The National Health Service Pension Schemes (Remediable Service) (Scotland) Regulations 2023

Made: at 11.32 a.m. on 5th September 2023

Laid before the Scottish Parliament: at 4.30 p.m. on 5th September 2023

Coming into force: 1st October 2023

In accordance with section 27(1) of PSPJOA 2022, the powers conferred by sections 18 to 22, 23(1) and (2) and 24 to 26 of that Act are exercised in accordance with Treasury directions[^f00004].

PART 1 — General provisions

Citation, commencement and extent

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• (1) These Regulations may be cited as the National Health Service Pension Schemes (Remediable Service) (Scotland) Regulations 2023.

• (2) These Regulations come into force on 1 October 2023.

• (3) These Regulations extend to Scotland.

Interpretation

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• (1) In these Regulations—

• “PSPJOA 2022” means the Public Service Pensions and Judicial Offices Act 2022[^f00005];

• “2004 Act” means the Finance Act 2004[^f00006];

• “2011 Regulations” means the National Health Service Superannuation Scheme (Scotland) Regulations 2011[^f00007];

• “1995 Section” means the section of the National Health Service Superannuation scheme for Scotland set out in the 2011 Regulations;

• “2008 Section” means the section of the National Health Service Superannuation scheme for Scotland set out in the 2013 Regulations;

• “2013 Regulations” means the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013[^f00008];

• “2015 Regulations” means the National Health Service Pension Scheme (Scotland) Regulations 2015[^f00009];

• “2015 Transitional Regulations” means the National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015[^f00010];

• “2015 scheme” means the National Health Service Pension scheme for Scotland set out in the 2015 Regulations;

• “2015 scheme contributions” means contributions under regulation 37 of the 2015 Regulations (members’ contributions; supplementary; medical practitioners and non-GP providers);

• “2022 Directions” means the Public Service Pensions (Exercise of Powers, Compensation and Information) Directions 2022[^f00011];

• “active or deferred remedy member” means a member who— on 30 September 2023 was an active member or deferred member in respect of remediable service in the legacy scheme or the 2015 scheme, and is not a pensioner remedy member;

• “designated person” has the meaning given in regulation 7(2);

• “end of the deferred choice election period” means— the end of the period of three months beginning with the day on which a remediable service statement is provided to the active or deferred remedy member or the designated person in accordance with regulation 6, or such earlier or later time as the scheme manager considers reasonable in all the circumstances of the case, which also meets the requirements of regulation 12(8);

• “end of the immediate choice election period” means— the end of the period of one year beginning with the day on which a remediable service statement is provided to the remedy member or the designated person in accordance with regulation 6, or such— later time as the scheme manager considers reasonable in all the circumstances of the case; or earlier time as agreed by the scheme manager with the remedy member or designated person;

• “immediate detriment remedy member” means a remedy member who has obtained an immediate detriment remedy in relation to the member’s remediable service;

• “legacy scheme” means the National Health Service Superannuation scheme for Scotland comprising both the 1995 Section and the 2008 Section;

• “legacy scheme contributions” means contributions under paragraph 14[^f00012] of schedule 1 of the 2011 Regulations (medical and dental practitioners: contributions (to the 1995 Section)) or regulation 3.C.2 of the 2013 Regulations (members’ contribution rate) (whichever is relevant);

• “lump sum benefit” means any benefit payable under the legacy scheme or the 2015 scheme by way of a lump sum;

• “pension benefit” means any benefit payable under the legacy scheme or the 2015 scheme otherwise than by a lump sum;

• “pensioner remedy member” means a member who on 30 September 2023 was entitled to a retirement pension in respect of— remediable service in the legacy scheme or the 2015 scheme, or pensionable service in the legacy scheme, where— the member became entitled to the retirement pension on or after 1 April 2015, and on 30 September 2023, the member was an active or deferred member in respect of remediable service in the 2015 scheme;

• “relevant scheme year” means one of the seven scheme years beginning with 1 April 2015 to 31 March 2016 and ending with 1 April 2021 to 31 March 2022;

• “remedy member” means a member who has pensionable service in the legacy scheme or the 2015 scheme that is remediable service[^f00013];

• “scheme administrator” means the Scottish Ministers;

• “scheme manager” means the Scottish Ministers or, where the Scottish Ministers have made arrangements for any of the functions and responsibilities as scheme manager under the 2015 Regulations to be performed on the Scottish Ministers’ behalf by another person pursuant to regulation 3(3) of those Regulations, that other person.

• (2) In these Regulations, “in writing” includes by electronic communication where such communication is approved by the scheme manager from time to time and “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000[^f00014].

• (3) For the purposes of these Regulations, a reference in PSPJOA 2022 to section 2(1) of that Act coming into force is to be understood as a reference to that section coming into force in relation to members of the legacy scheme and the 2015 scheme.

• (4) A term used in these Regulations which—

• (a) is defined in, or for the purposes of, a provision in Chapter 1 of Part 1 of PSPJOA 2022, and

• (b) is not defined differently in these Regulations,

has the meaning given in, or for the purposes of, that provision.

