The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008

• (i) for “Subject to paragraph (5), a” substitute “A”;

• (ii) for “scheme” substitute “Scheme under regulation 3.C.1 in respect of the period of absence”;

• (b) for paragraph (3) substitute—

(3) If a member is on leave of absence but does not fall within paragraph (1)(a) to (e), and contributes to the Scheme under regulation 3.C.1 by contributions made at the same intervals as those made by the member before the absence, the maximum period of such leave that can be counted as pensionable service under this paragraph is— (a) where the member contributes for a continuous period of 6 months commencing with the first day of the member’s leave of absence, 6 months, and (b) where the member contributes for a continuous period of less than 6 months commencing with the first day of the member’s leave of absence, the period in respect of which the member pays those contributions. (3A) If, having paid contributions for the period mentioned in paragraph (3)(a) a member remains on a leave of absence that does not fall within paragraph (1)(a) to (e) and contributes to the Scheme both member contributions under regulation 3.C.1 and employer contributions under regulation 3.C.3 by contributions made at the same intervals as those made by the member before the absence, the maximum period of such leave that can be counted as pensionable service under this paragraph is— (a) where the member contributes for a continuous period of 18 months commencing immediately after the expiry of the period mentioned in paragraph (3)(a), 18 months, and (b) where the member contributes for a continuous period of less than 18 months commencing immediately after the expiry of the period mentioned in paragraph (3)(a), the period in respect of which the member pays those contributions.

Amendment of regulation 3.A.5

57

In regulation 3.A.5 (meaning of “qualifying service”)—

• (a) in paragraph (1)(b), after “pension arrangement” insert “(including the NHS Pension Scheme 1995)”;

• (b) after paragraph (1)(d) insert—

(e) in the case of a person— (i) who is eligible to join the Scheme by virtue of regulation 3.B.1(5)(c), and (ii) for whom the interval between leaving the NHS Pension Scheme 1995 and joining the Scheme is less than one month, a period equal to the period of qualifying service (within the meaning of the 1995 Regulations), measured in years and days, that the member was entitled to count under regulation C3 of the 1995 Regulations when the member left that scheme.

• (c) after paragraph (3) insert—

(4) For the other rules applying where there is a short break in service, see regulation 3.A.6.

Amendment of regulation 3.A.7

58

In regulation 3.A.7(2)(a)(vii) (meaning of “pensionable earnings”), after “OOH provider” insert “or other employing authority providing OOH services”.

Amendment of regulation 3.A.8

59

In regulation 3.A.8 (pensionable earnings—breaks in service)—

• (a) in paragraph (2)(a), for “regulation 3.C.1” substitute “regulations 3.C.1 and 3.C.2”;

• (b) in paragraph (8), for “(3)(a) or (4)” substitute “(5)(b) or (7)”;

• (c) after paragraph (9) insert—

(10) For the purposes of making contributions to the Scheme under regulations 3.C.1 and 3.C.3, during any period of absence which counts as pensionable service under regulation 3.A.4(3) or (3A), amounts equal to the rate of the member’s pensionable earnings calculated as described in paragraph (3)(a) or (b) of this regulation will be treated as pensionable earnings.

Amendment of regulation 3.B.1

60

In regulation 3.B.1(5) (eligibility: general), for paragraph (e) substitute—

(e) the person— (i) ceased to be an active member of the NHS Pension Scheme 1995 on leaving NHS employment, (ii) became a deferred member of that Scheme on leaving that employment and has not become a pensioner member of that Scheme between the date of leaving that employment and joining the Scheme, and (iii) re-entered NHS employment on or after 1st October 2008 and 5 or more years since last leaving NHS employment, or (f) the person— (i) ceased to be an active member of the NHS Pension Scheme 1995 before 1st April 2008 on leaving NHS employment, (ii) became a deferred member of that Scheme on leaving that employment, (iii) re-entered NHS employment on or after 1st October 2008 and 5 or more years since last leaving NHS employment, and (iv) before the person re-entered such employment— (aa) a transfer payment was made in respect of the person under Part M of that Scheme, or (bb) the person made an application under regulation M2 of that Scheme (exercising a right to transfer or buy-out) from which the person may not withdraw, but sub-paragraphs (d) to (f) will not apply if the Secretary of State has permitted such a person to rejoin the NHS Pension Scheme 1995 in the circumstances described in regulation B2(3) of the 1995 Regulations.

