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

Pensionable pay

Meaning of “pensionable pay”

2.A.9.—(1) In this Part, subject to the following provisions of this regulation, “pensionable pay” means all salary, wages, fees and other regular payments made to a person in respect of employment in which the person is an active member of this Section of the scheme.

(2) In the case of a member who, in addition to one or more such employments, holds an honorary office or appointment, any distinction award payable to the member as a consequence of holding the honorary office or appointment, is to be treated—

(a) in the case of a member in one such employment, as pensionable pay of that employment; and

(b) in the case of a member in two or more such employments, as pensionable pay of such of those employments as the Scottish Ministers consider appropriate.

(3) “Pensionable pay” does not include—

(a) bonuses;

(b) payments made to cover expenses; or

(c) payments for overtime.

(4) If—

(a) a person is an active member in respect of two or more part-time employments; and

(b) in the opinion of the Scottish Ministers, the total pensionable pay for the employments (apart from this paragraph) exceeds the amount that would be the pensionable pay for a comparable whole-time employment not held concurrently with any other employment under which services of the kinds performed in the two or more part-time employments are performed,

the excess pensionable pay is ignored for the purposes of this Part.

(5) In the case of a non-GP provider who is not in receipt of any salary, wages, fees or other regular payment, “pensionable pay” means practitioner income less any sum on account of practice expenses (for these purposes, contributions payable under regulation 2.C.1(5) or (6) (contributions of members) are neither practitioner income nor practice expenses).

(6) For the purposes of this regulation, the practitioner income of a non-GP provider means income that accrues to the non-GP provider which is derived from—

(a) a GMS contract;

(b) a section 17C agreement;

(c) an HBPMS contract; and

(d) payments from, or to, a practitioner who is a GMS practice, a section 17C agreement practice or an HBPMS contractor in respect of the performance of certification services, commissioned services or collaborative services.

(7) In the case of a non-GP provider who is in partnership with a principal medical practitioner practising in partnership, the pensionable earnings of each non-GP provider who is a partner in a partnership is to be calculated by aggregating the pensionable earnings of each partner (including for this purpose, any amount that would constitute pensionable earnings in the case of any of them who are not included in this Section of the scheme and, subject to paragraph (8), dividing the total equally by reference to the number of such partners.

(8) If the non-GP providers and any principal medical practitioners who are partners in a partnership do not share equally in the partnership profits, they may elect that each partner’s pensionable earnings is to correspond to each partner’s share of the partnership profits.

(9) The calculations described in paragraph (8) are to be made by the Health Board or someone appointed on its behalf to which the partners are required to give notice of their election in accordance with paragraph (10).

(10) Non-GP providers and any principal medical practitioners who are partners in any partnership must exercise the election described in paragraph (8) by giving notice in writing to their contracting Health Board or someone appointed on its behalf, in accordance with paragraph (11).

(11) A notice given under this regulation—

(a) must be signed by all the non-GP providers and principal medical practitioners in the partnership and must state as a fraction each non-GP provider’s and practitioner’s share in the partnership profits;

(b) takes effect—

(i) from the date agreed between the partners and the Health Board concerned; or

(ii) if no agreement is reached, a date decided by the Scottish Ministers;

(c) continues in effect until cancelled or amended by a subsequent notice in writing signed by all the partners in the partnership; and

(d) is automatically cancelled upon a change in the members of the partnership.

Pensionable pay: breaks in service

2.A.10.—(1) Paragraph (2) applies if a member is absent from work because of—

(a) illness or injury;

(b) maternity leave;

(c) adoption leave;

(d) paternity leave; or

(e) parental leave,

and the earnings used to calculate the member’s pensionable pay under regulation 2.A.9 (meaning of “pensionable pay”) are reduced or cease.

(2) For the purposes of this Part (apart from regulations 2.C.1 (contributions by members) and 2.C.2 (contribution rate for members other than non-GP providers) and subject to paragraph (7)) in the case of a non-GP provider, or paragraph (3) in the case of a member who is not a non-GP provider, amounts equal to the pensionable pay that the member would have received if those circumstances had not applied are to be treated as having been paid to the member.

