The National Health Service Pension Schemes (Remediable Service) Regulations 2023

PART 12 Retirement pensions

Premature retirement in the interests of efficiency

72.—(1) This regulation applies in relation to a relevant member (“ M”) who has remediable service that is pensionable service under the legacy scheme whether or not by virtue of section 2(1) of PSPJOA 2022 (“M’s remediable service”).

(2) Where this regulation applies and the scheme manager accepts an immediate choice election made in accordance with regulation 9 or a deferred choice election made in accordance with regulation 12 and, as a result of that election, the additional contribution due from the employing authority increases, the scheme manager must waive that increase.

(3) In paragraph (2), the additional contribution due from the employing authority is the amount the scheme manager determines is required to meet the cost of providing the pension in the 1995 Section or 2008 Section (whichever is relevant).

(4) In this regulation, “relevant member” means a member whose employment has been or is terminated by M’s employing authority in accordance with—

(a) regulation E3A of the 1995 Regulations(1) (early retirement pension (termination of employment by employing authority)), or

(b) regulation 2.D.11 of the 2008 Regulations(2) (early retirement on termination of employment by employing authority).

Premature retirement on grounds of redundancy

73.—(1) This regulation applies in relation to a relevant remedy member (“ M”) where M’s employing authority has made or makes a contribution to the scheme manager in accordance with—

(a) regulation D2 of the 1995 Regulations(3) (contributions by employing authorities);

(b) regulation 2.C.6 of the 2008 Regulations(4) (contributions by employing authorities: members becoming entitled to pensions under regulation 2.D.11); or

(c) regulation 35 of the 2015 Regulations (employing authority contributions: redundancy).

(2) Paragraphs (3) and (4) apply if the cost of any benefits on termination in respect of M increase as a result of—

(a) the scheme manager accepting—

(i) an immediate choice election made by or in respect of M in accordance with regulation 9, or

(ii) a deferred choice election made by or in respect of M in accordance with regulation 12, or

(b) an election referred to in sub-paragraph (a) not being made by or in respect of M before the end of the immediate choice election period or the end of the deferred choice election period (whichever election period applies in respect of M).

(3) M may pay all or part of the additional contribution as the scheme manager, after having regard to the advice of the scheme actuary, determines will be sufficient to meet the increased cost of the benefits insofar as that cost—

(a) is not met by the contribution referred to in paragraph (1), and

(b) exceeds the cost in respect of which M was entitled to make an additional contribution on becoming entitled to any benefits on termination.

(4) If M elects not to pay any additional contribution in accordance with paragraph (3), the scheme manager must reduce the amount of pension pursuant to—

(a) regulation E3AB(7) to (12) of the 1995 Regulations(5) (early retirement pension: additional contribution option);

(b) regulation 2.D.11A(7) to (12) of the 2008 Regulations(6) (early retirement on termination of employment by employing authority: additional contribution option); or

(c) paragraph 7(4) to (6) and (8) to (10) of Schedule 13 to the 2015 Regulations (calculation of amount of premature retirement pension).

(5) Subject to paragraph (6), if the member is not entitled to make an additional contribution to meet the increase in costs referred to in paragraph (2) and that increase is to be met by M’s employing authority in accordance with the terms and conditions relevant to M’s employment, the scheme manager must waive the element of the further contribution due from the employing authority that relates to the increase.

(6) Where M has received a relevant employing authority payment and that payment must be reduced as a consequence of the increase in costs referred to in paragraph (5), the amount that must be waived under that paragraph must also be reduced by the same amount.

(7) Paragraph (8) applies if the cost of any benefits on termination in respect of M decrease as a result of—

(a) the scheme manager accepting—

(i) an immediate choice election made by or in respect of M in accordance with regulation 9, or

(ii) a deferred choice election made by or in respect of M in accordance with regulation 12, or

(b) an election referred to in sub-paragraph (a) not being made by or in respect of M before the end of the immediate choice election period or the end of the deferred choice election period (whichever election period applies in respect of M).

(8) The scheme manager must send a notice in writing to M or the designated person of the amount by which the cost of any benefits on termination in respect of M have decreased.

(9) In this regulation—

“additional contribution” has the meaning given in (whichever is relevant)—

(a)

regulation E3AB of the 1995 Regulations;

(b)

regulation 2.D.11A of the 2008 Regulations; or

(c)

regulation 32 of the 2015 Regulations (members’ contributions: redundancy);

“benefits on termination” means benefits under—

(a)

regulations E3A, E6 (lump sum on retirement) and E7 (general option to exchange part of pension for lump sum) of the 1995 Regulations(7);

(b)

regulations 2.D.11 and 2.D.14 (general option to exchange part of pension for lump sum) of the 2008 Regulations(8); or

(c)

regulations 77 (conversion of part of pension into lump sum) and 82 (premature retirement on grounds of redundancy) of the 2015 Regulations;

“relevant remedy member” means a member who, in respect of the termination of M’s employment by M’s employing authority, is entitled to the payment of any benefits on termination;

“relevant employing authority payment” means a payment made to M by M’s employing authority in respect of the cessation of M’s employment referred to in (whichever is relevant)—

(a)

regulation E3A(5)(a) of the 1995 Regulations;

(b)

regulation 2.D.11(6)(a) of the 2008 Regulations; or

(c)

paragraph 7(2)(a) of Schedule 13 to the 2015 Regulations.

