The National Health Service Pension Scheme (Scotland) Regulations 2008

Interpretation: general

2.A.1—(1) In this Part–

“the 1978 Act” means the National Health Service (Scotland) Act 1978(1);

“the 1993 Act” means the Pension Schemes Act 1993(2);

“the 1995 Act” means the Pensions Act 1995(3);

“the 1995 Regulations” means the National Health Service Superannuation Scheme (Scotland) Regulations 1995;

“the 1997 Act” means the National Health Service (Primary Care) Act 1997(4);

“the 1999 Act” means the Welfare Reform and Pensions Act 1999(5);

“the 2003 Order” means the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2003(6);

“the 2004 Act” means the Finance Act 2004(7);

“the 2004 Regulations” means the National Health Service (General Medical Services Contracts) (Scotland) Regulations 2004(8);

“active member” has the meaning given in section 124(1) of the 1995 Act and, except where the context otherwise requires, refers to membership of the scheme (but see regulation 2.D.5(9) (partial retirement (members aged at least 55));

“additional pension”, in relation to a member, except where the context otherwise requires, means so much of any pension payable to a member as is payable by virtue of contributions made under regulations 2.C.8 (member’s option to pay additional periodical contributions to purchase additional pension), 2.C.10 (member’s option to pay lump sum contribution to purchase additional pension) and 2.C.11 (payment of additional lump sum contributions by employing authority);

“additional services” has the meaning given in regulation 3.A.1 (interpretation of part 3: general);

“bank holiday” means any day that is specified or proclaimed as a bank holiday, pursuant to section 1 of the Banking and Financial Dealings Act 1971(9);

“base rate” means the Bank of England base rate–

(a)

announced from time to time by the Monetary Policy Committee of the Bank of England as the official dealing rate, being the rate at which the Bank is willing to enter into transactions for providing short term liquidity in the money markets; or

(b)

where an order under section 19 of the Bank of England Act 1998(10) is in force, any equivalent rate determined by the Treasury under that section;

“buy-out policy” means a policy of insurance or annuity contract that is appropriate for the purposes of section 19 of the 1993 Act(11) (extinguishment of liability of scheme for pensions secured by insurance policies or annuity contracts) and “buy out” must be read accordingly;

“capped transferred-in service” must be read in accordance with regulation 2.F.12 (meaning of “capped transferred-in service”);

“cash equivalent” is to be construed in accordance with Chapter 4 of Part 4 of the 1993 Act;

“CCT” means a Certificate of Completion of Training awarded under article 8 of the 2003 Order, including any such certificate awarded in pursuance of the competent authority functions of the Postgraduate Medical Education and Training Board specified in article 20(3)(a) of that Order;

“certification services” means services related to the provision of the medical certificates listed in Schedule 3 (list of prescribed medical certificates) to the 2004 Regulations;

“collaborative services” means primary medical services provided by a GP performer, a GMS practice, a section 17C agreement provider, an HBPMS contractor or an OOH provider under or as a result of an arrangement between–

(a)

Scottish Ministers or a Health Board; and

(b)

a local authority, under section 15(2)(12) of the 1978 Act (supply of goods and services to local authorities, etc.), under which Scottish Ministers are or the Health Board is responsible for providing services for purposes related to the provision of health care;

“commissioned services” means services provided under a contract between–

(a)

a GP performer, a GMS practice, a section 17C agreement provider, an HBPMS contractor or an OOH provider; and

(b)

either–

(i)

a Special Health Board, which relates to the provision of health care; or

(ii)

Scottish Ministers or a Health Board under section 16(1)(3) of the 1978 Act (assistance to voluntary organisations)(13),

which is for the purposes of the health service;

“contracting Health Board” means–

(a)

in the case of a non GP provider who is–

(i)

a partner in a partnership that–

(aa)

is a GMS practice;

(bb)

has entered into a section 17C agreement; or

(cc)

is an HBPMS contractor and has entered into a contract for the provision of primary medical services;

