1.—(1) These Regulations may be cited as the National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 2003 and shall come into force on 30th September 2003.
(2) These Regulations extend to Scotland only.
2.—(1) In these Regulations–
“additional period of service” means a period of service calculated in accordance with regulation 5;
“early retirement regulations” means any regulations made under section 34A of the National Health Service (Scotland) Act 1972(1), section 260 of the Local Government Act 1972(2), article 19 of, and Schedule 3 to, the Superannuation (Northern Ireland) Order 1972(3) or article 3 of the Superannuation (Northern Ireland) Order 1973(4);
“employing authority” means–
a Health Board, Special Health Board, or the Common Services Agency for the Scottish Health Service established under section 2 and section 10 of the National Health Service (Scotland) Act 1978(5);
a National Health Service Trust established under section 12A of the National Health Service (Scotland) Act 1978(6);
the Mental Welfare Commission established under section 2 of the Mental Health (Scotland) Act 1984(7); or
any other body that is constituted under an Act relating to health services and which the Scottish Ministers agree to treat as an employing authority for the purposes of the scheme;
“entitled officer” means a person to whom these Regulations apply in accordance with regulation 3;
“local authority” has the same meaning as in section 235(1) of the Local Government (Scotland) Act 1973(8);
“local government compensation regulations” means any regulations made under section 219 of the Local Government (Scotland) Act 1973 or section 24 of the Superannuation Act 1972 in relation to local government service and the corresponding provisions in force in England and Wales, Northern Ireland and the Isle of Man;
“the material date”, in relation to an entitled officer, means the date on which that person became an entitled officer;
“officer” has the same meaning as in the Superannuation Scheme Regulations except that it shall not include a practitioner as defined in regulation A2 (interpretation) of the Superannuation Scheme Regulations(9), other than a dental practitioner who satisfies the conditions set out in regulation E3(10) of the Superannuation Scheme Regulations (early retirement pension (redundancy etc.)).
“the Superannuation Scheme Regulations” means the National Health Service Superannuation Scheme (Scotland) Regulations 1995(11);
“the 1980 Regulations” means the National Health Service (Superannuation) (Scotland) Regulations 1980(12);
“pensionable employment”, in relation to an entitled officer, has the meaning given by regulation A2 of the Superannuation Scheme Regulations;
“pensionable service”, in relation to an entitled officer, has the meaning given by regulation A2 of the Superannuation Scheme Regulations;
“previous Compensation Regulations” means the National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 1981(13);
(2) In these Regulations, unless the context otherwise requires–
(a)any reference to a numbered regulation or Schedule is a reference to the regulation or, as the case may be, Schedule bearing that number in these Regulations; and
(b)any reference in a regulation or Schedule to a numbered paragraph is a reference to the paragraph bearing that number in that regulation, or as the case may be, that Schedule.
3. These Regulations shall apply to an officer who on ceasing to be employed in the employment of an employing authority becomes entitled to benefits in accordance with regulation E3 of the Superannuation Scheme Regulations (early retirement pension (redundancy etc)).
4.—(1) Subject to the provisions of these Regulations, an entitled officer shall be entitled, with effect from the material date, to receive from the Scottish Ministers compensation in accordance with paragraph (2) and, where the entitled officer is also entitled to a lump sum under regulation E7 of the Superannuation Scheme Regulations (lump sum on retirement), paragraph (3).
(2) The compensation payable in accordance with this paragraph shall consist of an annual allowance at a rate equal to the rate by which that pension would be increased in accordance with the Superannuation Scheme Regulations if a period equal to the period with which the entitled officer is credited under regulation 5 were added to the pensionable service in respect of which that pension is payable.
(3) The compensation payable in accordance with this paragraph shall consist of a lump sum equal to the amount by which the lump sum payable under regulation E7 of the Superannuation Scheme Regulations would be increased in accordance with those Regulations if a period equal to the period with which the entitled officer is credited under regulation 5 were added to the pensionable service in respect of which that lump sum is payable.
5.—(1) Subject to paragraphs (2), (3), (5), (7) and (8), for the purpose of calculating the amount of the annual allowance payable in accordance with regulation 4(2) and, where applicable, the amount of the lump sum payable in accordance with regulation 4(3)–
(a)where the total amount of–
(i)an entitled officer’s pensionable service, including any service to which regulation R4(3) of the Superannuation Scheme Regulations (members doing more than one job) applies; and
(ii)any relevant optant service,
is not more than 10 years, the entitled officer shall be credited with an additional period of service equal to the aggregate of such pensionable service and any such relevant optant service; or
(b)where the total amount of–
(i)an entitled officer’s pensionable service, including any service to which regulation R4(3) of the Superannuation Scheme Regulations applies; and
(ii)any relevant optant service,
is more than 10 years, the entitled officer shall be credited with an additional period of service of 10 years.
