The Firefighters’ Pension Scheme Regulations (Northern Ireland) 2015

PART 12 Determination of Questions of Appeals

CHAPTER 1

Determinations by the scheme manager

160.  The scheme manager must determine in the first instance whether a person is entitled to an award or to retain an award.

Determinations by the Pension Board

161.—(1) Where the scheme manager is unable to make a determination under regulation 160, the question of that person’s entitlement shall be determined by the Pension Board.

(2) Subject to paragraph (3), before deciding, for the purpose of determining that question or any other question arising under this Scheme—

(a) whether a person has been disabled;

(b) whether any disablement is likely to be permanent;

(c) whether the person would be able to undertake regular employment;

(d) whether a person is capable of performing the duties of a regular firefighter; or

(e) any other issue wholly or partly of a medical nature,

the Pension Board shall obtain the written opinion of an independent qualified medical practitioner selected by it and the opinion of that practitioner shall be binding on it.

(3) If by reason of the person’s refusal or wilful or negligent failure to submit to medical examination by the practitioner selected by it the Pension Board is unable to obtain the opinion mentioned in paragraph (2), it may—

(a) on such other medical evidence as it thinks fit; or

(b) without medical evidence,

give such decision on the issue as it may choose to give.

Appeal against opinion on a medical issue

162.—(1) Where—

(a) an opinion of the kind mentioned in regulation 161(2) has been obtained; and

(b) within 14 days of his being notified of the Pension Board’s decision on the issue the person concerned applies to it for a copy of the opinion,

the Pension Board shall supply him with a copy, together with a statement informing the person concerned that, if he wishes to appeal against the opinion, he must give the Pension Board written notice of his grounds of appeal, together with his name and address, within 14 days beginning with the date on which he is so supplied.

(2) If the person concerned is dissatisfied with the opinion which has been supplied to him under paragraph (1), he may appeal against it by giving notice to the Pension Board in accordance with regulation 164(1) and (2).

(3) The Pension Board shall be bound by any decision on a medical issue duly given on an appeal under this regulation. A decision given under this regulation overrules that of the qualified medical practitioner selected by the Pension Board under regulation 161.

(4) In this regulation, “medical issue” means any issue referred to in regulation 161(2).

(5) Further provisions as to appeals under this regulation are contained in regulation 164.

Appeals against decision of the Pension Board

163.—(1) Where a person claims that he is entitled to an award or to any payment in respect of an award and the Pension Board—

(a) does not admit the claim at all; or

(b) does not admit the claim to its full extent,

the Pension Board shall reconsider the case if he applies to it to do so.

(2) If a person is dissatisfied with any determination given by the Pension Board on reconsidering the case he may, within 2 months of being informed by the Pension Board of the decision, appeal to the Department against the decision of the Pension Board.

(3) The Department shall, unless it appears to it that the case is of such a nature that it can properly be determined without taking oral evidence, arrange for the hearing of the appeal, and at any such hearing the appellant shall be entitled to have an opportunity of submitting statements relating to the subject matter of the appeal, calling witnesses, giving evidence and making such representations as he desires, and shall be entitled to have the assistance in presenting his case of a person selected by himself.

(4) After considering in accordance with the foregoing provisions of this regulation all the circumstances of the case the Department shall either allow the claim to such extent as it thinks fit or dismiss the appeal.

(5) Nothing in this paragraph shall authorise the Department to:-

(a) control or restrict the exercise of any discretion which is by this Scheme vested in the Pension Board other than the discretion so vested by the following;

(i) Subject to sub-paragraph (iv), in the circumstances specified in sub-paragraph (ii), the Pension Board may withdraw a pension in whole or in part, and permanently or temporarily as it may specify.

