The National Health Service Pension Scheme Regulations 2008

[F1 Pensions for surviving adults E+W

Textual Amendments

F1 Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1

“3.E.1    Surviving adult dependants’ pensions E+W

(1) If an active member [F2 , a non-contributing member], a deferred member or a pensioner member dies leaving a surviving adult dependant, the surviving adult dependant is entitled to a pension that is payable for life.

(2) In this Part “surviving adult dependant”, in relation to a deceased member or former member, means the member’s or former member’s surviving spouse, civil partner or [F3 scheme partner].

(3) For the rate at which the pension referred to in paragraph (1) is payable see regulations 3.E.3 to 3.E.7 and, in any case where that pension includes additional pension, regulations [F4 3.C.12(4) and 3.C.14(3)].

Textual Amendments

F2 Words in reg. 3.E.1(1) inserted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 66(a) (with reg. 89)

F3 Words in reg. 3.E.1(2) substituted (with effect from 1.4.2008) by The National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (S.I. 2019/418), regs. 1(2)(9), 67 (with reg. 108)

F4 Words in reg. 3.E.1(3) substituted (with effect from 1.4.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2)(4), 66(b) (with reg. 89)

“[F5 3.E.2    Meaning of “surviving nominated partner” E+W

In this Part, a person (P) is a “surviving scheme partner” if the Secretary of State is satisfied that for a continuous period of at least two years, ending with the member’s death—

(a) the member and P were living together as if they were husband and wife or civil partners,

(b) the member and P were not prevented from marrying or entering into a civil partnership,

(c) the member and P were financially interdependent or P was financially dependent on the member, and

(d) neither the member nor P were living with a third person as if they were husband and wife or as if they were civil partners.]

Textual Amendments

F5 Reg. 3.E.2 substituted (with effect from 1.4.2008) by The National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (S.I. 2019/418), regs. 1(2)(9), 68 (with reg. 108)

“3.E.3    Amount of pensions under regulation 3.E.1: active [F6 and non-contributing] members E+W

[F7 (1) In the case of an active member or a non-contributing member, for the period of 6 months beginning with the day after the member’s death (“the initial period”) the rate of the pension payable under regulation 3.E.1 (if that amount is greater than the amount of the pension payable to the surviving adult under this Chapter apart from this paragraph), is equal to—

(a) in the case of a deceased active member, the rate of the member’s pensionable earnings during the last complete quarter before the member’s death;

(b) in the case of a deceased non-contributing member, the monthly average of the deceased’s uprated earnings on the member’s last day of pensionable service.]

(2) Subject to paragraph (3), after the initial period, if the member dies with 2 or more years of qualifying service, the annual amount of the pension payable under regulation 3.E.1—

(a) if the member has not reached the age of 65, is equal to the appropriate proportion of the tier 2 ill-health pension under regulation 3.D.7 to which the member would have been entitled if on the date of death the member had become entitled to such a pension, and

(b) if the member has reached the age of 65, is equal to the appropriate proportion of the pension under regulation 3.D.1 (normal retirement pensions) to which the member would have been entitled if on the date of death the member had become entitled to such a pension in respect of any period of pensionable service that the member is entitled to count.

[F8 Sub-paragraph (b) is subject to paragraph (7).]

(3) After the initial period, if the member dies with less than 2 years of qualifying service but after reaching the age of 65, the annual amount of the pension payable under regulation 3.E.1 is equal to the appropriate proportion of the pension to which the member would have been entitled (disregarding any additional pension) if on the date of death the member had become entitled to a pension under regulation 3.D.1 (normal retirement pensions) in respect of any period of pensionable service that the member is entitled to count.

[F9 This is subject to paragraph (7).]

(4) After the initial period, if—

(a) the member dies with less than 2 years qualifying service and before reaching the age of 65, and

(b) the surviving adult has a guaranteed minimum under section 17 of the 1993 Act in relation to benefits in respect of the deceased member under [F10 this Section of] the Scheme,

the annual amount of the pension payable under regulation 3.E.1 is equal to that guaranteed minimum, unless paragraph (5) applies.

