The Firefighters’ Pension Scheme (Scotland) Regulations 2015

CHAPTER 2 Forfeiture

Forfeiture: offences committed by members, surviving partners or eligible children

161.—(1) If a member, surviving partner or eligible child is convicted of a relevant offence, the scheme manager may, to such extent and for such duration as it considers appropriate, withhold pensions payable under this scheme to—

(a) the member;

(b) any person in respect of the member;

(c) a surviving partner; or

(d) an eligible child.

(2) Where a surviving partner’s or an eligible child’s pension under Part 6 (death benefits) is to be withheld under paragraph (1) as a result of a relevant offence falling under paragraph (a) or (b) of the definition of that expression in paragraph (5), the offence must have been committed after the death on which the person became entitled to the surviving partner or eligible child’s pension, as the case may be.

(3) The scheme manager may only withhold that part of a person’s pension that exceeds any guaranteed minimum to which the person is entitled under—

(a) section 14 of PSA 1993 (earner’s guaranteed minimum); or

(b) section 17 (minimum pensions for widows and widowers)(1) of that Act.

(4) The scheme manager may, at any time and to such extent and for such duration as it thinks fit—

(a) apply for the benefit of any dependant of the member; or

(b) restore to the member,

so much of any pension as has been withheld under this regulation.

(5) In this regulation—

“forfeiture certificate” means a certificate stating that the Scottish Ministers consider that the offence—

(a)

has been gravely injurious to the interests of the State; or

(b)

is liable to lead to serious loss of confidence in the public service;

“relevant offence” means—

(a)

offences of treason;

(b)

offences under the Official Secrets Acts 1911 to 1989(2) for which the member has been sentenced on the same occasion—

(i)

to a term of imprisonment of at least 10 years;

(ii)

to two or more consecutive terms amounting in the aggregate to at least 10 years, or

(c)

offences—

(i)

committed in connection with the member’s scheme employment; and

(ii)

in respect of which the Scottish Ministers have issued a forfeiture certificate.

Forfeiture of pensions: offences committed by other persons

162.—(1) If a person (“P”) is convicted of the murder of a member, the scheme manager must withhold all of any surviving partner or eligible child’s pension otherwise payable to P in respect of the member under Part 6 (death benefits).

(2) If P is convicted of a relevant offence, the scheme manager may, to such extent as it considers appropriate, withhold any surviving partner or eligible child’s pension payable to P in respect of a member under Part 6 (death benefits).

(3) If paragraph (1) applies, Part 6 (death benefits) applies as if P had died before the member.

(4) Under paragraph (2), the scheme manager may only withhold such part of P’s pension as exceeds any guaranteed minimum to which P is entitled under section 17 of PSA 1993.

(5) If P is convicted of the murder of a member and the conviction is subsequently quashed on appeal, any surviving partner or eligible child’s pension withheld is to be payable from the day after that on which the member died, and the scheme manager must, as soon as reasonably practicable after the conviction is quashed, pay the arrears of the pension accrued.

(6) If P is convicted of a relevant offence and the conviction is subsequently quashed on appeal, any decision under paragraph (2) is to be treated as revoked and the scheme manager must, as soon as reasonably practicable after the conviction is quashed, pay the arrears of the pension accrued from the day after that on which the member died.

(7) Nothing in paragraphs (5) or (6) is to affect the application of paragraphs (1) or (2) if the person whose conviction is quashed is subsequently convicted of the murder of the member or of a relevant offence.

(8) In this regulation, relevant offence means—

(a) the culpable homicide of the member; or

(b) any other offence, apart from murder, of which the unlawful killing of the member is an element.

Forfeiture of lump sum death benefit: offences committed by other persons

163.—(1) If a person is convicted of a relevant offence, the scheme manager must withhold all of any lump sum death benefit payable to that person in respect of a member under Chapter 4 of Part 6 (death benefits).

(2) In this regulation, relevant offence means—

(a) the murder of the member;

(b) the culpable homicide of the member; or

(c) any other offence of which the unlawful killing of the member is an element.

(3) If paragraph (1) applies and the scheme manager withholds all benefits, Part 6 (death benefits) applies as if that person had died before the member.

(4) If a person is convicted of a relevant offence and the conviction is subsequently quashed on appeal the scheme manager may, to such extent and for such duration as it thinks fit, restore to that person so much of any benefit as has been withheld under this regulation.

(5) Nothing in paragraph (4) is to affect the application of paragraph (1) if the person whose conviction is quashed is subsequently convicted of a relevant offence.

Forfeiture: relevant monetary obligations and relevant monetary losses

164.—(1) If a member (P) has a relevant monetary obligation or has caused a relevant monetary loss the scheme manager may, to such extent and for such duration as it considers appropriate, withhold benefits payable to P under this scheme.

(2) The scheme manager may withhold benefits to the extent the scheme manager considers appropriate, but may only withhold that part of P’s pension as exceeds any guaranteed minimum to which P is entitled under section 14 of PSA 1993.

