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

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CHAPTER 2.JMISCELLANEOUS AND SUPPLEMENTARY PROVISIONS

Scheme administrator

Appointment of scheme administrator

2.J.1.  For the purposes of this Part and of Part 4 (registered pension schemes: tax reliefs and exceptions) of the 2004 Act, the scheme administrator is the Scottish Public Pensions Agency.

Claims

Claims for benefits

2.J.2.—(1) A person claiming to be entitled to benefits under this Part (“the claimant”) must make a claim in writing to the Scottish Ministers.

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

(a)evidence of entitlement;

(b)information required in order to deal with the claim; and

(c)authority or permission as may be necessary for the release by third parties of information in the claimant’s or employing authority’s possession relating to the claimant or member,

as the Scottish Ministers may from time to time require for the purposes of this Part.

(3) A claim referred to in paragraph (1) may be made by a person or persons other than the claimant where the Scottish Ministers so provide.

(4) Any claim for benefit required in writing under this Part, and any evidence, information, authority or permission given in connection with that claim, may be made or given by means of an electronic communication where such method of communication is approved by the Scottish Ministers.

(5) In this regulation, “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000(1).

Provision of information

Provision of information: continuing entitlement to benefit

2.J.3.—(1) The Scottish Ministers may specify a date by which a person who is in receipt of a benefit under this Section of the scheme is to provide the Scottish Ministers with all or any of the following material—

(a)evidence of the person’s identity;

(b)the person’s contact details; and

(c)evidence of the person’s continuing entitlement to the benefit.

(2) Where a person fails to provide the material referred to in paragraph (1) in accordance with that paragraph the Scottish Ministers may withhold all, or any part, of any benefit payable to that person.

Power to extend time limits

Power to extend time limits

2.J.4.  The Scottish Ministers may extend any time limit mentioned in this Part as it applies in any particular case.

Beneficiaries who are incapable of looking after their affairs

Beneficiaries who are incapable of looking after their affairs

2.J.5.—(1) In the case of a beneficiary who, in the opinion of the Scottish Ministers, is by reason of illness, mental disorder, minority or otherwise unable to look after the beneficiary’s affairs, the Scottish Ministers may—

(a)use any amount due to the beneficiary under this Section of the scheme for the beneficiary’s benefit; or

(b)pay it to some other person to do so.

(2) Payment of an amount to a person other than the beneficiary under paragraph (1) discharges the Scottish Ministers from any obligation under this Section of the scheme in respect of the amount.

Commutation of small pensions

Commutation of small pensions

2.J.6.—(1) The Scottish Ministers may pay any person entitled to a pension under this Section of the scheme a lump sum representing the capital value of the pension and of any benefits that might have become payable under this Section of the scheme on the person’s death apart from the payment if the conditions specified in paragraph (2) are met.

(2) The conditions are that the payment complies with the following requirements (so far as they apply)—

(a)the contracting-out requirements;

(b)the preservation requirements;

(c)regulation 2 of the Occupational Pension Schemes (Assignment, Forfeiture, Bankruptcy etc.) Regulations 1997(2);

(d)the lump sum rule (see, in particular, paragraph 7 (trivial commutation lump sums) of Schedule 29 to the 2004 Act);

(e)the lump sum death benefit rule (see, in particular, paragraph 20 (trivial commutation lump sum death benefit) of that Schedule); and

(f)regulation 12 (payments by larger pension schemes) of the Registered Pension Schemes (Authorised Payments) Regulations 2009(3).

(3) The lump sum must be calculated by the Scottish Ministers in accordance with advice from the scheme actuary.

(4) The payment of a lump sum under this regulation discharges all liabilities of the Scottish Ministers in respect of the pension in question and of any other such benefits as mentioned in paragraph (1).

Reduction in and forfeiture of benefits

Reduction in benefits in cases where loss caused by member’s crime, negligence or fraud

2.J.7.—(1) If, as a result of a member’s criminal, negligent or fraudulent act or omission, a loss to public funds occurs that arises out of or is connected with the member’s employment relationship with the member’s employer, the Scottish Ministers—

(a)may reduce any pension or other benefit payable to, or in respect of, the member under these Regulations by an amount less than or equal to the loss; or

(b)in a case where the loss equals or exceeds the value of the pension or other benefit, reduce them to nil or by any amount less than that value.

