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

• (2) Where this regulation applies, the scheme manager, after having regard to the advice of the scheme actuary, must calculate the cash equivalent of M’s remediable rights as if they were secured in—

• (a) the 1995 Section or the 2008 Section (whichever is relevant);

• (b) the 2015 scheme.

• (3) Where—

• (a) the greater of the amounts calculated under paragraph (2) (“x”) is greater than

• (b) the legacy scheme remediable cash equivalent (“y”),

the scheme manager must, after having regard to the advice of the scheme actuary, must use an amount equal to x – y to acquire further rights in the 2015 scheme in respect of the member on the same terms as the legacy scheme remediable cash equivalent.

Transfers of remediable rights in the legacy scheme to the 2015 scheme on or after 1 October 2023

47

• (1) This regulation applies in relation to each member (“M”) in respect of whom the scheme manager uses a legacy scheme remediable cash equivalent to acquire rights in the 2015 scheme on or after 1 October 2023.

• (2) Where this regulation applies, the scheme manager, after having regard to the advice of the scheme actuary, must calculate the cash equivalent of M’s remediable rights as if they were secured in—

• (a) the 1995 Section or the 2008 Section (whichever is relevant);

• (b) the 2015 scheme.

• (3) The amount of the legacy scheme remediable cash equivalent is the greater of the amounts calculated under paragraph (2).

Remediable transfer values payments accepted from other public service schemes but not accepted under the public sector transfer arrangements

48

• (1) This regulation applies in relation to each payment of a remediable transfer value in respect of a member (“M”).

• (2) Where this regulation applies the scheme manager must, after having regard to the advice of the scheme actuary, determine M’s remediable benefits if the transfer value, together with any adjustment payment accepted under paragraph (3), were applied in respect of rights in—

• (a) the 1995 Section or the 2008 Section (whichever is relevant);

• (b) the 2015 scheme.

• (3) Where the remediable transfer value was accepted by the scheme manager before 1 October 2023 and the sending scheme is a reformed public service pension scheme, the scheme manager may accept an adjustment in the value of a remediable transfer value—

• (a) in respect of the remediable rights to which the payment relates, and

• (b) which is made by the sending scheme pursuant to, or to provision made under, PSPJOA 2022.

• (4) An adjustment payment accepted under paragraph (3) is to be used for the purpose of determining M’s benefits under the legacy scheme or the 2015 scheme on the same terms as the remediable transfer value.

Remediable club transfer value payments made before 1 October 2023

49

• (1) This regulation applies in relation to each member (“M”) in respect of whom the scheme manager paid a remediable club transfer value before 1 October 2023.

• (2) Where this regulation applies, the scheme manager must calculate the transfer value of M’s remediable rights as if they had been secured in —

• (a) the 1995 Section or the 2008 Section (whichever is relevant), and, separately

• (b) the 2015 Scheme.

• (3) The scheme manager must provide to the receiving scheme—

• (a) the result of the calculations mentioned in paragraph (2); and

• (b) such further information as the receiving scheme may require in relation to M’s remediable rights.

• (4) Where the receiving scheme is a local government pension scheme (within the meaning of section 86(1) of PSPJOA 2022), and—

• (a) the greater of the amounts calculated under paragraph (2) (“x”) is greater than

• (b) the amount of the remediable club transfer value (“y”),

the scheme manager must pay the receiving scheme an amount equal to x – y.

• (5) A payment made under paragraph (4) is subject to the same conditions as the remediable club transfer value.

Remediable club transfer value payments made on or after 1 October 2023

50

• (1) This regulation applies in relation to each member (“M”) in respect of whom the scheme manager is to make a remediable club transfer value payment on or after 1 October 2023.

• (2) The scheme manager must calculate the transfer value of M’s remediable rights as if they had all been secured in—

• (a) the 1995 Section or the 2008 Section (whichever is relevant);

• (b) the 2015 scheme.

• (3) The amount of the remediable club transfer value is the greater of the amounts calculated under paragraph (2).

• (4) The scheme manager must provide to the receiving scheme—

• (a) the result of the calculations mentioned in paragraph (2); and

• (b) such further information as the receiving scheme may require in relation to M’s remediable rights.

Remediable club transfer value payments accepted before 1 October 2023

51

• (1) This regulation applies in relation to a member (“M”) in respect of whom the scheme manager has accepted a remediable club transfer value before 1 October 2023.

• (2) Where this regulation applies and the sending scheme is a local government pension scheme (within the meaning of section 86(1) of PSPJOA 2022), and the scheme manager may accept an adjustment in the value of a remediable club transfer value—

• (a) in respect of the remediable rights to which the remediable club transfer value payment relates, and

• (b) which is made by the sending scheme pursuant to, or to provision made under, PSPJOA 2022.

• (3) The scheme manager must determine M’s remediable benefits if the transfer value, together with any payment adjustment accepted under paragraph (2), were applied in respect of rights secured in—

• (a) the 1995 Section or the 2008 Section (whichever is relevant);

• (b) the 2015 scheme.

Remediable club transfer value payments accepted on or after 1 October 2023

52

• (1) This regulation applies in relation to a member (“M”) in respect of whom the scheme manager has accepted a remediable club transfer value payment on or after 1 October 2023.

• (2) Where this regulation applies, the scheme manager, must determine M’s remediable benefits as if the remediable club transfer value payments were applied in respect of rights secured in—

• (a) the 1995 Section or the 2008 Section (whichever is relevant);

• (b) the 2015 scheme.

Application and interpretation of regulations 54 to 56

53

• (1) Regulations 54 to 56 apply in relation to a member (“M”) in respect of whom the scheme manager has accepted either or both of the following —

• (a) a remediable transfer value payment, together with any payment accepted under regulation 48(3);

• (b) a remediable club transfer value payment, together with any adjustment accepted under regulation 51(2).

• (2) In regulations 54 to 56—

• “relevant Section of the legacy scheme” means— the 1995 Section if M has pensionable service in that Section; the 2008 Section if M has pensionable service in that Section; otherwise, the 2008 Section;

• “transferred in remediable rights” means M’s remediable rights in the legacy scheme or the 2015 scheme secured by virtue of a remediable value together with any payment or, as the case may be, adjustment under regulation 48(3) or regulation 51(2).

