The National Health Service (Pension Scheme, Injury Benefits and Additional Voluntary Contributions) Amendment Regulations 2006

Amendment of Schedule 2 to the Pension Scheme Regulations

21.—(1) Schedule 2 to the Pension Scheme Regulations(1) (medical and dental practitioners) is amended in accordance with this regulation.

(2) In paragraph 1 (additional definitions)—

(a) omit the definitions of “assistant practitioner”, “Dental Practice Board” and “principal practitioner”; and

(b) insert the following definition after the definition of “pensionable earnings”—

““pensionable earnings ceiling”, in relation to a GDS contract or a PDS agreement, is to be construed in accordance with paragraph 3(2B);”.

(3) In paragraph 2 (application of the Regulations with modifications), for sub-paragraph (1A) substitute—

“(1A) In sub-paragraph (1), “listing authority”, in relation to a locum practitioner, means the Primary Care Trust or Local Health Board who prepare and publish the medical performers list on which he is included.”.

(4) In paragraph 3 (meaning of “pensionable earnings”)—

(a) for sub-paragraph (1) substitute—

“(1) In the case of a either a type 1 practitioner or a non-GP provider who is not in receipt of any salary, wages, fees or any other regular payment in respect of his employment by virtue of the application of these Regulations to him as if he were such an officer under regulation R1, “pensionable earnings” means—

(a) in the case of a type 1 medical practitioner or a non-GP provider, practitioner income less any sum on account of practice expenses (for these purposes, D2(1) contributions payable under paragraph 10(6) or (7) are neither practitioner income nor practice expenses); and

(b) in the case of a type 1 dental practitioner, practitioner income (taking into account any relevant pensionable earnings ceiling).”;

(b) in sub-paragraph (2)—

(i) after ““practitioner income” means“ insert “as regards type 1 medical practitioners”,

(ii) in paragraph (a), after “which accrues to the” insert “type 1 medical”,

(iii) in paragraph (a)(vi), after “in the case of a” insert “type 1 medical”,

(iv) in paragraph (a)(vii), for “principal practitioner” substitute “type 1 medical practitioner”,

(v) in paragraph (a)(viii), for “principal practitioner” substitute “type 1 medical practitioner” and for “general dental services,” substitute “primary dental services,”,

(vi) in paragraph (b), before “practitioner is” insert “type 1 medical”, and

(vii) in paragraph (c), after “in the case of a” insert “type 1 medical”; and

(c) after sub-paragraph (2) insert—

“(2A) Subject to sub-paragraphs (2B), (2D) and (3), for the purposes of this paragraph, “practitioner income” means, as regards a type 1 dental practitioner, income which accrues to the practitioner which is derived from a GDS contract or a PDS agreement, and—

(a) includes charges collected from patients which are required, by virtue of directions given under sections 28E or 28N of the 1977 Act(2) (which relate to PDS agreements and payments under GDS contracts), to be set off against payments under the contract or agreement; but

(b) does not include charges collected from patients which are not required, by virtue of such directions, to be so set off.

(2B) As regards each GDS contract or PDS agreement from which practitioner income is derived, the maximum amount of practitioner income which may be derived from that contract in any financial year is, subject to sub-paragraph (2C), the value of that contract in that financial year—

(a) less the value of following payments (where payable in that financial year by the Primary Care Trust or Local Health Board that is a party to the contract or agreement)—

(i) monthly seniority payments,

(ii) maternity leave, paternity leave or adoption leave payments,

(iii) sickness leave payments,

(iv) reimbursement of the salary of a vocational trainee,

(v) reimbursement of the national insurance contributions of a vocational trainee, and

(vi) reimbursement of non-domestic rates; then

(b) multiplied by a percentage to be determined by the Secretary of State,

which produces the amount referred to in this Schedule as the “pensionable earnings ceiling”.

(2C) Income which accrues to a type 1 dental practitioner which is derived from the following payments under a GDS contract or PDS agreement—

(a) monthly seniority payments;

(b) maternity leave, paternity leave or adoption leave payments; and

(c) sickness leave payments,

are all practitioner income for the purposes of this paragraph (that is, they are pensionable earnings, notwithstanding that they are not included in the calculation of the pensionable earnings ceiling for a particular GDS contract or PDS agreement).

(2D) The following payments under a GDS contract or PDS agreement are not to be considered practitioner income for the purposes of this paragraph—

(a) reimbursement of the salary of a vocational trainee;

(b) reimbursement of the national insurance contributions of a vocational trainee; and

(c) reimbursement of non-domestic rates.

(2E) For the avoidance of doubt, income which accrues to a type 1 dental practitioner while he is engaged as a type 2 practitioner is practitioner income of that type 1 dental practitioner, but unaffected by any pensionable earnings ceiling (although the combined earnings of that practitioner will be subject to the upper limit specified in paragraph 8).”.

