The National Health Service Pension Scheme (Transitional and Consequential Provisions) Regulations 2015

Ill-health benefits : continuity of existing applications E+W

27.—(1) This regulation applies [F1 during the application period] to a member—

(a) who, [F2 on 1st April 2022 (“the transition date”)—]

(i) is prevented from contributing to or accruing further [F3 pensionable] service in the 1995 Section or being an active member of the 2008 [F4 Section; and]

F5 (aa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (bb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) becomes eligible to join the new scheme F6 ...;

(b) who submitted Form AW33E (or such other form as the Secretary of State accepted) together with supporting medical evidence [F7 (if] not included in the form) for the purposes of [F8 1995 regulation E2A (ill health pension on early retirement), 2008 regulation 2.D.8 or 2008 regulation 3.D.7 (early retirement on ill-health: active members and non-contributing members)] before the transition date;

(c) whose Form AW33E [F9 (or such other form as the Secretary of State accepted)] and supporting medical evidence [F10 (“the member’s application for ill-health pension”)] was received by the Secretary of State before the transition date; and

(d) whose ill-health pension has not become payable under the 1995 Section or the 2008 Section before the transition date.

(2) [F11 For the purposes of paragraph (1), “the application period” in relation to a member is the period which ends with the day on which—]

(a) the member withdraws the application for ill-health pension; or

(b) the Secretary of State determines that there is no entitlement to [F12 an] ill-health pension [F13 in respect of that application] and that determination has become final and binding.

(3) [F14 For the purposes of paragraph (2)(b), a determination becomes final and binding when—]

(a) the determination may not be the subject of further challenge by the member—

(i) pursuant to dispute resolution arrangements made and implemented under section 50 of the Pensions Act 1995(2);

(ii) by way of a complaint to the Pensions Ombudsman pursuant to Part X of the Pension Schemes Act 1993(3); or

[F15 (iii) by proceedings before a court or tribunal;;] or

(b) F16 ... the member has indicated in writing that—

(i) the application for ill-health pension is withdrawn; or

(ii) the determination is accepted by the member as being final and binding and any right to further challenge is waived.

F17 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F17 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F17 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F18 (7) Where this regulation applies—

(a) the member’s application for ill-health pension is considered in accordance with paragraph (8) or (9) (whichever is relevant); and

(b) the member’s benefits, if any, are paid in accordance with paragraph (10) and the further provisions referred to in that paragraph (whichever are relevant).

(8) If the member was in pensionable employment in the 1995 Section on 31st March 2022, the member’s application for ill-health pension is considered—

(a) as an application for ill-health pension for the purposes of 2015 regulation 90 (entitlement to ill-health pension); and

(b) as if it were also an application for ill-health pension for the purposes of 1995 regulation E2A.

(9) If the member was an active member of the 2008 Section on 31st March 2022, the member’s application for ill-health pension is considered—

(a) as an application for ill-health pension for the purposes of 2015 regulation 90; and

(b) as if it were also an application for ill-health pension for the purposes of 2008 regulation 2.D.8 or 2008 regulation 3.D.7.

(10) The member’s benefits will be paid in accordance with—

(a) paragraph (13) if, as a result of consideration under paragraph (8), the member satisfies the tier 1 condition in paragraph (2)(b)(i) of 1995 regulation E2A but does not satisfy the Tier 1 condition in paragraph (2)(c) of 2015 regulation 90;

(b) paragraph (14) if, as a result of consideration under paragraph (9), the member satisfies the tier 1 condition in paragraph (2)(a) of 2008 regulation 2.D.8 or 2008 regulation 3.D.7 but does not satisfy the Tier 1 condition in paragraph (2)(c) of 2015 regulation 90;

(c) paragraph (16) if—

(i) as a result of—

(aa) consideration under paragraph (8), the member satisfies the tier 1 condition in paragraph (2)(b)(i), or that condition and the tier 2 condition in paragraph (2)(b)(ii), of 1995 regulation E2A and also satisfies the Tier 1 condition in paragraph (2)(c), or that condition and the Tier 2 condition in paragraph (3)(b), of 2015 regulation 90 (together “the 2015 regulation 90 ill-health conditions”); or

(bb) consideration under paragraph (9), the member satisfies the tier 1 condition in paragraph (2)(a), or that condition and the tier 2 condition in paragraph (3)(a), of 2008 regulation 2.D.8 or the tier 1 condition in paragraph (2)(a), or that condition and the tier 2 condition in paragraph (3)(a), of 2008 regulation 3.D.7 and also satisfies one or both of the 2015 regulation 90 ill-health conditions; and

