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The National Health Service Superannuation Scheme (Scotland) Regulations 2011

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E12.—(1) Subject to paragraphs (3) and (4), a member who leaves pensionable employment before age 60 without becoming entitled to an immediate pension under any of regulations E1 to E11 will be entitled to receive a pension and retirement lump sum under this regulation from age 60 if—

(a)the member leaves with at least 2 years’ qualifying service, or

(b)a transfer payment has been made to this Section of the scheme in respect of the member’s rights under a personal pension scheme.

(2) The pension under this regulation will be calculated—

(a)where it becomes payable by virtue of paragraph (3)(d) below, in accordance with paragraphs (2) to (4) of regulation E11, as if it were a pension under that regulation; and

(b)in any other case, as described in regulation E1 as if it were a pension under that regulation,

and the retirement lump sum will be calculated as described in regulation E13.

(3) The member will become entitled to receive the pension and retirement lump sum under this regulation before age 60 if—

(a)the member is in NHS employment and the Scottish Ministers are satisfied that the member is permanently incapable by reason of physical or mental infirmity of efficiently discharging the duties of that employment;

(b)the member is not in NHS employment and the Scottish Ministers are satisfied that the member is suffering from mental or physical infirmity that makes the member permanently incapable of engaging in regular employment of like duration; or

(c)some other benefit becomes payable to the member under regulations E2 to E11 (pensions for members);

(d)the member—

(i)left pensionable employment after 30th March 2000;

(ii)has reached the normal minimum pension age or, where relevant, protected pension age; and

(iii)has applied to the Scottish Ministers for payment of the pension and retirement lump sum under this regulation.

(4) Except in a case to which paragraph (5) applies—

(a)if the member is in NHS employment at the relevant time (whether with the same or another employing authority), the pension and lump sum on retirement will not become payable until the member leaves NHS employment or, if sooner—

(i)when the member attains the age of 70, if the member attains that age on or before 31st March 2008; or

(ii)when the member attains the age of 75, if the member attains the age of 70 on or after 1st April 2008; and

(b)the relevant time—

(i)in the case of a member to whom paragraph (3)(d) applies, is when the member makes the application referred to in head (iii) of that sub‑paragraph; or

(ii)in any other case, when the member attains the age of 60.

(5) Paragraph (4) may not apply where the NHS employment which the member is in when the member reaches age 60 is employment into which the member has been transferred as a result of a transfer of an undertaking to the employer.

(6) Where a member receives a pension under paragraph (1) while being in the new employment to which paragraph (5) applies—

(a)the member’s benefits in respect of any pensionable service in that new employment will be calculated without regard to any pensionable service in any earlier employment; and

(b)for the purposes of regulation C2 (meaning of “pensionable service”) and regulation D1(26) and (27) (contributions by members), the member’s service in the earlier employment and in the new employment will be aggregated.

(7) Subject to paragraph (8), where on or after the coming into force of these Regulations a member becomes entitled to a pension under paragraph (3)(a) or (b) of this regulation, the Scottish Ministers may discharge their liability for that pension by the payment of a lump sum of an amount consistent with—

(a)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 Scottish Ministers are satisfied that it is appropriate in all the circumstances having regard to the life expectancy of the member and the member was in pensionable employment on or after the coming into force of these Regulations.

(9) For the purpose of paragraph (6), the Scottish Ministers may require whatever medical evidence that they consider necessary.

(10) The amount of the lump sum payable under paragraph (7) will be equal to 5 times the difference between yearly rate of the member’s pension calculated in accordance with this regulation and the annual rate of the member’s guaranteed minimum pension and the amount of the lump sum shall be payable in addition to any retirement lump sum under regulation E13 (which shall not be subject to any reduction under regulation E14).

(11) For the purposes of determining whether a member is permanently incapable of efficiently discharging the duties of the member’s employment under paragraph (3)(a), the Scottish Ministers must have regard to the factors in paragraph (13) and disregard the member’s personal preferences for or against engaging in that employment.

(12) For the purposes of determining whether a member is permanently incapable of regular employment under paragraph (3)(b), the Scottish Ministers must have regard to the factors in paragraph (14) (no one of which is decisive) and disregard the factors in paragraph (15).

(13) The factors to be taken into account for paragraph (11) 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 which the Scottish Ministers consider appropriate.

(14) The factors to be taken into account for paragraph (12) 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 the 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 the 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 Scottish Ministers consider appropriate.

(15) The factors to be disregarded for paragraph (12) are—

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

(b)the geographical location of the member.

(16) 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 Scottish Ministers consider—

(a)

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 (3)(a); or

(ii)

regular employment of like duration under paragraph (3)(b),

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;

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

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

“regular employment of like duration” means—

(a)

in the case of a member who was a non-GP provider, such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s pensionable service as a non-GP provider immediately before that service ceased; and

(b)

in all other cases, where prior to leaving pensionable employment the member was employed—

(i)

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

(ii)

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

having regard to the number of hours, half days and sessions the member worked in that pensionable employment.

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