(ii) The circumstances are—

(aa) that the person entitled to the pension (“the pensioner”) has been convicted of an offence falling within sub-paragraph (iii), and in the case of a pension under Part C of the FPS that the offence was committed after the death on which the pensioner became entitled to it; or

(bb) that the pensioner has been convicted of an offence committed in connection with his service as a member of the fire and rescue service which is certified by a Minister of the Crown either to have been gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service.

(iii) The offences mentioned in sub-paragraph (ii)(aa) are—

(aa) an offence of treason; and

(bb) one or more offences under the Official Secrets Act 1911 to 1989(1) for which the pensioner has been sentenced on the same occasion to a term of imprisonment of, or to two or more consecutive terms amounting in the aggregate to, at least 10 years.

(iv) In determining whether the withdrawal of a pension should—

(aa) be permanent or temporary; and

(bb) affect the pension in whole or in part,

the Pension Board may make different determinations in respect of the secured and unsecured portions of the pension; but the secured portion may not be withdrawn permanently and may only be withdrawn temporarily for a period ending before the pensioner attains state pensionable age or one during which he is imprisoned or otherwise detained in legal custody.

(v) The Pension Board may, to such extent as it thinks fit—

(aa) apply for the benefit of any dependant of the pensioner’s; or

(bb) restore to the pensioner’

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

(b) reopen any medical issue decided on appeal under regulation 162; or

(c) question any certificate as to pensionable service which has become conclusive and states that if he does not appeal, the certificate as supplied, and if he does appeal, the certificate as confirmed or varied, is conclusive as to the pensionable service he was entitled to reckon on the material date.

(6) The decision of the Department on an appeal under paragraph (2) shall be final and binding on both parties.

CHAPTER 2 Appeal to Independent Medical Referee

164.—(1) Subject to paragraph (2) written notice of appeal against an opinion of the kind mentioned in regulation 162(2) stating—

(i) the grounds of the appeal; and

(ii) the appellant’s name and his address,

must be given to the Pension Board within 14 days beginning with the date on which he is supplied by it with a copy of the opinion.

(2) Where—

(a) notice of appeal is not given within the period specified in paragraph (1); but

(b) the Pension Board is of the opinion that the person’s failure to give it within that period was not due to his own default,

it may extend the period for giving notice to such length, not exceeding 6 months from the date mentioned in paragraph (1), as it thinks fit.

(3) On receiving a notice of appeal the Pension Board shall supply the Department with two copies of the notice and two copies of the opinion.

(4) The Department shall refer an appeal to an independent medical referee appointed by it and shall supply him with a copy of the notice and a copy of the opinion.

(5) The independent medical referee shall secure that the appellant and the Pension Board (“the Parties”) have been informed—

(a) that the appeal is to be determined by him; and

(b) of an address to which communications relating to the appeal may be delivered.

(6) Subject to paragraph (9), the independent medical referee—

(a) shall interview and medically examine the appellant at least once; and

(b) may interview or medically examine him or cause him to be interviewed or medically examined on such further occasions as the independent medical referee thinks necessary for the purpose of deciding the appeal.

(7) The independent medical referee shall—

(a) appoint, and

(b) give the appellant and the Pension Board not less than 21 days’ notice of,

the time and place for every interview and medical examination; if the independent medical referee is satisfied that the appellant is unable to travel, the place shall be the appellant’s place of residence.

(8) The appellant shall attend at the time and place appointed for any interview or medical examination by the independent medical referee.

(9) If—

(a) the appellant fails to comply with paragraph (8); and

(b) the independent medical referee is not satisfied that there was reasonable cause for the failure,

the independent medical referee may dispense with the interview or medical examination required by sub-paragraph (6)(a) or, as the case may be, with any further interview or medical examination required by sub-paragraph (6)(b), and may decide the appeal on such information as is then available.

(10) Any interview under paragraphs (6) to (10) may be attended by persons appointed for the purpose by the Pension Board or by the appellant or by each of them.

(11) Where either party to the appeal intends to submit written evidence or a written statement at an interview held under paragraph (6), the party shall, subject to paragraph (12), submit it to the independent medical referee and to the other party not less than 7 days before the date appointed for the interview.

