S2.—(1) Subject to paragraph (17), this regulation applies to a member—
(a)until the member attains the age of 60;
(b)who is in receipt of a relevant pension; and
(c)who continues in, or subsequently returns to, NHS employment.
(2) A relevant pension for the purpose of this regulation is a pension payable—
(a)in respect of pensionable employment that ceased before 1st April 2008—
(i)under any of regulations E2 to E9; or
(ii)in accordance with regulation E12(2)(b);
(b)in respect of pensionable employment that ceased on or after 1st April 2008—
(i)[F1under] any of regulations E2 to E6;
(ii)in accordance with regulation E7(2)(d)(ii); or
(iii)except where paragraph (c) applies, in accordance with E12(2)(b); or
(c)where the member is a special class officer—
(i)if regulation E1; or
(ii)if regulation R2(3)(b) [F2(nurses, physiotherapists, midwives and health visitors) or regulation R3(10) (mental health officers)] applies to the member,
in accordance with E12(2)(b).
(3) A member to whom this regulation applies must—
(a)inform the member's employer, and any other person that the Scottish Ministers may specify, that the member's pension under this Section of the scheme has become payable; and
(b)if requested to do so, provide any information (or authorise any other person to provide information) about the member's pay from NHS employment to the Scottish Ministers or to any other person the Scottish Ministers may specify.
(4) If the relevant pension is one referred to in paragraph (2)(a) or (c)—
(a)the member's pension will be reduced by the appropriate amount; and
(b)the appropriate amount is the difference between the member's previous pay and the aggregate of—
(i)the amount of the member's pension (including any amount by which that pension has been reduced pursuant to an election under regulation E17); and
(ii)the amount of the member's pay from NHS employment for the financial year after the pension becomes payable.
(5) If the relevant pension is one referred to in paragraph (2)(b), the member's pension will be reduced in accordance with paragraphs (6) to (8) if amount A exceeds the member's previous pay.
(6) The reduction in that member's pension will be equal to the difference between amount A and the member's previous pay, but will not exceed amount B.
(7) For the purposes of paragraphs (5) and (6), amount A is the aggregate of—
(a)the amount of the member's pay from NHS employment for any financial year after the pension becomes payable; and
(b)amount B.
(8) For the purposes of paragraphs (6) and (7), amount B is the difference between—
(a)the amount of the member's pension (including any amount by which that pension has been reduced pursuant to an election under regulation E13); and
(b)the amount of an actuarially reduced pension.
(9) Subject to paragraph (10), a member's pension will be reduced as described in this regulation whether or not the member is included in this Section of the scheme in respect of the employment after the member's pension becomes payable and regardless of any provision of these Regulations under which a member may be treated as having left NHS employment without actually leaving.
(10) A member's employment with an employer with whom an agreement has been made under section 89 of the National Health Service (Scotland) Act 1978 M1 or in respect of whom a direction has been made under section 7 of the Superannuation (Miscellaneous Provisions) Act 1967 M2 will not be treated as NHS employment, and the employer will not be treated as an employing authority, for the purposes of this regulation unless the member is included in this Section of the scheme in respect of that employment.
(11) For the purposes of paragraph (4), the amount to be taken as previous pay will—
(a)be increased in each financial year by the amount by which a pension beginning on the date on which the member's benefits under this Section of the scheme became payable (or, if earlier, the date the member left pensionable employment) would have been increased under Part I of the Pensions (Increase) Act 1971 at the 6th April falling in that financial year;
(b)in the case of a person who holds a continuing employment (otherwise than as a practitioner), be increased by adding to it the amount of the annual rate of pay in respect of the continuing employment;
(c)in the case of a person who is employed as a practitioner in continuing employment, be increased by adding to it the amount of the average of the annual amounts of uprated earnings as defined in paragraph 15 of Schedule 1 in respect of the last 3 financial years prior to the pension referred to in paragraph (1) becoming payable.
(12) For the purpose of calculating the reduction to be made under paragraph (4) in respect of any part of a financial year, the amount of the member's previous pay will be reduced proportionately.
(13) This paragraph applies to a person who held a part-time pensionable employment before the pension described in paragraph (1) became payable and who at any time during the period of that employment held a concurrent part-time pensionable employment.
(14) Where paragraph (13) applies and the concurrent part-time pensionable employment terminated before the pension described in paragraph (1) became payable, previous pay will be increased as described in paragraph (15).
(15) For the purpose of paragraph (14), previous pay will be increased by the amount of the member's pensionable pay or annual rate of pay whichever is the greater, that relates to the member's last year of concurrent pensionable employment increased in accordance with paragraph (11)(a).
(16) For the purposes of this regulation—
“actuarially reduced pension” means such annual amount as the Scottish Ministers determine, after consulting the scheme actuary, to be the amount that would have been payable to the member (regardless of whether the member has reached normal minimum pension age or protected minimum pension age) if the member had become entitled to a pension—
calculated in accordance with regulation E11 at the time the member became entitled to a pension mentioned in paragraph (2)(b) of this regulation; and
any increases to that amount payable under Part I of the Pensions (Increase) Act 1971 for that period;
“annual rate of pay” means that annual rate of so much of the member's pensionable pay immediately before the member's pension became payable as consisted of salary, wages or other regular payments of a fixed nature plus so much of the member's pensionable pay as consisted of fees and other regular payments not of a fixed nature as was payable during the last year before the member's pension became payable;
“continuing employment” means, for the purposes of paragraph (1), a pensionable employment which a person held immediately before the person became entitled to the said pension and which the person continues to hold whether it is pensionable or not;
“NHS employment” has the same meaning as in regulation S1(5);
“pension” means the amount of pension paid under this Section of the scheme for any financial year, plus any increases to that pension payable under Part I of the Pensions (Increase) Act 1971 for that period;
“pay” means the amount of pensionable pay received by the member during that financial year from NHS employment (or what would have been the member's pensionable pay had the member been in pensionable employment); and
“previous pay” means, subject to paragraphs (11) to (13), the greater of—
final year's pensionable pay; and
the annual rate of pay for any pensionable employment in respect of which the pension referred to in paragraph (1) becomes payable and which the member held before becoming entitled to that pension.
(17) This regulation does not apply to—
(a)practice staff in respect of whom a pension is payable under any of regulations E1 to E12 who were employed by a registered medical practitioner on both 31st August 1997 and 1st September 1997 and who—
(i)were ineligible to rejoin this Section of the scheme with effect from 1st September 1997; or
(ii)made an election not to rejoin this Section of the scheme with effect from that date and who have not cancelled that election; and
(b)members who are transferred into NHS employment as a result of a transfer of an undertaking to the employer.
Textual Amendments
F1Word in reg. S2(2)(b)(i) inserted (with effect in accordance with reg. 1(7) of the amending S.S.I.) by The National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2011 (S.S.I. 2011/364), regs. 1(2), 11(a)
F2Words in reg. S2(2)(c)(ii) inserted (with effect in accordance with reg. 1(7) of the amending S.S.I.) by The National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2011 (S.S.I. 2011/364), regs. 1(2), 11(b)
Marginal Citations
M11978 c.29; section 89 replaced section 18 of the National Health Service (Amendment) Act 1949 (c.93).
M21967 c.28; section 7 was amended by the Superannuation Act 1972, section 10(5), Schedule 6, paragraph 66 and Schedule 8; by the National Health Reorganisation Act 1973 (c.32), Schedule 5 and by the National Health Service (Scotland) Act 1978 (c.29), Schedule 16, paragraph 24.