(2) Paragraph (1) does not apply so far as the pension or other benefit—

(a)is a guaranteed minimum pension or safeguarded rights which are derived from rights to such a pension; or

(b)arise out of a transfer payment.

(3) If the Scottish Ministers propose to exercise the power under paragraph (1), the Scottish Ministers must give the member a certificate specifying the amount of the loss to public funds and of the reduction in benefits.

(4) If the amount of the loss is disputed, no reduction may be made under paragraph (1) until the member’s obligation to make good the loss has become enforceable—

(a)under the order of a competent court; or

(b)in consequence of an award of an arbiter to be appointed (failing agreement by the parties) by the sheriff, or, in England and Wales an arbitrator.

(5) If the loss is suffered by an employing authority, the amount of any reduction under paragraph (1) must be paid to that authority.

Forfeiture of rights to benefits

2.J.8.—(1) The Scottish Ministers may direct that all or part of any rights to benefits or other amounts payable to or in respect of a member under these Regulations be forfeited if—

(a)the member is convicted of any of the offences specified in paragraph (2); and

(b)the offence was committed before the benefit or other amount becomes payable.

(2) The offences are—

(a)an offence in connection with employment that qualifies the member to belong to this Section of the scheme, in respect of which the Scottish Ministers have issued a forfeiture certificate; and

(b)one or more offences under the Official Secrets Acts 1911 to 1989(4) for which the member has been sentenced on the same occasion to—

(i)a term of imprisonment of at least 10 years; or

(ii)two or more consecutive terms amounting in the aggregate to at least 10 years.

(3) In paragraph (2)(a) “forfeiture certificate” means a certificate that the Scottish Ministers are satisfied that the offence—

(a)has been gravely injurious to the State; or

(b)is liable to lead to serious loss of confidence in the public service.

(4) The Scottish Ministers may direct that all or part of any rights to benefits or other amounts payable in respect of a member under these Regulations be forfeited where the benefits or amounts are payable to a person to whom paragraph (5) applies who has been convicted of the murder or culpable homicide of that member or of any other offence of which unlawful killing of that member is an element.

(5) This paragraph applies to a person who is—

(a)the member’s widow, widower, surviving nominated partner or surviving civil partner;

(b)a dependant of the member;

(c)a person not falling within sub-paragraph (a) or (b) who is specified in a notice given under regulation 2.E.22(3) (payment of lump sums or pensions on death); or

(d)a person to whom such benefits or amounts are payable under the member’s will or on the member’s intestacy.

(6) A guaranteed minimum pension or safeguarded rights which are derived from rights to such pensions may be forfeited only if paragraph (1) applies in the case of an offence within paragraph (2)(b).

Provisions about tax

Deduction of tax

2.J.9.—(1) The Scottish Ministers may deduct from any payment under this Section of the scheme any tax which is required to be paid in respect of it.

(2) Without prejudice to the generality of paragraph (1), if a person becoming entitled to a benefit under this Part—

(a)which is a benefit crystallisation event under section 216 (benefit crystallisation events and amounts crystallised) of the 2004 Act; and

(b)a lifetime allowance charge under section 214 (lifetime allowance charge) of the 2004 Act arises when that event occurs,

the tax charged must be paid by the scheme administrator.

(3) Paragraph (4) applies if—

(a)a member has given the scheme administrator a statement in accordance with regulation 2.E.23 (tax treatment of lump sums payable on pensioners’ deaths) that a lump sum payable under that regulation is to be treated as a pension protection lump sum death benefit in accordance with paragraph 14 of Schedule 29 to the 2004 Act; and

(b)has not withdrawn that statement.

(4) Without prejudice to the generality of paragraph (1), before the lump sum is paid, the scheme administrator may deduct the tax payable under section 206 (special lump sum death benefits charge) of the 2004 Act(5) from the lump sum.

(5) Paragraph (6) applies if—

(a)a lump sum is payable on the death of a pensioner member in accordance with regulation 2.E.17(2) (amount of lump sum: single capacity members and recent leavers); and

(b)that lump sum is payable in respect of a member who had reached age 75 at the date of the member’s death.

(6) Without prejudice to the generality of paragraph (1), before the lump sum is paid, the scheme administrator may deduct the tax payable under section 206 (special lump sum benefits charge) of the 2004 Act from the lump sum.

