Fire and Rescue Services Act 2004 (c. 21)

Part 4 E+W Employment

Pensions etc E+W

34 Pensions etc E+W+S

(1) The Secretary of State may by order bring into operation one or more schemes making provision for the payment of pensions, allowances and gratuities to or in respect of—

(a) persons who are or have been employed by a fire and rescue authority or by a Scottish fire authority;

(b) persons who die or have died while so employed.

[F1 (1A) Subsection (1) is subject to sections 18 and 19 of the Public Service Pensions Act 2013 (restrictions on benefits provided under existing schemes).]

(2) A scheme brought into operation under this section may in particular—

(a) provide for the classes of person in respect of whose service awards may be made;

(b) provide for treating employment that is not employment by a fire and rescue authority or by a Scottish fire authority as if it were such employment for any purpose of the scheme, to the extent specified in the scheme and subject to any conditions specified in the scheme;

[F2 (ba) provide for treating, for any purpose of the scheme, to the extent specified in the scheme and subject to any conditions specified in the scheme, holding office as the London Fire Commissioner as if it were employment by a fire and rescue authority in England where the terms and conditions of appointment to that office include—

(i) resolving operational incidents, or

(ii) leading and supporting others in the resolution of operational incidents;]

(c) provide for the making of contributions by employers and by persons in respect of whose service awards may be made;

(d) provide for the repayment of any such contributions or their application for the benefit of persons of a specified description;

(e) provide for the making of payments by the Secretary of State, fire and rescue authorities and Scottish fire authorities into a fund to which contributions have been made under the scheme;

(f) provide for the making of payments to the Secretary of State out of a fund to which contributions have been made under the scheme;

(g) provide for substituting the Secretary of State for a fire and rescue authority or a Scottish fire authority, for any purpose of the scheme;

(h) provide for the making to a fire and rescue authority, a Scottish fire authority or the Secretary of State of payments in respect of a person’s previous service, including provision for such payments to be made by the Secretary of State;

(i) provide for any such payments to be reimbursed out of a fund to which contributions have been made in respect of the previous service to which the payments related;

(j) provide for the payment and receipt by fire and rescue authorities or Scottish fire authorities of transfer values or of other lump sum payments made for the purpose of creating or restoring rights to pensions, allowances and gratuities;

(k) provide for conditions subject to which an award under the scheme may be made, for the manner in which questions arising under the scheme are to be determined and for appeals from determinations of such questions;

(l) provide for excluding or modifying rights to compensation or damages in respect of injuries, in cases where awards are made under the scheme in respect of the injuries;

(m) make incidental, supplemental, consequential and transitional provision.

(3) An order under this section may take effect from a date which is earlier than that on which the order is made.

(4) An order under this section may vary or revoke a scheme brought into operation by an order under this section.

(5) Before making, varying or revoking an order under this section the Secretary of State must consult any persons he considers appropriate.

(6) A person commits an offence if he does an act or makes an omission as a result of which he is injured or becomes ill, for the purpose of obtaining, for himself or another person—

(a) an award under a scheme brought into operation under this section, or

(b) a sum in respect of the repayment or application of contributions made under such a scheme.

(7) A person guilty of an offence under subsection (6) is liable—

(a) on summary conviction—

(i) in England and Wales, to imprisonment for a term not exceeding [F3 the general limit in a magistrates’ court] or a fine not exceeding the statutory maximum;

(ii) in Scotland, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.

(8) A scheme brought into operation under this section may authorise the forfeiture of the whole or part of an award or sum obtained by a person who has been convicted of an offence under subsection (6).

(9) In relation to an offence under subsection (6) committed before [F4 2 May 2022], the reference in subsection (7)(a) to [F5 the general limit in a magistrates’ court] is to be read as a reference to 3 months.

[F6 (10) In this section “Scottish fire authority”—

(a) means the Scottish Fire and Rescue Service, and

(b) except in subsections (2)(e) and (h), includes a relevant authority as defined in section 6 of the Fire (Scotland) Act 2005 (asp 5) (despite the repeal of that section by the Police and Fire Reform (Scotland) Act 2012 (asp 8)).]

[F7 (11) References in subsection (1) to persons who are or have been employed by a fire and rescue authority include persons who are or have been employed by the chief constable of the police force for a police area having been—

(a) transferred to the chief constable under a scheme made under section 4I(1), F8 ...

(b) appointed by the chief constable under section 4I(4).

[F9 (c) transferred to the chief constable under a scheme made by virtue of section 107EC(1) of the Local Democracy, Economic Development and Construction Act 2009, or

(d) appointed by the chief constable under section 107EC(2) of that Act.]

(12) References in the other provisions of this section to a fire and rescue authority include a chief constable of the police force for a police area who employs persons of the kind mentioned in subsection (11).]

Textual Amendments

F1 S. 34(1A) inserted (1.4.2014) by Public Service Pensions Act 2013 (c. 25), s. 41(2), Sch. 8 para. 27 (with Sch. 11 para. 8); S.I. 2014/839, art. 4(2)(l)

F2 S. 34(2)(ba) inserted (22.2.2018) by The Policing and Crime Act 2017 (Consequential Amendments) Regulations 2018 (S.I. 2018/226), regs. 1, 10(3)

F3 Words in s. 34(7)(a)(i) substituted (7.2.2023 at 12.00 p.m.) by The Judicial Review and Courts Act 2022 (Magistrates’ Court Sentencing Powers) Regulations 2023 (S.I. 2023/149), regs. 1(2), 2(1), Sch. Pt. 1 table