(ii)

a shareholder in a company limited by shares that is–

(aa)

a GMS practice;

(bb)

a section 17C agreement provider; or

(cc)

an HBPMS contractor and has entered into a section 17C agreement for the provision of primary medical services; or

(iii)

an individual who is a GMS practice, section 17C agreement provider or an HBPMS contractor,

the Health Board with which that partnership, company, practice, provider or contractor has entered into a contract or agreement referred to in those provisions;

(b)

in the case of a principal practitioner, the Health Board on whose medical performers list his or her name appears; and

(c)

in the case of an assistant practitioner or locum practitioner, the Health Board engaging the practitioner under a contract of services or for services and on whose medical performers list his or her name appears;

“contracting-out requirements” means the requirements mentioned in section 9(2) (requirements for certification of schemes)(14) of the 1993 Act;

“the contribution option period” has the meaning given in regulation 2.C.8(8) (member option to purchase additional pension);

“corresponding health service scheme” has the meaning given in regulation 2.F.11(7) (calculation of transferred-in pensionable service);

“deferred member” has the meaning given in section 124(1)(15) (interpretation of Part I) of the 1995 Act and except where the context requires otherwise, refers to membership of the scheme (but see paragraph (3) and regulation 2.D.5(9) (partial retirement (member aged at least 55)));

“dental list” means a list prepared in accordance with regulations made under section 25(2)(a) (arrangements for provision of general dental services) of the 1978 Act;

“dentist” means a registered dental practitioner;

“dependent child” is to be construed in accordance with regulation 2.E.9 (meaning of “dependent child”);

“dispensing services” means the provision of drugs, medicines and such appliances which are included in the list prepared by Scottish Ministers under section 27(1) (arrangements for provision of pharmaceutical services)(16)of the 1978 Act;

“employing authority” means–

(a)

a Health Board, Special Health Board or NHS National Services Scotland (established under sections 2(17) and 10(18) of the 1978 Act);

(b)

the Mental Welfare Commission for Scotland established under section 4 (the Mental Welfare Commission for Scotland) of the Mental Health (Care and Treatment) (Scotland) Act 2003(19);

(c)

an OOH provider;

(d)

an HBPMS contractor;

(e)

a GMS practice;

(f)

a section 17C agreement provider;

(g)

any other body 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; or

(h)

in relation to a person who is subject to a direction made under section 7 of the Superannuation (Miscellaneous Provisions) Act 1967(20) and subject to such modifications to these Regulations as the Scottish Ministers may in any particular case direct, any employer of such a person whom the Scottish Ministers agree to treat as an employing authority for the purposes of these Regulations;

“employment” includes an office or appointment (other than an honorary office or appointment), and related expressions are to be read accordingly;

“enhanced services” with regard to–

(a)

a GMS practice, has the same meaning given in regulation 2(1) (interpretation) of the 2004 Regulations; and

(b)

any other performer or provider of primary medical services, means services which, if provided by a GMS practice, would be enhanced services within the meaning given in regulation 2(1) of the 2004 Regulations;

“essential services” means services required to be provided in accordance with regulation 15 (essential services) of the 2004 Regulations;

“GMS contract” means a contract under section 17J of the 1978 Act(21) (health boards' power to enter into general medical services contract);

“GMS practice” means–

(a)

a registered medical practitioner;

(b)

2 or more individuals practising in partnership; or

(c)

a company limited by shares,

with whom a Health Board has entered into a GMS contract;

“GP performer” means a registered medical practitioner, other than a GP registrar or a locum practitioner, whose name is included in a medical performers list and who performs essential services, additional services, enhanced services, dispensing services, collaborative services, commissioned services, OOH services or certification services (or a combination of those services)–

(a)

under a GMS contract, section 17C agreement or HB PMS contract;

(b)

on behalf of an OOH provider; or

(c)

under a contract of service or for services with a Health Board which relates to arrangements under which it provides services under section 2C of the 1978 Act (functions of Health Boards: primary medical services)(22)–

