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The National Health Service (Superannuation Scheme, Pension Scheme and Injury Benefits) (Scotland) Amendment Regulations 2009

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PART 1Amendment of the National Health Service Superannuation Scheme (Scotland) Regulations 1995

Interpretation of Part 1

2.  In this Part an alphanumerical reference to a regulation or a reference to a Schedule is a reference to a provision of the National Health Service Superannuation Scheme (Scotland) Regulations 1995(1) bearing that designation.

Amendment of regulation A2

3.—(1) Regulation A2 (interpretation) is amended as follows.

(2) At the appropriate place in alphabetical order, insert–

“the 2008 scheme” means the scheme the rules of which are set out in Part 1 or 2 (whichever is applicable) of the National Health Service Pension Scheme (Scotland) Regulations 2008(2);

“electronic communication” has the meaning given in section 15 of the Electronic Communications Act 2000(3);.

(3) In the definition of “employing authority”, omit paragraph (e).

(4) In the definition of “OOH services”, for “GMS practice to patients to whom the practice is required by its GMS contract” substitute “GMS practice, Section 17C agreement provider or an HBPMS contractor to patients to whom the practice or contractor is required by its contract or agreement”.

(5) Omit the definitions of–

(a)“pilot scheme”; and

(b)“piloted services”.

Amendment of regulation B2

4.—(1) Regulation B2 (age limits and restrictions on membership) is amended as follows.

(2) In paragraph (1)(g), for head (iii) substitute–

(iii)has been a member of the 2008 scheme;.

(3) After paragraph (1)(g) insert–

(h)that person–

(i)ceased to be in pensionable employment on or before 31st March 2008;

(ii)on so ceasing was entitled to a preserved pension in accordance with regulation E6;

(iii)returns to NHS employment on or after 1st October 2008 and before returning exercises the right to transfer out all of that person’s benefits in the scheme in accordance with regulation M1;

(iv)has had a break in pensionable employment for any one period of five years or more beginning with the day immediately following the cessation of employment referred to in head (i) and ending on the day immediately before the employment referred to in head (iii) commences; and

(v)is not in receipt of a pension under regulation E2 or E2A;

(i)that person–

(i)is entitled to a preserved pension in accordance with regulation E6;

(ii)returns to NHS employment on or after 1st October 2008;

(iii)has had a break in pensionable employment for any one period of five years or more beginning with the day immediately following the cessation of the pensionable employment in respect of which he is entitled to the pension referred to in paragraph (i) and ending on the day immediately before the employment referred to in paragraph (ii) commences; and

(iv)is not in receipt of a pension under regulations E2 or E2A..

(4) For paragraph (2) substitute–

(2) In paragraph (1)–

(a)“pensionable employment” includes employment that qualified the member for a benefit under a health service scheme; and

(b)a reference to regulations E6, E9, M1 and M2 includes the equivalent of those regulations in a health service scheme the provisions of which correspond to the provisions of the National Health Service Superannuation Scheme for Scotland as set out in these Regulations..

(5) For paragraph (3), substitute–

(3) The Scottish Ministers may permit a person who would otherwise not be permitted to join the scheme in accordance with paragraph (1)(e), (f), (g) and (i) to do so if–

(a)that person’s NHS employment was transferred to another employer by virtue of–

(i)a transfer of undertakings or arrangements equivalent to a transfer of undertakings; and

(ii)at no time since that transfer (or the last of them if more than one) has the person had a break in pensionable employment for any one period of five years or more; and

(b)that person’s employment is transferred to an employing authority by virtue of–

(i)a transfer of undertakings or arrangements equivalent to a transfer of undertakings, (whether or not the transferring employer is in the public sector provided that the person’s employment was originally transferred out of the public sector); and

(ii)the employment from which the member is transferred–

(aa)qualified the member for benefits under an occupational pension scheme; and

(bb)the rules of that scheme (in the opinion of the Scottish Ministers) entitle the member to receive benefits on retirement upon, or prior to, attaining the age of 60 years..