Amendment of regulation 3.B.2

61

In regulation 3.B.2 (restrictions on eligibility: general), for paragraph (1)(b) substitute—

(b) became a pensioner member of that Scheme on or after that date, or (c) is a deferred member of that Scheme, but is not a deferred member— (i) to whom regulation 3.B.1(5)(e) or (f) applies, and (ii) in respect of whom permission of the Secretary of State to rejoin the NHS Pension Scheme 1995 has not been granted pursuant to regulation B2(3) of that Scheme.

Amendment of regulation 3.B.5

62

In regulation 3.B.5(7) (opting out of the scheme)—

• (a) after “contribute to the scheme” insert “in respect of one or more employments as a practitioner under this Part must do so”; and

• (b) before “may” insert “but”.

Amendment of regulation 3.C.2

63

In regulation 3.C.2 (members’ contribution rate)—

• (a) in paragraph (3), after “may” insert “, with the consent of the Treasury,”;

• (b) in the full-out words of paragraph (8), for “paragraph (6) of this regulation in respect of the earlier service” substitute “paragraph (12) of this regulation in respect of the earlier dentist performer service”;

• (c) in the full-out words of paragraph (9), for “paragraph (6) of this regulation in respect of the earlier service” substitute “regulation 2.C.2 in respect of the earlier officer service”;

• (d) in the full-out words of paragraph (14), for “paragraph (12) of this regulation in respect of the earlier service” substitute “paragraph (6) of this regulation in respect of the earlier service as a practitioner (other than a dentist performer)”.

Amendment of regulation 3.C.3

64

In regulation 3.C.3 (contributions by employing authorities: general), for paragraph (2) substitute—

(2) In specifying such a rate, the Secretary of State must— (a) obtain the consent of the Treasury, and (b) take account of the advice of the Scheme actuary and the cost of providing for any increase in pensions under the Scheme as a result of orders made under the provisions of the Pensions (Increase) Act 1971²³ and section 59 of the Social Security Pensions Act 1975²⁴.

Amendment of regulation 3.D.6

65

In the heading to regulation 3.D.6 (increase in pensionable earnings following exercise of option under regulation 3.D.5), for “pensionable earnings” substitute “level of engagement”.

Amendment of regulation 3.D.8

66

In regulation 3.D.8 (re-assessment of entitlement to an ill-health pension determined under regulation 3.D.7), for paragraph 2(a), substitute—

(a) in the case of a member who does not engage in further NHS employment during the period of three years referred to in paragraph (1)(b), the member makes the application in writing before the end of that period, (aa) in the case of a member who does engage in further NHS employment during the period of three years referred to in paragraph (1)(b), the member makes the application in writing before the first anniversary of the day on which that employment commences or before the end of that period if sooner,

Amendment of regulation 3.D.9

67

In regulation 3.D.9 (early retirement on ill-health (deferred members))—

• (a) in paragraph (1)(a), before “incapable” insert “permanently”;

• (b) in paragraph (2)(a)(ii), for “impairment” substitute “infirmity”.

Amendment of regulation 3.E.10

68

In regulation 3.E.10(2) (amount of children’s pension under regulation 3.E.8: deceased active members), for “paragraphs (6) and (7)” substitute “paragraphs (5) and (6)”.

Insertion of new regulation 3.E.20A

69

After regulation 3.E.20 (amount of lump sum: pension credit members), insert—

(3.E.20 A) (1) If a pensioner member or a pension credit member dies— (a) on or after reaching age 75, and (b) before the fifth anniversary of the date on which the member’s pension became payable, an annual pension, calculated in accordance with paragraph (2), may be payable from the day following the date of the member’s death until the anniversary referred to in sub-paragraph (b). (2) The pension payable under paragraph (1) is determined by— (a) calculating the amount of the lump sum that would have been payable in respect of the pensioner member or pension credit member under regulation 3.E.17(2) or, as the case may be, 3.E.20 as if on the day the member died the member had not reached the age of 75, and (b) converting any amount determined in sub-paragraph (a) to an annual pension payable for the period specified in paragraph (1), by reference to guidance and tables provided by the Scheme actuary for the purpose. (3) The “beginning date” of the pension calculated in paragraph (2) will, for the purposes of the Pensions (Increase) Act 1971, be the day immediately following the date of death of the pensioner member or pension credit member. (4) The pension calculated under this regulation will be payable in accordance with regulation 3.E.21.