“GP registrar” means a practitioner who is being trained in medical practice by–

(a)

until the coming into force for all purposes of article 4(5)(d) (education and training to the award of a Certificate of Completion of Training) of the 2003 Order, a general medical practitioner who–

(i)

has been approved for that purpose by the Joint Committee on Postgraduate Training for General Practice under regulation 7 (approval of trainers) of the National Health Service (Vocational Training for General Medical Practice) (Scotland) Regulations 1998(23); and

(ii)

performs primary medical services; and

(b)

from the coming into force for all purposes of that article, a general medical practitioner who is approved under that article for the purpose of providing training under article 5(1)(c)(i) (minimum requirements for general practice training) of the 2003 Order, whether as part of training leading to the award of CCT or otherwise”.

“GP trainer” means a registered medical practitioner who is approved by the Postgraduate Medical Education and Training Board under article 4(5)(d) of the 2003 Order for the purposes of providing training to a GP Registrar under article 5(1)(c)(i) of that Order;

“the guarantee date” has the meaning given in regulation 2.F.2(2) (applications for statement of entitlement);

“guaranteed cash equivalent transfer value payment” has the meaning given in regulation 2.F.3 (application for transfer value payments: general);

“guaranteed minimum pension” means guaranteed minimum pension, or accrued rights to guaranteed minimum pension, under section 14 (earner’s guaranteed minimum) or 17 (minimum pensions for widows and widowers) of the 1993 Act as the case may be;

“HBPMS contract” means arrangements for the provision of services in accordance with section 2C(2) of the 1978 Act between a Health Board and a HBPMS contractor;

“HBPMS contractor” means a person with whom a Health Board has made arrangements under section 2C(2) (functions of health boards: primary medical services) of the 1978 Act, but only if that person is also a person who would be eligible to enter into a GMS contract or a section 17C agreement for the provision of primary medical services and has not entered into such a GMS contract or section 17C agreement;

“the health service” has the meaning given in section 108 (interpretation and construction) of the 1978 Act(24);

“lifetime allowance”, in relation to a person, has the meaning given in section 218 of the 2004 Act(25);

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (constitution of councils)(26);

“locum practitioner” has the meaning given in regulation 3.A.1(1) (interpretation of Part 3: general);

“lower earnings limit” must be read in accordance with section 5 of the Social Security Contributions and Benefits Act 1992(27);

“lower tier ill health pension” must be read in accordance with regulation 2.D.8 (early retirement on ill health: active members);

“lump sum rule” has the meaning given in section 166 (lump sum rule) of the 2004 Act(28);

“lump sum death benefit rule” has the meaning given in section 168 (lump sum death benefit rule) of the 2004 Act(29);

“medical performers list” means a list prepared by a Health Board pursuant to regulation 4(1) of the National Health Service (Primary Medical Services Performers List) (Scotland) Regulations 2004(30);

“member”, except where the context otherwise requires, means an active member, a deferred member, a pensioner member or a pension credit member;

“NHS dental employee” means an individual who is not a practitioner and who, in connection with the provision of dental health services in the health service, is employed under a contract of service by a Health Board;

“non GP provider” in these regulations applies as if he or she were a whole time officer and means–

(a)

a partner in a partnership that is a GMS practice who is not a GP provider and who demonstrates to the satisfaction of the Scottish Ministers that he or she assists in the provision of NHS services provided by that practice;

(b)

a partner in a partnership all of whose members have entered into a section 17C agreement for the provision of primary medical services–

(i)

but who is not a GP provider; and

(ii)

who demonstrates to the satisfaction of the Scottish Ministers that he or she assists in the provision of NHS services provided by that partnership;

(c)

a partner in a partnership that is an HBPMS contractor that has entered into an HBPMS contract for the provision of primary medical services–

(i)

but who is not a GP provider; and

(ii)

who demonstrates to the satisfaction of the Scottish Ministers that he or she assists in the provision of NHS services provided by that partnership;