Amendment of regulation D1

5.  In regulation D1(2) (contributions by members) after “may” insert “, with the consent of the Treasury,”.

Amendment of regulation E2B

6.  For regulation E2B(2)(b) (re assessment of ill health condition determined under regulation E2A), substitute–

(b)the member provides further medical evidence to the Scottish Ministers relating to the satisfaction of the upper tier condition at the date of the Scottish Ministers' consideration and that further medical evidence is provided–

(i)in the case of a member who does not engage in further NHS employment during the three year period referred to in sub-paragraph (a), before the end of that period; or

(ii)in the case of a member who does engage in further NHS employment during the three year period referred to in sub-paragraph (a), before the first anniversary of the day on which that employment commences or before the end of that period if sooner;.

Amendment of regulation E6

7.  In regulation E6(14) (preserved pension), insert at the appropriate place in alphabetical order–

  • “NHS employment” does not include employment with an employing authority in respect of which the member is eligible to join the 2008 scheme;.

Amendment of regulation E9

8.  After regulation E9(1) (early leavers' entitlement to refund of contributions), insert–

(1A) A member who wishes to take a refund of contributions must apply in writing to the Scottish Ministers.

(1B) An application in writing referred to in paragraph (1A) may be–

(a)made or given by means of an electronic communication that is approved by the Scottish Ministers for that purpose;

(b)given to the Scottish Ministers by a person other than the member..

Amendment of regulation F2

9.—(1) Regulation F2 (lump sum when member dies after pension becomes payable) is amended as follows.

(2) In paragraph (1), for “Except” substitute “Subject to paragraph (7), except”.

(3) After paragraph (6) insert–

(7) Where a member referred to in paragraph (1) has attained the age of 75 at the date of the member’s death–

(a)the lump sum referred to in that paragraph ceases to be payable; and

(b)shall instead be converted into an annual pension to be determined and paid in accordance with paragraph (8).

(8) The pension referred to in paragraph (7) shall be–

(a)determined in accordance with guidance and tables provided by the scheme actuary for the purpose of converting the amount of the lump sum into an annual pension;

(b)paid to the person who would otherwise be entitled to receive the lump sum in accordance with regulation F5; and

(c)paid to that person from the day after the member’s death until the fifth anniversary of the day the member’s pension under the scheme became payable.

(9) If, in accordance with regulation F5, a member has given notice that more than one person is to receive a share of the lump sum, each such person shall receive the same percentage of the annual pension as was specified for that person in the member’s notice.

(10) If, in accordance with regulation F5, the annual pension is to be paid to the member’s personal representatives, they may, as part of the distribution of the member’s estate, give irrevocable notice to the Scottish Ministers–

(a)specifying–

(i)one or more individuals; or

(ii)one incorporated or unincorporated body,

to whom the benefit of the pension under this regulation from the date of receipt of the notice by the Scottish Ministers is to be assigned; and

(b)where two or more individuals are specified, specifying the percentage of the pension payable to each of them,

and the pension (or, as the case may be, the percentage of it specified in respect of the person) may be paid to the person or body, unless paragraph (11) applies.

(11) This paragraph applies if–

(a)the person specified in the notice has died before payment can be made;

(b)payment to the person or body specified in the notice is not, in the opinion of the Scottish Ministers, reasonably practicable; or

(c)the person to whom the pension (or a specified percentage of the pension) would otherwise be payable has been convicted of an offence specified in regulation T6(1A) (loss of rights to benefits) and the Scottish Ministers have directed, as a consequence of that conviction, that the person’s right to a payment in respect of the member’s death is forfeited.

(12) The prohibition on assignment of benefits in regulation T3 (benefits not assignable) shall not apply to an assignation by personal representatives under this regulation..

Amendment of regulation M3

10.—(1) Regulation M3 (amount of member’s cash equivalent) is amended as follows.

(2) In paragraph (1), omit the words “, calculated and verified as required by Chapter IV of Part IV of the 1993 Act(4) (transfer values)”.

(3) After paragraph (1), insert–

(1A) The Scottish Ministers must–

(a)take advice from the scheme actuary before determining the factors to be used in the calculation of the member’s guaranteed cash equivalent; and

(b)calculate and verify the amount of the guaranteed cash equivalent in accordance with the Occupational Pension Schemes (Transfer Values) Regulations 1996(5)..

Insertion of new regulation M6A

11.  After regulation M6 (special terms for transfers out (bulk transfers etc.)) insert–

Member’s right to transfer a preserved pension to the 2008 Scheme

M6A.(1) If a member meets the conditions referred to in paragraph (3) and subject to the following provisions of this regulation, the member may require the Scottish Ministers to use the cash equivalent of the member’s rights under these Regulations to acquire rights referred to in the 2008 scheme.