Amendment of regulation 3.E.21

70

In regulation 3.E.21 (payment of lump sums on death)—

• (a) in the heading to that regulation, after “lump sums” insert “or pensions”;

• (b) in paragraph (1), after “regulation 3.E.16” insert “or a pension payable under regulation 3.E.20A”;

• (c) in paragraph (2)—

• (i) after “lump sum” insert “or pension”, and

• (ii) for “under paragraph (4) or (6)” substitute “or body under paragraph (4), (6) or (10)”;

• (d) in paragraphs (3), (4) and (6), after “lump sum” in each paragraph insert “or pension”;

• (e) in paragraph (7), after “lump sum” (twice) insert “or pension”;

• (f) after paragraph (9), insert—

(10) The member’s personal representatives may, as part of the distribution of the member’s estate, give irrevocable notice to the Secretary of State— (a) specifying— (i) one or more individuals, or (ii) one incorporated or unincorporated body, to whom the benefit of the pension under regulation 3.E.20A from the date of receipt of the notice by the Secretary of State is to be assigned, and (b) where two or more individuals are specified, specifying the percentage of the pension payable to each of them, and the pension (or, as the case may be, the percentage of it specified in respect of the person) may be paid to the person or body, unless paragraph (11) applies. (11) This paragraph applies if— (a) the person specified in the notice has died before the payment can be made, (b) payment to that person or body is not, in the opinion of the Secretary of State, reasonably practicable, or (c) the person to whom the pension (or a specified percentage of the pension) would otherwise be payable has been convicted of an offence specified in regulation 3.J.7(4) (forfeiture of rights to benefit) and the Secretary of State has directed, as a consequence of that conviction, that the person’s right to a payment in respect of the member’s death is forfeited. (12) The prohibition on assignment of benefits in regulation 3.J.13 (prohibition on assignment or charging of benefits) shall not apply to an assignment by personal representatives under this regulation.

Amendment of regulation 3.E.25

71

In regulation 3.E.25(5) (dual capacity membership: death benefits), after sub-paragraph (h) insert—

(hh) regulation 3.E.20A (pension payable when member dies on or after reaching age 75),

Amendment of regulation 3.F.6

72

In regulation 3.F.6 (calculating amounts of transfer value payments), for paragraphs (1) and (2) substitute—

(1) The amount of the guaranteed cash equivalent transfer value payment is to be calculated and verified by the Secretary of State in accordance with the Occupational Pension Schemes (Transfer Values) Regulations 1996²⁵. This is subject to paragraphs (2), (3) and (5). (2) Before determining the factors to be used in the calculation of the member’s guaranteed cash equivalent, the Secretary of State shall take advice from the Scheme actuary.

Amendment of regulation 3.F.8

73

In regulation 3.F.8 (right to apply for acceptance of transfer value payment from another scheme)—

• (a) in paragraph (2)(a), after “scheme” insert “other than a corresponding health service scheme”;

• (b) for paragraph (2)(d) substitute—

(d) a corresponding 1995 scheme, and (e) a corresponding 2008 scheme.

• (c) after paragraph (2) insert—

(2A) a member who makes an application for a transfer value to be accepted by the Secretary of State in respect of his rights under a corresponding 2008 scheme may not also make an application for a transfer value to be accepted in respect of his rights under a corresponding 1995 scheme.

• (d) in paragraph (4)(a)(ii), for “purposes of that Act” substitute “purposes of the 2004 Act”.

Amendment of regulation 3.F.9

74

In regulation 3.F.9 (procedure for applications under regulation 3.F.8)—

• (a) in paragraph (1)(d)(ii), after “those arrangements” insert “(including a transfer of rights from a corresponding 1995 scheme)”;

• (b) after paragraph (2) insert—

(3) A statement given to the member of a corresponding 1995 scheme in pursuance of such a request as is mentioned in paragraph (1)(d) must inform the member of the amount of pensionable service that will count under this Scheme for the purposes of— (a) calculating benefits payable to or in respect of the member, and (b) determining whether or not the member has reached 45 years of pensionable service for the purposes of regulation 3.A.3.

Amendment of regulation 3.F.10

75

In regulation 3.F.10 (acceptance of transfer value payments), after paragraph (3) insert—

(3A) If the Secretary of State accepts the payment from the member of a corresponding 1995 scheme, the relevant period of pensionable service shall count when determining whether or not the member has reached 45 years of pensionable service for the purposes of regulation 3.A.3. (3B) In paragraph (3A) “the relevant period” means the period calculated in accordance with any guidance, tables and other relevant factors provided by the Scheme actuary for that purpose, having regard to the period of employment that qualified the member for the rights in the corresponding 1995 scheme.