(5) This paragraph applies if the Secretary of State’s liability to provide a guaranteed minimum pension in respect of the surviving adult is discharged by the payment of a contributions equivalent premium under section [F11 55] of the 1993 Act [F12 or article 3 of the 2016 Order].

(6) This regulation is subject to regulation 3.E.7.

[F13 (7) For the purposes of paragraphs (2)(b) and (3) any increase under—

(a) regulation 3.D.3, or

(b) regulation 3.K.17,

is ignored.]

Textual Amendments

F6 Words in reg. 3.E.3 heading inserted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 67(a) (with reg. 89)

F7 Reg. 3.E.3(1) substituted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 67(b) (with reg. 89)

F8 Words in reg. 3.E.3(2) inserted (1.10.2009) by The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), regs. 1(2), 77(2)

F9 Words in reg. 3.E.3(3) inserted (1.10.2009) by The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), regs. 1(2), 77(3)

F10 Words in reg. 3.E.3(4)(b) inserted (1.10.2009) by The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), reg. 1(2), Sch. 2 para. 1

F11 Word in reg. 3.E.3(5) substituted (6.4.2019) by The National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (S.I. 2019/418), regs. 1(3), 69(a) (with reg. 108)

F12 Words in reg. 3.E.3(5) inserted (6.4.2019) by The National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (S.I. 2019/418), regs. 1(3), 69(b) (with reg. 108)

F13 Reg. 3.E.3(7) inserted (1.10.2009) by The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), regs. 1(2), 77(4)

Modifications etc. (not altering text)

C1 Reg. 3.E.3(2)(a) modified (1.4.2015) by The National Health Service Pension Scheme (Transitional and Consequential Provisions) Regulations 2015 (S.I. 2015/95), regs. 1(b), 40(1) Table Pt. 2

“3.E.4    Amount of pensions under regulation 3.E.1: pensioner members E+W

(1) In the case of a pensioner member, for the initial period the rate of the pension payable under regulation 3.E.1 is equal to the rate of the member’s pension in payment at the time of death if that amount is greater than the sum of—

(a) the amount of the pension payable to the surviving adult dependant under this Chapter apart from this paragraph, and

(b) the amount of the children’s pensions otherwise payable under this Part.

(2) At any time when the rate is not the rate mentioned in paragraph (1), the rate of the surviving adult dependant’s pension in the case of the death of a pensioner member is equal to the appropriate proportion of the pension to which the member was entitled on the date of death (disregarding any additional pension).

[F14 (3) For the purpose of paragraph (1) any reduction in the rate of the member’s pension under—

(a) Chapter 3.H,

(b) regulation 3.D.10, or

(c) regulation 3.K.11,

is ignored.

(3A) For the purpose of paragraph (2)—

(a) any reduction in the rate of the member’s pension under—

(i) regulation 3.D.4,

(ii) regulation 3.D.10, or

(iii) regulation 3.K.11; and

(b) any increase in the rate of the member’s pension under—

(i) regulation 3.D.3, or

(ii) regulation 3.K.17,

is ignored.]

(4) In this regulation “the initial period” means—

(a) if the member leaves one or more dependent children who are dependant on the surviving adult dependant, the period of 6 months beginning with the day after the member’s death, and

(b) otherwise the period of 3 months beginning with that day.

(5) For the purposes of paragraph (4) a child born after the member’s death is treated as having been born before it.

(6) If a member who has had a tier 2 ill-health retirement pension under regulation 3.D.7 replaced by a tier 1 ill-health retirement pension (by virtue of regulation 3.G.4(2))—

(a) is in further NHS employment and dies before the end of the initial period (within the meaning of that regulation), or

(b) is in further employment that is not NHS employment and dies within a period of one year beginning with the day on which that further employment ceased to be an excluded employment (within the meaning of that regulation),

the member’s pension referred to in paragraph (1) means that member’s original tier 2 ill-health pension.

(7) This regulation is subject to regulation 3.E.7 (re-employed pensioners: adult survivor pensions in initial period).