(5) In paragraph 4 (calculating pensionable earnings of practitioners in partnership)—

(a) in sub-paragraph (1), after “in the case of” insert “type 1 medical” and for “principal practitioner” substitute “type 1 medical practitioner”; and

(b) in sub-paragraph (2), for “principal practitioners” substitute “type 1 medical practitioners”,

and in the heading of that paragraph before “practitioners” insert “medical”.

(6) In paragraph 5 (elections relating to calculation of “pensionable earnings” in partnerships)—

(a) in sub-paragraph (1), before “practitioners” insert “type 1 medical”;

(b) omit sub-paragraph (2); and

(c) in sub-paragraph (4), for “principal practitioners” substitute “type 1 medical practitioners”,

and in the heading of that paragraph before “partnerships” insert “medical”.

(7) After paragraph 5 insert—

“Distribution of pensionable earnings between type 1 dental practitioners employed or engaged by the same GDS or PDS contractor

5A.— (1) After the end of each financial year, each GDS or PDS contractor must, by a date to be decided by the Secretary of State, send to the employing authority with which he is party to a GDS contract or PDS agreement a notice, in a format approved by the Secretary of State, specifying, in respect of that financial year—

(a) the pensionable earnings ceiling for that contract or agreement; and

(b) the amount of any monthly seniority payments, maternity leave payments, paternity leave payments, adoption leave payments or sickness leave payments paid under that contract or agreement,

and how much of the practitioner income that relates to the contract or agreement each type 1 dental practitioner that performed services under that contract or agreement is to be treated as having earned during that financial year (and those who are partners in, or directors of, the contractor must be identified as such).

(2) An employing authority may, in exceptional circumstances, and with the agreement of the Secretary of State, extend the date decided by the Secretary of State in accordance with paragraph (1) by which notices are to be submitted.

(3) The notice from the GDS or PDS contractor is invalid if—

(a) it contains information that is inaccurate or misleading in a material particular;

(b) it is not received by the due date (although the employing authority may accept replacement notices in appropriate circumstances); or

(c) the total of the amounts specified in the notice in respect of each type 1 dental practitioner that performed services under that contract or agreement is greater than the total of the amounts referred to in sub-paragraph (1)(a) and (b).

(4) Where an employing authority has received a valid notice under this paragraph, the amounts notified to it in respect of each type 1 dental practitioner mentioned in the notice are, for the financial year to which the notice relates, the pensionable earnings for that practitioner under the contract or agreement to which the notice relates.

(5) But the employing authority may revise the amounts notified to it in appropriate circumstances (such as where it receives a valid replacement notice signed by all the type 1 dental practitioners who performed services under the contract or agreement).

(6) If an employing authority does not receive a valid notice under this paragraph from a GDS or PDS contractor with which it is party to a GDS contract or PDS agreement, the pensionable earnings of each type 1 dental practitioner under that contract or agreement for the financial year in respect of which the valid notice was required but not received are to be an equal share of the maximum amount of practitioner income that could be derived from that contract or agreement in that financial year (that is, the total of the amounts referred to in sub-paragraph (1)(a) and (b)), less the difference between—

(a) that maximum amount; and

(b) the total of monthly amounts in respect of which estimated D1 contributions were paid on account during the financial year to which the earnings relate,

but if the total mentioned in paragraph (b) is greater than the maximum amount referred to in paragraph (a), then no amount is to be deducted pursuant to this paragraph.”.

(8) In paragraph 6—

(a) in sub-paragraph (1), for “assistant practitioner” substitute “type 2 medical practitioner”; and

(b) for sub-paragraph (2), substitute—

“(2) In the case of a type 2 dental practitioner, “pensionable earnings” means all salary, wages, fees and other regular payments paid to the practitioner—

(a) in the case of a vocational trainee, under his contract of employment with a GDS or PDS contractor; or

(b) in all other cases, by an employing authority in respect of the performance of primary dental services,

but does not include bonuses or payments made to cover expenses or for overtime.”.

(9) In paragraph 9 (officer service treated as practitioner service)—

(a) in sub-paragraph (1), before “principal practitioner” at both places where it occurs, insert “type 1 practitioner,”;

(b) in sub-paragraph (3)—

(i) after paragraph (a) insert—

“(aa) the member is a type 1 dental practitioner who is employed by a GDS or PDS contractor but who is neither a partner in, nor a director of, the contractor; or”, and

(ii) in paragraph (b), after “principal practitioner” insert “or type 1 practitioner”;

(c) in sub-paragraph (5A)(a), before “principal practitioner” insert “type 1 practitioner or a”;

(d) after sub-paragraph (5A), insert—

“(5AA) But sub-paragraph (5A) does not apply to a member who is type 1 dental practitioner who is employed by a GDS or PDS contractor but who is neither a partner in, nor a director of, the contractor.”;

(e) in sub-paragraph (8), before “principal practitioner” insert “type 1 practitioner (other than a type 1 dental practitioner who is employed or engaged by a GDS or PDS contractor but who is neither a partner in, nor director of, the contractor),”; and

(f) after sub-paragraph (11), add—

“(12) For the purposes of this paragraph “principal practitioner” and “practitioner providing piloted services” have, in respect of a person’s service prior to 1st April 2006, the meaning that they had under these Regulations as at the date that service was provided.”.

