The National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013

Entitlement to pensions

Normal retirement pensions

2.D.1.—(1) Subject to paragraph (2) and the following provisions of this Part, the general rule is that a member is entitled to a pension payable for life in respect of any period of pensionable service (“the relevant service”) if the member—

(a) has reached age 65; and

(b) either—

(i) has ceased to be employed in NHS employment and has claimed payment of the pension; or

(ii) will reach age 75 on the next day.

(2) A member to whom paragraph (1) applies is not entitled to a pension under this regulation unless—

(a) the member is entitled to count at least two years of qualifying service in respect of the relevant service;

(b) a transfer value payment has been accepted by this Section of the scheme during the relevant service under Chapter 2.F (transfers), otherwise than from an occupational pension scheme; or

(c) the member is entitled to a pension under this regulation in respect of any previous period of pensionable service.

(3) A pension to which a member is entitled under this regulation becomes payable immediately the member becomes entitled to it.

(4) The amount of the annual pension payable under this regulation (disregarding any additional pension) is given by the formula—

where—

RP is the member’s reckonable pay; and

LRS is the length of the member’s relevant service, expressed in days.

(5) A claim referred to in paragraph (1)(b)(i) and made in accordance with regulation 2.J.2 (claims for benefits) takes effect from the date the claim is received by the Scottish Ministers.

(6) This regulation does not apply to pensions derived from pension credit rights.

(7) In this Chapter “NHS employment” includes employment with an employer in respect of whom a direction has been made under section 7 (extension of superannuation provisions of National Health Service Acts) of the Superannuation (Miscellaneous Provisions) Act 1967(1).

(8) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.12.

Pension credit members

2.D.2.—(1) The general rule is that a pension credit member is entitled to a pension for life derived from the member’s pension credit rights if the member has reached age 65 and has claimed payment of the pension.

(2) Subject to paragraph (5), the pension becomes payable—

(a) when the pension credit member reaches age 65; or

(b) if it is later, when the pension sharing order under which the member is entitled to the pension credit takes effect.

(3) The pension must be of such an amount that its value is equal to the member’s pension credit, as calculated in accordance with regulations made under paragraph 5(b) (appropriate rights) of Schedule 5 to the 1999 Act.

(4) A claim under paragraph (1) must be made by notice in writing in such form as the Scottish Ministers require and takes effect from the date specified in the claim as the date on which the pension is to become payable.

(5) A pension credit member who has not reached age 65 is entitled to immediate payment of a reduced pension payable for life if the pension credit member has—

(a) reached age 55; and

(b) claimed payment of the pension.

(6) The amount of the annual pension under paragraph (5)—

(a) is first calculated as mentioned in paragraph (3); and

(b) then that amount is reduced by such amount as the Scottish Ministers determine, after consulting the scheme actuary, to be appropriate by reason of the payment of the pension before the member reaches age 65.

(7) A claim under paragraph (5) must be made by notice in writing in such form as the Scottish Ministers require and takes effect from the date specified in the claim as the date on which the pension is to become payable.

Late payment of pension with actuarial increase

2.D.3.—(1) This regulation applies if a member becomes entitled to immediate payment of pension under regulation 2.D.1 (normal retirement pensions) after reaching age 65.

(2) So much of the amount of the pension to which the member would otherwise be entitled under that regulation (before any commutation under regulation 2.D.14 (general option to exchange part of pension for lump sum) as is attributable—

(a) to the member’s pensionable service before that age; and

(b) to any contributions paid under regulations 2.C.8, 2.C.10 or 2.C.11 before that age,

is increased.

(3) The amount of the increase must be calculated in accordance with guidance and tables provided by the scheme actuary to the Scottish Ministers for the purposes of this regulation.

(4) In preparing that guidance and those tables the scheme actuary must use such factors as the scheme actuary considers appropriate, having regard, in particular, to the period after reaching age 65 before the member becomes entitled to immediate payment of the pension and the life expectancy of the member.

(5) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.21.

