve target cost

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• (1) This regulation applies if notice is given under regulation 9.

• (2) The Scottish Ministers must make a request to the scheme advisory board—

• (a) to consider the matter; and

• (b) give advice to the Scottish Ministers as to means by which the target cost is to be achieved.

• (3) The Scottish Ministers must consider the advice and seek to reach agreement with the scheme advisory board as to the means by which the target cost is to be achieved.

• (4) In acting under paragraphs (2) and (3), the Scottish Ministers must specify the date before which—

• (a) the advice must be provided; and

• (b) agreement must be reached.

No agreement reached

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• (1) This regulation applies if no agreement is reached as mentioned in regulation 10.

• (2) If the costs of the scheme are outside the margins mentioned in regulation 9, the Scottish Ministers must adjust the fraction specified in paragraph 13(3) of Schedule 7 so as to achieve the target cost.

Approval mechanism

12

An agreement under regulation 10 or an adjustment under regulation 11 must not be implemented unless—

• (a) the scheme actuary certifies that the agreement or adjustment (as the case may be) will have the effect of enabling the scheme to meet the target cost; and

• (b) the Treasury approves the agreement or adjustment.

Target cost

13

In regulations 10 to 12, “target cost” must be construed in accordance with section 12(5)(b) of the 2013 Act.

CHAPTER 3 — General

Administrative matters

14

Schedule 3 makes provision in relation to—

• (a) scheme accounts and information;

• (b) claims for, and payments of, benefits;

• (c) interest on late payments;

• (d) assignation, offset and forfeiture;

• (e) insolvency of persons entitled to benefits;

• (f) determination of questions;

• (g) taxation.

PART 3 — Scheme membership

CHAPTER 1 — Joining and leaving

Joining and leaving the scheme

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• (1) Each person who is eligible to join this scheme pursuant to regulation 18 is included in the scheme—

• (a) automatically on commencing NHS employment;

• (b) subject to regulation 16, where the person has previously opted out of this scheme, on the date determined under paragraph 2 of Schedule 4. where that paragraph applies;

• (c) subject to regulation 16, where the person has previously opted out of this scheme and is a person to whom section 3 or 5 of the 2008 Act applies—

• (i) on that person's automatic enrolment date; or

• (ii) on that person's automatic re-enrolment date, except where the notice referred to in paragraph 1 of Schedule 4 was given within the 12 months immediately preceding that date.

• (2) A person who is included in this scheme may opt out at any time in accordance with paragraph 1 of Schedule 4

• (3) In this Chapter—

• (a) “the 2008 Act” means the Pensions Act 2008 ;

• (b) “the 2010 Regulations” means the Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations 2010 .

• (4) Paragraph (1) does not apply to a locum practitioner.

• (5) A locum practitioner who wishes to join this scheme must make an application to the scheme manager in such form as the scheme manager requires.

• (6) The application must not relate to a period of engagement which ended more than 10 weeks before the date of the application.

• (7) If the scheme manager accepts an application under paragraph (5), the locum practitioner's membership of this scheme takes effect on the date specified by the scheme manager.

Re-joining the scheme

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• (1) Subject to paragraph (2), a person who has opted out of this scheme in accordance with paragraph 1 of Schedule 4 may re-join this scheme pursuant to paragraph 2 of that Schedule.

• (2) A person may not re-join this scheme during any period of absence from work for any reason.

Automatic enrolment legislation

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• (1) Regulations 15 and 16 do not apply to a person to whom section 3, 5 or 8 of the 2008 Act and regulation 9 or 15 of the 2010 Regulations applies (that is, a person who is subject to automatic enrolment or re-enrolment in this scheme as a qualifying scheme who does not wish to participate in it).

• (2) Paragraph (1) does not affect the rights of such a person who subsequently joins or re-joins this scheme in circumstances where those provisions of the 2008 Act and 2010 Regulations do not apply.

CHAPTER 2 — Membership

Membership

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• (1) Subject to regulation 19, a person is eligible to join this scheme if the person is a health service worker and is—

• (a) employed by an NHS organisation listed in Part 1 of Schedule 5;

• (b) an individual who is, or who is employed by, a medical contractor listed in Part 2 of that Schedule;

• (c) an individual who is a medical practitioner or dental practitioner listed in Part 3 of that Schedule; or

• (d) employed by a determination employer (see Part 4 of that Schedule).

• (2) Subject to regulation 19 a person is eligible to join this scheme if the person is—

• (a) an individual of a category or description listed in Schedule 6; and

• (b) a person in respect of whom the Scottish Ministers have made a determination under section 25(5) of the 2013 Act.

• (3) Where such a determination is made, these Regulations apply to the person subject to any modification made by the Scottish Ministers by direction under section 25(8) of the 2013 Act.

• (4) In paragraph (1), the reference to a person being employed does not include a reference to a person engaged under a contract for services.

• (5) Where a person is eligible to join this scheme by virtue of more than one of the sub-paragraphs of paragraph (1) or (2), the scheme manager must determine which one sub-paragraph is to be used as a basis for membership.