(2) The period of additional service credited to an entitled officer shall not exceed the amount necessary to make his or her total pensionable service reach–
(a)40 years; or
(b)the maximum length of pensionable service the entitled officer would have been able to accrue had he or she remained in pensionable employment until retirement age,
whichever is the lesser.
(3) In determining the additional period of service to be credited to a mental health officer under paragraphs (1) and (7), no account shall be taken of the provisions in regulation R3(5) of the Superannuation Scheme Regulations (mental health officer – doubling of pensionable service).
(4) For the purposes of paragraphs (1) to (3) above–
(a)“relevant optant service” means–
(i)service in respect of which an entitled officer was subject to regulation 50 of the 1980 Regulations (persons subject to non-statutory superannuation schemes and arrangements) and which terminated within the 12 months immediately before the beginning of the entitled officer’s pensionable service; and
(ii)in the case of a person who became an officer in the circumstances described in regulation 2(2) of the 1980 Regulations (interpretation), any service accrued in the employment of a local authority by virtue of which the person was, immediately before becoming an officer, a member of such a scheme as is referred to in regulation 50 of those Regulations;
(b)“retirement age” means, in relation to an entitled officer, the age at which, under any written condition of employment, the entitled officer may be required to retire or, if there is no such condition, the age of 65.
(5) Where–
(a)an entitled officer has received–
(i)a redundancy payment under the Employment Rights Act 1996(14); or
(ii)a corresponding payment under the arrangements of the Whitley Councils for the Health Services of Great Britain; or
(iii)a payment made by virtue of any arrangement made pursuant to paragraph 20(2) of Schedule 7A to the National Health Service (Scotland) Act 1978(15) (National Health Service Trusts – general powers),
in respect of the cessation of the employment referred to in regulation 3; and
(b)that payment has not been reduced to take account of any additional period of service with which the officer may have been credited under paragraph (1),
any such additional period of service under paragraph (1) shall not exceed 6 years and 243 days.
(6) For the purposes of this regulation, where the pensionable service of an entitled officer consists of or includes pensionable service in part-time employment, such service shall count at its full length.
(7) Where the pensionable service of an entitled officer includes service in the employment of an employing authority before 4th November 1980, that officer shall be entitled to an additional period of service calculated in accordance with the provisions of regulation 5(1) (persons who became entitled officers between 2nd December 1976 and 3rd November 1980) and regulation 5(4) (service before 4th November 1980) of the previous Compensation Regulations if such a calculation would place that entitled officer in a better position than he or she would have been in had the additional period of service been credited in accordance with this regulation.
(8) Subject to paragraph (9), where an entitled officer is in receipt of any payment specified in paragraph (11) there shall be deducted from the additional period of service which, but for this paragraph, would have counted as pensionable service by virtue of paragraph (1) or (7), any additional years or deemed added years which were taken into account for the purposes of the calculation of that payment.
(9) The Scottish Ministers may direct that the deduction in accordance with paragraph (8) should not be made, or that a lesser number of years should be deducted, where–
(a)an entitled officer is in receipt of a payment specified in paragraph (11); and
(b)there are differences between–
(i)the terms of the employment in respect of which that payment is received; and
(ii)the terms of the employment referred to in regulation 3; and
(c)by reason of those differences, the deduction would be disproportionately large.
(10) For the purposes of paragraphs (8) and (9)–
(a)“additional years”, in the case of an entitled officer who receives a payment referred to in paragraph (11), means the additional period of service with which that officer was credited for the purpose of making that payment and which had on the calculation of that payment the corresponding effect that the additional period of service has on the annual allowance payable under these Regulations;
(b)any additional years or deemed added years shall not be taken into account if these have been taken into account for the purpose of reducing any payment specified in paragraph (11);
(c)where a payment specified in paragraph (11) has been enhanced by a sum, being a fraction of the annual rate of remuneration, calculated in sixtieths, each one sixtieth shall be deemed to be an added year for the purposes of this regulation and the expression “deemed added years” shall be construed accordingly;
(d)the additional period of service shall be deemed to commence on the material date;
(e)the additional years or deemed added years shall be deemed to commence on the day after the occurrence of the event in respect of which the payment specified in paragraph (11) became payable;
(f)any additional years or deemed added years which relate to a period before the material date shall not be taken into account.