Transferred in remediable rights treated as being the legacy scheme

54

• (1) Where this regulation applies (see regulation 53) and the transferred in remediable rights of a member (“M”) would, apart from this regulation, be rights to benefits under the 2015 scheme, the rights—

• (a) are not, and are treated as never having been, rights under the 2015 scheme, and

• (b) are treated as being, and as always having been, rights under the relevant Section of the legacy scheme.

• (2) Paragraph (1) has effect—

• (a) for the purposes of determining which Section of the legacy scheme is (or at any time was) required to pay benefits to or in respect of M’s transferred in remediable rights, and

• (b) subject to regulation 56, for all other purposes.

Varying the value of benefits secured by virtue of transferred in remediable rights

55

• (1) Where this regulation applies (see regulation 53) and—

• (a) a member is an active or deferred remedy member (“M”), and

• (b) M’s transferred in remediable rights are treated as rights to benefits under the relevant Section of the legacy scheme by virtue of regulation 54,

the scheme manager must vary the value of those rights so that they are of an equivalent value to rights M would have secured under the relevant Section of the legacy scheme if the rights had been transferred into that Section.

• (2) A variation under paragraph (1) is to be treated as having taken effect when these Regulations come into force.

• (3) Where—

• (a) M is a pensioner remedy member or a remedy member who died before 1 October 2023, and the end of the immediate choice election period has passed in relation to M and no election has been made (or treated by the scheme manager as having been made) under regulation 9 in relation to M’s remediable service, and

• (b) M’s transferred in remediable rights are treated as rights to benefits under the relevant Section of the legacy scheme by virtue of regulation 54,

the scheme manager must vary the value of those rights so that they are of an equivalent value to the rights M would have secured under the relevant Section of the legacy scheme if the rights had been transferred into that Section.

• (4) A variation under paragraph (3) is to be treated as having taken effect at the end of the immediate choice election period.

• (5) Where—

• (a) the benefits payable to or in respect of M’s remediable service are 2015 scheme benefits by virtue of an immediate choice election under regulation 9 or a deferred choice election under regulation 12 (including such an election which the scheme manger treats as having been made under either of those regulations), and

• (b) the benefits payable in relation to M’s transferred in remediable rights would otherwise be benefits in the relevant Section of the legacy scheme,

the scheme manager must vary the value of those rights so that they are of an equivalent value to rights M would have secured under the 2015 scheme if the rights had been transferred into that scheme.

• (6) Where the scheme manager is required to vary the value of any rights under this regulation so that they are equivalent to rights that would have been secured in another scheme (“the alternative scheme”), the scheme manager must, after having regard to the advice of the scheme actuary, calculate the varied rights as if the remediable transfer value which originally secured the rights had been paid to the alternative scheme or Section of the scheme in the scheme year the payment was received by the scheme manager.

• (7) In paragraph (6), “scheme year” means a period of one year beginning on 1 April and ending with 31 March.

Benefits already paid in relation to transferred in remediable rights

56

• (1) Where this regulation applies (see regulation 53), paragraph (2) applies in relation to any benefits (“the paid benefits”) that have at any time been paid to a person (“P”) from the 2015 scheme so far as—

• (a) they are calculated by reference to P’s, or any other person’s, transferred in remediable rights, and

• (b) they are benefits that, as a result of regulation 54(1)(a), P was not entitled to receive from the 2015 scheme.

• (2) The paid benefits are to be treated for all purposes—

• (a) as not having been paid to P by the 2015 scheme, but

• (b) as having been paid to P instead by the relevant Section of the legacy scheme.

PART 7 — Taxation

Interpretation of Part 7

57

In this Part—

• “2023 Regulations” means the Public Service Pension Schemes (Rectification of Unlawful Discrimination) (Tax) Regulations 2023⁴⁹;

• “annual allowance charge” has the same meaning as in section 227(1) (annual allowance charge) of the 2004 Act⁵⁰;

• “relevant rectification provision” has the same meaning as in regulation 2(1) of the 2023 Regulations.

Scheme administrator to be liable where private sector scheme administrator’s liability is discharged

58

• (1) This regulation applies in the circumstances described in paragraph (2) in relation to a remedy member (“M”) who—

• (a) 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, and

• (b) on 30 September 2023 was a pensioner or deceased member of the legacy scheme or the 2015 scheme in respect of remediable service.

• (2) The circumstances are that—

• (a) before these Regulations came into force, a benefit crystallisation event in accordance with section 216 (benefit crystallisation events and amounts crystallised) of the 2004 Act occurred in connection with M’s entitlement to any benefits under the legacy scheme or the 2015 scheme;

• (b) a later benefit crystallisation event (“later BCE”) occurs in relation to M’s entitlement to any benefits under a pension scheme that is not a public service pension scheme (“private sector scheme”);

• (c) a lifetime allowance charge, or any part of such a charge, is charged in connection with the later BCE that is attributable to a relevant rectification provision; and

• (d) the scheme administrator of the private sector scheme makes a successful application under section 267(lifetime allowance charge) of the 2004 Act in respect of their liability for the lifetime allowance charge, or part of such a charge.

• (3) The scheme administrator is jointly and severally liable in accordance with regulation 36(3) of the 2023 Regulations (public service scheme to be liable where private sector scheme discharged) for the lifetime allowance charge or part of such a charge mentioned in paragraph (2)(d).

• (4) M’s present and future benefits must be reduced by an amount that fully reflects the amount of the lifetime allowance charge, or part of such a charge, paid by the scheme administrator and is to be calculated by reference to advice provided by the scheme actuary for that purpose.

• (5) In this regulation, “lifetime allowance charge” has the same meaning as in section 214 (lifetime allowance charge) of the 2004 Act.

Scheme pays

59

• (1) This regulation applies in relation to a remedy member (“M”)—

• (a) who is not a deceased member;

• (b) who has remediable service in the legacy scheme that is pensionable under that scheme whether or not by virtue of section 2(1) of PSPJOA 2022;

• (c) who has an annual allowance charge in one or more of the tax years 2019-20 to 2022-23 attributable to a relevant rectification provision; and

• (d) in respect of whom the time limit referred to in section 237BA (time limit for notices under section 237B) of the 2004 Act⁵¹ has ended.