Early payment of pension with actuarial reduction

2.D.4.—(1) A member who has not reached age 65 is entitled to immediate payment of a reduced pension payable for life if the member—

(a) has reached age 55;

(b) meets the condition in regulation 2.D.1(2)(a) or (b) (normal retirement pensions);

(c) has ceased to be employed in NHS employment; and

(d) has claimed payment of the pension.

(2) The amount of the annual pension under this regulation—

(a) is first calculated as mentioned in regulation 2.D.1(4) (and, if additional pension is payable, in accordance with regulation 2.C.14(2) (effect of payment of additional contributions) or 2.C.16(2) (effect of part payment of periodical contributions)); and

(b) then that amount is reduced by such amount as the Scottish Ministers determine, after consulting the scheme actuary, to be appropriate by reason of the payment of the pension before the member reaches 65.

(3) A claim under paragraph (1) must be made by notice in writing in such form as the Scottish Ministers require and takes effect—

(a) in the case of a deferred member, from the date specified in the claim as the date on which the pension is to become payable; and

(b) in the case of an active member or a non-contributing member, from the day immediately following the day on which the member ceased to be employed in NHS employment.

(4) A member is not entitled to a pension under this regulation if the Scottish Ministers determine, having taken advice from the scheme actuary, that the pension, as reduced under paragraph (1), would be insufficient to meet their liability to provide a guaranteed minimum pension.

(5) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.12.

Partial retirement: members aged at least 55

2.D.5.—(1) An active member or a non-contributing member may exercise an option under this regulation if—

(a) the member has reached age 55 and—

(i) continues to be employed in the employment in which the member is an active member or a non-contributing member; or

(ii) where the member has more than one such employment, in at least one of those employments;

(b) the member would be entitled to a pension for life, by virtue of regulation 2.D.1(1)(b)(i) (normal retirement pensions), if the member had—

(i) reached age 65;

(ii) ceased to be so employed; and

(iii) claimed payment of the pension;

(c) the terms on which the member holds the employment or employments referred to in sub-paragraph (a) change; and

(d) as a result of the change described in sub-paragraph (c), the annual rate of the member’s pensionable pay is reduced to 90% or less of the amount of the member’s pensionable pay during the period of 12 months ending with the option day.

(2) If the member was not an active member during the whole of the period of 12 months mentioned in paragraph (1)(d), that paragraph applies as if the member’s pensionable pay during that period were—

where—

PP is the member’s pensionable pay for the part of that period during which the member was an active member; and

N is the number of days in that period on which the member was an active member.

(3) The option may only be exercised by notice in writing in such form as the Scottish Ministers require and must be accompanied by a statement in writing by the employing authority or employing authorities, that the conditions in paragraph (1)(c) and (d) are met.

(4) The option must specify—

(a) the percentage of the member’s pension (excluding any additional pension) in respect of which the member claims immediate payment (“the specified percentage”); and

(b) whether the member claims immediate payment of additional pension (if any).

(5) A member who duly exercises the option under this regulation is entitled—

(a) in the case of a member who has reached age 65, to immediate payment of the specified percentage of the pension to which the member would be entitled under regulation 2.D.1 (normal retirement pensions) if the member had ceased to be employed on the option day (disregarding any additional pension, but subject to any increase under regulation 2.D.3 (late payment of pension with actuarial increase));

(b) in the case of a member who has not reached age 65, to immediate payment of the specified percentage of the pension to which the member would be entitled under regulation 2.D.4 (early payment of pension with actuarial reduction) if the member had ceased to be employed on the option day (disregarding any additional pension); and

(c) if the option specifies that the member claims immediate payment of additional pension, the additional pension, subject—

(i) in a case within sub-paragraph (a), to an increase of the same percentage as would be made in that pension under regulation 2.D.3 if the member had ceased to be employed on the option day; and

(ii) in a case within sub-paragraph (b), to a reduction of the same amount as would have been made in that pension under regulation 2.D.4 if the member had so ceased.