F15 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14 Reg. 3.E.4(3)(3A) substituted for reg. 3.E.4(3) (1.10.2009) by The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), regs. 1(2), 78(2)

F15 Reg. 3.E.4(8) omitted (1.10.2009) by virtue of The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), regs. 1(2), 78(3)

“3.E.5    Amount of pensions under regulation 3.E.1: deferred members E+W

(1) In the case of a deferred member—

(a) who left pensionable service less than 12 months before the date of death, and

(b) whose surviving adult dependant would have been the member’s surviving adult dependant if the member had died on the member’s last day of pensionable service,

the rate of the pension payable under regulation 3.E.1 is equal to the appropriate proportion of the tier 2 ill-health pension under regulation 3.D.7 to which the member would have been entitled if on the date the member’s pensionable service ceased the member had become entitled to such a pension under regulation 3.D.7 (but disregarding any additional pension).

(2) In the case of any other deferred member, the rate of the pension payable under regulation 3.E.1 is equal to the appropriate proportion of the pension under regulation 3.D.1 (normal retirement pensions) in respect of any period of pensionable service to which the member would have been entitled if on the date of death the member had become entitled to such a pension.

Modifications etc. (not altering text)

C2 Reg. 3.E.5(1)(a) modified (1.4.2015) by The National Health Service Pension Scheme (Transitional and Consequential Provisions) Regulations 2015 (S.I. 2015/95), regs. 1(b), 40(1) Table Pt. 2

“3.E.6    Recent leavers E+W

(1) If—

(a) a recent leaver dies leaving a surviving spouse or civil partner who has a guaranteed minimum under section 17 of the 1993 Act in relation to benefits in respect of the recent leaver under [F16 this Section of] the Scheme, and

(b) the member has died before reaching the age of 65,

the surviving spouse or civil partner is entitled to a pension that is payable for life of an amount equal to that person’s guaranteed minimum pension (disregarding any additional pension), unless paragraph (2) applies.

(2) This paragraph applies if the Secretary of State’s liability to provide a guaranteed minimum pension in respect of the surviving adult is discharged by the payment of a contributions equivalent premium under section [F17 55] of the 1993 Act [F18 or article 3 of the 2016 Order].

(3) In this Part “recent leaver” means a person—

(a) who left pensionable service less than 12 months before the date of death,

(b) who is not a deferred member or a pensioner member because of rights resulting from that employment, and

(c) in respect of whom no transfer value or refund of contributions has been paid in respect of that employment.

Textual Amendments

F16 Words in reg. 3.E.6(1)(a) inserted (1.10.2009) by The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), reg. 1(2), Sch. 2 para. 1

F17 Word in reg. 3.E.6(2) substituted (6.4.2019) by The National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (S.I. 2019/418), regs. 1(3), 70(a) (with reg. 108)

F18 Words in reg. 3.E.6(2) inserted (6.4.2019) by The National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (S.I. 2019/418), regs. 1(3), 70(b) (with reg. 108)

“3.E.7    Re-employed pensioners: adult survivor pensions in initial period E+W

(1) This regulation applies if, apart from this regulation, both regulations 3.E.3(1) and 3.E.4(1) would apply on the death of a member.

(2) Where this regulation applies, the rate of pension payable by virtue of regulation 3.E.3(1) and 3.E.4(1) during the initial period (as defined in the respective regulations) shall instead be the rate provided in paragraph (3).

(3) Subject to paragraph (4), for the relevant initial period the rate of the pension payable under regulation 3.E.1 is equal to the sum of—

[F19 (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’s death, or

(ii) a deceased non-contributing member, the rate of the monthly average of the deceased’s uprated earnings on the member’s last day of pensionable service, and

[F20 (b) the rate of the deceased member’s pension payable at the time of death after taking account of any reduction in the rate of the pension under—

(i) Chapter 3.H,

(ii) regulation 3.D.10, and

(iii) regulation 3.K.11.]]

(4) Paragraph (3)(a) does not apply if—

(a) the rate of the pension payable to the surviving adult in respect of later service, and

(b) any children’s pension that would otherwise be payable in respect of later service under this Part,

would be greater.]

Textual Amendments

F19 Reg. 3.E.7(3)(a)(b) substituted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 69 (with reg. 89)

F20 Reg. 3.E.7(3)(b) substituted (1.10.2009) by The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2009 (S.I. 2009/2446), regs. 1(2), 79