• (2) M may give a notice in writing to the scheme administrator requesting that the scheme administrator pay the annual allowance charge on behalf of the member.

• (3) Upon receipt of the notice mentioned in paragraph (2), the scheme administrator must pay the annual allowance charge arising in that tax year.

• (4) M’s present or future benefits in respect of which that charge arises must be adjusted in accordance with section 237E of the 2004 Act⁵² (consequential benefit adjustments to be reasonable etc) and must be calculated by reference to advice provided by the scheme actuary for that purpose.

• (5) The scheme administrator must provide information to M in relation to the process for making a request under paragraph (2) and the consequences of such a request.

PART 8 — Compensation

Applications for compensation or indirect compensation

60

• (1) Where paragraph (2) applies, the scheme manager may pay an amount by way of compensation under section 23(1) of PSPJOA 2022 and in accordance with direction 8 of the 2022 Directions or an increase to benefits by way of indirect compensation under regulation 61 unless paragraph (2) applies.

• (2) This paragraph applies where—

• (a) an application is made in accordance with direction 18(1) and (2) of the 2022 Directions;

• (b) the application is accompanied by such information as the scheme manager may by written notice require a person to provide in relation to the compensation which is—

• (i) information within the person’s possession, or

• (ii) information which the person may reasonably be expected to obtain; and

• (c) the scheme manager makes a determination in accordance with direction 18(3) of the 2022 Directions.

• (3) The following apply in relation to a determination under direction 18(3) of the 2022 Directions—

• (a) direction 18(4) (provision of explanation), and

• (b) direction 18(5) and (6) (appeals).

Indirect compensation

61

• (1) This regulation applies where pursuant to an application under regulation 60 the scheme manager determines that a person has incurred a compensatable loss under section 23 of PSPJOA 2022 that is a Part 4 of the Finance Act 2004 tax loss as defined in subsection (9) of that section (“relevant loss”) and the relevant loss is a reduction of benefit.

• (2) The amount of benefit payable under the legacy scheme or the 2015 scheme—

• (a) must not be paid under section 23 of PSPJOA 2022 by way of compensation in respect of the relevant loss, and

• (b) must be increased to reflect the amount of the relevant loss in such manner as is determined by the scheme manager in accordance with direction 10(2) to (4) of the 2022 Directions.

PART 9 — Interest and the payment, reduction or waiver of liabilities

Application and interpretation of Part 9

62

• (1) This Part applies in respect of relevant amounts (and any interest on them) payable by a person to the legacy scheme or by that scheme to a person under or by virtue of Chapter 1 of PSPJOA 2022.

• (2) In this Part, a reference to a direction is a reference to that direction in the 2022 Directions.

Interest and process

63

• (1) The scheme manager must calculate interest on any amount described in directions 14 (Interest: rates), 15 (Interest: periods) or 16 (Interest: other) in accordance with the provisions of whichever of those directions is relevant to that amount.

• (2) Where an amount is described in paragraphs (4), (5), (6), (7) or (8), the scheme manager must calculate interest on it in accordance with whichever paragraph is relevant.

• (3) Direction 14(6) applies where the rate of interest has varied during a period for which interest is to be calculated.

• (4) Where amounts are owed under regulation 3, interest must be calculated and applied in accordance with the 2022 Directions as if those amounts were owed under section 16 of PSPJOA 2022 (pension contributions: active and deferred members (immediate correction)).

• (5) Where amounts are owed under regulation 4, interest must be calculated and applied in accordance with the 2022 Directions as if those amounts were owed under section 15 of PSPJOA 2022 (Pension contributions: pensioner and deceased members).

• (6) Where amounts are owed under regulation 5, interest must be calculated and applied in accordance with the 2022 Directions as if those amounts were owed under section 17 of PSPJOA 2022 (Pension contributions: active and deferred members (deferred correction)).

• (7) Where amounts are owed under regulation 10, 13 or 35, interest must be calculated and applied in accordance with the 2022 Directions as if those amounts were owed under section 14 of PSPJOA 2022 (Pension benefits and lump sum benefits: pensioner and deceased members).

• (8) Where compensation is owed under regulation 18 and that liability is waived by virtue of regulation 18(3) and that waiver subsequently ceases to have effect, interest must be calculated in the form and applied at the rate specified—

• (a) in direction 14(5) from the mid-point date described in direction 15(16) to the date 28 days after a remediable service statement is first issued, and

• (b) in direction 14(4) from the date 29 days after a remediable service statement is first issued to the date of payment.

Interest not payable under the 2011 Regulations or the 2013 Regulations

64

• (1) This regulation applies in respect of any relevant amount payable by the legacy scheme to a person under or by virtue of Chapter 1 of PSPJOA 2022 where the scheme manager must calculate interest on that amount in accordance with regulation 63.

• (2) Where this regulation applies, the scheme manager must treat the relevant amount as if—

• (a) it is not a qualifying payment for the purposes of regulation T10 of the 2011 Regulations (interest on late payment of benefits), or

• (b) it is not an unpaid amount for the purposes of regulation 2.J.10 or regulation 3.J.10 of the 2013 Regulations (interest on late payment of benefits and refunds of contributions),

where it would be such a qualifying payment or unpaid amount but for this regulation.

Netting off of liabilities

65

The scheme manager must net off relevant amounts (and any interest owed on them) which are owed by the scheme to a person or by a person to the scheme (as the case may be) in accordance with direction 19 (process: netting off).

Payments of amounts owed to the scheme

66

• (1) This regulation applies where a person (“P”) owes a net liability to the scheme after taking into account regulation 65.

• (2) The scheme manager must send a notice in writing to P that the net liability must be paid.

• (3) P must pay the amount of the net liability to the scheme manager—

• (a) on or before a date determined by the scheme manager as being reasonable after having regard to all the circumstances of the case, or

• (b) in accordance with an agreement under paragraph (4).

• (4) P and the scheme manager may agree that the net liability is paid in part or in full—

• (a) by instalments;

• (b) by way of deductions from any benefits (including a lump sum benefit) to which P is entitled under the legacy scheme or the 2015 scheme; or

• (c) by a combination of (a) and (b).

• (5) But where the net liability includes amounts owed as a consequence of an election under regulation 8(1) and P is not a pensioner member, the scheme manager may not agree that the net liability is paid in part or in full accordance with paragraph (4)(b) or (c).