(2) A member’s right to require the Scottish Ministers to use the cash equivalent of the member’s rights in the way referred to in paragraph (1) may only be exercised once.

(3) The conditions referred to in paragraph (1) are that the member–

(a)is entitled to a deferred benefit under regulation E6 (preserved pension);

(b)may not join the scheme in respect of any further NHS employment by virtue of regulation B2(1)(i); and

(c)becomes an active member of the 2008 scheme before attaining the age of 60.

(4) The Scottish Ministers must provide a member to whom this regulation applies with a statement of the amount of the cash equivalent of the member’s benefits accrued in accordance with these Regulations at the guarantee date (“a statement of entitlement”).

(5) In this regulation “the guarantee date” means any date that–

(a)falls within the required period;

(b)is chosen by the Scottish Ministers;

(c)is specified in the statement of entitlement; and

(d)is within the period of 10 days ending with the date on which the member is provided with the statement of entitlement.

(6) In counting the period of 10 days referred to in paragraph (5)(d), Saturdays, Sundays, Christmas Day, New Year’s Day and Good Friday are excluded.

(7) In paragraph (5)(a), “the required period” means–

(a)the period of three months beginning with the date that the Scottish Ministers receive notification from the member’s employing authority that the member has joined the 2008 scheme; or

(b)such longer period beginning with that date (but not exceeding six months) as may be reasonably required if, for reasons beyond the control of the Scottish Ministers, the requisite information cannot be obtained to calculate the amount of the cash equivalent.

(8) Subject to paragraphs (9) to (11), the member’s guaranteed cash equivalent shall be equal to the capitalised value of all of the member’s rights to benefits accrued under these Regulations and any associated rights under Part I of the Pensions (Increase) Act 1971(6).

(9) The Scottish Ministers must–

(a)take advice from the scheme actuary before determining the factors to be used in the calculation of the member’s guaranteed cash equivalent; and

(b)calculate and verify the amount of the guaranteed cash equivalent in accordance with the Occupational Pension Schemes (Transfer Values) Regulations 1996.

(10) Except in the case of a transfer payment accepted under regulation N3A (transfers in respect of members to whom regulation B6 applies who elect to rejoin the scheme), a member’s cash equivalent will be at least equal to the amount of any transfer payments accepted in respect of the member under regulation N1(4) (which deals with the crediting of additional service upon transfer), plus the amount of the member’s contributions to the scheme.

(11) Any part of the cash equivalent that relates to the service before 29th January 1988 will be calculated as described in the 1980 Regulations as applicable immediately before that date, if this would be more favourable to the member.

(12) A member who has received a statement of entitlement in accordance with paragraph (4) may apply to the Scottish Ministers for the cash equivalent of the member’s rights under the scheme to be used to acquire rights under the 2008 scheme.

(13) An application under this regulation must be made in respect of each and every portion of the cash equivalent and shall be–

(a)made in writing on the form provided for this purpose by the Scottish Ministers;

(b)made before the end of the period of three months beginning with the guarantee date; and

(c)irrevocable.

(14) On the making of such an application–

(a)a member becomes entitled to be credited with a period of pensionable service or an equivalent increase to the member’s pensionable earnings in the 2008 scheme in respect of the cash equivalent value of the member’s benefits under the scheme calculated in accordance with whichever of regulation 2.F.17 or 3.F.17 of the 2008 scheme apply to the member, and

(b)the member’s rights under the scheme are extinguished on the day that the member is credited with a period of pensionable service or pensionable earnings in accordance with regulations 2.F.17 or 3.F.17 (transfers across from the National Health Service superannuation scheme for Scotland 1995) (as the case may be) of the 2008 scheme..

Amendment of regulation P3

12.  For regulation P3(1) and (1A) ( absence for reasons other than illness or injury) substitute–

(1) If, on or after 1st April 2008, a member is on a leave of absence for reasons other than those referred to in regulation P2 the maximum period of such leave that will count as pensionable employment under this paragraph is–

(a)where the member, for a continuous period of six months commencing with the member’s first day of leave of absence, pays to the scheme contributions due from the member in accordance with regulation D1, six months; and

(b)where the member, for a continuous period of less than six months commencing with the member’s first day of leave of absence, pays to the scheme contributions due from the member in accordance with regulation D1, the period in respect of which those contributions were paid.

