The National Health Service Superannuation Scheme (Scotland) Regulations 2011

Meaning of “pensionable pay” S

C1.—(1) In these Regulations, “ pensionable pay” means, subject to the provisions of this regulation—

(a) all salary, wages, fees and other regular payments made to a member in respect of pensionable employment as an officer, but does not include bonuses, [F1 pay awards and pay increases that are expressed by the Scottish Ministers to be non-consolidated,] payments made to cover expenses or payments for overtime; and

(b) in respect of a non GP provider who, by virtue of regulation R1(3) of these Regulations is treated as an officer, pensionable earnings calculated in accordance with—

(i) paragraph 5 of Schedule 1; or

(ii) where the non GP provider is a practitioner in partnership, paragraph 6 of Schedule 1.

(2) Paragraphs (3) to (14) apply in respect of pensionable employment before 1st April 2008.

(3) Subject to paragraphs (4) and (7), any amount by which a member's pensionable pay exceeds the permitted maximum will be ignored when calculating the amount of any contributions or benefits payable under these Regulations.

(4) Subject to paragraph (5), in the case of a member who joined this Section of the scheme before 1st June 1989 pensionable pay in excess of the permitted maximum will not be ignored.

(5) In the case of a member who joined this Section of the scheme before 1st June 1989 and has a break in pensionable employment on or after that date—

(i) any pensionable pay earned preceding the break in that employment in excess of the permitted maximum will not be ignored;

(ii) any pensionable pay earned after the break in that employment in excess of the permitted maximum will be ignored.

(6) Where a member who was eligible to be a member before 1st June 1989 becomes a member on or after that date by virtue of being a person to whom regulation B6 applies, any amount by which that members pensionable pay exceeds the permitted maximum will not be ignored when calculating the amount of any contributions or benefits payable under these Regulations except in relation to a period following a break in pensionable employment on or after that date.

(7) For the purposes of paragraphs (4) and (6) no account shall be taken of a break in pensionable employment if—

(a) the member returns to pensionable employment within 12 months after leaving;

(b) the break is due to the member's secondment or posting to another employer and, at the time of the secondment or posting, the member has a definite expectation of returning to pensionable employment when the period of secondment or posting ends;

(c) the break is due to the member being engaged in other employment which is approved for this purpose by the Scottish Ministers;

(d) the break is due to the member's unpaid absence from work and the member returns to pensionable employment within one month after returning to work;

(e) the break corresponds to the member's absence from work wholly or partly because of pregnancy or confinement and the member returns to work after the break in exercise of her right under section 39(1)(a) of the Employment Protection (Consolidation) Act 1978 M1 and returns to pensionable employment no later than one month after returning to work; or

(f) the break is due to the member opting out of this Section of the scheme as the result of a contravention which is actionable under section 62 of the Financial Services Act 1986 M2 .

(8) Paragraphs (9) to (14) apply in respect of pensionable employment on, or after, 1st April 2008.

(9) Subject to paragraph (10), pensionable pay in excess of the permitted maximum will not be ignored.

(10) Pensionable pay in excess of the permitted maximum will be ignored in respect of additional service being bought under regulation Q1 (right to buy additional service) and an unreduced lump sum being bought under regulation Q2 (right to buy an unreduced retirement lump sum) if—

(a) the member elected to make such a purchase under regulation Q6(3) (electing to buy additional service or unreduced retirement lump sum) from a birthday falling before 1st April 2008;

(b) the member's pensionable pay was restricted under paragraph (3) before that date; or

(c) the member's pensionable pay would have been restricted under that paragraph if it had exceeded the permitted maximum.

(11) This regulation applies to a member in respect of whom a transfer payment has been accepted from a health service scheme in the same way as if the period of employment that qualified the member for benefits under the health service scheme had been pensionable employment.

(12) Subject to paragraph (13), in these Regulations “final year's pensionable pay” means pensionable pay in respect of the member's last year of pensionable employment, ending on the date the member ceases to be in such employment, or dies, whichever occurs first, except—

(a) if the member was in pensionable employment for less than 12 months, “final year's pensionable pay” means—

(b) if pensionable pay was greater in either or both of the two consecutive years immediately preceding the last year, “final year's pensionable pay” means pensionable pay in respect of the year immediately preceding the last year or, if greater, pensionable pay in respect of the first of those two consecutive years.