(ii) the annual rate of ill-health pension to which the member would have been entitled under 1995 regulation E2A, 2008 regulation 2.D.8 or 2008 regulation 3.D.7 if the member had retired from pensionable employment or ceased NHS employment on 31st March 2022 is, subject to paragraphs (11) and (12), greater than the annual rate of ill-health pension to which the member is entitled under paragraph (3)(a) or (4) of regulation 28 (ill health benefits: members below old scheme normal pension age) as at the date the member ceased NHS employment for the purposes of the 2015 Regulations (“the pension comparison calculation”);

(d) regulation 28(3) or (4) if—

(i) sub-paragraph (c)(i)(aa) or (bb) applies to the member; and

(ii) the annual rate of ill-health pension payable to the member under regulation 28(3)(a) or (4) is greater than the annual rate of ill-health pension to which the member would have been entitled under 1995 regulation E2A, 2008 regulation 2.D.8 or 2008 regulation 3.D.7, as determined in accordance with the pension comparison calculation, if the member had retired from pensionable employment or ceased NHS employment on 31st March 2022.

(11) If the member was in pensionable employment in the 1995 Section on 31st March 2022, for the purposes of the pension comparison calculation, the pensions (“P”) under—

(a) 1995 regulation E2A; and

(b) regulation 28(3)(a)(ii),

are each increased by the amount found by applying the formula—

3 x P/12

(12) If the member was an active member of the 2008 Section on 31st March 2022 who is entitled to a lump sum (“LS”) under regulation 28(3)(b)(ii) or (iii), for the purposes of the pension comparison calculation, the pensions under—

(a) 2008 regulation 2.D.8 or 2008 regulation 3.D.7; and

(b) regulation 28(3)(a)(ii),

are each increased by the amount found by applying the formula—

LS/12

(13) Where this paragraph applies to the member (see paragraph (10)(a)), the annual rate of ill-health pension and the lump sum payable from the new scheme is equal to—

(a) either—

(i) if the member satisfies the tier 1 condition in paragraph (2)(b)(i), but not the tier 2 condition in paragraph (2)(b)(ii), of 1995 regulation E2A, the tier 1 ill-health pension the member would have been entitled to under that regulation if the member had retired from pensionable employment on 31st March 2022; or

(ii) if the member satisfies the tier 2 condition in paragraph (2)(b)(ii) of 1995 regulation E2A, the tier 2 ill-health pension the member would have been entitled to under that regulation if the member had retired from pensionable employment on 31st March 2022; and

(b) the lump sum to which the member would have been entitled under regulation E6 (lump sum on retirement) of the 1995 Regulations(1) as a consequence of becoming entitled to the payment of one of those pensions.

(14) Where this paragraph applies to the member (see paragraph (10)(b)), the annual rate of ill-health pension and the lump sum payable from the new scheme is equal to—

(a) if the member satisfies the tier 1 condition in paragraph (2)(a), but not the tier 2 condition in paragraph (3)(a), of 2008 regulation 2.D.8 or the tier 1 condition in paragraph (2)(a), but not the tier 2 condition in paragraph (3)(a), of 2008 regulation 3.D.7, the tier 1 ill-health pension the member would have been entitled to under whichever of those regulations applies to the member if the member had ceased to be employed in NHS employment on 31st March 2022; or

(b) if the member satisfies the tier 2 condition in paragraph (3)(a) of 2008 regulation 2.D.8 or paragraph (3)(a) of 2008 regulation 3.D.7, the tier 2 ill-health pension the member would have been entitled to under whichever of those regulations applies to the member if the member had ceased to be employed in NHS employment on 31st March 2022.

(15) On the payment of a pension to a member in accordance with paragraph (13) or (14), all rights in respect of that member under the old scheme are extinguished.

(16) Where this paragraph applies to the member (see paragraph (10)(c))—

(a) the annual rate of ill-health pension payable from the new scheme under regulation 28 is increased by an amount equal to the difference between the annual rate of the member’s ill-health pension under 1995 regulation E2A, 2008 regulation 2.D.8 or 2008 regulation 3.D.7 and the annual rate of the member’s ill-health pension under regulation 28(3)(a) or (4), determined in accordance with the pension comparison calculation; and

(b) that increase is applied to the member’s ill-health pension under regulation 28 after the calculation of the Tier 2 addition (if any) in accordance with paragraph (4)(b) of that regulation.

(17) Paragraphs (18) and (19) apply if a member receiving an ill-health pension under paragraph (10)(a) or (b) dies (“the deceased member”).

(18) If a surviving adult dependant of the deceased member is entitled to a pension in accordance with regulation 116 (amount of pension: survivor of pensioner member) of the 2015 Regulations, the annual rate of the adult survivor pension payable under paragraph (4)(a) of that regulation is—

(a) 50% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (10)(a) of this regulation on that date; and

(b) 37.5% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (10)(b) of this regulation on that date.

