The National Health Service Superannuation and Pension Schemes (Miscellaneous Amendments) (Scotland) Regulations 2021

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the National Health Service Pension Scheme (Scotland) Regulations 2011 (“the 2011 Regulations”), the National Health Service Pension Scheme (2008 Section) (Scotland) Regulations 2013 (“the 2013 Regulations”), the National Health Service Pension Scheme (Scotland) Regulations 2015 (“the 2015 Regulations”), the National Health Service Pension Scheme (Scotland) (Additional Voluntary Contributions) Regulations 2018 (“the AVC Regulations”), the National Health Service (Scotland) (Injury Benefits) Regulations 1998 (“the Injury Benefits Regulations”) and the National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (“the Transitional Regulations”).

The Regulations come into force on 1 April 2021, although regulation 1(3) provides for certain provisions to come into force on 1 April 2015 and regulation 1(4) to (7) provides for certain provisions to take effect from earlier dates. Section 12(1) of the Superannuation Act 1972 and section 3(3)(b) of the Public Service Pensions Act 2013 provide that regulations made under those Acts may make retrospective provision.

The following are the main changes brought about by this instrument.

First it amends the provisions relating to employee contributions and inserts new tables reflecting revised employee contribution rates for 2020/21. In particular, regulations 4, 28, 30, 38, and 46, insert updated employee contribution bands for the scheme year 2020-21. Regulation 47 inserts updated contribution bands for practitioners and non-GP providers for the scheme year 2020-21.

Second the instrument amends the provisions relating to survivor benefits. In particular, the requirement that a cohabiting surviving partner must have been nominated by the member in order to qualify for a surviving nominated partner’s pension (i.e. they must have been a “nominated partner”) is removed. There remain (unchanged) a number of conditions that a cohabiting surviving partner must satisfy in order to qualify for a “survivor pension”. The removal of the nomination requirement has retrospective effect and starts on 1 April 2011 in respect of the 2011 Regulations and on 1 July 2013 in respect of the 2013 Regulations (the dates on which survivor pensions were introduced for unmarried partners).

The main changes in respect of survivor benefits are as follows. Regulation 12 replaces the current provisions in regulation G14 of the 2011 Regulations regarding eligibility for a surviving nominated partner’s pension (in particular the requirement that the Scottish Ministers are in receipt of a nomination is removed), with provisions regarding the eligibility of a surviving scheme partner to receive a surviving scheme partner’s pension. Regulation 3(2) inserts the definitions “scheme partner” and “surviving scheme partner” into the 2011 Regulations. Regulations 5, 6, 7, 15(b), 16 to 20, 21(3), 22(3), 23 to 25, 26(2) and 28(4) make consequential changes.

Regulations 33 and 40 introduce a new definition of “surviving scheme partner” into the 2011 Regulations in place of “surviving nominated partner”. Consequential changes are made in regulations 32, 34, 35(2), 39, 41 and 42(2).

Similarly, regulation 49 introduces a new provision setting out the requirement to be a “surviving scheme partner” (instead of a “nominated partner”) into the 2015 Regulations. Regulations 48, 50 and 51(2) make consequential changes to terminology.

In the 2011 Regulations only, survivor pensions for nominated partners and spouses of female members are generally based on the member’s service from 6 April 1988 onwards. As a consequence, an additional survivor pension (for dependent surviving spouses and co-habiting partners) based on the member’s service before that date may be available, if certain qualifying criteria are met. Regulation G15 of the 2011 Regulations provides for this additional survivor pension. Regulation 19 makes consequential amendment to this to reflect the removal of the nomination requirement in regulation G14 but the nomination requirement in respect of the additional survivor pension remains in regulation G15.

Provisions that allow a partner nomination made under the 2011 Regulations to have effect under the 2013 Regulations are removed by regulations 36, 37, 43 and 44.

Further consequential amendments relating to survivor benefits are also made by regulations 53 and 54 (the AVC Regulations), regulations 56 to 61 (the Injury Benefits Regulations) and regulation 63 (the Transitional Regulations).

The third main change effected by this instrument is to provide the survivors of civil partners and same sex spouses with the same pension as widows under the 2011 Regulations. The amendments are made with retrospective effect, from 5 December 2005 for civil partners (the date civil partnerships were introduced) and from 16 December 2014 for same sex couples (the date marriage of same sex couples was introduced).

Survivor benefits for civil partners and same sex spouses are already the same as opposite sex spouses in the 2013 Regulations and the 2015 Regulations. Accordingly amendments are not being made to those regulations for this third purpose. Under regulation A4 of the 2011 Regulations, the provisions relating to civil partnerships apply to same sex spouses with effect from 16 December 2014. Amendments are therefore only necessary to the provisions regarding civil partners.

The main changes in respect of this are as follows. Survivor benefits for same sex couples are the same as for widows, with a number of variations. This instrument removes those variations. In particular, regulation 8 removes the provision that provides that a member’s service before 6 April 1988 is disregarded for the purposes of calculating survivor pensions for civil partners or same sex spouses. Regulation 9 removes the requirement for a member to nominate their civil partner or same sex spouse to receive an additional survivor’s pension in respect of that service as that is unnecessary. Regulations 10, 11 and 28(3) remove further provisions in relation to purchasing a survivor pension for service before 6 April 1988, again because these are no longer necessary. Regulations 14, 15(a) and (c), 21(2), 22(2) and 27 make further consequential changes.