F4 Words in s. 34(9) substituted (28.4.2022) by The Criminal Justice Act 2003 (Commencement No. 33) and Sentencing Act 2020 (Commencement No. 2) Regulations 2022 (S.I. 2022/500), regs. 1(2), 5(1), Sch. Pt. 1

F5 Words in s. 34(9) substituted (7.2.2023 at 12.00 p.m.) by The Judicial Review and Courts Act 2022 (Magistrates’ Court Sentencing Powers) Regulations 2023 (S.I. 2023/149), regs. 1(2), 2(1), Sch. Pt. 1 table

F6 S. 34(10) substituted (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 1 para. 7(2); Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 66(2); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F7 S. 34(11)(12) inserted (31.1.2017 for specified purposes, 3.4.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(1)(5)(e), Sch. 1 para. 11; S.I. 2017/399, reg. 2, Sch. para. 38

F8 Word in s. 34(11)(a) omitted (31.1.2017 for specified purposes, 17.7.2017 in so far as not already in force) by virtue of Policing and Crime Act 2017 (c. 3), ss. 8(8)(a), 183(1)(5)(e); S.I. 2017/726, reg. 2(a)

F9 S. 34(11)(c)(d) inserted (31.1.2017 for specified purposes, 17.7.2017 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), ss. 8(8)(b), 183(1)(5)(e); S.I. 2017/726, reg. 2(a)

Modifications etc. (not altering text)

C1 S. 34(1)-(5) transfer of functions (23.3.2005) by Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849), art. 1, Sch. (with art. 6)

C2 S. 34(8) transfer of functions (23.3.2005) by Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849), art. 1, Sch. (with art. 6)

Commencement Information

I1 S. 34 in force at 7.9.2004 for specified purposes except in relation to W. and 1.10.2004 otherwise except in relation to W. by S.I. 2004/2304, art. 2 (with art. 3)

I2 S. 34 in force at 10.11.2004 for W. by S.I. 2004/2917, art. 2

35 Information in connection with pensions etc E+W+S

(1) A fire and rescue authority or a Scottish fire authority may in prescribed circumstances—

(a) provide information in connection with the questions mentioned in subsection (2) to a prescribed person;

(b) require a person to whom information is provided under paragraph (a) to pay a reasonable fee in respect of any administrative expenses incurred in providing it.

(2) These are the questions—

(a) whether an individual who has opted or transferred out has suffered loss as a result of a contravention which is actionable under [F10 section 138D] of the Financial Services and Markets Act 2000 (c. 8) (actions for damages in respect of contravention of rules etc.);

(b) if so, what payment would need to be made in respect of that individual to the fire and rescue authority or Scottish fire authority concerned to restore the position to what it would have been if the individual had not opted or transferred out.

(3) Subsection (4) applies if—

(a) an individual who has opted or transferred out becomes entitled to make contributions to a fire and rescue authority or Scottish fire authority under a scheme brought into operation under section 34, or

(b) a payment is made to a fire and rescue authority or Scottish fire authority in respect of such an individual to restore the position to what it would have been if the individual had not opted or transferred out.

(4) The fire and rescue authority or Scottish fire authority may require a prescribed person to pay a reasonable fee in respect of any administrative expenses incurred in connection with the entitlement or payment.

(5) An individual is taken to have opted or transferred out for the purposes of this section if—

(a) for any period during which he is employed by a fire and rescue authority or Scottish fire authority, he does not make contributions to a scheme brought into operation under section 34 but instead makes contributions to a personal pension scheme, or

(b) a transfer value is paid in respect of him to a personal pension scheme by a fire and rescue authority or Scottish fire authority.

(6) In this section—

• “personal pension scheme” has the meaning given by section 1 of the Pension Schemes Act 1993 (c. 48);

• “prescribed” means prescribed by regulations made by the Secretary of State for the purposes of this section.

• [F11 “Scottish fire authority”—

(a) means the Scottish Fire and Rescue Service, and

(b) in subsection (5) includes a relevant authority as defined in section 6 of the Fire (Scotland) Act 2005 (asp 5) (despite the repeal of that section by the Police and Fire Reform (Scotland) Act 2012 (asp 8)).]

Textual Amendments

F10 Words in s. 35(2)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 102 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F11 Definition in s. 35(6) added (E.W.) (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 1 para. 7(3); (S.) (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 66(3); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Modifications etc. (not altering text)

C3 S. 35(1)(4)(6) transfer of functions (23.3.2005) by Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849), art. 1, Sch. (with art. 6)

Commencement Information

I3 S. 35 in force at 7.9.2004 for specified purposes except in relation to W. and 1.10.2004 otherwise except in relation to W. by S.I. 2004/2304, art. 2 (with art. 3)

I4 S. 35 in force at 10.11.2004 for W. by S.I. 2004/2917, art. 2

36 Preservation of existing pension scheme E+W

(1) The Secretary of State may by order provide for the scheme established under section 26 of the Fire Services Act 1947 (c. 41) (Firemen’s Pension Scheme) to continue in force despite the repeal by this Act of that section.

(2) An order under this section may provide for any enactment amended or repealed by this Act to continue in effect in relation to that scheme unmodified or with any modifications specified in the order.

(3) An order under this section may in particular make new provision for the name of the scheme.

(4) This section does not affect any other power in this Act to make transitional or transitory provision.

Modifications etc. (not altering text)

C4 S. 36(1)-(3) transfer of functions (23.3.2005) by Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2005 (S.I. 2005/849), art. 1, Sch. (with art. 6)

Commencement Information

I5 S. 36 in force at 7.9.2004 for specified purposes except in relation to W. and 1.10.2004 otherwise except in relation to W. by S.I. 2004/2304, art. 2 (with art. 3)

I6 S. 36 in force at 10.11.2004 for W. by S.I. 2004/2917, art. 2