(d)

a shareholder in a company limited by shares that is–

(i)

a GMS practice; or

(ii)

a section 17C provider or an HBPMS contractor that has entered into a section 17C agreement or an HBPMS contract for the provision of primary medical services,

but who is not a GP provider and who demonstrates to the satisfaction of the Scottish Ministers that he or she assists in the provision of NHS services provided by that company; and

(e)

an individual who is a section 17C provider or an HBPMS contractor but who is not a GP provider and who demonstrates to the satisfaction of the Scottish Ministers that he or she participates in the provision of NHS services,

and these Regulations will apply as if that non GP provider were a whole time officer;

“NHS employment” means employment with an employing authority;

“the NHS superannuation scheme for Scotland 1995” means the scheme set out in the 1995 Regulations;

“occupational pension scheme” means an occupational pension scheme within the meaning of section 1 (categories of pension schemes)(31) of the Pension Schemes Act 1993 which–

(a)

in the case of such a scheme established on, or after, the 6th April 2006 is a registered pension scheme for the purposes of the 2004 Act and which the Scottish Ministers agree to recognise as a transferring scheme for the purposes of Chapter 2.F (transfers); and

(b)

in the case of such a scheme established before that date, was–

(i)

approved by the Commissioners for Her Majesty’s Revenue and Customs for the purposes of Chapter I of Part XIV of the Income and Corporation Taxes Act 1988 (retirement benefits schemes) or whose application for approval under that Chapter was under consideration;

(ii)

a statutory scheme as defined in section 612(1)(32) of the Income and Corporation Taxes Act 1988 (interpretation); or

(iii)

a scheme to which section 608(33) of the Income and Corporation Tax Act 1988 applied (superannuation funds approved before 6th April 1980),

and on 6th April 2006 became a registered pension scheme for the purposes of the 2004 Act;

“officer” means a person (other than a GP performer or dentist employed by an employing authority) and includes a GP Registrar and a non GP Provider;

“OOH provider” has the meaning given in regulation 2.A.15 (out of hours providers);

“OOH services” has the meaning given in regulation 3.A.1 (interpretation of part 3: general);

“opting-out” and related expressions are to be construed in accordance with regulation 2.B.5 (opting out of the scheme);

“pay period” means–

(a)

in relation to a member who receives regular payments for his or her service under a contract for services or contract of employment means the period in respect of which each payment of salary wages or fees is made in accordance with that contract; and

(b)

in all other cases any period of 3 months ending on the last day of March, June, September or December;

“pensioner member” has the meaning given in section 124(1) (interpretation of part 1)(34) of the 1995 Act and, except where the context otherwise requires, refers to membership of the scheme (but see paragraphs (3) and (4) and regulation 2.D.5(9) (partial retirement (members aged at least 55));

“pensionable earnings” has the meaning given in regulation 3.A.7 (meaning of “pensionable earnings”) (read with regulation 3.A.8 (pensionable earnings: breaks in service);

“pensionable employment” means employment as an officer which is pensionable under this part;

“pensionable pay” has the meaning given in regulation 2.A.8 (meaning of “pensionable pay”) (read with regulation 2.A.9 (pensionable pay: breaks in service));

“pensionable service” has the meaning given by regulations 2.A.2 (meaning of “pensionable service”) and 2.A.3 (meaning of “pensionable service”: part-time service) (read with regulation 2.A.4 (pensionable service: breaks in service));

“pension credit” means a credit under section 29(1)(b) (creation of pension debits and credits) of the 1999 Act and includes a credit under corresponding Northern Ireland legislation;

“pension credit benefit” has the meaning given by section 101B of the 1993 Act;

“pension credit member” has the meaning given by section 124(1) of the 1995 Act;

“pension credit rights” has the meaning given by section 101B (interpretation)(35) of the 1993 Act;

“pension sharing order or provision” means such an order or provision as is mentioned in section 28(1)(36) (activation of pension sharing) of the 1999 Act;