(19) If a child’s pension becomes payable in respect of an eligible child of the deceased member in accordance with regulation 124 (amount of child pension: deceased pensioner member) of the 2015 Regulations, the basic death pension for the purposes of paragraph (3)(a)(2) of that regulation is—

(a) 100% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (10)(a) of this regulation on that date; and

(b) 75% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (10)(b) of this regulation on that date.

(20) For the purposes of the 2015 Regulations—

(a) a member’s pension entitlement under the new scheme that is equivalent to entitlement to one of the following pensions is treated as if it were entitlement to an ill-health pension at Tier 1 under 2015 regulation 90—

(i) a tier 1 pension under 1995 regulation E2A referred to in paragraph (13)(a)(i);

(ii) a tier 1 pension under 2008 regulation 2.D.8 or 2008 regulation 3.D.7 referred to in paragraph (14)(a);

(b) a member’s pension entitlement under the new scheme that is equivalent to entitlement to one of the following pensions is treated as if it were entitlement to an ill-health pension at Tier 2 under 2015 regulation 90—

(i) a tier 2 pension under 1995 regulation E2A referred to in paragraph (13)(a)(ii);

(ii) a tier 2 pension under 2008 regulation 2.D.8 or 2008 regulation 3.D.7 referred to in paragraph (14)(b);

(iii) a pension under regulation 28 that is increased in accordance with paragraph (16) by an amount equal to the difference between the annual rate of the ill-health pension payable under regulation 28(3)(a) and the annual rate of the member’s tier 2 ill-health pension under 1995 regulation E2A, 2008 regulation 2.D.8 or 2008 regulation 3.D.7 as determined in accordance with the pension comparison calculation.

(21) In this regulation—

“1995 regulation E2A” means regulation E2A of the 1995 Regulations;

“2008 regulation 2.D.8” means regulation 2.D.8 of the 2008 Regulations;

“2008 regulation 3.D.7” means regulation 3.D.7 of the 2008 Regulations;

“2015 regulation 90” means regulation 90 of the 2015 Regulations;

“the 2015 regulation 90 ill-health conditions” has the meaning given in paragraph (10)(c)(i)(aa);

“the application period” has the meaning given in paragraph (2);

“the deceased member” has the meaning given in paragraph (17);

“the member’s application for ill-health pension” has the meaning give in paragraph (1)(c);

“the pension comparison calculation” has the meaning given in paragraph (10)(c)(ii).]

Textual Amendments

F1 Words in reg. 27(1) inserted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(i)

F2 Words in reg. 27(1)(a) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(ii)(aa)

F3 Word in reg. 27(1)(a)(i) inserted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(ii)(bb)

F4 Word in reg. 27(1)(a)(i) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(ii)(bb)

F5 Reg. 27(1)(a)(i)(aa)(bb) omitted (1.4.2022) by virtue of The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(ii)(bb)

F6 Words in reg. 27(1)(a)(ii) omitted (1.4.2022) by virtue of The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(ii)(cc)

F7 Word in reg. 27(1)(b) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(iii)(aa)

F8 Words in reg. 27(1)(b) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(iii)(bb)

F9 Words in reg. 27(1)(c) inserted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(iv)(aa)

F10 Words in reg. 27(1)(c) inserted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(a)(iv)(bb)

F11 Words in reg. 27(2) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(b)(i)

F12 Word in reg. 27(2)(b) inserted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(b)(ii)(aa)

F13 Words in reg. 27(2)(b) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(b)(ii)(bb)

F14 Words in reg. 27(3) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(c)(i)

F15 Reg. 27(3)(a)(iii) substituted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(c)(ii)

F16 Word in reg. 27(3)(b) omitted (1.4.2022) by virtue of The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(c)(iii)

F17 Reg. 27(4)-(6) omitted (1.4.2022) by virtue of The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(d)

F18 Reg. 27(7)-(21) inserted (1.4.2022) by The National Health Service Pension Schemes (Amendment) Regulations 2022 (S.I. 2022/327), regs. 1(2), 5(6)(e)

Commencement Information

I1 Reg. 27 in force at 1.4.2015, see reg. 1(b)

(1)

Paragraphs (1A) to (1L) in each regulation are inserted by paragraphs 11 and 17 of Schedule 2 respectively.

(2)

1995 c.26. Section 50 was substituted by section 273 of the Pensions Act 2004 (c.35) and amended by sections 16(1) to (6) of the Pensions Act 2007 (c.22).

(3)

1993 c.48.