Amendment of regulation 3.F.11

76

In regulation 3.F.11 (calculation of transferred-in pensionable service)—

• (a) for paragraph (2) substitute—

(2) Subject to paragraph (4), for the purposes of the calculation under paragraph (1), the benefits in respect of the transfer payment will be calculated by increasing the member’s pensionable earnings for— (a) the financial year in which the member joined the Scheme; or (b) the financial year in which the transfer payment is received if the payment is received more than 12 months after the member joined the Scheme.

• (b) in paragraph (3)(b), for “final year’s pensionable” substitute “reckonable”;

• (c) in paragraph (3)(c), for “final year’s pensionable” substitute “reckonable”;

• (d) in paragraph (4), for “paragraph (3)” substitute “paragraph (2)(b)”; and

• (e) in paragraph (6), for “corresponding health service scheme” substitute “corresponding 2008 scheme”; and

• (f) omit paragraph (7).

Insertion of new regulation 3.F.17

77

After regulation 3.F.16 (EU and other overseas transfers), insert—

(3.F.17) (1) An active member who is entitled to have a cash equivalent value calculated in respect of the entirety of the member’s rights under the NHS Pension Scheme 1995, pursuant to regulation M7 of the 1995 Regulations, may apply to convert that cash equivalent value into rights under this Scheme. (2) An application under paragraph (1)— (a) must be made in writing using an application form provided for the purpose by the Secretary of State, (b) may only be made before the end of the period of three months beginning with the guarantee date established under regulation M7 of the 1995 Regulations, (c) may only be made if the member has first been furnished with a statement of the pensionable service and increase in pensionable earnings that the member will be entitled to count under this Scheme if the application is accepted by the Secretary of State, (d) must meet such other conditions as the Secretary of State may require, and (e) is irrevocable. (3) The statement mentioned in paragraph (2)(c) must— (a) inform the member of the amount of increase in pensionable earnings that will count under this Scheme for the purposes of calculating benefits payable to or in respect of the member, and (b) inform the member of the amount of pensionable service that will count under this Scheme when determining whether or not the member has reached 45 years of pensionable service for the purposes of regulation 3.A.3. (4) The amount of the increase in pensionable earnings mentioned in paragraph (3)(a) will be calculated by— (a) treating the member as entitled to a period of officer service equal to the period of employment that qualified the member for the rights in the NHS Pension Scheme 1995, (b) calculating the reckonable pay that would have given rise to a cash equivalent in respect of that officer service under regulation 2.F.6 (calculating amounts of transfer value payments), and (c) increasing the member’s pensionable earnings by an amount equal to the pensionable pay that the member would have received during that period of officer service if the member’s pensionable pay had been equal to the reckonable pay mentioned in paragraph (b) throughout that period. (5) The amount of pensionable service mentioned in paragraph (3)(b) will be calculated in accordance with any guidance, tables and other relevant factors provided by the Scheme actuary for that purpose, having regard to the period of employment that qualified the member for the rights in the NHS Pension Scheme 1995. (6) If the Secretary of State accepts an application under paragraph (1)— (a) the member is entitled to count under this Scheme the period of pensionable service mentioned in paragraph (3)(b) for the purpose specified therein, (b) that period of pensionable service shall be credited to the member on the day that the Secretary of State received the member’s application, (c) the member is entitled to count the increase in pensionable earnings calculated under paragraph (4) for the purposes of calculating benefits payable to or in respect of the member under this Scheme, and (d) that increase in pensionable earnings shall be credited to the member in the financial year during which the day that the Secretary of State received the member’s application falls.

Amendment of regulation 3.H.2

78

For regulation 3.H.2 (information), substitute—

(1) A person who becomes an employed pensioner must— (a) inform the person’s employer in the new employment, and any other person that the Secretary of State may specify, that the old service pension is payable, and (b) where requested, provide any information about their relevant income in the new employment to the Secretary of State or to any other person that the Secretary of State may specify. (2) A person who ceases to be an employed pensioner in one new employment and becomes an employed pensioner in another new employment must— (a) inform the person’s employer in the other new employment, and any other person that the Secretary of State may specify, that the old service pension is payable, and (b) where requested, provide any information about their relevant income in the new employment to the Secretary of State or to any other person that the Secretary of State may specify. (3) For the meaning of “relevant income” see regulation 3.H.4.