(10) In paragraph 10 (contributions to the scheme)—

(a) for sub-paragraph (4), substitute—

“(4) Save where sub-paragraph (5) applies, type 1 medical practitioners and non-GP providers shall pay D1 contributions to the host Trust or Board.

(4A) Type 1 dental practitioners shall pay D1 contributions in respect of pensionable earnings that relate to a particular GDS contract or PDS agreement to the employing authority that is a party to that GDS contract or PDS agreement, and that employing authority is liable to pay the D2(1) contributions that are payable in respect of those pensionable earnings.”.

(b) in sub-paragraphs (5), (6) and (7), for “principal practitioner” substitute “type 1 medical practitioner”;

(c) in sub-paragraph (9), for “assistant practitioner” substitute “type 2 practitioner” and before “where it is not” insert “in the case of a type 2 medical practitioner,”;

(d) in sub-paragraph (10), before “where paragraph (9)” insert “in the case of a type 2 medical practitioner,”;

(e) after sub-paragraph (10), insert—

“(10A) As regards a type 2 dental practitioner who—

(a) is a vocational trainee—

(i) the GDS or PDS contractor who employs him shall deduct D1 contributions from any pensionable earnings the contractor pays to him and shall pay those contributions to the employing authority that is a party to the contractor’s GDS contract or PDS agreement, and

(ii) that employing authority is liable to pay the D2(1) contributions that are payable in respect of those pensionable earnings; or

(b) is not a vocational trainee, the employing authority with which he has a contract for services from which his pensionable earnings are derived is liable to pay the D2(1) contributions that are payable in respect of those pensionable earnings.”;

(f) after sub-paragraph (13), insert—

“(13A) D1 contributions that are required to be paid to an employing authority by or in respect of a type 1 or type 2 dental practitioner in accordance with this paragraph shall be paid to that employing authority not later than—

(a) the 7th day of the month following the month to which the earnings relate; or

(b) if the contributions are in respect of earnings derived from a PDS agreement and the monthly payment date in respect of that agreement is not the first working day of the month following the month to which the earnings relate, the 7th day after the date on which the earnings to which those contributions relate were paid.

(13B) It shall be a function of an employing authority—

(a) to which D1 contributions are paid in respect of a type 1 or type 2 dental practitioner in accordance with this paragraph;

(b) which is liable to pay D2(1) contributions in respect of any type 1 or type 2 dental practitioner,

to forward or pay those contributions to the Secretary of State not later than the 12th day after the date on which, by virtue of sub-paragraph (13A), it is due to receive the D1 contributions or, in the case of D2(1) contributions, the related D1 contributions.”;

(g) in sub-paragraph (15)—

(i) before “an employing authority” insert “, as regards a type 1 or type 2 medical practitioner,”, and

(ii) in paragraph (b)(ii), for “principal practitioner” substitute “type 1 medical practitioner”;

(h) in sub-paragraph (16), for “principal practitioner” substitute “type 1 medical practitioner”; and

(i) in sub-paragraph (17), for “a principal practitioner, assistant practitioner,” substitute “a type 1 practitioner, type 2 practitioner,”.

(11) In paragraph 23(3) (accounts and actuarial reports)—

(a) in sub-paragraph (2), for “principal practitioner” substitute “a type 1 medical practitioner”; and

(b) in sub-paragraph (3)(a), for “principal practitioners” substitute “type 1 medical practitioners”.

(1)

The relevant amending instruments are S.I.1998/666 and 2216, 2000/605, 2002/561 and 2469, 2003/631 and 2322, 2004/665 and 2005/661 and 3074.

(2)

Section 28E was inserted by section 22(1) of the National Health Service (Primary Care) Act 1997 (c. 46) as amended by section 4(3) of, and paragraphs 1 and 8(a)-(d) of Schedule 3 to, the National Health Service Reform and Health Care Professions Act 2002 (c. 17), section 27(5)(a) of the Health and Social Care Act 2001 (c. 15) and S.I.2003/1250, and further amended by sections 177(1), (7)-(11) and 196 of, and Part 4 of Schedule 14 to, the Health and Social Care (Community Health and Standards) Act 2003 and section 65(2) of, and Schedule 5 to, the Health Act 1999 (c. 8).

(3)

Paragraph 23 was inserted by S.I.2005/661 with retrospective effect from 1st April 2004.