(11) The payments referred to in paragraphs (8) to (10) are–
(a)an annual allowance payable under these Regulations;
(b)any annual compensation payable immediately or prospectively under the local government compensation regulations or any other regulations made under section 24 of the Superannuation Act 1972 (compensation for loss of office, etc.);
(c)any annual compensation payable under a scheme made under section 1 of the Superannuation Act 1972 (superannuation schemes as respects civil servants, etc.);
(d)any annual benefit payable under the early retirement regulations; or
(e)any other payment provided for by regulations which have like effect to the regulations referred to in sub-paragraphs (a), (b) or (d).
6.—(1) Subject to paragraph (2), the compensation payable under regulation 4 in respect of the additional period of service of an entitled officer shall be calculated in like manner as that officer’s pension under regulation E3 of the Superannuation Scheme Regulations and, where applicable, his or her lump sum on retirement under regulation E7 of those Regulations or, where a transfer payment has been made in the entitled officer’s case under Part M of those Regulations (transfer-out arrangements and buy-outs), the pension and, where applicable, lump sum on retirement which would have been payable but for the entitled officer’s pension benefits having been transferred to another scheme by means of that transfer payment.
(2) Where regulation R3 of the Superannuation Scheme Regulations or any corresponding provision of any other scheme in which the entitled officer has retained rights to benefit by virtue of an option exercised under regulation 46 of the 1980 Regulations (benefits of officers who have exercised option to retain rights corresponding with those previously enjoyed) applies to an entitled officer, the compensation in respect of the entitled officer’s additional period of service shall be calculated as if neither paragraph (5)(a) of regulation R3 nor any corresponding provision applied to that officer.
(3) Where the amount of any benefit to which an entitled officer is or may become entitled under the Superannuation Scheme Regulations is or may be supplemented under regulation 51 or 52 of the 1980 Regulations (supplementary, or discretionary, payments in respect of certain officers) at the discretion of the Scottish Ministers, the Scottish Ministers may in the same manner as under regulation 51 or 52 of those Regulations, make supplementary or discretionary payments to such extent as they consider appropriate in addition to any compensation payable to the entitled officer under these Regulations.
(4) For the purpose of paragraph (1), where any part of the pensionable service of an entitled officer to whom there is payable a pension under regulation E3 of the Superannuation Scheme Regulations is service in part-time employment, the compensation payable in respect of the service credited under this regulation shall not exceed the relevant amount.
(5) In this regulation–
“the relevant amount” means the amount which bears the same proportion to the amount which would have been payable had the service not been part-time as the whole-time equivalent of an entitled officer’s pensionable service in respect of part-time employment bears to comparable whole-time employment; and
“the whole-time equivalent” has the same meaning as in regulation C4 of the Superannuation Scheme Regulations (pensionable service in respect of part-time employment).
7. Where, under regulation J1 of the Superannuation Scheme Regulations (allocation of part of pension), an entitled officer may surrender part of his or her pension in favour of the officer’s spouse or any other dependant, that officer may surrender part of the annual allowance which is payable to him or to her under these Regulations, after any reduction under regulation 10, on the like terms and conditions, and in consideration of the like payments by the Scottish Ministers, as if the said annual allowance were a pension to which the entitled officer had become entitled under the Superannuation Regulations.
8.—(1) Where an entitled officer dies, payments in accordance with this regulation shall be made by the Scottish Ministers to or for the benefit of that officer’s widow, widower, child or other dependant or to that officer’s personal representative.
(2) If the widow, widower, child or other dependant of an entitled officer is entitled to a benefit under the Superannuation Scheme Regulations, or would have been so entitled if that officer’s benefits had not been transferred to another scheme, the widow, widower, child or other dependant, as the case may be, shall be entitled to receive compensation equal to the benefits he or she would have received if the compensation payable to the entitled officer under regulation 4 immediately before death had been a pension which was payable under the Superannuation Regulations.
(3) Any compensation payable to or for the benefit of a widow, widower, child or other dependant under this regulation shall cease to be payable on the date on which the benefit under the Superannuation Scheme Regulations ceases, or would have ceased, to be payable.
(4) Where–
(a)any benefit under the Superannuation Scheme Regulations is payable to any person on behalf of a child or other dependant in accordance with those Regulations; or
(b)the entitled officer’s benefits have been transferred to another scheme and any benefits under the Superannuation Scheme Regulations would have been payable to any such person if those Regulations had continued to apply in relation to that officer,
any compensation payable under this regulation to a child or other dependant shall be paid to that person on behalf of the child or other dependant in the like manner and for the like period as is provided in the Superannuation Regulations.