(12) Where any written evidence or statement has been submitted under paragraph (11) less than 7 days before the date appointed for the interview, any written evidence or statement in response may be submitted by the other party to the independent medical referee and the party submitting the first-mentioned evidence or statement at any time up to, and including, that date.

(13) Where any written evidence or statement is submitted in contravention of paragraph (11), the independent medical referee may postpone the date appointed for the interview and require the party who submitted the evidence or statement to pay such reasonable costs of the independent medical referee and of the other party as arise from the postponement.

(14) The independent medical referee shall supply the Department with a written report of his decision on the relevant medical issues and the Department shall supply a copy of the report to the appellant and to the Pension Board.

(15) There shall be paid to the independent medical referee—

(a) such fees as are determined in accordance with arrangements made by the Department; or

(b) where no such arrangement have been made, such fees and allowances as the Department may from time to time determine

(16) Any fees and allowances payable to the independent medical referee under paragraph (15) shall—

(i) be paid by the Pension Board; and

(ii) be treated for the purposes of paragraph (17) as part of the Pension Board’s expenses.

(17) Subject to paragraph (13) and paragraphs (18) to (22), the expenses of each party to the appeal shall be borne by that party.

(18) Where the independent medical referee—

(a) decides in favour of the Pension Board; and

(b) reports that in his opinion the appeal was frivolous, vexatious or manifestly ill-founded,

the Pension Board may require the appellant to pay them such sum, not exceeding the amount of the fees and allowances payable to the independent medical referee under paragraph (15), as it thinks fit.

(19) Where the appellant gives notice to the independent medical referee of withdrawing the appeal within 21 days beginning with the date appointed for an interview by the independent medical referee under paragraph (7), the Pension Board may require the appellant to pay it such sum, not exceeding the total amount of fees and allowances payable to the independent medical referee under paragraph (15) as it thinks fit.

(20) Where the independent medical referee—

(a) decides in favour of the appellant, and

(b) does not otherwise direct,

the Pension Board shall refund to the appellant the amount specified in paragraph (21).

(21) The amount is the total of—

(a) any personal expenses actually and reasonably incurred by the appellant in respect of any interview under paragraph (6); and

(b) if any such interview was attended by a qualified medical practitioner appointed by the appellant, any fees and expenses reasonably paid by the appellant in respect of such attendance.

(22) For the purpose of paragraphs (18) and (20) any question arising as to whether the independent medical referee’s decision is in favour of the Pension Board or of the appellant shall be decided by the independent medical referee, or in default by the Department.

(23) Any notice, information or document which an appellant is entitled to receive for the purposes of this regulation shall be deemed to have been received by him if it was duly posted in a letter addressed to him at his last known place of residence.

CHAPTER 3 Dispute Resolution

Disputes on other issues

165.  Where—

(a) a member (P) disagrees with a scheme manager’s determination under regulation 160 (determinations by the scheme manager); and

(b) the disagreement does not involve a question mentioned in regulation 161(2),

P may, by written notice given to the scheme manager within 28 days beginning with the receipt of the determination, require the scheme manager to deal with the disagreement by means of the arrangements implemented by it pursuant to the requirements of Article 50 of the Pensions (Northern Ireland) Order 1995(2) (requirement for dispute resolution arrangements) and the Occupational Pension Schemes (Internal Dispute Resolution Procedures) (Consequential and Miscellaneous Amendments) Regulations (Northern Ireland) 2008(3).

(1)

1911 c. 28, 1920 c. 75, 1939 c. 121, 1989 c. 6

(2)

S.I. 1995/3213 (NI 22). Section 50 was substituted by the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (NI 1)) article 250 and amended by the Pensions Act (Northern Ireland) 2008 (c. 1) (NI) section 14.

(3)

SR. 2008 No 116.