“personal pension scheme” means a personal pension scheme which–

(a)

in the case of such a scheme established on, or after 6th April 2006 is a registered pension scheme for the purposes of the 2004 Act and which Scottish Ministers agree to recognise as a transferring scheme for the purposes of Chapter 2.F; and

(b)

in the case of such a scheme established before that date, was–

(i)

approved by the Commissioners for Her Majesty’s Revenue and Customs for the purposes of Chapter IV of Part XIV of the Income and Corporation Taxes Act 1988 (personal pension schemes); and

(ii)

on 6th April 2006 became a registered pension scheme for the purpose of the 2004 Act;

“practice staff” means a person (other than an assistant practitioner, principal practitioner, GP registrar or non GP provider) employed by a GMS practice, a section 17C agreement provider, an HBPMS contractor or an OOH provider to assist in the provision of the services they provide;

“practitioner” means–

(a)

a registered medical practitioner, other than a GP registrar, who is a locum practitioner, a GP provider or a GP performer; or

(b)

a registered dentist,

but excludes a person who is paid wholly by way of salary by a Health Board;

“preservation requirements” means the requirements of Chapter 1 of Part 4 of the 1993 Act relating to the preservation of benefits under occupational pension schemes;

“public sector transfer arrangements” means arrangements approved by the Scottish Ministers as providing reciprocal arrangements for the payment and receipt of transfer values between the scheme and other occupational pension schemes;

“qualifying service” has the meaning given in regulation 2.A.5 (meaning of “qualifying service”) (read with regulation 2.A.6 (qualifying service: disregard of breaks in service));

“recent leaver” has the meaning given in regulation 2.E.6(3) (recent leavers);

“reckonable pay” has the meaning given in regulation 2.A.10 (meaning of “reckonable pay”: general) (read with 2.A.11 (adjustments for inflation in determining reckonable pay under regulation 2.A.10) to 2.A.14 (meaning of “reckonable pay”: concurrent part time employments));

“registered” means registered under Chapter 2 of Part 4 of the 2004 Act;

“retail prices index” has the meaning given in section 989 (the definitions) of the Income Tax Act 2007(37);

“safeguarded percentage” has the meaning given by section 68A(3) (safeguarded rights) of the 1993 Act(38);

“safeguarded rights” has the meaning given by section 68A(1) of the 1993 Act;

“salaried dentist” means a dentist employed by a Health Board who undertakes to provide general dental services at a health centre, hospital or from any vehicle or moveable facility;

“the scheme” means the scheme the rules of which are set out in this Part;

“the scheme actuary” means the actuary appointed by the Scottish Ministers for the time being to provide a consulting service on actuarial matters relevant to these Regulations;

“scheme year” means a period of one year beginning with 1st April and ending with 31st March;

“section 17C agreement” means an agreement made under section 17C(39) of the 1978 Act;

“section 17C agreement provider” means any person or body who is providing primary medical services in accordance with a section 17C agreement;

“State pension age” means pensionable age, as defined in section 181(1) (general interpretation)(40) of the 1993 Act;

“tax year” means a year of assessment for income tax purposes;

“temporary additional session” has the meaning given in regulation 2.A.8(5);

“trade dispute” has the meaning given in section 35(1) (interpretation) of the Jobseekers Act 1995(41);

“upper tier ill health pension” must be read in accordance with regulation 2.D.8 (early retirement on ill health: active members); and

“whole-time”, in relation to an employment that is comparable to one or more part time employments, has the meaning given by paragraph (4).

(2) In determining whether a person who is an active member or a pensioner member of the scheme is also a deferred member of it, the fact that the person is an active member or a pensioner member and the person’s rights as such are to be disregarded.

(3) In determining whether a person is a pensioner member of the scheme, the fact that the person is not entitled to payment of pension because of Chapter 2.H (abatement) is to be disregarded.

