The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009

Amendment of regulation 3.E.12

73

In paragraphs (1) and (3)(a) of regulation 3.E.12 (amount of children’s pension under regulation 3.E.8: deceased deferred members) after “active member”, insert “or a non-contributing member”.

Amendment of regulation 3.E.13

74

In paragraph (3) of regulation 3.E.13 (amount of children’s pension under regulation 3.E.8: recent leavers) for sub-paragraph (a), substitute—

(a) “the basic death pension” means twice the appropriate proportion of the pension to which the deceased would be entitled to— (i) if the deceased had become entitled to a pension under regulation 3.D.7(5), or (ii) if greater, the amount that the member’s pension would have been if it had been based on 10 years’ pensionable service (disregarding any additional pension), and

Amendment of regulation 3.E.15

75

In regulation 3.E.15 (amount of children’s pension under regulation 3.E.8: re-employed pensioners)—

• (a) in paragraph (1) after “active member”, insert “or a non-contributing member”;

• (b) for sub-paragraphs (a) and (b) of paragraph (2), substitute—

(a) in the case of— (i) a deceased active member, the rate of the deceased’s pensionable earnings during the last complete quarter before the member died, or (ii) a deceased non-contributing member, the rate of the monthly average of the deceased’s uprated earnings on the last day of the member’s pensionable service, and (b) the rate of the pension being received by the deceased (if any) at the date of death.

• (c) in paragraph (5)—

• (i) in sub-paragraph (a) after “active member”, insert “or a non-contributing member”,

• (ii) in sub-paragraph (b) after “active members”, insert “or non-contributing members”;

• (d) for paragraph (6)(a), substitute—

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

Amendment of regulation 3.E.17

76

In regulation 3.E.17 (amount of lump sum: single capacity members and recent leavers (disregarding regulation 3.D.5 employments))—

• (a) for paragraph (1), substitute—

(1) The lump sum payable on death of an active member or a non-contributing member, who is not a deferred member or a pensioner member, is an amount equal to— (a) in the case of a deceased active member, twice the annual average of the member’s uprated earnings at the date of death, or (b) in the case of a deceased non-contributing member, twice the annual average of the member’s uprated earnings on the member’s last day of pensionable service.

• (b) in paragraph (2)—

• (i) after “active member”, insert “or a non-contributing member”,

• (ii) in sub-paragraph (b) for “at the date of death”, substitute “by which the pension was calculated”,

• (iii) at the end, insert (as full-out words) “This is subject to regulations 3.E.20A and 3.E.21.”;

• (c) in paragraph (3) for “is not an active member”, substitute “was not an active member or a non-contributing member”;

• (d) in paragraph (8)(a) for “is an active member”, substitute “was an active member or a non-contributing member”.

Amendment of regulation 3.E.18

77

In regulation 3.E.18 (amount of lump sum: dual capacity members (disregarding regulation 3.D.5 employments))—

• (a) in paragraph (1)—

• (i) in sub-paragraph (a) for “is an active member”, substitute “was an active member or a non-contributing member”,

• (ii) in sub-paragraph (b) for “is”, substitute “was”;

• (b) in paragraph (2) for sub-paragraph (a), substitute—

(a) five times the annual rate of pension— (i) payable under regulation 3.D.7(5) (tier 2 ill-health pension), if the deceased had not reached the age of 65, (ii) payable under regulation 3.D.1 (normal retirement pensions), if the deceased had reached the age of 65, to which the member would have been entitled— (aa) in the case of a deceased active member, at the member’s date of death, or (bb) in the case of a deceased non-contributing member, on the last day of the member’s pensionable service, and

Amendment of regulation 3.E.19

78

In regulation 3.E.19 (amount of lump sum: dual capacity members: members with pensions under regulation 3.D.5)—

• (a) in paragraph (1)—

• (i) in sub-paragraph (a) for “is an active member”, substitute “was an active member or a non-contributing member”;

• (ii) in sub-paragraph (b) for “is”, substitute “was”;

• (b) for paragraph (2), substitute—

(2) The lump sum is an amount— (a) equal to the sum of— (i) in the case of a deceased active member, twice the appropriate fraction of the annual average of the member’s uprated earnings at the date of death, or (ii) in the case of a deceased non-contributing member, twice the appropriate fraction of the annual average of the member’s uprated earnings at the member’s last day of pensionable service, and

• (c) in paragraph (5) (in the definition of “DPS”) after “active member”, insert “or a non-contributing member”.