Amendment of regulation 3.J.2

79

For regulation 3.J.2 (claims for benefits), substitute—

(1) A person claiming to be entitled to benefits under this Part (“the claimant”) shall make a claim in writing to the Secretary of State. (2) Pursuant to such a claim, the claimant and, where appropriate, the member’s employing authority (including any previous employing authority of the member) shall provide such— (a) evidence of entitlement, (b) information required in order to deal with the claim, and (c) authority or permission as may be necessary for the release by third parties of information in their possession relating to the claimant or member, as the Secretary of State may from time to time require for the purposes of this Part. (3) A claim referred to in paragraph (1) may be made by a person or persons other than the claimant where the Secretary of State so provides. (4) Any claim for benefit required in writing under this Part, and any evidence, information, authority or permission given in connection with that claim, may be made or given by means of an electronic communication where such method of communication is approved by the Secretary of State from time to time. (5) In this regulation, “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000²⁶.

Amendment of regulation 3.J.7

80

In regulation 3.J.7(5)(c) (forfeiture of rights to benefits)—

• (a) after “3.E.21(3)” insert “or (10)”;

• (b) after “lump sum” insert “or pension”.

Amendment of regulation 3.J.9

81

In regulation 3.J.9(5) (interest on late payment of benefits and refunds of contributions)—

• (a) in sub-paragraph (b), after “member’s death” insert “, other than a pension payable under regulation 3.E.20A (pension payable when member dies on or after reaching age 75)”;

• (b) after sub-paragraph (e) insert—

(f) in the case of an amount in respect of a pension under regulation 3.E.20A that is payable to— (i) the member’s personal representatives, the date on which probate or letters of administration were produced to the Secretary of State, (ii) any person or body to whom the pension has been assigned by the member’s personal representatives, the date on which the notice under regulation 3.E.21(10) was received by the Secretary of State, and (iii) any person or body other than those referred to in (i) and (ii), the day immediately following the day of the member’s death.

Amendment of regulation 3.J.11

82

In regulation 3.J.11 (determinations by medical practitioners)—

• (a) in paragraph (2)—

• (i) omit “or impairment”;

• (ii) after paragraph (2)(c) insert—

(cc) regulation 3.D.11(1) (option for members in serious ill-health to exchange whole pension for lump sum),

• (b) after paragraph (2) insert—

(3) In relation to decisions within paragraph (2), the Secretary of State may require any person entitled, or claiming to be entitled, to a benefit under this Part to submit to a medical examination by a registered medical practitioner selected by the Secretary of State, and in that event, the Secretary of State shall also offer the person an opportunity of submitting a report from the person’s own medical adviser as a result of an examination by that medical adviser, and the Secretary of State shall take that report into consideration together with the report of the medical practitioner selected by the Secretary of State.

Amendment of regulation 3.J.14

83

For regulation 3.J.14(1) (employing authority and certain member record keeping and contribution estimates) substitute—

(1) As regards a member who is a type 1 medical practitioner, in respect of each financial year— (a) the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on— (i) the accounts drawn up in accordance with generally accepted accounting practice by the practice of which the member is a member; and (ii) the return that member has made to Her Majesty’s Revenue & Customs in respect of their earnings for that year, no later than 1 month from the date on which that return was required to be submitted to Her Majesty’s Revenue & Customs; (b) a host Trust or Board shall forward to the Secretary of State a copy of the records maintained under regulation 3.C.5(17)(b) within 1 month of the end of the financial year immediately following the financial year to which the return in paragraph (1)(a)(ii) relates.

Amendment of regulation 4.A.2

84

In regulation 4.A.2 (interpretation: general), for the definition of “type 1 practitioner” substitute—

• “type 1 practitioner” has the same meaning as in Part 3;

Amendment of regulation 4.D.1

85

In regulation 4.D.1 (pensionable service limit), after paragraph (4) insert—

(5) Where a member is also a member of the NHS Pension Scheme 1995, any reference in this Part to “45 years” shall be taken to be a reference to a shorter period determined by the formula— $SP=45years−LPS$ where— - SP is the shorter period, measured in years and days, and - LPS is the length of pensionable service (within the meaning of the 1995 Regulations), measured in years and days, giving rise to membership of the NHS Pension Scheme 1995 and, in the case of a member of that Scheme who has become entitled to a pension (including a preserved pension) under that Scheme, including any period that was taken into account for the purpose of determining whether the member was entitled to that pension, or for the purpose of calculating the amount of that pension.

Amendment of regulation 4.D.2

86

In regulation 4.D.2 (applications, claims and notices), for the table substitute—

Column 1 Regulation in Part 2	Column 2 Regulation in Part 3
2.D.1	3.D.1
2.D.8	3.D.7
2.D.10	3.D.9
2.D.14	3.D.10
2.D.15	3.D.11
2.D.18	3.D.14
2.E.2	3.E.2
2.E.21	3.E.21
2.F.2	3.F.2
2.F.3	3.F.3

PART 3 — Amendment of the National Health Service (Injury Benefits) Regulations 1995

Interpretation of Part 3

87

In this Part an alphanumerical reference to a regulation is a reference to a provision of the National Health Service (Injury Benefits) Regulations 1995²⁷ bearing that designation.

