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

Early retirement on ill health: active members and non-contributing members

3.D.7.—(1) A pension payable under this regulation (an “ill health pension”) may be paid at two different tiers to be known as a lower tier ill health pension and an upper tier ill health pension.

(2) An active member or a non-contributing member who has not reached age 65 and who has ceased to be employed in NHS employment is entitled to immediate payment of a lower tier ill health pension that is payable for life if—

(a) in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of discharging the duties of the member’s employment efficiently;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(c) the member has at least two years of qualifying service; and

(d) the member has claimed the pension.

(3) An active member who has not reached age 65 is entitled to immediate payment of an upper tier ill health pension if—

(a) in addition to meeting the condition in paragraph (2)(a), in the opinion of the Scottish Ministers the member suffers from physical or mental infirmity as a result of which the member is permanently incapable of engaging in regular employment of like duration;

(b) the member’s employment is terminated because of that physical or mental infirmity;

(c) the member has at least two years of qualifying service; and

(d) the member has claimed the pension.

(4) The annual amount of a lower tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4) (normal retirement pensions).

(5) The annual amount of an upper tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4), but on the assumption that the member’s pensionable service—

(a) is increased by the enhancement period where the member has returned to pensionable employment 12 months or more after having a break in such service and it would be more favourable to the member to treat the member’s pensionable service before and after the break, and all such other breaks (if any), as continuous; and

(b) is not increased by the enhancement period in the circumstances referred to in sub-paragraph (a) if—

(i) the member’s pensionable service before and after the break is treated separately under regulation 3.G.2 (general rule: separate treatment of service etc.); or

(ii) the member’s pensionable service in respect of an earlier service credit is treated separately under regulation 3.K.7.

(6) Subject to paragraph (7), in this regulation “the enhancement period” means two-thirds of the member’s assumed pensionable service.

(7) If the member’s pensionable service includes both officer service and practitioner service—

(a) the member’s pensionable service must be increased by the enhancement period and the enhancement factor must be the proportion by which the member’s pensionable service is increased by that period;

(b) the length of the member’s officer service (under Part 2) and the member’s practitioner service are each to be increased by the enhancement factor; and

(c) the annual amount of an upper tier ill health pension (disregarding any additional pension) is calculated as specified in regulation 3.D.1(4) (normal retirement pensions), but on the assumption that the member’s uprated earnings are increased by the enhancement factor.

(8) Subject to paragraph (9), in this regulation “the member’s assumed service” means the further pensionable service that the member could have counted if the member had continued in service until reaching age 65.

(9) To the extent that any increase under paragraph (8) would cause a member’s pensionable service to exceed the limit of 45 years provided for in regulation 3.A.3(3) (meaning of “pensionable service”), the amount of any excess is to be reduced accordingly.

(10) This regulation is subject to—

(a) regulation 3.G.4 (effect of re-employment on upper tier ill health pensions); and

(b) regulation 3.G.5 (re-employed lower tier ill health pensioners).

(11) A member does not qualify for a pension under this regulation if the member’s NHS employment has been terminated by the member—

(a) being dismissed from such employment (unless the Scottish Ministers are satisfied that the member was dismissed because of the member’s infirmity);

(b) retiring or resigning from such employment at a time when the member was the subject of disciplinary proceedings or had been notified that such proceedings were being contemplated; or

(c) otherwise retiring or resigning from such employment unless at the time of doing so the member’s employing authority notified the Scottish Ministers in writing that the member’s physical or mental infirmity is the reason for the termination of that employment and the Scottish Ministers are satisfied that is the case.

(12) For the purposes of determining whether a member is permanently incapable of discharging the duties of the member’s employment efficiently under paragraph (2)(a), the Scottish Ministers must have regard to the factors in paragraph (14) (no one of which is decisive) and disregard the member’s personal preference for or against engaging in that employment.

(13) For the purposes of determining whether a member is permanently incapable of engaging in regular employment of like duration under paragraph (3)(a), the Scottish Ministers must have regard to the factors in paragraph (15) (no one of which is decisive) and disregard the factors in paragraph (16).

(14) The factors to be taken into account for paragraph (12) are—

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) the member’s—

(i) mental capacity; and

(ii) physical capacity;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of the member’s incapacity, irrespective of whether such rehabilitation is undergone; and

(d) any other matter which the Scottish Ministers consider appropriate.

(15) The factors to be taken into account for paragraph (13) are—

(a) whether the member has received appropriate medical treatment in respect of the incapacity;

(b) such reasonable employment as the member would be capable of engaging in if due regard is given to the member’s—

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience,

irrespective of whether or not such employment is actually available to the member;

(c) such type and period of rehabilitation which it would be reasonable for the member to undergo in respect of the member’s incapacity (irrespective of whether such rehabilitation is undergone) having due regard to the member’s—

(i) mental capacity; and

(ii) physical capacity;

(d) such type and period of training which it would be reasonable for the member to undergo in respect of the member’s incapacity (irrespective of whether such training is undergone) having due regard to the member’s—

(i) mental capacity;

(ii) physical capacity;

(iii) previous training; and

(iv) previous practical, professional and vocational experience; and

(e) any other matter which the Scottish Ministers consider appropriate.

(16) The factors to be disregarded for paragraph (13) are—

(a) the member’s personal preference for or against engaging in any particular employment; and

(b) the geographical location of the member.

(17) In this regulation—

“appropriate medical treatment” means such medical treatment as it would be normal to receive in respect of the incapacity, but does not include any treatment that the Scottish Ministers consider—

(a)

would be reasonable for the member to refuse;

(b)

would provide no benefit to restoring the member’s capacity for—

(i)

discharging the duties of the member’s employment efficiently under paragraph (2)(a); or

(ii)

engaging in regular employment of like duration under paragraph (3)(a),

before the member reaches age 65; or

(c)

that, through no fault on the part of the member, it is not possible for the member to receive before the member reaches age 65;

“permanently” means—

(a)

the period until age 65; and

(b)

in the case of a 2008 Section Optant who, before joining this Section, was assessed by a medical adviser as being—

(i)

permanently incapable of efficiently discharging the Optant’s duties for the purposes of regulation E3(2)(b)(i) (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations, that Optant must be deemed to be permanently incapable of discharging the duties of the Optant’s employment efficiently for the purposes of paragraph (2)(a); or

(ii)

permanently incapable of regular employment of like duration for the purposes of regulation E3(2)(b)(ii) of the 2011 Regulations, that Optant must be deemed to be permanently incapable of engaging in regular employment of like duration for the purposes of paragraph (3)(a); and

“regular employment of like duration” means such employment as the Scottish Ministers consider would involve a similar level of engagement to the member’s current pensionable service as a practitioner.

(18) In the case of a 2008 Section Optant, this regulation is subject to regulations 3.K.10, 3.K.12 to 3.K.15 and 3.K.16.

(19) In the case of a Waiting Period Joiner, this regulation is subject to regulation 3.L.3.