PART 2 — Remediable service

Pension contributions of medical practitioners and non-GP providers: immediate choice pensioner and deceased members

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• (1) This regulation applies in relation to a relevant member (“M”) who has remediable service in the legacy scheme that is pensionable service under that scheme whether or not by virtue of section 2(1) of PSPJOA 2022 (remediable service treated as pensionable under chapter 1 legacy schemes) (“M’s remediable service”) in the circumstances described in paragraph (2).

• (2) The circumstances are that, at the operative time—

• (a) the paid contributions amount in relation to M exceeds the adjusted contributions amount in relation to M, or

• (b) the paid contributions amount in relation to M is less than the adjusted contributions amount in relation to M.

• (3) In the circumstances described in paragraph (2)(a), the scheme manager must pay an amount of compensation equal to the difference to the appropriate person in accordance with paragraph (4).

• (4) The amount of compensation paid to the appropriate person must be reduced by tax relief amounts calculated in accordance with paragraphs (5) and (8) and, if relevant, (11) and (12) of direction 4 of the 2022 Directions (powers to reduce or waive liabilities) .

• (5) In the circumstances described in paragraph (2)(b), the appropriate person must pay contributions equal to the difference to the scheme in accordance with paragraph (6).

• (6) The contributions owed to the scheme by the appropriate person must be reduced by tax relief amounts calculated in accordance with paragraphs (5) and (8) and, if relevant (11) and (12) of direction 4 of the 2022 Directions.

• (7) In this regulation—

• “adjusted contribution amount” means— if a person has made an election under regulation 12 in relation to M’s remediable service, the aggregate of the contributions M would have paid in respect of M’s remediable service in the relevant scheme years if M had been required to pay 2015 scheme contributions in respect of that service, otherwise, the aggregate of M’s legacy scheme contributions in respect of M’s remediable service in the relevant scheme years;

• “appropriate person” means— M, or if M is deceased, M’s personal representative;

• “operative time” means— if an election under regulation 12 is made in relation to M’s remediable service, the time the election is made, otherwise— the end of the immediate choice election period in relation to M, or if M is an immediate detriment remedy member, 1 October 2023;

• “paid contributions amount” means the aggregate of— the legacy scheme contributions, or the 2015 scheme contributions, paid by M in relation to M’s remediable service in the relevant scheme years.

• “relevant member” means a member who is— a pensioner member, or a member who died on or before 30 September 2023 and paid or would have paid contributions in respect of any scheme year falling within the period of M’s remediable service in respect of M’s certified or final pensionable earnings uprated in accordance with— paragraph 14 of schedule 1 of the 2011 Regulations; regulation 3.C.2 of the 2014 Regulations; or regulation 37(3)(a) of the 2015 Regulations.

• (8) Where this regulation applies, section 15 of PSPJOA 2022 (pension contributions: pensioner and deceased members) does not apply and the references to that section in section 18(2) and (5) of that Act (powers to reduce or waive liabilities) are to be read as references to this regulation.

Pension contributions of medical practitioners and non-GP providers: active and deferred members (immediate correction)

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• (1) This regulation applies in relation to a relevant member (“M”) who has remediable service in the legacy scheme that is pensionable service under that scheme by virtue of section 2(1) of PSPJOA 2022 (“M’s remediable service”) in the circumstances described in paragraph (2).

• (2) The circumstances are that the paid contributions amount in relation to M exceeds the adjusted contributions amount in relation to M.

• (3) In the circumstances described in paragraph (2) the scheme manager must pay an amount of compensation equal to the difference to the appropriate person in accordance with paragraph (4).

• (4) The amount of compensation paid to the appropriate person must be reduced by tax relief amounts calculated in accordance with paragraphs (5) and (8) and if relevant, (11) and (12) of direction 4 of the 2022 Directions (powers to reduce or waive liabilities).

• (5) M may waive M’s right to the compensation payment otherwise due under this regulation in accordance with the 2022 Directions, but, if M or the designated person does not make an election under regulation 12 (deferred choice election for 2015 scheme benefits: active, deferred and deceased members) before the end of the deferred choice election period—

• (a) that waiver is void, and

• (b) on the payment of M’s 1995 Section or 2008 Section benefits in respect of M’s remediable service, compensation again becomes payable under this regulation.

• (6) For the purpose of paragraph (5), a waiver must be given to the scheme manager by notice in writing in such form as the scheme manager determines.

• (7) The scheme manager must send a notice in writing to the member of the member’s right to claim an amount of compensation under this regulation or to waive M’s right to compensation in accordance with paragraph (5).

• (8) The notice must be sent to the member before 1 October 2024 or such later time as the scheme manager considers reasonable in all the circumstances of the case.