(6) The specified percentage must be such that—

(a) the pension to which the member becomes entitled as a result of the option (before the exercise of the option under regulation 2.D.14 (general option to exchange part of pension for lump sum) and disregarding any additional pension)—

(i) is not less than the amount of the pension payable by reference to 20% of the member’s pensionable service at the end of the option day (disregarding any additional pension); and

(ii) taken together with any such increase to which the member becomes entitled as a result of the option (before any such commutation), is not less than 0.05% of the member’s lifetime allowance on the option day;

(b) the percentage of the pension (other than additional pension) in respect of which the member does not require immediate payment is not less than the amount of the pension payable by reference to 20% of the member’s pensionable service at the end of the option day (disregarding any additional pension); and

(c) that pensionable service referred to in sub-paragraph (b) is at least one year, within the meaning of regulation 2.A.4 (meaning of “pensionable service”: part-time service) in the case of a part-time member at the end of that date.

(7) The option under this regulation may only be exercised on no more than two occasions, and the Scottish Ministers must take advice from the scheme actuary regarding—

(a) any benefits to be paid after the exercise of the first option (but before the exercise of the second option);

(b) any benefits to be paid after the exercise of the second option; and

(c) the final payment.

(8) In this regulation “the option day” means the day before the reduction in pensionable pay by virtue of which the option is exercisable takes effect.

(9) For the purposes of this Part, a member who has exercised the option under this regulation—

(a) is a pensioner member as respects the specified percentage of the pension to which the member is immediately entitled as a result of exercising the option and the percentage of the pensionable service that represents as respects which the member is an active member on the option day;

(b) if the member continues in pensionable service after the option day, is an active member or a non-contributing member as respects—

(i) the pensionable service after that day in which the member continues; and

(ii) so much of the pensionable service as respects which the member is an active member or a non-contributing member on the option day as does not fall within sub-paragraph (a) (“the unspecified service”); and

(c) if the member does not continue in pensionable service after the option day, is a deferred member as respects the unspecified service.

(10) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.12.

Increase in pensionable pay following exercise of option under regulation 2.D.5

2.D.6.—(1) This regulation applies if, in a case where a member has exercised the option under regulation 2.D.5 (partial retirement: members aged at least 55)—

(a) during the period of 12 months beginning with the day after the option day, the terms on which the member holds the employment or employments referred to in regulation 2.D.5(1)(a) change again; and

(b) either—

(i) as a result the member’s pensionable pay in that employment or those employments is increased to more than 90% of the member’s pensionable pay during the period 12 months ending with the option day; or

(ii) following an increase referred to in head (i), the member’s pensionable pay in that employment or those employments is reduced to less than 90% of the member’s pensionable pay during the period of 12 months ending with the option day.

(2) In the circumstances referred to in—

(a) paragraph (1)(b)(i), the amount of the member’s pension mentioned in regulation 2.D.5(5)(a) and (b) must be abated to zero from the first pension day immediately following the day on which the level of the member’s pensionable pay increased; and

(b) paragraph (1)(b)(ii), subject to any adjustments in accordance with paragraph (3), the member is again entitled to receive payment of the full amount of the pension mentioned in sub-paragraphs (a) and (b) of that regulation as from the first pension day immediately following the day on which the level of the member’s engagement reduced.

(3) Where paragraph (2)(b) applies, before restoring the payment of a pension, the Scottish Ministers must have regard to the advice of the scheme actuary as to whether the amount of the pension should be adjusted in view of the length of time during which it was abated to zero in accordance with paragraph (2)(a).

(4) If the member was not an active member or a non-contributing member during the whole of the period of 12 months mentioned in paragraph (1)(b)(i), that paragraph applies as if the member’s pensionable pay during that period were—

where—

PP is the member’s pensionable pay for the part of that period during which the member was an active member or a non-contributing member; and

N is the number of days in that period on which the member was an active member or a non-contributing member.