• (6) P and the scheme manager may agree to vary an agreement made in accordance with paragraph (4).

• (7) Where P does not pay the amount that P is required to pay under paragraph (3), the scheme manager may, after providing notice in writing to P, deduct such sums from benefits payable to P from the legacy scheme or the 2015 scheme as the scheme manager considers reasonable for the purpose of discharging P’s liability.

Payment of amounts owed to a person

67

• (1) This regulation applies where the scheme owes a net liability to a person (“P”) after taking into account regulation 65

• (2) The scheme manager must pay the amount of the net liability to P as soon as reasonably practicable—

• (a) after the scheme manager determines the amount of the net liability, or

• (b) where the scheme manager requires P to make an application in accordance with paragraph (3), after receipt of that application.

• (3) Before paying the amount of a net liability owed to P, the scheme manager may by notice in writing require P to make an application which is—

• (a) in a form and manner determined by the scheme manager;

• (b) accompanied by such information as the scheme manager may require—

• (i) which is within P’s possession, or

• (ii) which P may reasonably be expected to obtain; and

• (c) received by the scheme manager before the end of the period of six months beginning with the day after the day on which P receives notice that the application is required.

Power to reduce or waive amounts owed by a person to the legacy scheme

68

• (1) The scheme manager may reduce or waive an amount owed by a person to the legacy scheme under these Regulations.

• (2) When, under paragraph (1), reducing or waiving an amount owed, the scheme manager must—

• (a) have regard to the particular circumstances of the person;

• (b) apply a presumption in favour of recovering the amount owed by the person unless it is uneconomic to recover it; and

• (c) have regard to whether, instead of or in addition to reducing or waiving the liability, it is appropriate in the reasonable opinion of the scheme manager, to exercise regulation 66.

• (3) In paragraph (2)(a), the particular circumstances include those set out in direction 4(3).

PART 10 — Revocation of election to convert pensionable service in the legacy scheme

Option to revoke election to convert pensionable service in the legacy scheme

69

• (1) This regulation applies to a remedy member (“M”) who has made an election under regulation 41 of the 2015 Transitional Regulations.

• (2) M may revoke the election referred to in paragraph (1) with the effect that M’s pensionable service for the purposes of the 1995 Section is treated as if it were never such service for the purposes of the 2008 Section.

• (3) Where M may make an election under regulation 9 (immediate choice election for 2015 scheme benefits: pensioner and deceased members)—

• (a) the scheme manager must send a notice in writing to M of M’s right under paragraph (2) on or before the relevant date referred to in regulation 6(2);

• (b) M must, if M decides to exercise that right, give the scheme manager notice in writing of that decision—

• (i) within three months beginning with the day on which the scheme manager issued the notice referred to in sub-paragraph (a); or

• (ii) by such later time as the scheme manager considers reasonable after having regard to all the circumstances of the case.

• (4) Where M may make an election under regulation 12 (deferred choice election for 2015 scheme benefits: active, deferred and deceased members)—

• (a) the scheme manager must send a notice in writing to M of M’s right under paragraph (2) before 1 April 2024;

• (b) M must, if M decides to exercise that right, give the scheme manager notice in writing of that decision—

• (i) within three months beginning with the day on which the scheme manager issued the notice referred to in sub-paragraph (a); or

• (ii) by such later time as the scheme manager considers reasonable after having regard to all the circumstances of the case.

• (5) Where M revokes the election in accordance with paragraph (2), for the purposes of section 4(9)(a) of PSPJOA 2022, the Section under which the person most recently accrued pensionable service is the 1995 Section.

PART 11 — Retirement pensions

Premature retirement in the interests of efficiency

70

• (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) (remediable service”). of PSPJOA 2022(“M’s remediable service”)..

• (2) Where this regulation applies and the scheme manager accepts an immediate choice election in accordance with regulation 9 or a deferred choice election in accordance with regulation 12 and, as a result of that election, the additional contribution due from the employing authority increases, the scheme manager must waive that increase.

• (3) In paragraph (2), the additional contribution due from the employing authority is the amount the scheme manager determines is required to meet the cost of providing the pension in the 1995 Section or 2008 Section (whichever is relevant).

• (4) In this regulation, “relevant member” means a member—

• (a) who—

• (i) on 30 September 2023—

• (aa) was a pensioner member with regard to benefits paid in respect of remediable service in the legacy scheme, or

• (bb) was deceased, or

• (ii) on or after 1 October 2023 was an active, deferred or deceased remedy member but not a pensioner member; and

• (b) whose employment has been or is terminated by M’s employing authority under—

• (i) regulation E8 of the 2011 Regulations (early retirement pension (redundancy etc notifications)), or

• (ii) regulation 2.D.11 of the 2013 Regulations (early retirement on termination of employment by employing authority).

Premature retirement on grounds of redundancy

71

• (1) This regulation applies in relation to a relevant member (“M”) where M’s employing authority has made or makes a contribution to the scheme manager in accordance with—

• (a) regulation D2 of the 2011 Regulations (contributions and other payments by employing authorities);

• (b) regulation 2.C.6 of the 2013 Regulations (contributions by employing authorities: early retirement on termination of employment ); or

• (c) regulation 34 of the 2015 Regulations (employing authority contributions: redundancy).

• (2) Paragraphs (3) and (4) apply if the cost of any benefits on termination in respect of M increase as a result of—

• (a) the scheme manager accepting—

• (i) an immediate choice election made by or in respect of M in accordance with regulation 9, or

• (ii) a deferred choice election made by or in respect of M in accordance with regulation 12; or

• (b) an election referred to in sub-paragraph (a) not being made by or in respect of M before the end of the immediate choice election period or the end of the deferred choice election period (whichever election period applies in respect of M).

• (3) M may pay all or part of the additional contribution as the scheme manager, after having regard to the advice of the scheme actuary, determines will be sufficient to meet the increased cost of the benefits insofar as that cost—

• (a) is not met by the contribution referred to in paragraph (1), and

• (b) exceeds the cost in respect of which M was entitled to make an additional contribution on becoming entitled to any benefits on termination.