9.—(1) Where the widow, widower, nominee or the personal representative of an entitled officer is entitled to receive a lump sum on death under regulation F5 of the Superannuation Scheme Regulations (payment of lump sum), that widow, widower, nominee or personal representative shall be entitled under these Regulations to an amount equal to the amount by which such a lump sum on death would have been increased if, for the purpose of calculating the lump sum on death–
(a)there were also taken into account the additional period of service credited to the entitled officer as if it were pensionable service;
(b)the annual allowance or lump sum payable under regulation 4 were treated as if it were a pension payable under regulation E3 or, where applicable, a lump sum on retirement payable under regulation E7 of the Superannuation Scheme Regulations; and
(c)where any proportion of an annual allowance has been surrendered under regulation 7, there were taken into account the amount which would have been paid but for such a surrender.
(2) For the purpose of this regulation “nominee” means a person specified in a notice given by an entitled officer to the Scottish Ministers for the purpose of regulation F5(3A)(16) of the Superannuation Scheme Regulations.
10.—(1) Where an entitled officer enters further employment with an employing authority on or after the material date and that further employment has ceased, any compensation payable under these Regulations based on the additional period of service shall be reduced in accordance with Schedule 1 to these Regulations to take account of any benefit payable under the Superannuation Scheme Regulations in respect of that further employment.
(2) Where, in respect of an entitled officer, the aggregate of–
(a)the entitled officer’s pensionable service on the material date;
(b)any additional period of service credited to that officer under these Regulations; and
(c)any further pensionable service accrued by that officer on or after the material date,
exceeds the number of years of service that would have been pensionable under regulation C2(4) of the Superannuation Scheme Regulations (limitations on pensionable service) had the aggregate of the entitled officer’s service been pensionable service under those Regulations, the annual allowance which that officer is entitled to receive under these Regulations shall be reduced by an amount equal to the compensation payable under regulation 4 in respect of a period of pensionable service equal to the period in excess of that prescribed in regulation C2(4).
11. Where an entitled officer who is in receipt of an annual allowance under regulation 4 enters or continues in employment which would constitute NHS employment for the purposes of regulation S2 of the Superannuation Scheme Regulations (reduction of pension on return to NHS employment), the annual rate of that allowance together with any pension payable under those Regulations shall not exceed the rate at which the compensation would have been paid if the aggregate of the allowance and pension had been a pension liable to reduction under the said regulation S2.
12. Any person to whom compensation is payable under these Regulations shall furnish all such information as the Scottish Ministers may at any time require for the purposes of these Regulations and that person shall verify the same in such manner, including the production of documents in that person’s possession or control, as may reasonably be required.
13.—(1) Any assignment of, or charge on, or any agreement to assign or charge, any right to compensation under these Regulations is void.
(2) On the bankruptcy or sequestration of an entitled officer, no part of the compensation shall be paid to any trustee or other person acting on behalf of the creditors, except as provided for in paragraph (3).
(3) Where, following the bankruptcy or sequestration of an entitled officer, the court makes an order under section 32(2) and (4) of the Bankruptcy (Scotland) Act 1985(17) or an income payments order under section 310 of the Insolvency Act 1986(18) that requires the Scottish Ministers to pay all or part of the compensation to the entitled officer’s trustee in bankruptcy, the Scottish Ministers shall comply with that order.
14.—(1) Subject to paragraph (2), where, on the death of a person to whom compensation is payable under these Regulations, any sum is due to or in respect of that person, the Scottish Ministers may pay it to any person claiming to be the personal representative of that person or to be entitled to a share of it, and may do so without requiring proof of the title of the person concerned.
(2) Paragraph (1) does not apply if the total of the sum referred to in that paragraph when added to any sum payable under the Superannuation Scheme Regulations exceeds the specified amount.
(3) In paragraph (2), the “specified amount” means £5,000 or any higher amount which is for the time being specified in an order made under section 6(1) of the Administration of Estates (Small Payments) Act 1965(19) as the amount to be treated as substituted for references to £500 in section 1 of that Act.
15. Any question arising as to the rights or liabilities of any person under these Regulations shall be determined by the Scottish Ministers.
16.—(1) The Regulations specified in Column 1 of Schedule 2 are revoked to the extent specified in Column 2 of that Schedule.
(2) Anything done under, or by virtue of, any regulation revoked by these Regulations shall, if it could have been done under or for the purpose of the corresponding provision of these Regulations, be deemed to have been done under or by virtue of the corresponding provision of these Regulations, and anything begun under, or by virtue of, any such regulation may be continued under these Regulations as if begun under these Regulations.
TAVISH SCOTT
Authorised to sign by the Scottish Ministers
St Andrew’s House, Edinburgh
30th June 2003