(5) If, in the opinion of the Scottish Ministers, had the terms and conditions of the member’s employment remained the same after the option day (apart from pensionable pay), the annual rate of pensionable pay for the employment as at the time of the change mentioned in paragraph (1)(a) would have exceeded the annual rate referred to in paragraph (1)(b)(i)—

(a) paragraph (2)(a) does not apply; and

(b) this regulation applies as if paragraph (1)(b)(i) referred to that annual rate instead of the actual annual rate.

(6) For the purposes of this regulation, if during the period of 12 months beginning with the day after the option day the member enters a further employment or employments in which the member is an active member or a non-contributing member of this Section of the scheme—

(a) that event is to be treated as if the terms on which the member holds the employment in respect of which the option was exercised (“the option employment”) had changed again; and

(b) the member’s pensionable pay in the further employment is to be treated as an increase in the member’s pay in the option employment.

(7) In this regulation “the option day” has the same meaning as regulation 2.D.5(8).

Application of regulations 2.D.5 and 2.D.6 where concurrent part-time employments held

2.D.7.—(1) This regulation provides for the application of regulations 2.D.5 (partial retirement: members aged at least 55) and 2.D.6 (increase in pensionable pay following exercise of option) if a person is an active member or a non-contributing member in two or more part-time employments held concurrently on the option day.

(2) Those regulations apply in relation to each of the employments as if it were the only employment held by the member on that day, but subject to the following modifications.

(3) In regulation 2.D.5(1) for sub-paragraph (d) substitute—

“(d) as a result the sum of the annual rate of the member’s pensionable pay in that employment and every other employment held by the member on the option day is reduced to 90% or less of the sum of—

(i) the member’s pensionable pay in the employment during the period of 12 months ending with the option day; and

(ii) the member’s pensionable pay during that period in every other employment held by the member on the option day.”.

(4) In regulation 2.D.5(2)—

(a) after “paragraph (1)(d)” insert “in the employment or any other employment referred to in that paragraph”; and

(b) after “that period” insert “in that employment”.

(5) For regulation 2.D.6(1)(b) substitute—

“(b) as a result the annual rate of the member’s pensionable pay in that employment is increased to more than 90% of the sum of—

(i) the member’s pensionable pay in the employment during the period of 12 months ending with the option day; and

(ii) the member’s pensionable pay during that period in every other employment held by the member on the option day.”.

(6) In regulation 2.D.6(4) (increase in pensionable pay following exercise of option)—

(a) after “paragraph (1)(b)(i)” insert “in the employment or any other employment referred to in that paragraph”; and

(b) after “that period” insert “in that employment”.

(7) For regulation 2.D.6(5) substitute—

“(5) If, in the opinion of the Scottish Ministers, had the terms and conditions of the member’s employment or any other such employment remained the same after the option day (apart from pensionable pay), the annual rate of pensionable pay for the employment as at the time of the change mentioned in paragraph (1)(a) would have exceeded the annual rate referred to in paragraph (1)(b) for that employment—

(a) paragraph (2)(a) does not apply; and

(b) this regulation applies as if paragraph (1)(b) referred to that annual rate instead of the actual annual rate.”.

(8) Where—

(a) a member’s pension is abated in accordance with regulation 2.D.6(2)(a), in the circumstances described in regulation 2.D.6(1)(b); and

(b) the member’s pensionable pay does not reduce in the manner described in regulation 2.D.6(1)(b)(ii),

the pension is (in any event) payable by the Scottish Ministers when the member retires, or partially retires again, from pensionable employment or attains age 75 and in doing so the Scottish Ministers must—

(i) have regard to any pensions already paid, including any lump sum paid as a result of the member exercising an option under regulation 2.D.14 (general option to exchange part of pension for lump sum); and

(ii) take the advice of the scheme actuary.

Early retirement on ill health: active members and non-contributing members

2.D.8.—(1) A pension payable under this regulation (an “ill health pension”) may be paid at two different tiers to be known as a lower tier ill health pension and an upper tier ill health pension.

