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The Health and Personal Social Services (Superannuation) (Amendment) Regulations (Northern Ireland) 2008

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Insertion of new regulations 13A, 13B and 13C

11.  After regulation 13 insert—

Ill health pension on early retirement

13A.(1) This regulation applies to a member who—

(a)retires from superannuable employment on or after 1st April 2008;

(b)did not submit a Form AW33 (or such other form as the Department accepted) together with supporting medical evidence if not included in the form pursuant to regulation 13 which was received by the Department before 1st April 2008, and

(c)is not in receipt of a pension under regulation 13.

(2) A member to whom this regulation applies who retires from superannuable employment before normal benefit age shall be entitled to pension under this regulation if—

(a)the member has at least 2 years qualifying service or qualifies for a pension under regulation 12; and

(b)the member’s employment is terminated because of physical or mental infirmity as a result of which he is—

(i)permanently incapable of efficiently discharging the duties of that employment (the “tier 1 condition”); or

(ii)permanently incapable of regular employment of like duration (the “tier 2 condition”) in addition to meeting with the tier 1 condition.

(3) Subject to paragraph (4), the pension to which a member is entitled—

(a)upon satisfaction of the tier 1 condition (“the tier 1 pension”), or

(b)upon satisfaction of the tier 2 condition in addition to meeting the tier 1 condition (“the tier 2 pension”),

will be calculated as described in regulation 12.

(4) Subject to paragraphs (5) and (6), if the member meets the tier 2 condition in addition to meeting the tier 1 condition, the superannuable service on which the pension is based will be increased by two-thirds of the superannuable service the member could have completed had he stayed in superannuable employment until normal benefit age.

(5) If the member’s employment is terminated on or before 31st March 2016, the minimum amount by which his superannuable service will be increased under paragraph (4) will be the lesser of—

(a)4 years superannuable service; and

(b)the superannuable service the member could have completed if he had stayed in superannuable employment until normal benefit age.

(6) To the extent that any increase under paragraph (4) or (5) would cause a member’s superannuable service to exceed the limit provided for in regulation 4(3), (Meaning of superannuable service), the amount of any excess will be reduced accordingly.

(7) Subject to paragraph (8), where a member becomes entitled to a pension by virtue of meeting the tier 2 condition, the Department may discharge its liability for that pension by the payment of a lump sum of an amount consistent—

(a)with the contracting-out and preservation requirements of the 1993 Act; and

(b)the lump sum rule.

(8) A lump sum payment under paragraph (7) may be made only if the Department is satisfied that it is appropriate in all the circumstances having regard to the life expectancy of the member.

(9) For the purpose of paragraph (8), the Department may require whatever medical evidence that it considers necessary.

(10) The amount of the lump sum payable under paragraph (7)—

(a)will be equal to 5 times the yearly rate of the member’s pension (calculated in accordance with this regulation); and

(b)shall be payable in addition to the lump sum on retirement payable under regulation 17 (which shall not be subject to any reduction under regulation 17(3)) and the lump sum in place of part of pension payable under regulation 17A.

(11) The employment of a member to whom a pension is payable under this regulation may be superannuable under the scheme if he is under age 50—

(a)on the date the member returns to HSC employment if he became entitled to receive a pension under a tier 1 condition on the day he retired from superannuable employment; or

(b)on the day after the protection period in regulation 13C(6)(b) ends if—

(i)the member became entitled to receive a pension under a tier 2 condition on the day the member retired from superannuable employment.

(ii)the Department did not discharge its liability for that pension by payment of a lump sum in accordance with paragraph (7); or

(c)on the day after the protection period in regulation 13C(6)(b) ends—

(i)the member became entitled to receive a pension under a tier 2 condition in place of a pension under a tier 1 condition on the date of the Department’s determination under regulation 13B, and

(ii)the Department did not discharge its liability for that pension by the payment of a lump sum in accordance with paragraph (7).

(12) For the purposes of calculating the amount of lump sum payable under paragraph (10), the member will be treated as if he had made an election under regulation 17A to receive the maximum amount of a further lump sum payable under that regulation.

(13) For the purposes of determining whether a member is permanently incapable of efficiently discharging the duties of the member’s employment under paragraph (2)(b)(i), the Department shall have regards to factors in paragraph (15) (no one of which shall be decisive) and disregard the member’s personal preferences for or against engaging in that employment.

(14) For the purposes of determining whether a member is permanently incapable of regular employment under paragraph (2)(b)(ii), the Department shall have regard to the factors in paragraph (16) (no one of which shall be decisive) and disregard the factors in paragraph (17).

(15) The factors to be taken into account for paragraph (13) are—

(a)whether the member has received appropriate medical treatment in respect of the incapacity;

(b)the member's—

(i)mental capacity; and

(ii)physical capacity;

(c)such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of the member’s incapacity, irrespective of whether such rehabilitation is undergone; and

(d)any other matter the Department considers appropriate.