Partial retirement: immediate choice members

74.—(1) This regulation applies to an immediate choice member (“ M”) who—

(a) is entitled to a pension under—

(i) regulation 2.D.5 or 3.D.5 of the 2008 Regulations(9) (partial retirement (members aged at least 55)), or

(ii) regulation 84 of the 2015 Regulations (election for partial retirement (members over normal minimum pension age)), and

(b) either—

(i) has remediable service that is pensionable service under the 2008 Section by virtue of section 2(1) of PSPJOA 2022 and does not make an immediate choice election under regulation 9 of these Regulations in respect of that service, or

(ii) has remediable service that is pensionable service under the 2008 Section other than by virtue of section 2(1) of PSPJOA 2022 and makes an immediate choice election under regulation 9 of these Regulations in respect of that service.

(2) M may elect to adjust the specified percentage of M’s pension (excluding any additional pension) in respect of which M has claimed immediate payment by an amount determined by the scheme manager as being necessary to maintain the amount of M’s annual partial retirement pension in payment at—

(a) the end of the immediate choice election period where paragraph (1)(b)(i) applies to M, or

(b) the date the member makes an immediate choice election under regulation 9 where paragraph (1)(b)(ii) applies to M.

(3) Where this regulation applies—

(a) the scheme manager must send a notice in writing to M of M’s right under paragraph (2) on or before the relevant date referred to in regulation 6(2);

(b) M must, if M decides to exercise that right, give the scheme manager notice in writing of that decision—

(i) within three months beginning with the day after the day on which the scheme manager sends the notice referred to in sub-paragraph (a), or

(ii) by such later time as the scheme manager considers reasonable in all the circumstances of the case.

(4) In this regulation, “specified percentage” in relation to M’s pension has the meaning given in regulation 2.D.5(4)(a) of the 2008 Regulations, regulation 3.D.5(3)(a) of the 2008 Regulations or regulation 84(3)(a) of the 2015 Regulations (whichever is relevant).

Partial retirement: deferred choice members

75.—(1) This regulation applies to a deferred choice member (“ M”) who, at the operative time, is entitled to a pension under—

(a) regulation E5A of the 1995 Regulations(10) (partial retirement pension);

(b) regulation 2.D.5 or 3.D.5 of the 2008 Regulations (partial retirement (members aged at least 55)); or

(c) regulation 84 of the 2015 Regulations (election for partial retirement (members over normal minimum pension age)).

(2) M may make an election to substitute the specified percentage of M’s pension (excluding any additional pension) in respect of which M has claimed immediate payment with a different specified percentage (“a substitute percentage election”).

(3) The scheme manager must send a notice in writing to M of M’s right to make a substitute percentage election under paragraph (2) on or before the relevant date referred to in regulation 6(2).

(4) A substitute percentage election must—

(a) be made by M by notice in writing;

(b) be received by the scheme manager—

(i) within a period of three months beginning with the day after the scheme manager sends the notice referred to in paragraph (3), or

(ii) by such later time as the scheme manager considers reasonable in all the circumstances of the case;

(c) contain such information as the scheme manager requires;

(d) take effect from the day on which the member became entitled to the pension referred to in paragraph (1) (whichever is relevant); and

(e) be disregarded for the purposes of determining whether the member may make a further election for partial retirement under the regulation referred to in paragraph (1) (whichever is relevant).

(5) In this regulation—

“operative time” means, if a deferred choice election by virtue of regulation 12 is made in relation to M’s remediable service, the time when the election is made; otherwise, the end of the deferred choice election period in relation to M;

“specified percentage” in relation to M’s pension has the meaning given in regulation E5A(4)(a) of the 1995 Regulations, regulation 2.D.5(4)(a) of the 2008 Regulations, regulation 3.D.5(3)(a) of the 2008 Regulations or regulation 84(3)(a) of the 2015 Regulations (whichever is relevant).

Determining whether a member meets the ill-health criteria in each scheme

76.—(1) This regulation applies to or in respect of a remedy member (“ M”)—

(a) who ceased to be employed in NHS employment during the period of M’s remediable service, and

(b) whose application for an ill-health pension in relation to that service (“M’s application”) has been determined by the scheme manager.

(2) Where this regulation applies, the scheme manager must reconsider M’s application together with any supporting medical evidence (where relevant) to determine whether M would have met the ill-health retirement criteria in M’s alternative scheme or section when the application was initially determined.

(3) Where M or a designated person on M’s behalf has the right to make an immediate choice election under regulation 9—

(a) the scheme manager must send a notice in writing to M or the designated person of the outcome of the scheme manager’s determination under paragraph (2) before the immediate choice election period commences in respect of M, and

(b) if M or the designated person on M’s behalf elects to take an ill-health pension as a result of the scheme manager’s determination under paragraph (2), any rights for M to make that election must be deemed to have been fulfilled.

