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

CHAPTER 3.B S MEMBERSHIP

Eligibility S

Eligibility: general S

3.B.1.—(1) A person is eligible to be an active member of this Section of the scheme [F1 on or after 1st April 2015] if conditions A to C are met and the person is not prevented by regulation 3.B.3 (restrictions on eligibility: general), 3.B.4 (concurrent employment) or 3.B.7 (restriction on further participation).

(2) Condition A is that the person is in practitioner service.

[F2 (3) Condition B is that the person—

(a) enters practitioner service on or after 1st April 2008 and has service (“relevant service”) as an active member of this Section of the scheme—

(i) on or before 1st April 2012, or

(ii) after 1st April 2012, but only where that service is pursuant to the provisions of Chapter 3.K;

(b) has not had a break in service for any one period of five years or more ending in the period starting on 2nd April 2012 and finishing on 1st April 2015; and

(c) meets all of the “other Section conditions” (see paragraph (5)).

(4) Condition C is that the person has not reached the age of 75 and was born on or before 31st August 1960.

(5) The “other Section conditions” are that—

(a) the person has not received a repayment of contributions under regulation 3.C.16 in respect of relevant service;

(b) the person’s rights under this Section of the scheme in respect of relevant service have not been extinguished under regulation 3.F.7;

(c) the person is not entitled to a repayment of contributions under regulation 3.C.16 by virtue of paragraph (2)(a) to (c) of that regulation.]

Textual Amendments

F1 Words in reg. 3.B.1(1) inserted (1.4.2015) by The National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (S.S.I. 2015/95), reg. 1(b), sch. 2 para. 15(a)

F2 Reg. 3.B.1(3)-(5) substituted for reg. 3.B.1(3)-(6) (1.4.2015) by The National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (S.S.I. 2015/95), reg. 1(b), sch. 2 para. 15(b)

Eligibility: transitional S

3.B.2.—(1) A person is eligible to be an active member of this Section of the scheme if—

(a) the person is not prevented from being so by regulation 3.B.3 (restrictions on eligibility: general), 3.B.4 (concurrent employment) or 3.B.7 (restriction on further participation); and

(b) either—

(i) the Scottish Ministers have accepted that person's option to join this Section of the scheme under Chapter 3.K (2008 Section Optants); or

(ii) that person meets all of the requirements in paragraph (2).

(2) Subject to the following paragraphs of this regulation, the requirements are that the person—

(a) is under age 75;

(b) was an active member of the 1995 Section on or after 1st April 2008;

(c) became a pensioner member of the 1995 Section on or before 1st October 2009;

(d) has either—

(i) returned to NHS employment since becoming a pensioner member referred to in sub-paragraph (c); or

(ii) commenced NHS employment for the first time; and

(e) is not eligible to be an active member of the 1995 Section in respect of the employment referred to in sub-paragraph (d).

(3) A person referred to in paragraph (2) is eligible to be an active member of this Section of the scheme from the day immediately following the end of Waiting Period A, if that person is entitled to a pension under one of the following regulations of the 2011 Regulations—

(a) E1 (normal retirement pensions);

(b) E3(3)(a) (lower tier ill health pension on early retirement (post 1st April 2008));

(c) E7 (early retirement pension (redundancy etc. new starters and post-transition)); or

(d) E11 (early retirement pension (with actuarial reduction)).

(4) A person referred to in paragraph (2) is eligible to be an active member of this Section of the scheme from the day immediately following the longer of Waiting Period A and Waiting Period B if that person is entitled to a pension under one of the following regulations of the 2011 Regulations—

(a) E2 (early retirement pension on ill health grounds (pre 1st April 2008)); or

(b) E6 (early retirement pension (redundancy etc.)).

(5) If a person referred to in paragraph (2) is entitled to a pension under regulation E3(3)(b) (upper tier ill health pension on early retirement (post 1st April 2008)) of the 2011 Regulations, that person is eligible to be an active member of this Section of the scheme from the day immediately following whichever of the following occurs last—

(a) the anniversary of that person entering NHS employment; or

(b) the end of Waiting Period A.

(6) A person to whom paragraph (1)(b)(i) or (3)(b) applies who is entitled to a lower tier ill health pension under regulation E3(3)(a) of the 2011 Regulations, ceases to be eligible to be an active member of this Section of the scheme from the date the Scottish Ministers make a determination that the person is entitled to an upper tier ill health pension in place of that lower tier ill health pension under regulation E4(3) (re-assessment of ill health condition determined under regulation E3) of those Regulations.