(7) Paragraph (8) applies if—

(a)an active member, a non-contributing member or a pension credit member exercises the option in regulation 2.D.15(1) (option for members in serious ill health to exchange whole pension for lump sum) to exchange a relevant pension for a lump sum in accordance with paragraph (3)(a) of that regulation; and

(b)that lump sum payment is to be made to a member who has reached age 75.

(8) Without prejudice to the generality of paragraph (1), before the lump sum is paid, the scheme administrator may deduct the tax payable under section 205A (serious ill health lump sum charge)(6) of the 2004 Act from the lump sum.

(9) Without prejudice to the generality of paragraph (1), a person who—

(a)is liable to an annual allowance charge in accordance with section 237A (liability of individual)(7) of the 2004 Act; and

(b)meets the conditions specified in paragraph (1) of section 237B (liability of scheme administrator)(8) of the 2004 Act,

may give notice in writing to the scheme administrator specifying that the scheme administrator and the person are to be jointly and severally liable for the payment of the annual allowance charge due in respect of that person in accordance with section 237B of the 2004 Act.

(10) Unless the scheme administrator’s liability to an annual allowance charge referred to in paragraph (9) is discharged in accordance with section 237D (discharge of scheme administrator’s liability)(9) of the 2004 Act—

(a)that annual allowance charge is to be paid by the scheme administrator on behalf of the member; and

(b)the member’s present or future benefits in respect of which that charge arises are to be adjusted in accordance with section 237E (consequential benefit adjustments to be reasonable etc.)(10) of the 2004 Act and calculated by reference to advice provided by the scheme actuary for that purpose.

Interest on delayed payments

Interest on late payment of benefits and refunds of contributions

2.J.10.—(1) This regulation applies if the whole or part of an amount to which this regulation applies is not paid by the end of the period of one month beginning with the due date.

(2) This regulation applies to any amount payable by way of a pension, lump sum or refund of contributions under this Section of the scheme (other than any amount due under regulation 2.C.5 (contributions by employing authorities: general) or 2.C.6 (contributions by employing authorities: early retirement on termination of employment) or interim or substitute award.

(3) The Scottish Ministers must pay interest on the amount of a pension, lump sum, refund of contributions or an interim or substitute award which is unpaid (“the unpaid amount”) to the person to whom it should have been paid unless the Scottish Ministers are satisfied that the unpaid amount was not paid on the due date because of some act or omission on the part of the member or other person to whom it should have been paid.

(4) The interest on the unpaid amount is calculated at the base rate on a day to day basis from the due date for the amount to the date of its payment and compounded with three monthly rests.

(5) In this regulation, except where paragraph (6) applies, “due date” in relation to an unpaid amount (other than an unpaid amount in respect of an interim or substitute award) means—

(a)in the case of an amount in respect of a pension or lump sum payable to a member under Chapter 2.D (members’ retirement benefits) or a lump sum under regulation 2.K.12 (amount of pension and lump sum to be paid to a 2008 Section Optant), the day immediately following that of the member’s retirement from pensionable employment;

(b)in the case of an amount in respect of a pension payable on a member’s death, other than a pension payable under regulation 2.E.21 (pension payable when member dies on or after reaching age 75), the day after the date of death;

(c)in the case of an amount in respect of a lump sum under Chapter 2.E (death benefits) that is payable to the member’s personal representatives, the earlier of—

(i)the date on which confirmation of an executor nominate or dative was produced to the Scottish Ministers; and

(ii)the date on which the Scottish Ministers were satisfied that the lump sum may be paid as provided in regulation 2.E.22(9) (payment of lump sums or pensions on death);

(d)in the case of an amount in respect of any other lump sum under that Chapter, the day after the date of the member’s death;

(e)in the case of an amount in respect of a refund of contributions, the day after that on which the Scottish Ministers received from the Commissioners of Her Majesty’s Revenue and Customs the information required for the purposes of calculating the amount to be subtracted under regulation 2.C.18(3) or (4) (repayment of contributions); and

(f)in the case of an amount in respect of a pension under regulation 2.E.21 that is payable to—

(i)the member’s personal representatives, the date on which any document that is by law sufficient evidence of the grant of confirmation as executor of the member, was 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 2.E.22(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.