(2) An active member or a non-contributing member who has not reached age 65 and who has ceased to be employed in NHS employment is entitled to immediate payment of a lower tier ill health pension that is payable for life if—

(a) in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of discharging the duties of the member’s employment efficiently;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(c) the member has at least two years of qualifying service; and

(d) the member has claimed the pension.

(3) An active member who has not reached age 65 is entitled to immediate payment of an upper tier ill health pension if—

(a) in addition to meeting the condition in paragraph (2)(a), in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of engaging in regular employment of like duration;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(c) the member has at least two years of qualifying service; and

(d) the member has claimed the pension.

(4) The annual amount of a lower tier ill health pension (disregarding any additional pension) is to be calculated as specified in regulation 2.D.1(4) (normal retirement pensions).

(5) The annual amount of an upper tier ill health pension (disregarding any additional pension) is to be calculated as specified in regulation 2.D.1(4), but on the assumption that the member’s pensionable service—

(a) is increased by the enhancement period where the member has returned to pensionable employment 12 months or more after having a break in such service and it would be more favourable to the member to treat the member’s pensionable service before and after the break, and all such other breaks (if any), as continuous; and

(b) is not increased by the enhancement period in the circumstances referred to in sub-paragraph (a) if—

(i) the member’s pensionable service before and after the break is treated separately under regulation 2.G.2 (general rule: separate treatment of service etc.); or

(ii) the member’s pensionable service in respect of an earlier service credit is treated separately under regulation 2.K.7.

(6) Subject to paragraph (7), in this regulation “the enhancement period” means two-thirds of the member’s assumed pensionable service.

(7) If the member’s pensionable service includes any period which, apart from this paragraph would be calculated in accordance with regulation 2.A.4 (meaning of “pensionable service”: part-time service), the enhancement period that would apply apart from this paragraph is to be reduced by multiplying it by the fraction—

where—

TPSa is the member’s total pensionable service, applying that regulation in respect of any period in part-time employment; and

TPSn is the member’s total pensionable service if that regulation were not applied.

(8) Subject to paragraph (9), in this regulation “the member’s assumed service” means the further pensionable service that the member could have counted if the member had continued in service until reaching age 65.

(9) To the extent that any increase under paragraph (8) would cause a member’s pensionable service to exceed the limit of 45 years provided for in regulation 2.A.3(3) (meaning of “pensionable service”), the amount of any excess is to be reduced accordingly.

(10) This regulation is subject to—

(a) regulation 2.G.4 (effect of re-employment on upper tier ill health pensions); and

(b) regulation 2.G.5 (re-employed lower tier ill health pensioners).

(11) A member does not qualify for a pension under this regulation if the member’s NHS employment has been terminated by the member—

(a) being dismissed from such employment (unless the Scottish Ministers are satisfied that the member was dismissed because of the member’s infirmity);

(b) retiring or resigning from such employment at a time when the member was the subject of disciplinary proceedings or had been notified that such proceedings were being contemplated; or

(c) otherwise retiring or resigning from such employment unless at the time of doing so the member’s employing authority notified the Scottish Ministers in writing that the member’s physical or mental infirmity is the reason for the termination of that employment and the Scottish Ministers are satisfied that is the case.

(12) For the purposes of determining whether a member is permanently incapable of discharging the duties of the member’s employment efficiently under paragraph (2)(a), the Scottish Ministers must have regard to the factors in paragraph (14) (no one of which is decisive) and disregard the member’s personal preference for or against engaging in that employment.

(13) For the purposes of determining whether a member is permanently incapable of engaging in regular employment of like duration under paragraph (3)(a), the Scottish Ministers must have regard to the factors in paragraph (15) (no one of which is decisive) and disregard the factors in paragraph (16).

(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;

(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.

(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) 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 due 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 due 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.

(16) The factors to be disregarded for paragraph (13) are—

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

(b) the geographical location of the member.