Amendment of regulation 3.G.5

79

In regulation 3.G.5 (re-employed tier 1 ill-health pensioners)—

• (a) in paragraph (4) at the end, insert (as full-out words) “This is subject to paragraph (5).”;

• (b) after paragraph (4) add—

(5) If the re-employed member— (a) ceases to be entitled to a tier 1 ill-health pension in respect of the earlier service, (b) becomes entitled to a tier 2 ill-health pension in respect of that earlier service in accordance with regulation 3.D.8(3), and (c) on the termination of the later service, the member becomes entitled to a tier 1 or, as the case may be, tier 2 ill-health pension in respect of that later service, the re-employed member is entitled to the benefits set out in paragraph (6). (6) The benefits mentioned in paragraph (5) are— (a) a tier 2 ill-health pension paid in accordance with regulation 3.D.7 in respect of the member’s earlier service, and (b) a tier 1 ill-health pension in respect of the member’s later service.

Amendment of regulation 3.J.5

80

In paragraph (2) of regulation 3.J.5 (commutation of small pensions), omit sub-paragraph (d).

Amendment of regulation 3.J.9

81

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

• (a) in paragraph (2) after “interim” insert, “or substitute”;

• (b) for paragraph (3), substitute—

(3) The Secretary of State must pay interest on the amount of a pension, lump sum, refund of contributions or an interim or substitute award which is unpaid (“the unpaid amount”) to the person to whom it should have been paid unless the Secretary of State is satisfied that the unpaid amount was not paid on the due date because of some act or omission on the part of the member or other person to whom it should have been paid.

• (c) in paragraph (5) after “unpaid amount”, insert “(other than an unpaid amount in respect of an interim or substitute award)”;

• (d) for paragraph (6), substitute—

(6) The due date for an unpaid amount— (a) referred to in paragraph (5) in respect of which the Secretary of State was not in possession of all the information necessary for the calculation of the amount of the pension, lump sum or refund of contributions referred to in that paragraph on the date which would, in accordance with paragraph (5) be the due date; (b) in respect of an interim or substitute award, shall be the first day on which the Secretary of State was in possession of all the information necessary to calculate that pension, lump sum, refund of contributions or interim or substitute award.

• (e) in paragraph (7)—

• (i) for “interim award” substitute “interim or substitute award”,

• (ii) at the end of sub-paragraph (a), omit “and”,

• (iii) at the end of sub-paragraph (b), add—

; and (c) any amount paid that increases the amount of an earlier payment due to the payment of a tier 2 ill-health pension under regulation 3.D.7 paid to a member in substitution for a tier 1 ill-health pension under that regulation following a determination by the Secretary of State under regulation 3.D.8.

Amendment of regulation 3.J.11

82

In paragraph (2) of regulation 3.J.11 (determinations by medical practitioners) before sub-paragraph (a), insert—

(za) regulation 3.D.2(8) (pension credit members);