(3) Paragraph (2) does not apply to a member who is not a non-GP provider falling within paragraph (1)(a) as respects any period after the earnings used to calculate the member’s pensionable pay under regulation 2.A.9 (meaning of “pensionable pay”) have ceased to be paid to the member.

(4) For the purposes of regulations 2.C.1 and 2.C.2, if for any period whilst the member falls within—

(a) paragraph (1), the earnings used to calculate the member’s pensionable pay under regulation 2.A.9 are reduced, amounts equal to the reduced earnings are to be treated as pensionable pay; and

(b) paragraph (1)(b) to (e), the earnings used to calculate the member’s pensionable pay under regulation 2.A.9 are reduced, during any period following that period whilst the member continues to fall within that paragraph and no such earnings are paid, amounts equal to the reduced earnings are to be treated as pensionable pay.

(5) For the purposes of paragraph (4)(b), any pay received by a woman on maternity leave in respect of any days during which the member returns to work for the purposes of keeping in touch with the workplace is to be ignored.

(6) For the purposes of this Part, during any period of absence which counts as pensionable service under regulation 2.A.5(3) or (4) (pensionable service: breaks in service) amounts equal to the rate of the member’s pensionable pay immediately before the absence are to be treated as pensionable pay.

(7) In the case of a non-GP provider—

(a) who is one of a number of non-GP providers or practitioners who have elected as described in regulation 2.A.9(8), each non-GP provider’s or practitioner’s pensionable earnings are to be calculated as if the partnership’s aggregate pensionable earnings were equal to the amount of the partnership’s aggregate pensionable earnings during the 12 month period ending immediately before the member’s earnings were reduced or ceased; and

(b) except where the non-GP provider’s pensionable pay falls to be calculated as described in sub-paragraph (a), the non-GP provider are to be treated as having continued to receive the same average rate of pensionable earnings as during the 12 month period ending immediately before the non-GP provider’s earnings were reduced or ceased.

(8) If the earnings used to calculate a member’s pensionable pay cease during a period of absence to which this regulation applies—

(a) a non-GP provider falling within paragraph (1)(a) is, subject to sub-paragraph (b), to be treated as having continued in pensionable employment for a period of 12 months from the date on which the member’s earnings ceased and the member is not to be treated as having left pensionable employment until the end of that 12 month period;

(b) a non-GP provider falling within paragraph (1)(b) to (e) who paid contributions on the basis of reduced earnings in accordance with paragraph (4)(b) must, subject to paragraph (9), continue to pay contributions at that rate, except that no refund of contributions or other benefit is payable until the member actually leaves pensionable employment; and

(c) a member other than a non-GP provider is, subject to paragraph (5), to be treated as having left pensionable employment except that no refund of contributions or other benefit is payable until the member actually leaves pensionable employment.

(9) For the purposes of paragraph (8)(a)—

(a) during the 12 month period, the non-GP provider’s pensionable earnings are to be calculated as described in paragraph (7)(a) or (b) (whichever is applicable); and

(b) at the end of the 12 month period, when the member is regarded as having left pensionable employment, no refund of contributions or other benefit is payable until the member actually leaves employment.

(10) For the purposes of paragraph (8)(b), the rate of contributions payable is the rate that would have been payable on the basis of reduced earnings in accordance with paragraph (4)(a) had the non-GP provider’s reduced earnings excluded any earnings for a day during which the non-GP provider, whilst on maternity leave, returned to work for the purposes of keeping in touch with the workplace.

(11) If a member fails to pay any contributions which are required to be paid to this Section of the scheme in respect of a period of absence to which this regulation applies, the member is to be treated as having left pensionable employment except that no refund of contributions or other benefit is payable unless the member actually leaves pensionable employment.

(12) If a member to whom this regulation applies—

(a) leaves pensionable employment; or

(b) by virtue of paragraph (8)(c), (9)(b) or (11) is treated as having left pensionable employment without becoming entitled to a preserved pension,

then if the member later returns to pensionable employment regulation 2.A.5(5) (pensionable service: breaks in service) applies as if the reference to 12 months was a reference to three years.

(13) The benefits payable on the death of a member whose earnings ceased during a period of absence to which paragraph (7) applies is to be calculated as if the member had died in pensionable employment on the day before the member’s earnings ceased.