Amendment of regulation 2

88

In regulation 2(1) (interpretation), omit the words ““PMS practice” has the same meaning as in the Pension Scheme Regulations;”.

Amendment of regulation 4

89

In regulation 4 (scale of benefits), for paragraph (4)(6)(a) substitute—

(a) any pension payable to the person under a relevant pension scheme, disregarding any— (i) reduction in the amount of that pension under regulation T5 or T6 of the 1995 Regulations (offset for crime, negligence or fraud and loss of rights to benefits) or regulation 2.J.6, 2.J.7, 3.J.6 or 3.J.7 (reduction in benefits in cases where loss caused by member’s crime, negligence or fraud and forfeiture of right to benefits) of the 2008 Regulations; (ii) reduction in the amount of that pension under regulation E2A(7), E7 or L1(5) (lump sum for members in serious ill-health, general option to exchange part of pension for lump sum and lump sum for deferred members in serious ill-health) of the 1995 Regulations or regulation 2.D.14, 2.D.15, 3.D.10 or 3.D.11 (general option to exchange part of pension for lump sum and option for members in serious ill-health to exchange whole pension for lump sum) of the 2008 Regulations; and (iii) increase in the amount of that pension, under the Pensions (Increase) Act 1971²⁸, after the date at which the average remuneration used in the calculation of the allowance was calculated;

Amendment of regulation 4A

90

In regulation 4A (recovery of costs), after paragraph (8) insert—

(9) Where a person has more than one employing authority, the Secretary of State may direct what proportion, if any, of the contribution due under this regulation shall be payable by each of those employing authorities.

Amendment of regulation 18A

91

In regulation 18A (claims for benefits)—

• (a) before “A person claiming to be entitled”, insert “(3)”;

• (b) before the newly numbered paragraph (3), insert—

(1) No person shall be entitled to any benefit under these Regulations unless, in addition to any other conditions relating to that benefit being satisfied, that person makes a claim for it— (a) in writing (or in such manner as the Secretary of State may from time to time accept), and (b) within— (i) 6 months commencing with the day on which the other conditions relating to the benefit in question are satisfied, or (ii) such other longer period as the Secretary of State may from time to time accept. (2) If during the whole or part of the period mentioned in paragraph (1)(b) the person— (a) lacks capacity (within the meaning of the Mental Capacity Act 2005²⁹), or (b) is prevented by fraud or concealment from discovering the facts entitling that person to apply for a benefit, a claim may be made at any time before the end of the period of 6 months from the date on which that person no longer lacks capacity or, as the case may be, could with reasonable diligence have discovered those facts.

Insertion of new regulation 21B

92

After regulation 21A (decisions by medical practitioners and other persons), insert—

(21B) (1) Where an employing authority makes a payment of a benefit pursuant to regulation 4(5), that employing authority shall— (a) within 14 days of making the first such payment, provide the Secretary of State with— (i) the full name and national insurance number of the person in respect of whom the payment is being made; and (ii) the date on which that individual first became entitled to the benefit; (b) within 14 days of making the last such payment, provide the Secretary of State with— (i) the full name and national insurance number of the person in respect of whom the payment has been made; (ii) the date on which that individual ceased to be entitled to the benefit; and (iii) a statement of the total amount paid to the person pursuant to regulation 4(5) during that period of absence from employment. (2) Where a person recovers any damages or compensation mentioned in regulation 17, that person shall, within 14 days of a right to and the amount of such damages or compensation finally being determined, provide written notice to the Secretary of State containing— (a) the person’s full name; (b) the person’s national insurance number; and (c) the total amount of damages or compensation recovered. (3) Where a person fails to provide the notice required by paragraph (2), no benefits shall be payable under these Regulations in respect of the period from the expiry of the 14th day mentioned in paragraph (2) until the date on which the notice is received by the Secretary of State, and where benefits have been paid to the person before the failure to give notice has been determined by the Secretary of State, the Secretary of State shall withhold all or part of any further benefits payable to the person under these Regulations until the amount of the payments made by the Secretary of State in respect of that period has been recovered.