(17) In 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)

discharging the duties of the member’s employment efficiently under paragraph (2)(a); or

(ii)

engaging in regular employment of like duration under paragraph (3)(a),

before the member reaches age 65; or

(c)

that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches age 65;

“permanently” means—

(a)

the period until age 65; and

(b)

in the case of a 2008 Section Optant who, before joining this Section, was assessed by a medical adviser as being—

(i)

permanently incapable of efficiently discharging the Optant’s duties for the purposes of regulation E3(2)(b)(i) (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations, that Optant must be deemed to be permanently incapable of discharging the duties of the Optant’s employment efficiently for the purposes of paragraph (2)(a); or

(ii)

permanently incapable of regular employment of like duration for the purposes of regulation E3(2)(b)(ii) of the 2011 Regulations, that Optant must be deemed to be permanently incapable of engaging in regular employment of like duration for the purposes of paragraph (3)(a); and

“regular employment of like duration” means—

(a)

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

(b)

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

(i)

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

(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 employment.

(18) In the case of a 2008 Section Optant, this regulation is subject to regulations 2.K.12 and 2.K.14 to 2.K.18.

(19) In the case of a Waiting Period Joiner, this regulation is subject to regulation 2.L.3.

Re-assessment of entitlement to an ill health pension determined under regulation 2.D.8

2.D.9.—(1) This regulation applies if—

(a) in the opinion of the Scottish Ministers a member meets the condition in regulation 2.D.8(2)(a) (early retirement on ill health: active members and non-contributing members); and

(b) at the time the member is awarded a pension under that regulation the Scottish Ministers give the member notice in writing 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 meets the condition in regulation 2.D.8(3)(a) at the date of such a consideration.

(2) A member to whom a notice under paragraph (1)(b) has been given may apply to the Scottish Ministers for a review of whether the member subsequently meets the condition in regulation 2.D.8(3)(a) if—

(a) the member makes the application in writing—

(i) within three years of the date of issue of the notice; or

(ii) in the case of a member who engages in further NHS employment during the period of three years referred to in paragraph (1)(b), before the first anniversary of the day on which that employment commences or, if sooner, before the end of that period;

(b) the application for a review is accompanied by further written medical evidence—

(i) relating to whether the condition in regulation 2.D.8(3)(a) is satisfied at the date of the Scottish Ministers’ review; and

(ii) that evidence relates to the same physical or mental impairment as a result of which the member met the condition in regulation 2.D.8(2)(a);

(c) no previous application for a review has been made under this paragraph; and

(d) the member has not become entitled to an upper tier ill health pension in respect of any later service under regulation 2.G.5 (re-employed lower tier ill health pensioners).

(3) If, after considering the further medical evidence provided by the member, the Scottish Ministers determine that the member meets the condition in regulation 2.D.8(3)(a), then as from the date on which that determination is made the member—

(a) ceases to be entitled to a lower tier ill health pension; and

(b) becomes entitled to an upper tier ill health pension under regulation 2.D.8, which is to be calculated as if paragraph (8) of that regulation included the words “from the date of the Scottish Ministers’ determination under regulation 2.D.9” after “continued in service”.

(4) In the case of a 2008 Section Optant, this regulation is subject to regulations 2.K.16 and 2.K.17.

Early retirement on ill health: deferred members

2.D.10.—(1) A deferred member who has not reached age 65 is entitled to immediate payment of a pension that is payable for life if—

(a) in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of engaging in regular employment of like duration; and

(b) the member has claimed the pension.

(2) A deferred member who is in NHS employment and has not reached age 65 is entitled to immediate payment of a pension that is payable for life if—

(a) in the opinion of the Scottish Ministers the member—

(i) does not fall within paragraph (1)(a); and

(ii) suffers from physical or mental infirmity as a result of which the member is permanently incapable of discharging the duties of the member’s employment efficiently; and

(b) the member has left that employment and claimed the pension.

(3) The amount of the annual pension payable under this regulation (disregarding any additional pension) is calculated as specified in regulation 2.D.1(4) (normal retirement pensions).

