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.