(4) For the purposes of this Part–

(a) an employment that is comparable to a part-time employment that is not held concurrently by a person with any other such employment is “whole-time” if it is employment for such number of hours or sessions as in the opinion of the Scottish Ministers amounts to whole-time employment in the case of an employment for services of the kind performed in the part-time employment; and

(b) an employment that is comparable to 2 or more part-time employments that are held concurrently by a person is “whole-time” if it is employment for such number of hours or sessions as in the opinion of the Scottish Ministers amounts to whole-time employment in the case of an employment for services of the kind performed in the 2 or more part time employments.

(1)

1978 c. 29.

(2)

1993 c. 48.

(3)

1995 c. 26.

(4)

1997 c. 46.

(5)

1999 c. 30.

(6)

S.I. 2003/1250. Article 8 was amended by S.I. 2007/3101, regulation 40(b).

(7)

2004 c. 12.

(8)

S.S.I. 2004/115 as amended by S.S.I. 2004/215.

(9)

1971 c. 80. There are amendments to section 1 not relevant to these Regulations.

(10)

1998 c. 11.

(11)

Section 19 was amended by S.I. 2007/3014, regulation 2(a).

(12)

Section 15 was relevantly amended by the Primary Medical Services (Scotland) Act 2004 (asp 1).

(13)

To which there are amendments not relevant to these Regulations.

(14)

There are amendments to section 9 not relevant to these Regulations.

(15)

There are amendments to section 124 not relevant to these Regulations.

(16)

Section 27(1) was amended by the National Health Service and Community Care Act 1990 (c. 19), section 66 and Schedule 9, paragraph 19.

(17)

Section 2 was amended by the National Health Service and Community Care Act 1990, sections 28, 66 and Schedules 9 and 10, the National Health Service Reform (Scotland) Act 2004 (asp 7), schedule 2 and the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), schedule 2.

(18)

Section 10 was amended by the Health Act 1999 (c. 8), section 65 and Schedule 4, the National Health Service Reform (Scotland) Act 2004 (asp 7), schedule 2, and the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), schedule 2.

(19)

asp 13.

(20)

1967 c. 28. There are amendments to section 7 not relevant to these Regulations.

(21)

Section 17J is prospectively inserted by the Primary Medical Services (Scotland) Act 2004 (asp 1), section 4.

(22)

Section 2C was inserted by the Primary Medical Services (Scotland) Act 2004 (asp 1) section 1, and amended by the National Health Service Reform (Scotland) Act 2004, schedule 1, paragraph 1.

(23)

S.I. 1998/5. Regulation 7 was amended by S.I. 1998/669.

(24)

To which there are amendments not relevant to these Regulations.

(25)

2004 c. 12.

(26)

1994 c. 39, amended by the Environment Act 1995 (c. 25), section 120 and Schedule 22 and S.I. 1996/186, article 2.

(27)

1992 c. 4. Section 5 was substituted by paragraph 1 of Schedule 9 to the Welfare Reform and Pensions Act 1999, and amended by section 7(1) to (3) of the Pensions Act 2007 (c. 22).

(28)

Section 166 was amended by the Finance Act 2007 (c. 11), Schedule 20, paragraph 9.

(29)

Section 168 was amended by the Finance Act (c.11), Schedule 20, paragraph 9.

(30)

S.S.I. 2004/114.

(31)

Section 1 was amended by S.I. 2007/3014, regulation 2(b).

(32)

Section 612 was repealed by the 2004 Act Schedule 42, paragraph 1.

(33)

Section 608 was repealed by the 2004 Act, Schedule 42, paragraph 1.

(34)

To which there are amendments not relevant to these Regulations.

(35)

To which there are amendments not relevant to these Regulations.

(36)

Section 28 was amended by the Civil Partnership Act 2004 (c. 33), Schedule 27, paragraph 159.

(37)

2007 c. 3.

(38)

Section 68A was inserted by the 1999 Act. There have been amendments not relevant to these Regulations.

(39)

Section 17C was inserted by the National Health Service (Primary Care) Act 1997 (c. 46), section 21(2).

(40)

To which there are amendments not relevant to these Regulations.

(41)

1995 c. 18. There are amendments to section 35 not relevant to these Regulations.