The British Transport (Compensation to Employees) Regulations 1970

PART VI ADJUSTMENT, REVIEW AND COMPOUNDING OF COMPENSATION

Adjustment of compensation where pension is also payable

31.—(1) Where any period of service of which account was taken in calculating the amount of any compensation payable under Part IV or V of these regulations is subsequently taken into account for the purpose of calculating the amount of any pension payable to or in respect of any person in accordance with a pension scheme associated with any employment undertaken subsequent to the date on which the attributable loss was suffered which gave rise to the claim for compensation (in this regulation called “the said scheme”), the compensating authority may in accordance with this regulation withhold or reduce the compensation payable in respect of any period for which such pension is being received.

(2) If the part of any pension by way of annual amounts which is attributable to a period of service mentioned in paragraph (1) equals or exceeds the part of any compensation by way of annual amounts which is attributable to the same period, that part of the compensation may be withheld, or if such part of the pension is less than such part of the compensation, the compensation may be reduced by an amount not exceeding such part of the pension.

(3) Where a death benefit is or becomes payable under the said scheme in respect of any person who is for the purposes of regulation 28 called therein the deceased person, any sum payable under that regulation in respect of such a person may be reduced by an amount not greater than the proportion of the death benefit which the period of service mentioned in paragraph (1) bears to the total period of service of which account was taken in the calculation of the death benefit.

(4) In addition to any reduction authorised by paragraph (2) or (3), if, in the circumstances mentioned in paragraph (1), compensation by way of annual amounts is attributable in part to any provision of the said scheme for a minimum benefit or pension, the compensation may be reduced by an amount not exceeding that part.

(5) Where any additional years of service or period of contribution have been credited to a person under regulation 20(3), if the number of such years or such period is equal to or less than the period spent in the subsequent employment mentioned in paragraph (1), the compensation by way of annual amounts may be reduced (in addition to any other reduction authorised by this regulation) by an amount not exceeding that attributable to the additional years or period so credited or, if the number of such years or such period is greater than the period spent in the subsequent employment, by such proportion of that amount as the period spent in the subsequent employment bears to the number of additional years or the period so credited.

(6) Where compensation has been calculated in accordance with regulation 26, the provisions of this regulation shall apply only in relation to such part (if any) of the pension mentioned in paragraph (1) as is attributable to pensionable emoluments in excess of those to which the person was entitled on entering the new employment referred to in regulation 26.

(7) Where long-term compensation is payable to a person in respect of diminution of emoluments or worsening of his position or of both, the provisions of this regulation shall apply only in relation to such part (if any) of the pension as is under the said scheme attributable to his emoluments in the said subsequent employment, being emoluments in excess of those emoluments to which that person was entitled immediately before he suffered the diminution of emoluments or worsening of his position, or if he suffered both, before he suffered whichever was the earlier.

(8) Where retirement compensation is payable to a pensionable officer in respect of diminution of pension rights occasioned by a diminution of pensionable emoluments, the provisions of this regulation shall apply only in relation to such part (if any) of the pension as is attributable to pensionable emoluments in excess of those to which that officer was entitled immediately prior to the diminution of his pension rights.

Reduction of compensation in certain cases

32.—(1) If under a person's last relevant pension scheme any benefit or pension for which the scheme provided would have been subject to reduction or suspension on his taking up other employment specified in that behalf in the scheme, any retirement compensation to which he is entitled for loss or diminution of pension rights shall, where such employment is taken up, be reduced or suspended in the like manner and to the like extent:

Provided that in calculating the amount of the reduction of the compensation in a case where by the provisions of the scheme the amount of the reduction of the benefit or pension is to be related to the emoluments of the employment taken up, the amount of any pension by way of annual amounts payable to the person under his last relevant pension scheme shall be treated as emoluments which shall for the purpose of the calculation be aggregated with the actual emoluments of the said employment.

(2) There shall be deducted from the retirement compensation payable to any person any additional contributory payments remaining unpaid at the date when he suffered loss or diminution of pension rights; and any such payments not recovered at the date of his death shall be deducted from any compensation payable in respect of that person under regulation 27, 28 or 29.

(3) Where a person is entitled to compensation under these regulations and the circumstances are such that he is also entitled to—

(a) a redundancy payment under the Redundancy Payments Act 1965, or

(b) any similar payment in consequence of the loss of his employment under any contract or arrangement with the body or person by whom he was employed (other than payments by way of a return of contributions under a pension scheme), or

(c) any payment under or by virtue of the provisions of any enactment relating to the reinstatement in civil employment of persons who have been in the service of the Crown,

the compensation which would, apart from this paragraph, become due to the person, whether by instalments or lump sum or both, shall in the aggregate be reduced by the amount of the payments referred to in this paragraph.

(4) Where any resettlement or long-term compensation is payable to or in respect of any person, and that person or his widow, child or other dependant or his personal representatives is or are also entitled (whether immediately or on the person's attaining some greater age) to a pension under that person's last relevant pension scheme, any instalment of such compensation which is payable in respect of any period shall be reduced by the amount of the instalment of such pension which is payable in respect of the same period.

(5) For the purposes of paragraph (4) no account shall be taken of any sum payable in consequence of the surrender by any person of part of his pension under any provision in that behalf in his last relevant pension scheme with a view to obtaining or increasing allowances for his widow, child or other dependant; and the person shall be deemed to have received during any period the amount of pension which he would have received but for any such surrender.