• (4) If M elects not to pay any additional contribution in accordance with paragraph (3), the scheme manager must reduce the amount of pension pursuant to—

• (a) regulation E7 of the 2011 Regulations;

• (b) regulation 2.D.11 of the 2013 Regulations (early retirement on termination of employment by employing authority); or

• (c) schedule 11 of the 2015 Regulations.

• (5) Subject to paragraph (6), if the member is not entitled to make an additional contribution to meet the increase in costs referred to in paragraph (2) and that increase is to be met by M’s employing authority in accordance with the terms and conditions relevant to M’s employment, the scheme manager must waive the element of the further contribution due from the employing authority that relates to the increase.

• (6) Where M has received a relevant employing authority payment and that payment must be reduced as a consequence of the increase in costs referred to in paragraph (2), the amount that must be waived under that paragraph must also be reduced by the same amount.

• (7) Paragraph (8) applies if the cost of any benefits on termination in respect of M decrease as a result of—

• (a) the scheme manger accepting—

• (i) an immediate choice election made by or in respect of M in accordance with regulation 9, or

• (ii) a deferred choice election made by or in respect of M in accordance with regulation 12; or

• (b) an election referred to in sub-paragraph (a) not being made by or in respect of M before the end of the immediate choice election period or the end of the deferred choice election period (whichever election period applies in respect of M).

• (8) The scheme manager must send a notice in writing to M or the designated person of the amount by which the cost of any benefits on termination in respect of M have decreased.

• (9) In paragraph (5), the element to be waived does not include any payment received by M under—

• (a) regulation E3A(5)(a) of the 2011 Regulations;

• (b) regulation 2.D.11(6)(a) of the 2013 Regulations; or

• (c) paragraph 7(2)(a) of schedule 11 of the 2015 Regulations.

• (10) In this regulation—

• “benefits on termination” means benefits under— regulations E3A, E6 (lump sum on retirement) and E7 (general option to exchange part of pension for lump sum) of the 2011 Regulations ; regulations 2.D.11 (early retirement on termination of employment by employing authority) and 2.D.14 (general option to exchange part of pension for lump sum) of the 2013 Regulations; regulations 76 (conversion of part of pension into lump sum) and 80 (premature retirement in the interests of efficiency) of the 2015 Regulations,

• “relevant member” means a member who— on 30 September 2023— was a pensioner remedy member, or was deceased; or on or after 1 October 2023 was an active, deferred or deceased remedy member; and who in respect of the termination of M’s employment by M’s employing authority is entitled to the payment of any benefits on termination,

• “relevant employment authority payment” means a payment made to M by M’s employing authority in respect of the cessation of M’s employment referred to in (whichever is relevant)— regulation E6 of the 2011 Regulations; regulation 2.D.11(6)(a) of the 2013 Regulations; or paragraph 7(2)(a) of schedule 11 of the 2015 Regulations.

Partial retirement: pensioner remedy members

72

• (1) This regulation applies to a pensioner remedy member (“M”) who—

• (a) is entitled to a pension under—

• (i) regulation 2.D.5 or 3.D.5 of the 2013 Regulations (Partial retirement (members aged at least 55)), or

• (ii) regulation 83 of the 2015 Regulations (election for partial retirement (members over normal minimum pension age)); and

• (b) either—

• (i) has remediable service in the 2008 Section that is pensionable service under that section by virtue of section 2(1) of PSPJOA 2022 and does not make an immediate choice election under regulation 10 of these Regulations in respect of that service, or

• (ii) has remediable service in the 2008 Section that is pensionable service under that section other than by virtue of section 2(1) of PSPJOA 2022 and makes an immediate choice election under regulation 10 of these Regulations in respect of that service.

• (2) M may elect to adjust the specified percentage of M’s pension (excluding any additional pension) in respect of which M has claimed immediate payment by an amount determined by the scheme manager as being necessary to maintain the amount of M’s annual partial retirement pension in payment at—

• (a) the end of the immediate choice election period where paragraph (1)(b)(i) applies to M; and

• (b) the date the member makes an immediate choice election under regulation 10 where paragraph (1)(b)(ii) applies to M.

• (3) Where this regulation applies —

• (a) the scheme manager must send a notice in writing to M of M’s right under paragraph (2) on or before the relevant date referred to in regulation 6(2); and

• (b) M must, if M decides to exercise that right, give the scheme manager notice in writing of that decision—

• (i) within three months beginning with the day on which the scheme manager sends the notice referred to in sub-paragraph (a); or

• (ii) by such later time as the scheme manager considers reasonable in all the circumstances of the case.

Partial retirement: deferred and active remedy members

73

• (1) This regulation applies to an active or deferred remedy member (“M”) who, at the operative time, is entitled to a pension under—

• (a) regulation E11 (early retirement with actuarial reduction) of the 2011 Regulation;

• (b) regulation 2.D.5 or 3.D.5 (partial retirement (members aged at least 55)) of the 2013 Regulations; or

• (c) regulation 83(election for partial retirement (members over normal minimum pension age)) of the 2015 Regulations.

• (2) M may make an election to substitute the specified percentage of M’s pension (excluding any additional pension) in respect of which M has claimed immediate payment with a different specified percentage (“a substitute percentage election”).

• (3) The scheme manager must send a notice in writing to M of M’s right to make a substitute percentage election under paragraph (2) on or before the relevant date referred to in regulation 6(2).

• (4) A substitute percentage election must—

• (a) be notified by M to the scheme manager in writing;

• (b) be received by the scheme manager—

• (i) within a period of three months beginning with the day after the scheme manager sends the notice referred to in paragraph (3), or

• (ii) by such later time as the scheme manager considers reasonable in all the circumstances of the case;

• (c) contain such information as the scheme manager requires;

• (d) take effect from the day on which M became entitled to the pension referred to in paragraph (1) (whichever is relevant); and

• (e) be disregarded for the purposes of determining whether M may make a further election for partial retirement under the regulation referred to in paragraph (1) (whichever is relevant).

• (5) In this regulation—

• “operative time” means if a deferred choice election by virtue of regulation 12 is made in relation to M’s remediable service, the time when the election is made; otherwise, the end of the deferred choice election period in relation to M.

Determining whether a member meets the ill-health criteria in each scheme

74

• (1) This regulation applies to a remedy member (“M”)—

• (a) who ceased to be employed in NHS employment during the period of M’s remediable service, and

• (b) whose application for an ill-health pension in relation to that service (“M’s application”) has been determined by the scheme manager.