(6) The due date for an unpaid amount—

(a)referred to in paragraph (5) in respect of which the Scottish Ministers were not in possession of all the information necessary for the calculation of the amount of the pension, lump sum or refund of contributions referred to in that paragraph on the date which would, in accordance with paragraph (5), be the due date; and

(b)in respect of an interim or substitute award,

is the first day on which the Scottish Ministers are in possession of all the information necessary to calculate that pension, lump sum, refund of contributions or interim or substitute award.

(7) In this regulation, “interim or substitute award” means—

(a)any amount paid by way of an interim payment calculated by reference to an expected benefit under this Section of the scheme pending final calculation of the full value of that benefit;

(b)any amount paid that increases the amount of an earlier payment due to a backdated or subsequent increase in pensionable pay; and

(c)any amount paid that increases the amount of an earlier payment due to the payment of an upper tier ill health pension under regulation 2.D.8 (early retirement on ill health: active members and non-contributing members) paid to a member in substitution for a lower tier ill health pension under that regulation following a determination by the Scottish Ministers under regulation 2.D.9 (re-assessment of entitlement to an ill health pension).

Determinations

Determination of questions

2.J.11.—(1) Except as otherwise provided by this Part, any question arising under this Section of the scheme is to be determined by the Scottish Ministers.

(2) Any such disagreement as is referred to in section 50 (resolution of disputes) of the 1995 Act must be resolved by the Scottish Ministers in accordance with any arrangements applicable under that section.

(3) In relation to decisions within paragraph (4), the Scottish Ministers may require any person entitled, or claiming to be entitled, to a benefit under this Part to submit to a medical examination by a registered medical practitioner(11) selected by the Scottish Ministers and in that event, the Scottish Ministers must also offer the person an opportunity of submitting a report from the person’s own medical adviser as a result of an examination by that medical adviser, and the Scottish Ministers must take that report into consideration together with the report of the medical practitioner selected by the Scottish Ministers.

(4) This paragraph applies to any decision as to a person’s health or degree of physical or mental infirmity or impairment that is required for the purposes of this Part and, in particular, any such decision required for the purposes of—

(a)regulation 2.D.8(2)(a) or (3)(a) (early retirement on ill health: active members and non-contributing members);

(b)regulation 2.D.9(1)(a) or (b) or (3) (re-assessment of entitlement to an ill health pension);

(c)regulation 2.D.10(1)(a) or (2)(a) (early retirement on ill health: deferred members);

(d)regulation 2.D.15(1) (option for members in serious ill health to exchange pension);

(e)regulation 2.D.18(6)(b) (procedure for election under regulation 2.D.17);

(f)regulation 2.E.9(1)(b)(ii) (meaning of “dependent child”);

(g)regulation 2.J.5(1) (beneficiaries who are incapable of looking after their affairs); or

(h)determining whether an individual satisfies the severe ill health condition for the purposes of section 229(3)(a) (total pension input amount) of the 2004 Act.

General prohibition on unauthorised payments

General prohibition on unauthorised payments

2.J.12.  Nothing in these Regulations requires or authorises the making of any payment, which, if made, would be an unauthorised payment for the purposes of Part 4 (pension schemes etc.) of the 2004 Act (see definition of “unauthorised payment” in section 160(5) of that Part(12)).

Prohibition on assignment or charging of benefits

Prohibition on assignment or charging of benefits

2.J.13.—(1) Any assignment of, or charge on, or any agreement to assign or charge, any right to a benefit under this Section of the scheme is void.

(2) On the bankruptcy or sequestration of any person entitled to a benefit under this Section of the scheme, no part of the benefit may be paid to the person’s trustee in bankruptcy or other person acting on behalf of the creditors, except in accordance with an order under section 310 (income payments orders) of the Insolvency Act 1986(13).

Record keeping and contribution estimates

Employing authority and certain member record keeping and contribution estimates

2.J.14.—(1) As regards a member who is a non-GP provider who derives practitioner income from the contracts, agreements or payments referred to in regulation 2.A.9(6) (meaning of “pensionable pay”), in respect of each scheme year, the member must provide the contracting Health Board (or someone appointed to act on its behalf) with a certificate of the member’s pensionable earnings based on—

(a)the accounts drawn up in accordance with generally accepted accounting practice by the practice of which the member is a member; and

(b)the return that member has made to Her Majesty’s Revenue & Customs in respect of the member’s earnings for that year,

no later than one month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs.