• (9) In this regulation—

• “adjusted contributions amount” means the aggregate of the contributions M would have paid in respect of M’s remediable service in the relevant scheme years if M had been required to pay contributions in accordance with (whichever is relevant)— paragraph 4 of schedule 1 of the 2011 Regulations (medical and dental practitioners: contributions to this Section of the scheme), or regulation 3.C.2 of the 2011 Regulations (Members’ contribution rate);

• “appropriate person” means— M, or if M is deceased, M’s personal representative;

• “paid contributions amount” means the aggregate of the 2015 scheme contributions paid by M in the relevant scheme years in respect of M’s remediable service;

• “relevant member” means a member who— is an active or deferred remedy member, and paid contributions in respect of M’s certified or final pensionable earnings uprated according to the formula in regulation 37 of the 2015 Regulations in respect of any scheme year falling within the period of M’s remediable service.

• (10) Where this regulation applies, section 16 of PSPJOA 2022 (pension contributions: active and deferred members (immediate correction)) does not apply and the references to that section in section 18(2) and (5) of that Act (powers to reduce or waive liabilities) are to be read as references to this regulation.

Pension contributions of medical practitioners and non-GP providers: deferred choice active and deferred members

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• (1) This regulation applies in relation to a relevant member (“M”) who has remediable service in the legacy scheme that is pensionable service under that scheme by virtue of section 2(1) of PSPJOA 2022 (“M’s remediable service”) in the circumstances described in paragraph (2).

• (2) The circumstances are that the paid contributions amount in relation to M is less than the adjusted contributions amount in relation to M.

• (3) In the circumstances described in paragraph (2), the appropriate person must pay an amount equal to the difference to the scheme in accordance with paragraph (5).

• (4) Paragraph (3) does not apply where M has waived M’s right to the compensation payment otherwise due under regulation 3 (see regulation 4(5)) unless that waiver is void.

• (5) The contributions owed to the scheme by the appropriate person must be reduced by tax relief amounts calculated in accordance with paragraphs (5) and (8) and if relevant, (11) and (12) of direction 4 of the 2022 Directions (powers to reduce or waive liabilities).

• (6) In this regulation—

• “adjusted contributions amount” means—if a person has made an election under regulation 12 in relation to M’s remediable service, the aggregate of the contributions M would have paid in respect of M’s remediable service in the relevant scheme years if M had been required to pay 2015 scheme contributions in respect of that service;otherwise, the aggregate of M’s legacy scheme contributions in respect of M’s remediable service in the relevant scheme years;

• “appropriate person” means—M, orif M is deceased, M’s personal representatives;

• “operative time” means—if an election under regulation 12 is made in relation to M’s remediable service, the time the election is made;otherwise, the end of the deferred choice election period in relation to M;

• “paid contributions amount” means—the aggregate of the legacy scheme contributions, orthe aggregate of the 2015 scheme contributions,paid by M in relation to M’s remediable service in the relevant scheme years;

• “relevant member” means a member who—is an active or deferred remedy member, andpaid or would have paid contribution in respect of any scheme year falling within the period of M’s remediable service in respect of M’s certified or final pensionable earnings in accordance with—paragraph 14 of schedule 1 of the 2011 regulations;regulation 3.C.2 of the 2013 Regulations; orregulation 37(3)(a) of the 2015 regulations.

• (7) Where this regulation applies, section 17 of PSPJOA 2022 (pension contributions: active and deferred members (deferred correction)) does not apply and the references to that section in section 18(2) and (5) of that Act (powers to reduce or waive liabilities) are to be read as references to this regulation.

Remediable service statements

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• (1) The scheme manager must provide a remediable service statement in accordance with section 29 of PSPJOA 2022[^f00015], direction 20 of the 2022 Directions and this regulation to each remedy member or (as the case may be) designated person (see regulation 7) who has not made an election in respect of that service pursuant to—

• (a) regulation 9, or

• (b) regulation 12.

• (2) The scheme manager must provide the statement to each such remedy member or designated person on or before the relevant date[^f00016].

• (3) The scheme manager must provide a further remediable service statement—

• (a) where the remedy member has remediable service in an employment or office in relation to which the member is for the time being an active member, at least once in each year ending with the anniversary of the relevant date;

• (b) where the remedy member has remediable service in an employment or office in relation to which the member is for the time being a deferred member, on request and within three months beginning with the day of that request.

PART 3 — Elections

Eligibility to make an election: designated persons

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• (1) This regulation applies where for the purposes of regulation 8, 9 or 12 a designated person is to make an election on behalf of a remedy member.

• (2) Where this regulation applies, the designated person is—

• (a) in the circumstances described in regulation 8(2)(b)(i), 9(2)(b)(i) or 12(2)(b)(i)—

• (i) a person who is capable and—

• (aa) entitled to a surviving partner pension in relation to that member under Part G of the 2011 Regulations;

• (bb) entitled to a surviving adult dependant pension in relation to that member under regulation 2.E.1 or 3.E.1 of the 2013 Regulations; or

• (cc) entitled to a surviving adult dependant pension in relation to that member under regulation 112 of the 2015 Regulations; or

• (ii) where there is no such person (capable or otherwise), a person who on the date of issue of a remediable service statement in relation to that member (see regulation 6) is aged 18 or over, capable and—