Restrictions on membership

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A person is not eligible to join this scheme if the person—

• (a) is under the age of 16 or over the age of 75;

• (b) is eligible to be an active member of—

• (i) a superannuation scheme established under section 1 or 9 of the Superannuation Act 1972 ; or

• (ii) a public service pension scheme established under section I(2)(a) or l(2)(d) of the 2013 Act,

in respect of service in such a scheme and is such a member;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) is a pensioner member of the 1995 Section or the 2008 Section, except so far as otherwise provided pursuant to the National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015;

• (e) holds an honorary appointment and is not at the same time otherwise entitled to join this scheme;

• (f) is employed by a dentist but is not a dental practitioner;

• (g) is employed by—

• (i) a GMS practice;

• (ii) a Section 17C Agreement provider; or

• (iii) an HBPMS contractor,

but does not assist the employer in the provision of medical services for the purposes of the GMS Contract, Section 17C Agreement or HBPMS contract (as the case may be),

• (h) is a person who—

• (i) becomes entitled to an upper tier IHP (see regulation 89); and

• (ii) opts to exchange the upper tier IHP for a lump sum pursuant to regulation 108; or

• (i) is a person to whom regulation 95(5)(b) applies.

CHAPTER 3 — Pensionable service

Pensionable service

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• (1) Pensionable service is the aggregate of the following periods—

• (a) a period of service in which a member (M) contributes to this scheme under regulation 30 or 31;

• (b) a period of absence from service which counts as pensionable service under regulation 21; and

• (c) a period of service credited to M as pensionable service under Part 7 (transfers).

• (2) M's pensionable service does not include—

• (a) a period of service in respect of which an employing authority or the Scottish Ministers have paid contributions to another occupational pension scheme in respect of M;

• (b) where M is a pensioner member or a deferred member, a period taken into account—

• (i) in determining M's entitlement to the pension in payment or, as the case may be, the deferred pension; or

• (ii) in calculating the amount of the pension,

• (c) a period of service in which the Scottish Ministers' liability to provide benefits is discharged—

• (i) by the payment of a contributions equivalent premium under section 55(2) of the 1993 Act;

• (ii) under regulation 41 (effect of refund); or

• (iii) by the payment of a transfer value payment on transfer out under Part 7 (transfers).

• (3) Paragraph (4) applies if—

• (a) the employment in which M is an active member ceases; and

• (b) a payment is made in respect of untaken leave.

• (4) If this paragraph applies—

• (a) M's pensionable service is treated as continuing for a period equal to the period of leave in respect of which payment is made; and

• (b) the payment is treated as M's pensionable pay for the period.

• (5) If M—

• (a) is a pensioner member; and

• (b) is entitled to a pension under regulation 84 (partial retirement),

paragraph (2)(b) applies only to so much of M's pensionable service as is mentioned in regulation 84(3)(a) (the specified percentage of the pensionable service as respects which M is an active member on the election day).

• (6) For the purposes of calculating the length of a period of pensionable service—

• (a) a year is a period of 365 days;

• (b) 29th February in any year is ignored;

• (c) part of a day is treated as a whole day.

Absence from work

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• (1) Paragraph (2) applies if a member (M) is absent from work because of—

• (a) illness or injury;

• (b) maternity leave;

• (c) adoption leave;

• (d) paternity leave; ...

• (e) parental leave shared parental leave or parental bereavement leave ...

• (f) carer’s leave , or

• (g) neonatal care leave.

• (2) The period of absence counts as pensionable service if M contributes to this scheme under regulation 30 or 31 in respect of the period of absence.

• (3) Paragraph (4) applies if M—

• (a) is on leave of absence;

• (b) is not within paragraph (1); and

• (c) contributes to this scheme at the same intervals as those made by M before the absence.

• (4) The maximum period of leave that can be counted as pensionable service is—

• (a) if M contributes for a continuous period of 6 months starting with the first day of M's leave of absence, 6 months;

• (b) if M contributes for a continuous period of less than 6 months starting with that day, the period in respect of which M pays the contributions.

• (5) Paragraph (6) applies if M—

• (a) has paid contributions for the period mentioned in paragraph (4)(a);

• (b) remains on leave of absence that is not within paragraph (1); and

• (c) at the same intervals as contributions made by M before the absence, contributes both member contributions under regulation 30 or 31 and employer contributions under regulation 32.

• (6) The maximum period of leave that can be counted as pensionable service is—

• (a) if M contributes for a continuous period of 18 months starting immediately after the end of the period mentioned in paragraph (4)(a), 18 months; and

• (b) if M contributes for a continuous period of less than 18 months starting immediately after the end of that period, the period in respect of which M pays the contributions.

Qualifying service

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• (1) The qualifying service of a member (M) is the aggregate of the following periods—

• (a) M's pensionable service, except service mentioned in regulation 20(1)(c);

• (b) a transfer in period;

• (c) a transferred undertaking period;

• (d) a period treated as qualifying service by virtue of paragraph (6);

• (e) a period of relevant pensionable service in a connected scheme;

• (f) a period of service in which M is a pensioner member in this scheme.

• (2) In determining a period of pensionable service for the purposes of paragraph (1)(a), paragraph (b) of regulation 20(2) must be ignored.