(1A) If, having paid contributions for the period referred to in paragraph (1)(a), a member remains on leave of absence for reasons other than those referred to in regulation P2 the maximum period of such leave that will count as pensionable employment under this paragraph is–

(a)where the member pays to the scheme both contributions due from the member in accordance with regulation D1 and contributions due from the member’s employer in accordance with regulation D2 for a continuous period of 18 months commencing immediately after the expiry of the period referred to in paragraph (1)(a), 18 months; and

(b)where the member pays to the scheme both contributions due from the member in accordance with regulation D1 and contributions due from the member’s employer in accordance with regulation D2 for a continuous period of less than 18 months commencing immediately after the expiry of the period referred to in paragraph (1)(a), the period in respect of which those contributions were paid..

Amendment of regulation S2

13.  For regulation S2(2) (reduction of pension on return to NHS employment), substitute–

(2) A member to whom this regulation applies must–

(a)inform the member’s employer, and any other person that the Scottish Ministers may specify, that the member’s pension under the scheme has become payable; and

(b)if requested to do so, provide any information (or authorise any other person to provide information) about the member’s pay from NHS employment to the Scottish Ministers or to any other person the Scottish Ministers may specify..

Amendment of regulation S4

14.—(1) Regulation S4 (benefits on death in pensionable employment after pension under regulation E2 becomes payable) is amended as follows.

(2) In paragraph (1A)–

(a)for “This regulation”, substitute “Subject to the modifications set out in paragraph (1B) this regulation”; and

(b)in sub-paragraph (b)(iii), after “members)” insert “on or before 1st April 2008”.

(3) After paragraph (1A), insert–

(1B) The modifications referred to in paragraph (1A) are–

(a)in paragraph (3A), for “on the date of the member’s death” substitute “on the member’s last day of pensionable employment”;

(b)in paragraph (7), for “pensionable pay when he died” substitute “final year’s pensionable pay”;

(c)in paragraph (8), for “the 6 months immediately following the member’s death” substitute “the 3 months immediately following the member’s death or the 6 months immediately following the member’s death if he leaves a dependent child”;

(d)in paragraph (11), for “the 6 month period” substitute “the 3 month or, as the case may be, the 6 month period”; and

(e)in paragraph (12)–

(i)for “rate of pensionable pay when he died” substitute “final year’s pensionable pay”; and

(ii)for “at that time” substitute “when he died”.

(1C) Subject to the modifications set out in paragraph (1D), this regulation also applies to a member in respect of whom a pension is payable under regulation E2 (early retirement on grounds of ill health) who–

(a)returns to pensionable employment after that pension becomes payable; and

(b)on the day the member dies, is–

(i)under the age of 75;

(ii)in NHS employment;

(iii)no longer required to pay contributions pursuant to regulation D1(3) or (4) (contributions by members) on, or after, 2nd April 2008; and

(iv)except where regulation R4(6) applies, not in receipt of a pension under any of regulations E1 to E5 in respect of the member’s later service.

(1D) The modifications referred to in paragraph (1C) are–

(a)in paragraph (3A), for “on the date of the member’s death” substitute “on the member’s last day of pensionable employment”;

(b)in paragraph (7), for “pensionable pay when he died” substitute “final year’s pensionable pay”; and

(c)in paragraph (12)–

(i)for “rate of pensionable pay when he died” substitute “final year’s pensionable pay”; and

(ii)for “at that time” substitute “when he died”.

Amendment of regulation S4A

15.  In regulation S4A (benefits on death in pensionable employment after pension under regulation E2A becomes payable ) after paragraph (1), insert–

(1A) Subject to the modifications set out in paragraph (1B), this regulation shall also apply to a member in respect of whom a pension is payable under regulation E2A who–

(a)returns to pensionable employment after that pension becomes payable; and

(b)on the day the member dies, the member is–

(i)under the age of 75;

(ii)in NHS employment;

(iii)no longer required to pay contributions pursuant to regulation D1(3) or (4) (contributions by members); and

(iv)except where regulation R4(6) applies, not in receipt of a pension under any of regulations E1 to E5 in respect of the member’s later service.