(2) As regards a GMS practice, a section 17C agreement provider or an HBPMS contractor, in respect of each scheme year, the practice or contractor must provide the Scottish Ministers with a statement of estimated pensionable earnings in respect of any non-GP provider that is a section 17C agreement provider or HBPMS contractor or who assists in the provisions of NHS services provided by that GMS practice, section 17C agreement provider or an HBPMS contractor, at least one month before the beginning of that scheme year.

(3) Subject to paragraphs (4) and (5) if, in respect of a scheme year, a non-GP provider has failed to comply with the requirements of paragraph (1), the non-GP provider’s pensionable earnings for that scheme year must be zero.

(4) If, in respect of a scheme year—

(a)a non-GP provider has failed to comply with the requirements of paragraph (1);

(b)a benefit is payable for, or in respect of the non-GP provider’s service; and

(c)the non-GP provider’s employing authority is in possession of a figure representing all or part of the non-GP provider’s pensionable earnings for that year,

the Scottish Ministers may treat that figure as the amount of the non-GP provider’s pensionable earnings for that year.

(5) If, in respect of a scheme year, a non-GP provider—

(a)dies without complying with the requirements of paragraph (1); or

(b)is, in the opinion of the Scottish Ministers, unable to look after the non-GP provider’s own affairs by reason of illness or mental disorder,

the Scottish Ministers may require that non-GP provider’s personal representatives to provide the relevant certificate—

(i)within the period referred to in paragraph (1); or

(ii)within such other period as the Scottish Ministers permit.

(6) All employing authorities under this Part of the Regulations must, for each scheme year—

(a)provide the Scottish Ministers with a statement of estimated total contributions due to this Section of the scheme under regulation 2.C.1 (contributions by members) and 2.C.5 (contributions by employing authorities: general); and

(b)maintain records of contributions to this Section of the scheme made under regulations 2.C.1 and 2.C.5.

(7) The statement referred to in paragraph (6)(a) must be provided to the Scottish Ministers no later than two months after the end of each scheme year.

(8) Except where the Scottish Ministers waive such requirement, an employing authority must provide the Scottish Ministers with a statement of contributions to this Section of the scheme recorded in accordance with paragraph (6)(b) no later than 2 months after the end of each scheme year.

(9) The certificates and statements referred to in this regulation—

(a)must be in such form as the Scottish Ministers may from time to time require; and

(b)may be provided to the Scottish Ministers in such manner as the Scottish Ministers may from time to time permit.

(1)

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

(2)

S.I. 1997/785. Section 2 was amended by S.I. 2005/706, 2006/744 and 778 and 2009/2930.

(3)

S.I. 2009/1171. Section 12 was amended by paragraph 17 of Schedule 20 to the Finance Act 2007 (c.11) and S.I. 2011/1751.

(5)

Section 206 was inserted by paragraph 41 of Schedule 16 to the Finance Act 2011 (c.11).

(6)

Section 205A was inserted by paragraph 14 of Schedule 16 to the Finance Act 2011 (c.11).

(7)

Section 237A was inserted by paragraph 15 of Schedule 17 to the Finance Act 2011 (c.11).

(8)

Section 237B was inserted by paragraph 15 of Schedule 17 to the Finance Act 2011 (c.11).

(9)

Section 237D was inserted by paragraph 15 of Schedule 17 to the Finance Act 2011 (c.11).

(10)

Section 237E was inserted by paragraph 15 of Schedule 17 to the Finance Act 2011 (c.11).

(11)

“Registered medical practitioner” is defined in Schedule 1 to the Interpretation Act 1978 (c.30), as amended by S.I. 2002/3135.

(12)

Section 160 was amended by the Finance Act 2006 (c.25), Schedules 21 and 23 and the Finance Act 2007 (c.11), Schedule 20, paragraph 5.

(13)

1986 c.45. Section 310 was amended by paragraph 15 of Schedule 3 to the Pensions Act 1995 (c.26), paragraph 2 of Schedule 2 to the Welfare Reform and Pensions Act 1999 (c.30), section 259(3) and (4) of, and Schedule 26 to, the Enterprise Act 2002 (c.40) and S.I. 2011/1730.

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