(7) In this regulation—

“Waiting Period A” means a period of two calendar years beginning on the day the person becomes entitled to the pension under the 2011 Regulations; and

“Waiting Period B” means a period beginning on the day the person becomes entitled to the pension under the 2011 Regulations equal to the calendar length of—

(a)

any increase in the person's pensionable service in the 1995 Section which has been applied in accordance with regulation E2(3) (early retirement pension on ill health grounds (pre 1st April 2008)) of the 2011 Regulations; or

(b)

any additional service with which the person has been credited in accordance with regulation 5 of the National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 2003 M1 .

(8) This regulation applies to any person who has previously been an active member of a corresponding 1995 scheme as though any reference to—

(a) the “1995 Section” includes a reference to that corresponding 1995 scheme;

(b) the “2011 Regulations” includes a reference to any regulations, orders, rules or other instruments governing that corresponding 1995 scheme;

(c) regulations “E1”, “E2”, “E3”, “E4(3)”, “E6”, “E7”, “E7(3)(a)”, “E7(3)(b)” or “E11” includes the equivalent of those regulations in a health service scheme the provisions of which correspond to the 2011 Regulations; and

(d) “regulation 5 of the National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 2003” includes the equivalent of that regulation as it applies to a member of a corresponding 1995 scheme.

Marginal Citations

M1 S.S.I. 2003/344, amended by S.S.I. 2005/445, 512 and 544, 2006/561, 2008/92 and 225 and 2011/211 and 364.

Restrictions on eligibility: general S

3.B.3.—(1) A person who is entitled to the immediate payment of a pension under this Section of the scheme under a regulation that requires the person not to be in NHS employment may only be an active member in accordance with—

(a) regulation 3.D.5 (partial retirement: members aged at least 55); or

(b) Chapter 3.G (re-employment and rejoining the scheme).

[F3 (1A) A person who was born on or after 1st September 1960 is not eligible to be an active member of this Section of the scheme in respect of practitioner service on or after 1st April 2015.

(1B) A person is not eligible to be an active member of this Section of the scheme if that person has had a break in service ending on or after 2nd April 2012, and any of the following apply—

(a) that break in service is for any one period of five years or more;

(b) that person receives a repayment of contributions under regulation 3.C.16 in respect of service before that break (see regulation 3.B.1(3)(a));

(c) that person becomes entitled to a repayment of contributions under regulation 3.C.16 by virtue of paragraph (2)(a) to (c) of that regulation in respect of service before that break; or

(d) that person’s rights under this Section of the scheme in respect of service before that break have been extinguished under regulation 3.F.7 because a transfer value payment is made in respect of them.

(1C) A person who on 1st April 2012 has attained the age of 55 may not contribute or accrue further pensionable service under this Section of the scheme unless that person—

(a) is on 1st April 2015 an active member of this Section of the scheme in accordance with regulation 3.B.1; or

(b) returns to NHS employment on or after 2nd April 2015 in circumstances where paragraph (1B)(a) does not apply.

(1D) Paragraph (1E) applies to a person—

(a) who on 1st April 2012 has attained the age of 51 years and 7 months but has not attained the age of 55; and

(b) whose eligibility cessation date has not been reached (see paragraph (1F)).

(1E) A person referred to in paragraph (1D) may not contribute or accrue further pensionable service under this Section of the scheme unless that person—

(a) is on 1st April 2015 an active member of this Section of the scheme in accordance with regulation 3.B.1; or

(b) returns to NHS employment on or after 2nd April 2015 in circumstances where paragraph (1B)(a) does not apply.

(1F) For the purposes of paragraph (1D), a person’s eligibility cessation date is to be determined according to the formula—

where—

• A is 1st April 2022;

• T is the number of months (rounded up to the nearest whole month) by which the person’s age on 1st April 2012 is less than 55.

(1G) For the purposes of paragraphs (1C)(b) and (1E)(b), any break in service where the member was in pensionable service in an existing scheme (within the meaning of Schedule 5 to the 2013 Act) is to be disregarded.

(1H) Paragraph (1I) applies to a person where, in the opinion of the Scottish Ministers—

(a) that person was previously an active member of a corresponding 2008 scheme;

(b) the regulations governing that corresponding scheme include provisions pursuant to subsection (5) of section 18 of the 2013 Act [F4 or subsection (5) of section 18 of the 2014 Act] that provide for exceptions to subsection (1) of [F5 those sections], and

(c) pursuant to those provisions, the member would have been eligible to re-join that corresponding scheme if the member had returned to NHS employment for the purposes of that scheme on the day the member commenced NHS employment within the meaning of these Regulations.