(4) Where M or a designated person on M’s behalf has the right to make a deferred choice election under regulation 12—

(a) the scheme manager must send a notice in writing to M or the designated person of the outcome of the scheme manager’s determination under paragraph (2) as soon as reasonably practicable after 1st October 2023, and

(b) if M or the designated person on M’s behalf elects to take an ill-health pension as a result of the scheme manager’s determination under paragraph (2), any rights for M to make that election must be deemed to have been fulfilled.

(5) The provisions of Chapter 1 of Part 1 of PSPJOA 2022 and Part 3 of these Regulations about the timing and effect of an immediate choice election by virtue of section 6, and of a deferred choice election by virtue of section 10, of that Act apply subject to this regulation.

(6) In this regulation—

“ill-health pension” means a pension under—

(a)

regulation E2A of the 1995 Regulations(11) (ill health pension on early retirement);

(b)

regulation L1(3) of the 1995 Regulations(12) (preserved pension: entitlement to pension and retirement lump sum before age 60);

(c)

regulation 2.D.8 or 3.D.7 of the 2008 Regulations(13) (early retirement on ill-health: active members and non-contributing members);

(d)

regulation 2.D.10 or 3.D.9 of the 2008 Regulations(14) (early retirement on ill-health (deferred members));

(e)

regulation 90 of the 2015 Regulations(15) (entitlement to ill-health pension); or

(f)

regulation 94 of the 2015 Regulations(16) (early retirement on ill-health (deferred members));

“M’s alternative scheme or section” means—

(a)

where M’s eligibility for an ill-health pension was assessed under the 1995 Section or the 2008 Section, the 2015 scheme;

(b)

where M’s eligibility for an ill-health pension was assessed under the 2015 scheme, the 1995 Section or the 2008 Section (whichever is relevant);

“NHS employment” has the meaning given in Schedule 15 to the 2015 Regulations.

Ill-health pension: acceptance of retrospective applications

77.—(1) This regulation applies where—

(a) a remedy member (“M”) submits an application for an ill-health pension on or after 1st October 2023, and

(b) the scheme manager is satisfied that it is more likely than not that, but for a relevant breach of a non-discrimination rule(17), M would, during the period of M’s remediable service, have made the decision to apply for an ill-health pension.

(2) The scheme manager may treat the application—

(a) in accordance with regulation 27 of the 2015 Transitional Regulations(18) (ill-health benefits: continuity of existing applications), and

(b) as if the application had been submitted before 1st April 2022.

(3) In this regulation, “ill-health pension” means a pension under—

(a) regulation E2A of the 1995 Regulations (ill health pension on early retirement);

(b) regulation 2.D.8 or 3.D.7 of the 2008 Regulations (early retirement on ill-health: active members and non-contributing members); or

(c) regulation 90 of the 2015 Regulations (entitlement to ill-health pension).

(1)

Regulation E3A was substituted by S.I. 2006/2919 and amended by S.I. 2013/413, 2014/570, 2015/96.

(2)

Regulation 2.D.11 was amended by S.I. 2009/381 and 2446, 2013/413, 2014/570, 2015/96.

(3)

Regulation D2 was amended by S.I. 2003/631, 2004/665, 2005/661 and 3074, 2006/2919, 2007/3280, 2008/654 and 2263, 2010/1634, 2011/2586, 2013/413, 2014/570, 2015/96, 2016/245, 2019/418.

(4)

Regulation 2.C.6 was amended by S.I. 2010/492, 2013/413, 2014/570, 2015/96, 2017/275.

(5)

Regulation E3AB was inserted by S.I. 2015/96.

(6)

Regulation 2.D.11A was inserted by S.I. 2015/96.

(7)

Regulation E6 was amended by S.I. 2006/600, 2007/3280, 2009/381, 2010/492, 2011/2586. Regulation E7 was inserted by S.I. 2008/654 and amended by S.I. 2009/381.

(8)

Regulation 2.D.14 was amended by S.I. 2009/381 and 2446.

(9)

Regulation 2.D.5 was amended by S.I. 2009/381 and 2446. Regulation 3.D.5 was amended by S.I. 2009/381 and 2446, 2013/413.

(10)

Regulation E5A was inserted by S.I. 2023/952.

(11)

Regulation E2A was inserted by S.I. 2008/654 and subsequently amended by S.I. 2009/2446, 2019/418.

(12)

Regulation L1 was amended by S.I. 2000/605, 2003/631, 2004/665, 2006/600, 2008/654, 2009/381 and 2446, 2015/95, 2019/418.

(13)

Regulations 2.D.8 and 3.D.6 and their headings were amended by S.I. 2009/381 and 2446, 2010/492, 2021/631.

(14)

Regulations 2.D.10 and 3.D.9 were amended by S.I. 2008/2263, 2009/2446.

(15)

Regulation 90 was amended by S.I. 2017/275.

(16)

Regulation 94 was amended by S.I. 2016/245.

(17)

See section 25(8) of PSPJOA 2022 for the meaning of “non-discrimination rule” and section 25(9) for the circumstances in which breach of a non-discrimination rule is “relevant”.

(18)

Regulation 27 was amended by S.I. 2022/327.