(16) The factors to be taken into account for paragraph (14) are—

(a)whether the member has received appropriate medical treatment in respect of the incapacity; and

(b)such reasonable employment as the member would be capable of engaging in if due regard is given to the member's—

(i)mental capacity;

(ii)physical capacity;

(iii)previous training; and

(iv)previous practical, professional and vocational experience,

irrespective of whether or not such employment is actually available to the member;

(c)such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of a member’s incapacity (irrespective of whether such rehabilitation is undergone) having regard to the member's—

(i)mental capacity, and

(ii)physical capacity;

(d)such type and period of training which it would be reasonable for the member to undergo in respect of a member’s incapacity (irrespective of whether such training is undergone) having regard to the member's—

(i)mental capacity,

(ii)physical capacity,

(iii)previous training, and

(iv)previous practical, professional and vocational experience, and

(e)any other matter which the Department considers appropriate.

(17) The factors to be disregarded for paragraph (14) are—

(a)the member’s personal preference for or against engaging in any particular employment; and

(b)the geographical location of the member.

(18) For the purpose of this regulation—

“appropriate medical treatment” means such medical treatment as it would be normal to receive in respect of the incapacity, but does not include any treatment that the Department considers—

(a)

that it would be reasonable for the member to refuse,

(b)

would provide no benefit to restoring the member’s capacity for—

(i)

efficiently discharging the duties of the member’s employment under paragraph (2)(b)(i), or

(ii)

regular employment of like duration under paragraph (2)(b)(ii),

before the member reaches normal benefit age; and

(c)

that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches normal benefit age;

“permanently” means the period until normal benefit age; and

“regular employment of like duration” means—

(a)

in the case of a non-GP provider, such employment as the Department considers would involve a similar level of engagement to the member’s current superannuable service as a non-GP provider; and

(b)

in all other cases, where prior to retiring from employment that is superannuable the member was emloyed—

(i)

on a whole-time basis, regular employment on a whole-time basis;

(ii)

on a part-time basis, regular employment on a part-time basis,

regard being had to the number of hours, half days and sessions the member worked in that superannuable employment.

Re-assessment of ill-health condition determined under regulation 13A

13B.(1) This regulation applies to a member in receipt of a tier 1 pension under regulation 13A.

(2) A member to whom this regulation applies may ask the Department to consider whether he subsequently meets the tier 2 condition if—

(a)by notice in writing at the time of award of the pension, the Department informed the member that the member’s case may be considered once within a period of three years commencing with the date of that award to determine whether the member satisfies the tier 2 condition at the date of such a consideration;

(b)within that three year period the member provides further medical evidence to the Department relating to the satisfaction of the tier 2 condition at the date of the Department’s consideration; and

(c)that further medical evidence relates to the same physical or mental infirmity that qualified the member for the member’s tier 1 pension.

(3) If, after considering the further medical evidence provided by a member, the Department determines that the member satisfies the tier 2 condition—

(a)it shall pay from the date of that determination a tier 2 pension under regulation 13A(2) in place of the tier 1 pension being paid to that member; and

(b)that pension shall be calculated in accordance with paragraph (4) of regulation 13A and as if that paragraph included the words “from the date of the Department’s determination under regulation 13B” after “employment”.

(4) Only one consideration of a member’s case may be undertaken under this regulation.

Further employment after a benefit is paid under regulation 13A

13C.(1) This regulation applies to a member who—

(a)is in receipt of a tier 2 pension under regulation 13A (“the original pension”); and

(b)enters into further employment.

(2) Such a member shall be paid a tier 1 pension (“a substitute pension”) in place of the original pension—

(a)from the next substitute pension payment date following the day on which his annual earnings from further employment (whether in HSC employment or otherwise) in any tax year exceed the lower earnings limit for national insurance contributions applicable to that year; or

(b)in the case of a member who enters into further HSC employment, from the next substitute pension payment date following the first day on which the member is so employed which falls after the anniversary of the member’s entry into the further HSC employment (whether or not that day is part of a continuous period of further HSC employment beginning with his entry into that employment),

if sooner.

(3) A member who is in receipt of a substitute pension may ask the Department to consider reinstating the original pension if—

(a)the member is under normal benefit age;

(b)the member makes such a request in writing and provides supporting medical evidence to the Department before the end of the protection period; and

(c)the member’s further employment is terminated before the end of the protection period.

(4) If, after considering that evidence, the Department determines that the member again satisfies a tier 2 condition in respect of the member’s earlier employment, it shall recommence paying, from the day after the date that the further employment is terminated, the original pension in place of the substitute pension.

(5) A member to whom this regulation applies who is in receipt of a tier 2 pension must—

(a)notify the Department immediately and in writing if either of the following applies—

(i)the member’s annual earnings in any tax year exceed the lower earnings limit for national insurance contributions applicable to that year;

(ii)the member is engaged in further HSC employment after the end of the protection period in paragraph (6)(b);

(b)provide any other information in connection with the member’s earnings or further employment requested by the Department or any other person that the Department may specify.

(6) In this regulation “the protection period” means—

(a)a period of one year beginning with the day on which the member’s annual earnings from further employment that is not HSC employment first exceed the lower earnings limit for national insurance contributions applicable to that year; or

(b)a period of one year beginning with the first day the member enters into further HSC employment..

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