(1I) The Scottish Ministers may permit a person referred to in paragraph (1H) to join this Section of the scheme and, for the purposes of paragraphs (1C) to (1G), the member’s previous pensionable employment under the corresponding scheme referred to in paragraph (1H) will be treated as if it were previous pensionable employment under this Section of the scheme.

(1J) (Paragraph (1K) applies to a person where, in the opinion of the Scottish Ministers—

(a) that person was previously an active member in respect of service in an existing scheme (within the meaning of Schedule 5 to the 2013 Act [F6 or Schedule 5 to the 2014 Act]);

(b) that person is not receiving a pension in respect of that service on the relevant day;

(c) the regulations of that existing scheme include provisions pursuant to subsection (5) of section 18 of the 2013 Act [F7 or subsection (5) of section 18 of the 2014 Act] that provide for exceptions to subsection (1) of [F8 those sections];

(d) pursuant to those provisions, the person would have been eligible to be an active member of the existing scheme if the member had returned to employment for the purposes of that scheme on the relevant day; and

(e) the member would, if the member’s previous service in the existing scheme had been previous service under this Section of the scheme, have been eligible for active membership of this Section of the scheme on the relevant day pursuant to paragraphs (1A) to (1G).

(1K) The Scottish Ministers may permit a person referred to in paragraph (1J) to join this Section of the scheme and, for the purposes of paragraphs (1C) to (1G), the member’s previous service as an active member under the existing scheme referred to in paragraph (1J) will be treated as if it were previous service as an active member of this Section of the scheme.

(1L) For the purposes of paragraphs (1J) and (1K), “the relevant day” is the day the member commences NHS employment for the purposes of these Regulations.

(1M) A person referred to in paragraph (1C), (1E), (1I) or (1K) may elect, using a form provided by the Scottish Ministers, not to make contributions or accrue further service under this Section of the scheme in accordance with whichever of those paragraphs apply, but instead (where eligible) to become an active member of the 2015 Scheme.

(1N) Such an election—

(a) is irrevocable;

(b) must be given to the Scottish Ministers before the date specified by them in the election form;

(c) is to be treated as having been given on the date the election form is received by the Scottish Ministers.

(1O) The date referred to in paragraph (1N)(b) must be a date that is at least three months later than the date on which the Scottish Ministers provided the member with an election form.

(1P) An election shall be effective from the first day of the member’s pensionable employment in the 2008 Section falling on or after 1st April 2015, and from that date—

(a) that member is to be treated as if that member had been an active member of the 2015 Scheme; and

(b) contributions made in respect of the member in the 2008 Section shall be treated as if they had been contributions made in respect of that member in the 2015 Scheme.

(1Q) The Scottish Ministers may allow a member to exercise an election after the date specified under paragraph (1N)(b) where the Scottish Ministers consider that the member has not had a reasonable opportunity to consider whether to exercise an election before that date.]

(2) A person is not eligible to be an active member of this Section of the scheme if the person—

(a) became a pensioner member of the 1995 Section or a corresponding 1995 scheme on or before 1st April 2008 except if regulation 3.B.2(1)(b)(i) (eligibility: transitional) applies to that person [F9 or that person became an active member of this Section of the scheme before reaching normal benefit age for the purposes of the 1995 Section];

(b) became a pensioner member of the 1995 Section or a corresponding 1995 scheme on or after that date except if regulation 3.B.2(1)(b)(i) or (ii) (eligibility: transitional) applies to that person; or

(c) is a deferred member of the 1995 Section or a corresponding 1995 scheme, but is not a deferred member—

(i) to whom regulation 3.B.1(5)(d), (e), (f) or (g) (eligibility: general) applies; and

(ii) in respect of whom permission of the Scottish Ministers to rejoin the 1995 Section has not been granted pursuant to regulation B2(3) (age limits and restrictions of membership) of the 2011 Regulations.

(3) A person is not eligible to be an active member of this Section of the scheme in respect of service in an employment if the person is an active member of a superannuation scheme established under section 1 (superannuation schemes as respects civil servants, etc.) or section 9 (superannuation of teachers) of the Superannuation Act 1972 M2 in respect of service in that employment.

(4) A person who holds an honorary appointment and does not at the same time hold any other employment which entitles the person to be a member of this Section of the scheme is not eligible to be an active member of this Section of the scheme.

(5) A person is not eligible to be an active member of this Section of the scheme if the person—

(a) becomes entitled to an upper tier ill health pension under regulation 3.D.7 (early retirement on ill health: active members and non-contributing members); and

(b) opts to exchange that pension for a lump sum in accordance with regulation 3.D.11 (option for members in serious ill health to exchange whole pension for lump sum).