Amendment of regulation 3.J.14

83

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

(3.J.14) no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs. (1) As regards a type 1 medical practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on— (a) the accounts drawn up in accordance with generally accepted accounting practice by the practice of which the member is a member; and (b) the return that member has made to Her Majesty’s Revenue and Customs in respect of their earnings for that year, (2) As regards a type 2 medical practitioner or a locum practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on— (a) the payments they receive from employing authorities for practitioner services, and (b) the return that member has made to Her Majesty’s Revenue and Customs in respect of their earnings for that year, no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs. (3) As regards a type 1 dental practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on— (a) the notice of pensionable earnings referred to in regulation 3.A.12; and (b) their pensionable earnings as a type 1 dental practitioner from all other type 1 dental practitioner sources, no later than 6 months after the end of that scheme year. (4) As regards a type 2 dental practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on— (a) the payments they receive from employing authorities for practitioner services, and (b) their pensionable earnings as a type 2 dental practitioner from all other type 2 dental practitioner sources, no later than 6 months after the end of that scheme year. (5) As regards a GMS or PMS practice or APMS contractor, in respect of each scheme year, the practice or contractor shall provide the Secretary of State with— (a) a statement of estimated pensionable earnings in respect of type 1 medical practitioners who perform medical services as, or on behalf of, the practice or contractor and type 2 medical practitioners employed by the practice or contractor, and (b) an end-of-year statement of— (i) pensionable earnings, (ii) contributions to the Scheme made under regulation 3.C.1 (contributions by members), (iii) contributions to the Scheme made under regulation 3.C.3 (contributions by employing authorities: general), and (iv) any pensionable earnings deemed in accordance with regulation 3.A.8 of this Part, in respect of type 2 medical practitioners employed by the practice or contractor. (6) The Secretary of State shall be provided with— (a) the statement referred to in paragraph (5)(a) at least 1 month before the beginning of that scheme year; (b) the statement referred to in paragraph (5)(b) no later than 3 months after the end of that scheme year. (7) A host Trust or Board shall, for each scheme year and no later than 13 months after the end of each scheme year, forward to the Secretary of State a copy of the records the host Trust or Board maintains in respect of practitioners under regulation 3.C.5(17)(b). (8) All employing authorities shall, for each scheme year— (a) provide the Secretary of State with a statement of estimated total contributions due to the Scheme under regulation 3.C.1 (contributions by members) and 3.C.3 (contributions by employing authorities: general), and (b) maintain records of contributions to the Scheme made under regulation 3.C.1 and regulation 3.C.3. (9) The statement referred to in paragraph (8)(a) shall be provided to the Secretary of State no later than 2 months after the end of each scheme year. (10) Except where the Secretary of State waives such requirement, an employing authority shall provide the Secretary of State with a statement of contributions to the Scheme recorded in accordance with paragraph (8)(b) no later than 2 months after the end of each scheme year. (11) If, in respect of a scheme year, a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to that member, the member’s pensionable earnings for that scheme year shall be zero. This is subject to paragraph (12). (12) If, in respect of a scheme year— (a) a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to the member, (b) a benefit is payable to, or in respect of that member, under this Part of these Regulations, and (c) the member’s employing authority is in possession of a figure representing all or part of the member’s pensionable earnings for that year, the Secretary of State may treat that figure as the amount of the member’s pensionable earnings for that year. (13) If, in respect of a scheme year, a member— (a) dies without complying with the requirements of whichever of paragraphs (1) to (4) applies to the member, or (b) is, in the opinion of the Secretary of State, unable to look after the member’s own affairs by reason of illness or lack of capacity within the meaning of the Mental Capacity Act 2005⁶, the Secretary of State may require that member’s personal representatives or person, or persons, duly authorised to act on that member’s behalf, to provide the relevant certificate— (i) within the period referred to in whichever of paragraphs (1) to (4) was or is applicable to the member, or (ii) within such other period as the Secretary of State permits. (14) The certificates and statements referred to in this regulation— (a) shall be in such form as the Secretary of State shall from time to time require; (b) may be provided to the Secretary of State in such manner as the Secretary of State may from time to time permit.

PART 4 — Amendment of the National Health Service (Injury Benefits) Regulations 1995

Interpretation of Part 4

84

In this Part an alphanumerical reference to a regulation is a reference to a provision of the National Health Service (Injury Benefits) Regulations 1995⁷ bearing that designation.

Amendment of regulation 2

85

In regulation 2(1) (interpretation) at the appropriate place in the alphabetical order, insert—

• “ophthalmic provider” has the same meaning as in whichever of the 1995 Regulations or 2008 Regulations apply to that provider;

Amendment of regulation 2A

86

In regulation 2A (meaning of “practitioner”)—

• (a) after paragraph (1)(b)(ii)(bb), add—

or (c) an ophthalmic provider.

• (b) after paragraph (2)(b)(ii)(bb), add—

or (c) an ophthalmic provider.

Amendment of regulation 4

87

In paragraph (6) of regulation 4 (scale of benefits), after sub-paragraph (b)(v), add—

(vi) employment and support allowance payable under section 1(2)(a) of the Welfare and Reform Act 2007⁸, in respect of the injury or disease, during the ‘assessment phase’ referred to in section 2 of that Act, or as the case may be, after that phase has ended.