(1B) The modifications referred to in paragraph (1A) are–

(a)in paragraph (6), for “on the date of the member’s death” substitute “on the member’s last day of pensionable employment”;

(b)in paragraphs (10), for “rate of pensionable pay when the member died” substitute “final year’s pensionable pay”;

(c)in paragraph (15)(a), for “rate of pensionable pay when the member died” substitute “final year’s pensionable pay”; and

(d)in paragraph (15)(b), for “at that time” substitute “when he died”..

Replacement of regulation T1

16.  For regulation T1 (claims for benefits), substitute–

Claims for benefits

T1.(1) A person claiming to be entitled to benefits under these Regulations (“the claimant”) must make a claim in writing to the Scottish Ministers in such form as the Scottish Ministers may from time to time require.

(2) Pursuant to such a claim, the claimant and the member’s employing authority (including any previous employing authority of the member) must provide such–

(a)evidence of entitlement;

(b)authority or permission as may be necessary for the release by third parties of information in their possession relating to the member or, where relevant, the claimant; and

(c)other information the Scottish Ministers consider is relevant to the claim,

as the Scottish Ministers may from time to time require for the purposes of these Regulations.

(3) A claim referred to in paragraph (1) may be given to the Scottish Ministers by a person other than the claimant.

(4) The Scottish Ministers may accept any claim for benefits in relation to which this regulation applies, and any evidence, authority or permission given in connection with that claim, if it is made or given by means of an electronic communication that is approved by the Scottish Ministers for that purpose..

Amendment of regulation T6

17.  In regulation T6(1A) (loss of rights to benefits)–

(a)in sub-paragraph (a), after “widower” insert “, surviving nominated partner”; and

(b)in sub-paragraph (c)–

(i)after “notice” insert “or nomination”; and

(ii)for “F5(3A)” substitute “F5”.

Amendment of regulation T9

18.  In regulation T9(4) (interest on late payment of benefits), in the definition of “due date”–

(a)in sub-paragraph (a)(ii), after “member’s death” insert “other than a pension payable under regulation F2”; and

(b)after sub-paragraph (a) insert–

(aa)in the case of an amount in respect of pension under regulation F2 (lump sum when member dies after pension becomes payable) that is payable to–

(i)the member’s personal representatives, the date on which confirmation, probate or letters of administration were produced to the Scottish Ministers;

(ii)any person or body to whom the pension has been assigned by the member’s personal representatives, the date on which the notice under regulation F2(10) was received by the Scottish Ministers; and

(iii)any person or body other than those referred to in heads (i) and (ii), the day immediately following the day of the member’s death..

Amendment of Regulation U2

19.  In regulation U2 (determination of questions)–

(a)in paragraph 1, omit “and their decision shall be final”; and

(b)after paragraph (2) insert the following–

(3) In making a determination under the regulations referred to in paragraph (4) the Scottish Ministers may require any person requesting a determination to submit to a medical examination by a registered medical practitioner selected by the Scottish Ministers, and in that event, the Scottish Ministers must–

(a)also offer the person an opportunity of submitting a report from his own medical adviser as a result of an examination by him; and

(b)take that report into consideration together with the report of the medical practitioner selected by the Scottish Ministers.

(4) The regulations referred to in paragraph (3) are–

(a)regulations E2, E2A, E2B, E2C and E6 in relation to physical or mental incapacity;

(b)regulations G8(2), G11(2) and G15(2) in relation to incapacity to earn a living because of physical or mental infirmity;

(c)regulation H1(6) in relation to incapacity to earn a living because of permanent physical or mental infirmity;

(d)regulation J1(6) in relation to the member’s good health; and

(e)regulations E1(4)(b) and E2A(8) in relation to the life expectancy of the member..

Amendment of Regulation W12

20.—(1) Regulation W12 (pension credit member dies after pension credit benefit becomes payable) is amended as follows.

(2) After paragraph (4) insert–

(5) Where a pension credit member referred to in paragraph (1) has attained the age of 75 at the date of the pension credit member’s death–

(a)the lump sum referred to in that paragraph shall cease to be payable; and

(b)shall instead be converted into an annual pension to be determined and paid in accordance with paragraph (6).