PART 4 — Miscellaneous

Option to persons detrimentally affected by these Regulations

93

• (1) This regulation applies in relation to any benefit which is being paid or may become payable under the regulations amended by these Regulations to or in respect of a person who, having served in an employment or office, service in which qualified the person to participate in the benefits provided under the regulations amended by these Regulations, ceased to serve therein before these Regulations came into force.

• (2) Where, in a case to which this regulation applies, any provision of these Regulations would operate in relation to any person so as to place that person in a worse position than that person would have been if that provision had not applied, that person may elect that the provision shall not apply by giving notice in accordance with paragraph (3).

• (3) A notice given pursuant to paragraph (2) shall be in writing and shall be delivered to the Secretary of State within 6 months of the coming into force of these Regulations or such longer period as the Secretary of State may allow.

• (4) An election pursuant to paragraph (2) shall have effect in relation to the benefit referred to in paragraph (1) only to the extent that such benefit has accrued by virtue of periods of service rendered prior to the cessation referred to in paragraph (1) (or, if there has been more than one such cessation, the last of them before the coming into force of these Regulations) and in determining entitlement to, and the amount of, the benefit to that extent, such person shall be treated as if that person had never recommenced service at any time after that cessation (or, as the case may be, the last such cessation).

Signed

Signed by authority of the Secretary of State for Health.

Ann Keen — Parliamentary Under-Secretary of State, — Department of Health — 20th August 2008

We consent

Dave Watts — Alan Campbell — Two of the Lords Commissioners of Her Majesty’s Treasury — 22nd August 2008

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend the National Health Service Pension Scheme Regulations 1995 (S.I. 1995/300) (“the 1995 Regulations”), the National Health Service Pension Scheme Regulations 2008 (S.I. 2008/653) (“the 2008 Regulations”) and the National Health Service (Injury Benefits) Regulations 1995 (S.I. 1995/866) (“the Injury Benefits Regulations”).

Regulation 1 provides for citation, commencement and effect, including that certain provisions of this instrument are to take effect from various dates before commencement. Section 12(1) of the Superannuation Act 1972 (c.11) provides authority for the regulations specified in regulation 1(4) to (7) to take effect as from a date earlier than the making of these Regulations.

The remainder of the Regulations are divided into four Parts, with Parts 1 to 3 amending the 1995 Regulations, the 2008 Regulations and the Injury Benefits Regulations respectively, and Part 4 providing that certain persons detrimentally affected by these Regulations may elect for the provisions not to apply to them.

Parts 1 and 2 make similar amendments in respect of both the 1995 Regulations and the 2008 Regulations. They also introduce amendments specific to either the 1995 Regulations or the 2008 Regulations.

The changes dealing with similar issues in Parts 1 and 2—

• exclude certain returning deferred members from the 1995 Regulations (regulation 4);

• provide for an option to transfer out their benefits to the 2008 Regulations (regulations 3(a), 10 and 13);

• include in the 2008 Regulations certain deferred members excluded from the 1995 Regulations (regulations 30, 31(b), 60 and 61);

• provide for an option to transfer their benefits into the 2008 Regulations (regulations 45 and 77);

• adjust the definition of “qualifying service” in the 2008 regulations (regulations 28(a) and 57(a));

• ensure that the 45 year service limit takes account of service in both the 1995 Regulations and 2008 Regulations (regulations 26(b), 55 and 85);

• ensure that similar principles apply to transfers from corresponding NHS schemes in Scotland, Northern Ireland and the Isle of Man (regulations 25(2)(b) and (c), 41(a), (b) and (c), 42 to 44, 54(2)(b) and (c), 73(a) to (c), 74, 75 and 76(e) and (f));

• make miscellaneous amendments to statutory cross-references (regulations 3(b), 6, 25(2)(a) and 54(2)(a));

• continue provision of pension benefits for ophthalmic medical practitioners (regulations 3(d), (e), (h), (i), and (j), 54(2)(d), (e), (h), (i) and (j));

• cater for practitioners who have an agreement with more than one Primary Care Trust or Local Health Board (regulations 3(f), 22(9)(a), 25(2)(d), 53(b), 54(2)(f) and 83);

• update the definition of Out of Hours Services to cater for Alternative Provider Medical Services contracts and contractors (regulations 3(g), 25(2)(e) and 54(2)(g));

• allow the use of electronic communications (regulations 3(a), 11, 18, 49 and 79);

• require the consent of the Treasury before the members’ contribution rate is adjusted (regulations 5(a), 32, 33(a), 63(a) and 64);

• adjust the period for ill-health reviews (regulations 7, 34 and 66);