Amendment of regulation 13

88

In regulation 13 (review and adjustment of allowance), after paragraph (1) insert—

(1A) For the purposes of paragraph (1)(b)— (a) employment and support allowance payable during the assessment phase for that benefit and employment and support allowance payable after that phase has ended shall be treated as separate benefits; and (b) where employment and support allowance was awarded to a person prior to 1st April 2009 and that person continues to be entitled to that allowance on that day, payment of that allowance shall be deemed to have commenced on that day.

PART 5 — Miscellaneous

Option to persons detrimentally affected by these Regulations

89

• (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.

Ben Bradshaw — Minister of State, — Department of Health — 18th February 2009

We consent

Tony Cunningham — Bob Blizzard — Two of the Lords Commissioners of Her Majesty’s Treasury — 23rd February 2009

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 the date of commencement.

The remainder of the Regulations are divided into four Parts, with Parts 2 to 4 amending the 1995 Regulations, the 2008 Regulations and the Injury Benefits Regulations respectively, and Part 5 providing that certain persons detrimentally affected by these Regulations may elect for the provisions not to apply to them.

Parts 2 and 3 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 2 and 3—

• introduce changes to the way tiered contributions rates for members are assessed for the Scheme year 2009-10 and subsequently (regulations 4, 13, 20, 21, 22 and 55);

• introduce a new end-of-year certificate of NHS Scheme pensionable earnings and contributions, for type 2 medical practitioner completion, and GP Practice start-of-year statements of estimated practitioner and Non-GP Provider earnings and contributions, and end-of-year statements for type 2 medical practitioners. (regulations 13(4), 52 and 83);

clarify the benefits payable in respect of a period of re-employment following ill health retirement and the benefits payable in respect of ill-health pensioners whose tier 1 ill-health pension is replaced by a tier 2 ill-health pension including, where appropriate, the payment of statutory interest (regulations 3, 5, 6, 7, 10, 11, 19, 29, 32(b) and (c), 48, 50, 54, 61, 62(b) and (c) 79 and 81);

• provide for pension debit members to access benefits on health grounds, or after minimum retirement age, with an actuarial reduction and to exchange an amount of pension for lump sum (regulations 14, 23, 32(a), 33(c), 34, 49, 51, 56, 62(a), 63(c), 64, 80 and 82);

• clarify the pay on which a lump sum death benefit is paid in respect of a practitioner (regulations 13(3), 67, 69 and 78).

The changes specific to Part 2 are—

the inclusion of a reference to nominated partners in regulations providing for child pensions paid following the death of a pensioner (regulation 8);

the inclusion of a reference to the requirements of the lump sum rule in the Finance Act 2004 in connection with benefits to be commuted on terminal illness (regulation 9);

the authority for the Scheme’s Medical Advisers to make a decision on behalf of the Secretary of State as to whether a deferred member is entitled to commutation of their benefits because of terminal illness (regulation 12).

The changes specific to Part 3 are —

the introduction of a new definition of “non-contributing member” and the revision of the existing definition of “member” to include “non-contributing members” (regulations 16 and 53(b) and (c));

provision for the benefits to be paid on the retirement or death of a non-contributing member (regulations 18, 24 to 28, 30, 31, 33(a) and (b), 35, 36, 37, 39, 40(a), (b), (d) and (e), 41, 42, 44 and 45, 46, 47, 57 to 60, 63(a) and (b), 65, 66(a), 67, 69, 71(a), (b), (d) and (e), 72, 73, 75, 76, 77, and 78);

provision for the amount of service to be used when calculating a child’s pension (regulations 40(c), 43, 71(c) and 74);

provision for abatement to be disregarded in certain circumstances following the death of a pensioner (regulations 38 and 68);

changes cross references in regulations dealing with breaks in service and children’s pensions (regulation 17, and 70);

changes a cross reference in the definition of “active member” (regulation 53(a)).

The changes made to the Injury Benefits Regulations by Part 4—

• insert a definition of “ophthalmic provider” (regulation 85);

• amends the definition of practitioner to include an ophthalmic provider (regulation 86);

• provide for employment and support allowance payable under section 1(2)(a) of the Welfare and Reform Act 2007 (c. 5) to be taken into account in calculating benefits under the Injury Benefits Regulations (regulation 87);

• provide when employment and support allowance payable is taken into account in that calculation (regulation 88).

Part 5 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 89).

Footnotes