• (2) Where this regulation applies, the scheme manager must reconsider M’s application together with any supporting medical evidence to determine whether M would have met the ill-health retirement criteria in M’s alternative scheme or section when the application was initially determined.

• (3) Where M or a designated person on M’s behalf (see regulation 7) has the right to make an immediate choice election under regulation 9—

• (a) the scheme manager must send a notice in writing to M or the designated person of the outcome of the scheme manager’s determination under paragraph (2) before the immediate choice election period commences in respect of M, and

• (b) if M or the designated person on M’s behalf elects to take an ill-health pension as a result of the scheme manager’s determination under paragraph (2), any rights for M to make that election must be deemed to have been fulfilled.

• (4) Where M or a designated person on M’s behalf (see regulation 7) has the right to make a deferred choice election under regulation 12—

• (a) the scheme manager must send a notice in writing to M or the designated person of the outcome of the scheme manager’s determination under paragraph (2) as soon as reasonably practicable after 1 October 2023, and

• (b) if M or the designated person on M’s behalf elects to take an ill-health pension as a result of the scheme manager’s determination under paragraph (2), any rights for M to make that election must be deemed to have been fulfilled.

• (5) The provisions of chapter 1 of PSPJOA 2022 and Part 3 of these Regulations about the timing and effect of an immediate choice election by virtue of section 6, and of a deferred choice election by virtue of section 10, of that Act apply subject to this regulation.

• (6) In this regulation—

• “ill-health pension” means a pension under— regulation E3 (early retirement on ill health grounds (post 1st April 2008)) of the 2011 Regulations ; regulation L1 (treatment of pensionable service of early leavers returning to pensionable employment) of the 2011 Regulations; regulation 2.D.8 or regulation 3.D.7 of the 2013 Regulations (early retirement on ill- health: active members and non-contributing members); regulation 2.D.10 or regulation 3.D.9 of the 2013 Regulations (early retirement on ill- health: deferred members); regulation 89 of the 2015 Regulations (entitlement to ill-health pension); or regulation 93 of the 2015 Regulations (early retirement on ill-health (deferred members));

• “M’s alternative scheme or section” means— where M’s eligibility for ill-health pension was assessed under the 1995 Section or the 2008 Section, the 2015 scheme; where M’s eligibility for ill-health pension was assessed under the 2015 scheme, the 1995 Section or the 2008 Section (whichever is relevant);

• “NHS employment” has the meaning given in schedule 13 to the 2015 Regulations.

Ill-health pension: acceptance of retrospective applications

75

• (1) This regulation applies where—

• (a) a remedy member (“M”) submits an application for ill-health pension on or after 1 October 2023, and

• (b) the scheme manager is satisfied that it is more likely than not that, but for a relevant breach of a non-discrimination rule (in terms of section 61 of the Equality Act 2010 (c.15)), M would, during the period of M’s remediable service, have made the decision to apply for ill-health pension.

• (2) The scheme manager may treat the application—

• (a) in accordance with regulation 27 (ill-health benefits: continuity of existing applications) of the 2015 Transitional Regulations⁵³, and

• (b) as if the application had been submitted before 1 April 2022.

• (3) In this regulation—

• “ill-health pension” means a pension under— regulation E3 (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations; regulation 2.D.8 or regulation 3.D.7 (early retirement on ill- health: active members and non-contributing members) of the 2013 Regulations; or regulation 89 (entitlement to ill-health pension) of the 2015 Regulations.

PART 12 — Consequential amendments

Consequential amendment of the 2011 Regulations, the 2013 Regulations and the 2015 Transitional Regulations

76

The schedule makes consequential amendments to the 2011 Regulations, the 2013 Regulations and the 2015 Transitional Regulations.

SCHEDULE — Amendment of the 2011 Regulations, the 2013 Regulations and the 2015 Transitional Regulations

Amendment of the 2011 Regulations

1

In the 2011 Regulations, in regulation B3⁵⁴ (restriction on further participation in this Section of the scheme), after paragraph (A2), insert—

(A3) Nothing in paragraphs (4) to (18) of this regulation prevents a member’s remediable service within the meaning of section 1 of the Public Service Pensions and Judicial Offices Act 2022 being treated as pensionable service under this scheme in accordance with section 2 of that Act (Remediable service treated as pensionable under Chapter 1 legacy schemes).

Amendment of the 2013 Regulations

2

• (1) the 2013 Regulations are amended as follows.

• (2) In regulation 2.B.3⁵⁵, (restrictions on eligibility: general), after paragraph (A2), insert—

(A3) Nothing in paragraph (1A) and paragraphs (1C) to (1L) of this regulation prevents a member’s remediable service within the meaning of section 1 of the Public Service Pensions and Judicial Offices Act 2022 being treated as pensionable service under this Section of the scheme in accordance with section 2 of that Act (Remediable service treated as pensionable under Chapter 1 legacy schemes).

• (3) In regulation 3.B.3⁵⁶ (restrictions on eligibility: general), after paragraph (A2), insert—

(A3) Nothing in paragraph (1A) and paragraphs (1C) to (1L) of this regulation prevents a member’s remediable service within the meaning of section 1 of the Public Service Pensions and Judicial Offices Act 2022 being treated as pensionable service under this Section of the scheme in accordance with section 2 of that Act (Remediable service treated as pensionable under Chapter 1 legacy schemes).

Amendment of the 2015 Transitional Regulations

3

• (1) Regulation 27 of the 2015 Transitional Regulations (ill-health benefits: continuity of existing applications) is amended as follows.

• (2) In paragraph (1)—

• (a) in the words before sub-paragraph (a), after “This regulation” insert “, except paragraph (1A) and paragraph (2) to the extent that it relates to paragraph (1A),”;

• (b) in sub-paragraph (a), in the words before paragraph (i), for “on 1st April 2022 (“the transition date”)” substitute “the transition date”.