(13) If the pensionable pay of a member credited with any period of pensionable service under regulation N3 (transfers made under the public sector transfer arrangements) or N6 (special terms for transfers in (bulk transfers etc.)) has exceeded the permitted maximum and either—

(a) paragraph 20 of Schedule 6 to the Finance Act 1989 M3 applied to the member without the modification made by regulation 5 of the Retirement Benefits Schemes (Continuation of Rights of Members of Approved Schemes) Regulations 1990 M4 in respect of benefits derived from all or part of that service under the transferring scheme; or

(b) any equivalent scheme provision applied to the member in respect of all or part of that service when that person was a member of the transferring scheme from which the transfer was accepted,

that excess shall be ignored for the purposes of calculating the final year's pensionable pay under paragraph (12) in respect of the corresponding period of pensionable service credited under regulation N3 or N6.

(14) In this regulation, “permitted maximum” means—

(a) in relation to any tax year before the tax year 2006-07, the figure specified for that tax year in an order made under section 590C M5 of the Taxes Act; or

(b) subject to paragraphs (15) and (16), the figure for any later year is £108,600.

(15) If the retail prices index for the month of September preceding the tax year 2007-08 or any later tax year is higher than it was for the previous September, the figure for that year is an amount arrived at by—

(a) increasing the figure for the previous tax year by the same percentage as the percentage increase in the retail prices index; and

(b) if the result is not a multiple of £600, rounding it up to the nearest amount which is such a multiple.

(16) If the retail prices index for the month of September preceding the tax year 2007-08 or the month of September preceding any later tax year is not higher than it was for the previous September, the figure for that year shall be the same as for the previous tax year.

[F2 (17) Where, having regard to the matters referred to in paragraph (18), the Scottish Ministers consider that the amount which would, but for their determination under this paragraph, constitute the member’s final year’s pensionable pay is inordinate, they may for the purposes of this regulation determine—

(a) what the amount of that pensionable pay is to be; and

(b) the date from which any change in the amount of that pay as a result of that determination is to take effect

(18) Those matters are—

(a) any variations in the level of the member’s pay during a period not exceeding ten years and ending with the later of the date the member ceases to be in pensionable employment or the date the member dies;

(b) the general level of pensionable pay pertaining in NHS employment for members of the same or an equivalent grade or post during the period under consideration for the purposes of sub-paragraph (a);

(c) promotion and re-grading prospects pertaining in NHS employment for members of the same or an equivalent grade or post;

(d) any other matters the Scottish Ministers consider relevant.

(19) Where the Scottish Ministers determine the amount of a member’s pensionable pay pursuant to paragraph (17)—

(a) the difference between the amount which would, but for the determination pursuant to paragraph (17), be the member’s pensionable pay and the amount so determined pursuant to that paragraph, is to be ignored for the purposes of this regulation (“the ignored amount”);

(b) any contributions referable to the ignored amount and paid by the member pursuant to regulation D1 or Q6, or paragraph 14 or 31 of Schedule 1 are, net of any tax payable, to be refunded to that member;

(c) any contributions referable to the ignored amount and paid by the employing authority pursuant to regulation D2 or paragraph 14 or 31 of Schedule 1, are to be refunded to that employing authority;

(d) the amount so determined is not be regarded as an “excessive pay increase” for the purposes of regulation D3.]

Textual Amendments

F1 Words in reg. C1(1)(a) inserted (with effect in accordance with reg. 1(4) of the amending S.S.I.) by The National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (S.S.I. 2015/96), regs. 1(2), 5

F2 Reg. C1(17)-(19) inserted (28.6.2014) by The National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (S.S.I. 2014/154), regs. 1(2), 5

Marginal Citations

M1 1978 c.44; section 39 was substituted by the Trade Union Reform and Employment Rights Act 1993 (c.19), Schedule 2.

M2 1986 c.60.

M3 1989 c. 26. Paragraph 20 of Schedule 6 was repealed by the 2004 Act, Schedule 42, paragraph 1.

M4 S.I. 1990/2101. Regulation 5 was repealed by implication on the repeal of the enabling provision subject to transitional provisions and savings by the 2004 Act, Schedule 42, paragraph 1.

M5 Section 590C was repealed by the 2004 Act, Schedule 42, paragraph 1.