(4) For the purposes of determining whether a member is permanently incapable of discharging the duties of the member’s employment efficiently under paragraph (2)(a)(ii), the Scottish Ministers must have regard to the factors in paragraph (6) (no one of which is decisive) and disregard the member’s personal preference for or against engaging in that employment.

(5) For the purposes of determining whether a member is permanently incapable of engaging in regular employment of like duration under paragraph (1)(a), the Scottish Ministers must have regard to the factors in paragraph (7) (no one of which is decisive) and disregard the factors in paragraph (8).

(6) The factors to be taken into account for paragraph (4) 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.

(7) The factors to be taken into account for paragraph (5) are—

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

(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 due 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 due 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.

(8) The factors to be disregarded for paragraph (5) are—

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

(b) the geographical location of the member.

(9) In 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)

discharging the duties of the member’s employment efficiently under paragraph (2)(a)(ii); or

(ii)

engaging in regular employment of like duration under paragraph (1)(a),

before the member reaches age 65; or

(c)

would, through no fault on the part of the member, not be possible for the member to receive before the member reaches age 65;

“permanently” means the period until age 65; 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 employment that was pensionable 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,

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

(10) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.12.

Early retirement on termination of employment by employing authority

2.D.11.—(1) A member other than a non-GP provider who has reached age 55, but not age 65, is entitled to a pension payable for life if—

(a) the employment in which the member is an active member or a non-contributing member is terminated by the member’s employing authority and the member has ceased to be employed in NHS employment;

(b) the member has two years of qualifying service;

(c) the member’s employing authority certifies that the member—

(i) has at least two years’ continuous employment determined in accordance with any terms and conditions applying to the employment;

(ii) is entitled to claim a pension under this regulation if the member’s employment is terminated by reason of redundancy as an alternative to receiving the lump sum payment (in whole or in part) otherwise payable to the member in accordance with those terms and conditions; and

(iii) has not unreasonably refused to seek suitable alternative employment or accept an offer of such employment;

(d) the Scottish Ministers certify that the member’s employment is terminated—

(i) by reason of redundancy; or

(ii) in the interests of the efficiency of the service in which the member is employed; and

(e) the member has claimed payment of the pension.

(2) A certificate under paragraph (1)(d)(ii) may only be given with the agreement of the employing authority.

(3) A pension to which a member is entitled under this regulation becomes payable as soon as the member becomes entitled to it.

(4) Subject to paragraph (6), the amount of the annual pension payable under this regulation (disregarding any additional pension) is given by the formula—

where—

RP is the member’s reckonable pay; and

LPS is the length of the member’s pensionable service, expressed in days.

(5) A claim under paragraph (1)(e)—

(a) must be made in writing to the Scottish Ministers within 6 months of the employment terminating; and

(b) must contain such information as the Scottish Ministers may from time to time require.

(6) If—

(a) the member has received a related payment in respect of the cessation of the employment;

(b) the terms and conditions relating to the employment require that payment to be reduced to take account of the additional contributions the employing authority must make to the Scottish Ministers in accordance with regulation 2.C.6 (contributions by employing authorities: early retirement on termination of employment); and

(c) that payment has not been so reduced,

the amount of that payment (or, if there is more than one such payment, the aggregate amount of those payments) is to be deducted from the amount of the pension.

(7) In paragraph (6) “related payment” means—

(a) a redundancy payment under the Employment Rights Act 1996(2); or

(b) a corresponding payment under the arrangement of the Whitley Councils for the Health Services of Great Britain.

(8) This regulation does not apply to practice staff.

(9) In the case of a 2008 Section Optant, this regulation is subject to regulation 2.K.12.

Option to have periods of service treated separately where pay is reduced

2.D.12.—(1) This regulation applies if—

(a) the reckonable pay of an active member who has at least two years of qualifying service is reduced; and

(b) the reduction occurs in circumstances specified in paragraph (2).

(2) The circumstances are that—

(a) the member is transferred from one employment to another;

(b) the member leaves one employment and takes up another in circumstances approved by the Scottish Ministers for the purposes of this regulation; or

(c) the member’s duties change while the member continues in the same employment, otherwise than at the member’s request or as a result of something done by the member.