• (3) After paragraph (1), insert—

(1A) This regulation, except paragraph (1) and paragraph (2) to the extent that it relates to paragraph (1), applies during the application period to a member— (a) who has remediable service in the legacy scheme up to and including 31 March 2022— (i) that is pensionable service under that scheme by virtue of section 2(1) of PSPJOA 2022; and (ii) in respect of which an immediate choice election by virtue of regulation 10 of the National Health Service Pension Schemes Remediable Service) (Scotland) Regulations 2023 (Immediate choice election for 2015 scheme benefits: pensioner and deceased members) has not been made; (b) who on the transition date— (i) was prevented from contributing to or accruing further pensionable service in the 1995 Section or being an active member of the 2008 Section; and (ii) was eligible to be an active member of the new scheme; (c) who submitted a claim to the Scottish Ministers together with supporting medical evidence (if not included in the form) for the purposes of 2015 regulation 89 before the transition date; (d) whose claim and supporting medical evidence (“the member’s application for ill-health pension”) was received by the Scottish Ministers before the transition date; and (e) whose ill-health pension had not become payable under the new scheme before the transition date.

• (4) In paragraph (2), in the words before sub-paragraph (a), for “paragraph (1)” substitute “paragraphs (1) and (1A)”.

• (5) In paragraph (21)—

• (a) in the definition of “the member’s application for ill-health pension”—

• (i) for “give” substitute “given”;

• (ii) at the end, insert “or (1A)(d) (whichever is relevant)”;

• (b) at the end of the definition of “the member’s application for ill-health pension”, for the full stop substitute a semicolon;

• (c) after that definition, insert ““the transition date” means 1 April 2022.”.

Signed

TOM ARTHUR — Authorised to sign by the Scottish Ministers — At 11.32 a.m. on 5th September 2023

We consent

STEVE DOUBLE — ANDREW STEPHENSON — Two of the Lords Commissioners of His Majesty’s Treasury — 4th September 2023

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

The Public Service Pensions Act 2013 (c. 25) (“PSPA 2013”) makes provision, and confers powers to make further provision (in the form of “scheme regulations” as defined in section 1 of PSPA 2013), about the establishment of public service pension schemes. There are two National Health Service Pension Schemes: a scheme divided into two Sections known as the 1995 Section, established by the National Health Service Superannuation Scheme (Scotland) Regulations 2011 (SSI 2011/117) (“the 2011 Regulations”), and the 2008 Section, established by the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013 (SSI 2013/174) (“the 2013 Regulations”) (together “the legacy scheme”), and the scheme established by the National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94) (“the 2015 scheme”). The National Health Pension Scheme (Scotland) Amendment Regulations 2022 (SSI 2022/100) (“the 2015 Transitional Regulations”) provided for the treatment and payment of legacy scheme benefits to certain members of the 2015 scheme. Transitional protection of this kind provided when reformed public service pensions were introduced in 2015 were found to discriminate against public service pension scheme members on the basis of age.

The Public Service Pensions and Judicial Offices Act 2022 (c. 7) (“PSPJOA 2022”), at chapter 1, makes provision and confers powers for scheme regulations under PSPA 2013 to make further provision in relation to specified service (“remediable service” as defined in section 1 of PSPJOA 2022) of members who benefited from transitional protection and of members who did not so benefit only by reason of their age. Section 27 of PSPJOA 2022 requires certain powers to make scheme regulations to be exercised in accordance with Treasury directions.

These Regulations are scheme regulations under PSPA 2013 and in accordance with PSPJOA 2022 in relation to a member’s remediable service in the legacy scheme and the 2015 scheme. They are, to the extent required by section 27 of PSPJOA 2022, made in accordance with Treasury directions under that section (in the form of the Public Service Pensions (Exercise of Powers, Compensation and Information) Directions 2022 (the “2022 Directions”). These Regulations have retrospective effect, which is authorised by section 3(3)(b) of PSPA 2013.

Part 2 makes provision in relation to medical practitioners and non-GP providers and the provision of remediable service statements. Regulations 3 to 5 provide for the refund or recovery of any overpayment or underpayment of contributions in relation to such members. Regulations 3 and 5 also provide in relation to such members who are active or deferred members the option of waiving a return of contributions until their election to receive 2015 scheme benefits (“deferred choice election”) has been made under regulation 12. Regulation 6 requires the scheme manager to provide a remediable service statement to each remedy member or designated person (see explanation of regulation 7) who has not made an election to receive 2015 scheme benefits.

Part 3 makes provision about the principal decisions that may be made in relation to a member’s remediable service. Regulation 7 provides for the person, referred to as the designated person, who may make an election in relation to the remediable service of a deceased or incapable member. Regulation 8 provides for when and how an election may be made for service in respect of which a member opted out of the legacy scheme or the 2015 scheme during the remedy period to be reinstated and treated as remediable service. Regulation 9 provides for when and how an election may be made, or deemed to have been made, for service in respect of a pensioner or a deceased or incapable member to be treated as pensionable service under the the 2015 scheme and regulation 10 provides for the benefits that must be corrected after an immediate choice election has been made. Regulation 11 provides for the protection of the pension of a child beneficiary not living in the same household as an adult survivor of a remedy member. Regulation 12 provides for when and how an election may be made, or deemed to have been made, for service in respect of an active or deferred remedy member or a deceased or incapable member to be treated as pensionable service under the the 2015 scheme (a “deferred choice election”) and regulation 13 provides for the adjustment of a resulting underpayment or overpayment of benefits.

Part 4 makes provision about additional pension and early retirement reduction buy-out contributions. Regulation 15 makes provision for the treatment of additional pension payable in respect of a remedy member who was not fully protected when their pensionable service was moved to the 2015 scheme and whose pension account was credited with additional pension or who paid contributions in respect of an additional pension election. Regulation 16 makes provision in respect of contributions so treated and paid after 31 March 2022. Regulation 17 provides for the treatment of a corresponding option exercised in accordance with regulation 15 on the making of a deferred choice election. Regulation 18 makes provision for the treatment of buy-out contributions in the remedy period where the member was an active or deferred member of the 2015 scheme on 30 September 2023. Regulation 19 makes provision for the treatment of such a member’s legacy scheme additional contributions where a deferred choice election is made, or treated as having been made, in respect of their remediable service. Regulation 20 makes provision for the treatment of additional pension in respect of pensioners and deceased members of the legacy scheme. Regulation 21 makes provision for the treatment of additional pension payable in respect of a member who was an active or deferred member of the 2015 scheme, or deceased, on 30 September 2023. Regulation 22 makes provision for the treatment of buy-out contributions in the remedy period where the member was a pensioner or deceased member of the 2015 scheme on 30 September 2023. Regulation 23 provides for when and how a remedy member may enter into an arrangement to pay voluntary contributions for additional pension under the legacy scheme. Regulation 24 provides for when and how a remedy member may revoke their cancellation of their arrangement to pay for additional years or of their option to purchase additional pension.