(6) Where in any week a person is entitled to long-term compensation and is also entitled to unemployment, sickness or injury benefit under any Act relating to National Insurance, other than a benefit claimable by him in respect of a dependant, there shall be deducted from the long-term compensation payable for that week a sum equal to the amount by which the aggregate of such National Insurance benefit claimable in respect of that week and the weekly rate at which the long-term compensation would be payable but for this regulation exceeds two thirds of the weekly rate of the net emoluments of the employment which he has lost or in which the emoluments have been diminished:

Provided that this paragraph shall not apply in relation to any such sickness or injury benefit in so far as—

(i) an equivalent sum is deducted from the emoluments of his current employment, and

(ii) such deduction from those emoluments has not occasioned an increase in his long-term compensation.

(7) In paragraph (6) the expression “weekly rate” means seven three hundred and sixty-fifths of the relevant annual rate.

Notification of change of circumstances

33.  Where—

(a) a pensionable officer after suffering any attributable loss enters any new employment referred to in regulation 26 or becomes entitled to any pension on ceasing to hold any such employment, or

(b) a person entitled to long-term compensation enters employment the remuneration whereof is payable out of public funds or by any nationalised transport body or subsidiary thereof, or ceases to hold such employment, or receives any increase in his remuneration in such employment, or

(c) a person entitled to retirement compensation enters employment in which the compensation is subject to reduction or suspension under regulation 32, or ceases to hold such employment, or receives any increase in his remuneration in such employment, or

(d) a person entitled to long-term compensation starts to receive any benefit, any increase in benefit or any further benefit under any Act relating to National Insurance,

he shall forthwith inform the compensating authority in writing of that fact.

Review of awards of long-term or retirement compensation

34.—(1) The compensating authority shall, within a period of 2 years after the date on which any decision on a claim for long-term or retirement compensation (other than compensation payable under regulation 23) is notified to a claimant under regulation 36 and at intervals of not more than 6 months, review their decision or, where the claim has been the subject of an appeal, the decision of the tribunal, and these regulations shall apply in relation to any such review as they apply in relation to the initial determination of the claim; and on such review, in the light of any material change in the circumstances of the case, compensation may be awarded, or compensation previously awarded may be increased, reduced or discontinued, subject to the limits set out in these regulations:

Provided that where the person to whom the decision relates ceases to hold the employment in which his emoluments were diminished, a review shall be held within 3 months after the date on which he ceases to hold that employment.

(2) After the expiration of the period of 2 years mentioned in paragraph (1), the compensating authority may, at their discretion, carry out reviews in accordance with that paragraph at intervals of not less than 12 months.

(3) The person to whom the decision relates may at any time require the compensating authority to carry out a review in accordance with paragraph (1) if he considers that there has been a change in the circumstances of his case which is material for the purposes of these regulations.

(4) Notwithstanding anything contained in the foregoing provisions of this regulation, the compensating authority shall review a decision (whether of the authority or the tribunal) on a claim for long-term compensation for loss of employment, diminution of emoluments or worsening of a person's position after the expiration of the said period of 2 years if at any time—

(a) the person to whom the decision relates becomes engaged in employment (hereinafter referred to as his “current employment”) the remuneration whereof is payable out of public funds, or by any nationalised transport body or subsidiary thereof, and which he has undertaken subsequent to the date on which he suffered the loss, diminution or worsening, and

(b) the aggregate of the net emoluments of his current employment, any pension or benefit by way of annual amounts payable to him in respect of the employment which he has lost or in which he suffered the diminution or worsening and the long-term compensation payable to him exceeds the net emoluments of the employment which he has lost or, as the case may be, in which he so suffered.

(5) The compensating authority shall further review any decision reviewed under paragraph (4) whenever the net emoluments of the person's current employment are increased.

(6) If on any review under paragraph (4) or (5) the compensation is reduced, it shall not be reduced below the amount by which the net emoluments of the person's current employment, together with any pension or benefit by way of annual amounts payable to him in respect of the employment in which he has suffered the attributable loss, falls short of the net emoluments of the employment in which he suffered that loss.

(7) The compensating authority shall give to a person to whom a decision relates not less than 14 days' notice of any review of that decision to be carried out under this regulation unless the review is carried out at his request.

(8) Nothing in this regulation shall preclude the making of any adjustment of compensation required by regulation 31 or 32.

Compounding of awards

35.—(1) In a case where an annual sum which has been or might be awarded under these regulations does not exceed £26, the compensating authority may, at their discretion, compound their liability in respect thereof by paying a lump sum equivalent to the capital value of the annual sum and, if any lump sum payment has been or might be awarded in addition to such annual sum under regulation 21, 22, 23 or 24, the compensating authority may likewise discharge their liability in respect thereof by an immediate payment.

(2) In any other case, if the person who has been awarded long-term or retirement compensation requests them to do so, the compensating authority may, after having regard to the state of health of that person and the other circumstances of the case, compound up to one quarter of their liability to make payments under the award (other than payments to a widow, child or other dependant under regulation 27) by the payment of an equivalent amount as a lump sum or, where any compensation has been awarded as a lump sum, by increasing that compensation to such equivalent amount; and in calculating for this purpose the liability of the authority to make such payments, account shall be taken of the annual value of lump sum payments of compensation.

(3) The making of a composition under paragraph (2) in relation to an award of long-term or retirement compensation shall not prevent the subsequent making of a composition under paragraph (1) in relation to that award, but, subject as aforesaid, not more than one composition may be made in relation to any award.