(3) The member may opt to be treated for the purposes of this Section of the scheme—

(a) as a deferred member of this Section of the scheme as respects the earlier service; and

(b) if the member is an active member of this Section of the scheme in the later service, for the purposes of this Chapter as respects the later service as if the member became an active member for the first time on the day that service began.

(4) Nothing in paragraph (3) prevents the member’s earlier service and later service counting as a single continuous period for the purposes of regulation 2.A.6 (meaning of “qualifying service”).

(5) If the member’s pensionable service is to be increased under regulation 2.D.8(5)—

(a) the member’s pensionable service counts as a continuous period for the purposes of calculating to what extent the pensionable service on which the pension is based should be increased; and

(b) the increase applies only in respect of the pension attributable to the later service.

(6) If a member has duly exercised the option under this regulation, the member is to be treated as mentioned in paragraph (3) (but subject to paragraphs (4) and (5)) unless paragraph (7) applies.

(7) This paragraph applies if—

(a) at the time that the member first becomes entitled to a pension under this Section of the scheme in respect of the earlier service or the later service; or

(b) if it is earlier, at the time of the member’s death,

in the opinion of the Scottish Ministers the benefits payable to or in respect of the member would be more valuable if the option and any other options exercised by the member under this regulation were disregarded.

(8) The option under this regulation may only be exercised by giving notice in writing to the Scottish Ministers in such form as the Scottish Ministers require before the end of the period of three months beginning with the first day of the later service.

(9) In this regulation—

“the earlier service” means—

(a)

in the case of a change of circumstances within paragraph (2)(a) or (b), the service in the employment that the member has left; and

(b)

in the case of a change of circumstances within paragraph (2)(c), the service in the employment before the change in the member’s duties took effect; and

“the later service” means—

(a)

in the case of a change of circumstances within paragraph (2)(a) or (b), the service in the employment that the member has begun; and

(b)

in the case of a change of circumstances within paragraph (2)(c), the service in the employment after the change in the member’s duties took effect.

Exceptions to requirement that NHS employment must have ceased

2.D.13.—(1) A member is not prevented from becoming entitled to a pension under regulation 2.D.1 (normal retirement pensions) in respect of relevant service because of continuing in NHS employment if paragraph (2) applies.

(2) This paragraph applies if—

(a) the member is an active member or a non-contributing member in the NHS employment and that employment is employment into which the member has been transferred as a result of a transfer of an undertaking to the employing authority; and

(b) the member is a deferred member in respect of pensionable service that ceased before the member commenced the employment referred to in sub-paragraph (a)(3).

(3) In paragraph (1), “relevant service” means the pensionable service referred to in paragraph (2)(b) in respect of which the member is a deferred member.

(4) A member is not prevented from becoming entitled to a pension under regulation 2.D.11 (early retirement on termination of employment by employing authority) in respect of pensionable service in an employment (“the old employment”) because of continuing in NHS employment if paragraph (5) applies.

(5) This paragraph applies if—

(a) before the termination of the old employment the member held two or more NHS employments concurrently; and

(b) the member elected to take benefits under regulation 2.D.11 only in respect of the old employment and to continue to accrue rights to benefits in respect of any continuing employments in which the member is an active member.

(1)

1967 c.28. Section 7 was amended by S.I. 1968/1699, section 10(5) of, and paragraph 66 of Schedule 6 and Schedule 8 to, the Superannuation Act 1972 (c.11), Schedule 5 to the National Health Service Reorganisation Act 1973 (c.32), paragraph 24 of Schedule 16 to the National Health Service (Scotland) Act 1978 (c.29) and paragraph 29 of Schedule 1 to the National Health Service (Consequential Provisions) Act 2006 (c.43).

(2)

1996 c.18.

(3)

For the effect of a pension becoming payable as a result of paragraph (2) applying, see Chapter 2.G (re-employment and rejoining the scheme) and Chapter 2.H (abatement).