• provide for lump sums on death of a pensioner over age 75 to be converted to a pension (regulations 8, 20, 23, 37 to 39, 50, 51, 69 to 71, 80 and 81);

• require the Scheme Manager to be responsible for the calculation and verification of cash equivalent transfer values (regulations 12, 40 and 72);

• allow authorised unpaid leave to be pensionable for up to 24 months (regulations 14, 27, 29(c), 56(a)(ii) and (b) and 59(c));

• provide that pensioners returning to work in the NHS must provide information about their new NHS pay (regulations 15, 46 and 78);

• provide that certain determinations may be made by medical practitioners or that medical examinations may be required (regulations 21, 52(a)(ii) and (b) and 82(a)(ii) and (b)).

The changes specific to Part 1—

• remove obsolete references (regulation 3(c));

• replace a scheme year reference (regulation 5(b));

• amend cross-references in provisions dealing with child allowances (regulation 9);

• amend the benefits payable on death in pensionable service where the member returns after leaving on ill-heath under the old rules (regulation 16);

• amend the benefits payable on death in pensionable service where the member returns after leaving on ill-heath under the new rules (regulation 17);

• amend the rules on forfeiture of pension to cater for nominated surviving partners (regulation 19);

• make various amendments to Schedule 2 of the 1995 Regulations to remove obsolete definitions, insert references to “Local Health Board” in various places, and change the age to which contributions must be paid (regulation 22).

The changes specific to Part 2—

• amend a cross-reference in the regulations setting out the meaning of pensionable service (regulation 26(a));

• provide for qualifying service under the 1995 Regulations to count where a former member of the scheme under the 1995 Regulations re-joins under the 2008 Regulations within one month of leaving (regulations 28(b) and 57(b) and (c));

• clarify the arrangements for non-GP providers on breaks of service (regulation 29(a), (b) and (d) to (i));

• correct a minor typographical error (regulation 31(a));

• allow for employer contributions to be recovered from successor and assignee employers (regulation 33(b));

• remove references to “impairment” and insert a reference to permanence in ill-health provisions (regulations 35, 52(a)(i), 67 and 82(a)(i));

• change cross-references in provisions relating to children’s pensions (regulations 36 and 68);

• replace references to the Income and Corporation Taxes Act 1988 (c.1) with references to the Finance Act 2004 (c.12) (regulation 41(d) and 73(d));

• clarify the rules on previous pay for abatement purposes (regulation 47 and 48);

• change the heading to regulation 2.J.14 to make it consistent with the equivalent regulation in Part 3 of the 2008 Regulations (regulation 53(a));

• omit an unnecessary cross-reference in the provision on breaks in pensionable service (regulation 56(a)(i));

• clarify the pensionable earnings of a type 1 medical practitioner performing Out of Hours Services (regulation 58);

• bring the cross-references in regulation 3.A.8 into line with the equivalent regulation in Part 2 of the 2008 Regulations (regulation 59(a) and (b));

• clarify the provisions on opting-out of the Scheme (regulation 62);

• make changes to the level of contributions due from a member in respect of later employments (regulation 63(b) to (d));

• amend the heading to regulation 3.D.6 of the 2008 Regulations (regulation 65);

• changes the point at which credit is given in respect of transferred-in pensionable service (regulation 76);

• simplify the definition of “type 1 practitioner” (regulation 84);

• update the table of equivalent regulations in regulation 4.D.2 of the 2008 Regulations (regulation 86).

The changes made to the Injury Benefits Regulations by Part 3—

• remove the specified definition of “PMS practice” (regulation 88);

• provide that the unreduced amount of a pension under the 1995 Regulations or the 2008 Regulations (before any pension is converted to lump sum) is used for the purposes of the Injury Benefits Regulations (regulation 89);

• amend the provisions on re-charging benefits to employers to deal with situations of multiple employers (regulation 90);

• amend the provisions on claiming benefits to require a claim in writing within 6 months of becoming entitled (regulation 91);

• provide for new notification requirements, obliging employers to notify the Secretary of State when temporary injury allowance is paid under the Injury Benefits Regulations, and obliging claimants to notify the Secretary of State if they recover damages in respect of the injury for which they receive benefits under the scheme (regulation 92).

Part 4 provides that deferred members, or members in receipt of a relevant benefit, who are detrimentally affected by these Regulations may elect for the provisions not to apply to them by giving notice within six months of the coming into force of these Regulations (regulation 93).

A full impact assessment has not been produced for this instrument as it has no impact on the costs of business, charities or the voluntary sector.

Footnotes