(3) The scheme manager may not withhold more than the lesser of—

(a) the amount of the relevant monetary obligation or relevant monetary loss; and

(b) the value of P’s entitlement to benefits.

(4) The scheme manager may only withhold benefits if—

(a) there is no dispute as to the amount of the relevant monetary obligation or relevant monetary loss; or

(b) the relevant monetary obligation or relevant monetary loss is enforceable as follows—

(i) under an order of a competent court, or

(ii) in consequence of an award of an arbiter.

(5) In this regulation—

“relevant monetary loss” means a monetary loss which—

(a)

was caused to this scheme; and

(b)

arose as a result of P’s criminal, negligent or fraudulent act or omission; and

“relevant monetary obligation” means a monetary obligation which—

(a)

was incurred to P’s employer;

(b)

was incurred after P became an active member of this scheme;

(c)

arose out of P’s criminal, negligent or fraudulent act or omission; and

(d)

arose out of or was connected with the scheme employment in respect of which P is a member of this scheme.

Set-off

165.—(1) The scheme manager may set off a relevant monetary obligation against a member’s entitlement to benefits under this scheme.

(2) In this regulation, a “relevant monetary obligation” is a monetary obligation owed by a member (P), which satisfies the conditions in paragraphs (3), (4) or (5).

(3) The conditions in this paragraph are that the monetary obligation—

(a) was incurred to P’s employer;

(b) was incurred after P became an active member of this scheme;

(c) arose out of or was connected with service in the scheme employment in respect of which P is a member of this scheme; and

(d) arose out of P’s criminal, negligent or fraudulent act or omission.

(4) The conditions in this paragraph are that the monetary obligation—

(a) was incurred to this scheme; and

(b) arose out of P’s criminal, negligent or fraudulent act or omission.

(5) The conditions in this paragraph are that the monetary obligation—

(a) was incurred to this scheme; and

(b) arose out of a payment made to P in error by the scheme manager.

(6) Paragraph (7) applies if a set-off is to be applied as result of P owing a relevant monetary obligation which satisfies the conditions in paragraph (3).

(7) Where this paragraph applies, the scheme manager may not apply a set-off against that part of P’s entitlement to benefits that represents transfer credits within the meaning of section 124(1) (interpretation of Part 1) of the Pensions Act 1995(3) other than prescribed transfer credits for the purposes of section 91(5)(d) (exceptions from the inalienability of occupational pensions) of the Pensions Act 1995(4).

(8) The scheme manager may only apply a set-off against that part of a member’s pension that exceeds any guaranteed minimum to which that member is entitled under section 14 of PSA 1993.

(9) The value of the set-off applied must not exceed the lesser of—

(a) the amount of the relevant monetary obligation; and

(b) the value of P’s entitlement to benefits.

(10) The scheme manager may only set off a relevant monetary obligation against P’s entitlement to benefits if—

(a) there is no dispute as to the amount of the relevant monetary obligation; or

(b) the relevant monetary obligation is enforceable—

(i) under an order of a competent court, or

(ii) in consequence of an award of an arbiter.

Forfeiture and set-off: procedure

166.—(1) If the scheme manager proposes to withhold benefits or apply a set-off against a person’s entitlement to benefits, the scheme manager must notify the person of the proposal in writing.

(2) If the scheme manager withholds benefits under regulation 164 (forfeiture: relevant monetary obligations and relevant monetary losses) or applies a set-off against an entitlement to benefits under regulation 165 (set-off), the scheme manager must give the member a certificate showing—

(a) the amount withheld or set off; and

(b) the effect of the withholding or set-off on the member, surviving partner or eligible child’s benefits under this scheme.

(1)

Section 17 was amended by the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2), Schedule 1 paragraph 39; the Child Support, Pensions and Social Security Act 2000 (c.19), Schedule 5, paragraph 1 and Schedule 9, Part 3; the Pensions Act 2004 (c.35), section 284(2); the Pensions Act 2007 (c.22), section 14(2); the Marriage (Same Sex Couples) Act 2013 (c.30), Schedule 4, paragraphs 18 and 20; and S.I. 2005/2050 and S.I. 2014/560.

(2)

1989 c.6; see section 16(2) for the meaning of “Official Secrets Acts 1911 to 1989”.

(3)

Section 124(1) was amended by the Welfare Reform and Pensions Act 1999 (c.30), Schedule 12, paragraphs 43 and 61, the Child Support, Pensions and Social Security Act 2000 (c.19), Schedule 5, paragraph 8, the Pensions Act 2004, section 7(2), Schedule 12, paragraphs 34, 43 and 69 and Schedule 13, Part 1 and S.I. 2005/2053, S.I. 2006/745 and S.I. 2014/560.

(4)

Section 91(5)(d) was amended by the Welfare Reform and Pensions Act 1999 (c.30), Schedule 12, paragraphs 43 and 57. See S.I. 1997/785 which prescribes the transfer credits.