(6) A person who is entitled to the immediate payment of a pension under this Section of the scheme under a regulation that requires the person not to be in NHS employment may only be an active member in accordance with—

(a) regulation 3.D.5 (partial retirement: members aged at least 55); or

(b) Chapter 3.G (re-employment and rejoining the scheme).

(7) Subject to paragraph (7), a person is not eligible to be an active member of this Section of the scheme in any future employment if the person—

(a) ceases to be entitled to a lower tier ill health pension under regulation 3.D.7; and

(b) becomes entitled to an upper tier ill health pension under that regulation on the date the Scottish Ministers make a determination under regulation 3.D.8(3) (re-assessment of entitlement to an ill health pension).

(8) A person to whom paragraph (6) applies is eligible to be an active member of this Section of the scheme in any further employment after the first anniversary of that person's first day of such employment following the date of the Scottish Ministers' determination under regulation 3.D.8.

Textual Amendments

F3 Regs. 3.B.3(1A)-(1Q) inserted (1.4.2015) by The National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (S.S.I. 2015/95), reg. 1(b), sch. 2 para. 16

F4 Words in reg. 3.B.3(1H)(b) inserted (with effect in accordance with reg. 1(2)(a) of the amending S.S.I.) by The National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) (No. 2) Regulations 2017 (S.S.I. 2017/434), regs. 1(1), 16(2)(a) (with reg. 19)

F5 Words in reg. 3.B.3(1H)(b) substituted (with effect in accordance with reg. 1(2)(a) of the amending S.S.I.) by The National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) (No. 2) Regulations 2017 (S.S.I. 2017/434), regs. 1(1), 16(2)(b) (with reg. 19)

F6 Words in reg. 3.B.3(1J)(a) inserted (with effect in accordance with reg. 1(2)(a) of the amending S.S.I.) by The National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) (No. 2) Regulations 2017 (S.S.I. 2017/434), regs. 1(1), 16(3)(a) (with reg. 19)

F7 Words in reg. 3.B.3(1J)(c) inserted (with effect in accordance with reg. 1(2)(a) of the amending S.S.I.) by The National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) (No. 2) Regulations 2017 (S.S.I. 2017/434), regs. 1(1), 16(3)(b)(i) (with reg. 19)

F8 Words in reg. 3.B.3(1J)(c) substituted (with effect in accordance with reg. 1(2)(a) of the amending S.S.I.) by The National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) (No. 2) Regulations 2017 (S.S.I. 2017/434), regs. 1(1), 16(3)(b)(ii) (with reg. 19)

F9 Words in reg. 3.B.3(2)(b) inserted (retrospective and with effect in accordance with reg. 1(7) of the amending S.I.) by The National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (S.S.I. 2015/96), regs. 1, 38

Marginal Citations

M2 1972 c.11. Section 1 was amended by section 8 of the Pensions (Miscellaneous Provisions) Act 1990 (c.7), by paragraph 6 of Schedule 8 to the Pension Schemes Act 1993 (c.48), paragraph 14 of Schedule 8 to the Scotland Act 1998 (c.46), S.I. 2000/2040, 2001/3649 and 2007/126. Section 9 was amended by sections 4(1), 8(3) and 11 of the Pensions (Miscellaneous Provisions) Act 1990 (c.7), paragraph 7 of Schedule 8 to the Pension Schemes Act 1993 (c.48) and S.I. 2001/3649.

Concurrent employments S

Concurrent employments S

3.B.4.  A practitioner may participate in this Section of the scheme in respect of employment as a practitioner even if the practitioner also participates in this Section of the scheme under Part 2 in respect of concurrent whole-time or part-time employment as an officer (within the meaning of Part 2).

Joining and leaving the scheme S

Joining this Section of the scheme S

3.B.5.—(1) Subject to paragraph (3), a person in NHS employment who is eligible to be an active member of this Section of the scheme becomes such a member, unless absent from work for any reason, on either—

(a) the commencement of the person's employment; or

(b) where the person has previously opted out of this Section of the scheme under regulation 3.B.6(1) and is a person to whom section 3 (automatic enrolment) or section 5 (automatic re-enrolment) of the 2008 Act applies, on that person's—

(i) automatic enrolment date; or

(ii) automatic re-enrolment date, except where the notice referred to in regulation 3.B.6(1) was given within the period of 12 months immediately preceding that date.