(6) The annual pension referred to in paragraph (5) shall be–

(a)determined in accordance with guidance and tables provided by the scheme actuary for the purpose of converting the amount of the lump sum into an annual pension;

(b)paid to the person who would otherwise be entitled to receive the lump sum in accordance with regulation F5 (payment of lump sum); and

(c)paid to that person from the day after the pension credit member’s death until the fifth anniversary of the day the pension credit member’s pension under the scheme became payable.

(7) If, in accordance with regulation F5, a pension credit member has given notice that more than one person is to receive a share of the lump sum, each such person shall receive the same percentage of the annual pension as was specified for that person in the pension credit member’s notice.

(8) If, in accordance with regulation F5, the annual pension is to be paid to the pension credit member’s personal representatives they may, as part of the distribution of the pension credit member’s estate, give irrevocable notice to the Scottish Ministers–

(a)specifying–

(i)one or more individuals; or

(ii)one incorporated or unincorporated body,

to whom the benefit of the pension under this regulation from the date of receipt of the notice by the Scottish Ministers is to be assigned; and

(b)where two or more individuals are specified, specifying the percentage of the pension payable to each of them,

and the pension (or, as the case may be, the percentage of it specified in respect of the person) may be paid to the person or body, unless paragraph (9) applies.

(9) This paragraph applies if–

(a)the person specified in the notice has died before payment can be made;

(b)payment to the person or body specified in the notice is not, in the opinion of the Scottish Ministers, reasonably practicable; or

(c)the person to whom the pension (or a specified percentage of the pension) would otherwise be payable has been convicted of an offence specified in regulation T6(1A) and the Scottish Ministers have directed, as a consequence of that conviction, that the person’s right to a payment in respect of the pension credit member’s death is forfeited.

(10) The prohibition on assignation of pension credit benefits in regulation W21 shall not apply to an assignation by personal representatives under this regulation..

Insertion of new regulation W20A

21.  After regulation W20 (general rules about benefits) insert–

Interest on late payment of benefits

W20A.(1) Regulation T9 (interest on late payment of benefits) shall apply in respect of a pension credit member with the following modifications.

(2) In paragraph (2)–

(a)the reference to “member” shall be a reference to “pension credit member”; and

(b)the reference to “member's” shall be a reference to “pension credit member's”.

(3) In paragraph (4) in the definition of “due date”–

(a)in sub-paragraph (a)–

(i)the reference to “a lump sum under Part F above” shall be a reference to “a lump sum under regulation W12, W13 or paragraph 2 of Schedule 1A”; and

(ii)the reference to “the member’s death” shall be a reference to “the death of the person entitled to the pension credit or the pension credit member”;

(b)sub-paragraph (a)(ii), (iii) and (iv) shall be omitted; and

(d)in sub-paragraph (a)(v) the reference to “of the member’s retirement from pensionable employment” shall be a reference to “when the pension credit member becomes entitled to the payment of pension credit benefit”.

(4) In paragraph (4) in the definition of “qualifying payment” the reference to “, or by way of a refund of contributions,” shall be omitted..

Amendment of Schedule 1

22.—(1) Schedule 1 (medical and dental practitioners) is amended as follows.

(2) In paragraph 3(2)(a)(vii) (meaning of “pensionable earnings”), after “OOH provider” insert “or other employing authority providing OOH services”.

(3) In paragraph 9 (officer service treated as practitioner service)–

(a)for sub-paragraph (1), substitute–

(1) Subject to sub-paragraph (3), if a member does not have more than 10 years' officer service on first becoming a principal practitioner, the member’s officer service before first becoming a principal practitioner will be treated as practitioner service.;

(b)in sub-paragraph (5), omit “(early retirement pension (ill health))”; and

(c)in sub-paragraph (5A), omit head (b).

(4) In paragraph 10(3)(a) (contributions to the scheme), for “70” substitute “75”.

(1)

S.I. 1995/365, as amended by S.I. 1997/1434 and 1916, 1998/1593, 1999/443, 2001/3649 and 2005/2011 and S.S.I. 2001/437 and 465, 2003/55, 270 and 517, 2005/512 and 544, 2006/307 and 561, 2008/92 and 226.

(3)

2000 c. 7. Section 15 was amended by paragraph 158 of Schedule 17 to the Communications Act 2003 (c. 21).

(5)

S.I. 1996/1847.

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