Part 5 makes provision about cases in which the pension rights secured by virtue of a member’s remediable service have been shared under a pension sharing order or are at issue in proceedings relating to the member’s legal dissolution. Regulations in this Part make provision about a member’s pension debit or a former spouse or civil partner’s pension credit where they are subject to a pension debit or a pension credit under section 29 of the Welfare Reform and Pensions Act 1999 (c. 30) on or after 1 April 2015, to reflect a retrospective change in the entitlement relating to the member’s remediable service shareable rights. They provide, in particular, for the calculation or, where appropriate, recalculation of a valuation of pension benefits under regulation 3 of the Pensions on Divorce etc. (Provision of Information) Regulations 2000 (S.I. 2000/1048), in relation to the member’s remediable service shareable rights.

Part 6 makes provision about pension rights transferred into and out of the National Health Pension Schemes during the period of a member’s remediable service. Regulations 37 to 48 make provision about transfers in and out of the legacy scheme or the 2015 scheme, including (in regulation 42) transfers between UK Health Service schemes, on a cash equivalent basis. These regulations make provision about the calculation (and, where appropriate, the recalculation) of the value of a transfer payment (in relation to the 1995 Section) or of a transfer value payment (in relation to the 2008 Section) and the making and accepting of payments in relation to the transfer value of rights secured by virtue of remediable service. Regulations 49 to 52 make similar provision in relation to transfers in and out of the legacy scheme or the 2015 scheme on the terms of the Public Sector Transfer Club. Regulation 43 requires the scheme manager to provide a remediable service statement in accordance with specified provisons in direction 6 of the 2022 Directions to a person who has transferred out rights in respect of remediable service. Regulation 54 provides that the transfer of any rights secured by virtue of remediable service into the 2015 scheme are to be treated as having been transferred into the relevant Section of the legacy scheme. Regulation 55 provides for the variation of the value of transferred in remediable rights so that they are of an equivalent value to the value the member would have secured if they had originally transferred to that Section of the legacy scheme. Regulation 56 makes provision for any pension benefits paid in respect of a member’s transferred in remediable rights to be treated as being paid and always having been paid fromt the relevant Section of the legacy scheme.

Part 7 makes provision about certain lifetime allowance and annual allowance charges where there is a relevant rectification provision in accordance with, and as defined in, regulation 2 of the Public Service Pension Schemes (Rectification of Unlawful Discrimination) (Tax) Regulations 2023 (S.I. 2023/113) (“the 2023 Tax Regulations”). Regulation 58 requires the scheme manager to pay a lifetime allowance charge, attributable to a relevant rectification provision, where a scheme manager of a private sector scheme makes a successful application under section 267 of the Finance Act 2004 (c.12) (“FA 2004”), and the scheme manager becomes liable, jointly and severally with the member, in accordance to regulation 36 of the 2023 Tax Regulations. Regulation 59 requires the scheme manager to accept a scheme pays notice in accordance with specified provisions in direction 7 of the 2022 Directions where a member is unable to give an effective notice to the scheme administrator under section 237B(3) of FA 2004 in relation to a relevant tax year because the time limit in section 237BA of FA 2004 has passed.

Part 8 makes provision permitting the scheme manager to pay amounts to members or the personal representatives of deceased members as compensation for compensatable losses that meet one of the conditions set out in section 23 of PSPJOA 2022. Regulation 60 requires that this compensation be paid in accordance with direction 8 of the 2022 Directions and sets out the process for applying for compensation. Regulation 61 makes provision for the payment of indirect compensation where a member has incurred a tax loss as defined in section 23(9) of PSPJOA 2022 which resulted in a reduction of that member’s benefits.

Part 9 makes provision about the application of interest to amounts owed to or from a member and the process for the payment of amounts owed by a scheme to a member or vice versa as a consequence of the remedy. Regulation 63 provides for the calculation of interest in accordance with the 2022 Directions. Regulation 64 makes provision to ensure that where interest applies to a payment associated with the remedy the other legacy scheme regulations specified that also provide for the payment of interest on late benefits payments do not also apply. Regulation 65 provides for the netting off of overpayments and underpayments created by the remedy and of any interest owed on them in accordance with direction 19 of the 2022 Directions. Regulations 66 and 67 set out, respectively, the payment processes where a person owes a net amount to the legacy scheme and vice versa.

Part 10 permits, and sets out the process for, legacy scheme members who had service in the 1995 Section and who elected to move their previous accrual in that Section to the 2008 Section before they joined the 2015 scheme to revoke that election with the effect that the member’s pensionable service under the 2011 Regulations is treated as if it were never such service under the 2013 Regulations.

Part 11 makes provision in respect of certain retirement categories supplementing or varying the effect the remedy would otherwise have in relation to benefits already in payment including those paid on the grounds of premature retirement in the interests of efficiency (regulation 70), redundancy (regulation 71), partial retirement (regulations 72 and 73) and ill-health (regulations 74 and 75).

Part 12 and the schedule provide for consequential amendments to the 2011 Regulations, the 2013 Regulations and the 2015 Transitional Regulations. The effect of the amendments to the 1995 Regulations and the 2013 Regulations in, respectively, paragraphs 1 and 2 of the schedule is to make it clear that nothing in earlier amendments to those Regulations, as specified, prevents a member’s remediable service between 1 April 2015 and 31 March 2022 being treated as pensionable service in the member’s Section of the legacy scheme under PSPJOA 2022. Paragraph 3 of the schedule amends regulation 27 of the 2015 Transitonal Regulations to extend its scope so that it also applies to members who applied for ill-health retirement under the 2015 Regulations during their remediable service and whose application was accepted or rejected after the end of their remediable service on 31 March 2022.

An impact assessment has not been completed for these Regulations as no, or no significant, impact on the private or voluntary sectors is foreseen.

Footnotes