(2) A person who is eligible to be such a member by virtue of falling within regulation 3.B.1(3)(b) (eligibility: general) may opt to become such a member by giving notice in writing to the employing authority.

(3) A person who has previously exercised an option to opt out of this Section of the scheme in accordance with regulation 3.B.6(1) in respect of an employment in which that person was an active member, and who remains eligible to be an active member in respect of that employment, may opt to join or rejoin this Section of the scheme by giving notice in writing to the employing authority in such form as the Scottish Ministers require.

(4) A notice under paragraph (3) takes effect—

(a) from the beginning of the first pay period to begin after the notice is received by the employing authority; or

(b) if the notice specifies a date that is the first day of a later pay period, from that date.

(5) A notice under paragraph (3) may not be given by a person who is absent from work for any reason.

Opting out of this Section of the scheme S

3.B.6.—(1) A person who is an active member of this Section of the scheme in any NHS employment may opt at any time to cease to be an active member by giving notice in writing to the person's employing authority.

(2) A person who opts out under paragraph (1) ceases to be an active member of this Section of the scheme on the date the notice takes effect and, if applicable, any contributions made by or on behalf of the person for a period of membership after the date on which the notice was effective must be refunded.

(3) The notice takes effect—

(a) from the beginning of the first pay period to begin after the notice is received by the employing authority; or

(b) if the notice specifies a later date, from the beginning of the first pay period after that in which the specified date falls.

(4) A person to whom regulation 3.B.5(1)(a) applies in respect of an employment who gives notice in writing under paragraph (1) within [F10 three months] of the date of commencing that NHS employment, is to be treated as not having become an active member by virtue of that regulation.

(5) A notice under paragraph (1) ceases to have effect on the day immediately preceding, as the case may be, the person's—

(a) automatic enrolment date; or

(b) automatic re-enrolment date, except where the notice was given within the period of 12 months immediately preceding that date.

(6) A practitioner who opts not to contribute to this Section of the scheme in respect of the person's employment as a practitioner may, nevertheless, participate in this Section of the scheme in respect of concurrent employment as an officer under Part 2 or as a locum practitioner.

(7) This regulation does not apply to a person to whom section 3, 5 or 8 of the 2008 Act M3 and regulation 9 or 15 of the 2010 Regulations M4 apply (that is, a person who is subject to automatic enrolment or automatic re-enrolment in this Section of the scheme as a qualifying scheme who does not wish to participate in it) but this paragraph does not affect the rights of such a person who subsequently becomes a member of this Section of the scheme in circumstances where those provisions of the 2008 Act and 2010 Regulations do not apply.

Textual Amendments

F10 Words in reg. 3.B.6(4) substituted (28.6.2014) by The National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (S.S.I. 2014/154), regs. 1(2), 26

Marginal Citations

M3 Section 3 makes provision for the automatic enrolment of a qualifying worker into a qualifying scheme like the NHS Superannuation Scheme for Scotland. Section 5 makes provision for the automatic re-enrolment of such a person into such a scheme who has previously opted out of it. Section 8 makes provision for the opting out of such a scheme, including the effect of such an opt out.

M4 Regulation 9 sets out the requirements for a valid opt out notice and the time period during which a person who has been automatically enrolled into a qualifying scheme may opt out of it. Regulation 15 applies the provisions of regulation 9 to a person who has been automatically re-enrolled into a qualifying scheme having previously opted out of it. Note that regulation 11 deals with the refund of contributions following an opt out.

Restriction on further participation in this Section of the scheme S

3.B.7.—(1) A person who ceases to meet conditions A, B and C in regulation 3.B.1 (eligibility: general) in an employment or is prevented by regulation 3.B.3 (restrictions on eligibility: general) from continuing to be an active member in an employment ceases to be an active member of this Section of the scheme in that employment.

(2) Accordingly—

(a) a person falling within paragraph (1) may not make any further contributions to this Section of the scheme under Chapter 3.C; and

(b) any further service of the person is not pensionable service for the purposes of this Section of the scheme.

Membership: locum practitioners S

3.B.8.—(1) Regulation 3.B.5 (joining this Section of the scheme) does not apply to a locum practitioner.

(2) A locum practitioner may apply to join this Section of the scheme by sending an application to the employing authority and submitting such evidence relating to the person's service as a locum practitioner and the contributions payable in respect of it as are required by the authority.

(3) On receiving such an application, such evidence and such contributions, the employing authority must submit the application to the Scottish Ministers.

(4) No application may be made under paragraph (2) in respect of a period of engagement as a locum practitioner ending earlier than 10 weeks before the date of the application.