Non-application of the subsisting rights provisions E+W+S

3.  For the purposes of section 67(3)(b) of the 1995 Act, the prescribed manner of the exercise of any modification power in relation to a scheme to which the subsisting rights provisions do not apply, is any modification of a scheme—

(a) which provides for any or all of a member's or survivor's subsisting rights to—

(i) be assigned;

(ii) be commuted;

(iii) be surrendered;

(iv) be charged;

(v) have a lien exercised in respect of them; or

(vi) have a set-off exercised in respect of them,

provided that a modification in such a manner is not prohibited under section 91 of the 1995 Act M1 (inalienability of occupational pension), any other enactment or other rule of law;

(b) which provides for any or all of a member's or survivor's subsisting rights to be forfeited provided that a modification in such a manner is not prohibited under section 92 of the 1995 Act M2 (forfeiture), any other enactment or other rule of law;

(c) to provide for the revaluation of an earner's earnings factors in accordance with section 16(1) or (2) of the 1993 Act (guaranteed minimum pensions: revaluation of earnings factors for purposes of section 14: early leavers etc.);

F1 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) which provides for the transfer of a member's or survivor's subsisting rights—

(i) with his consent; or

(ii) without his consent in accordance with the conditions specified in regulation 12 of the Occupational Pension Schemes (Preservation of Benefit) Regulations 1991 M3 (short service benefit: transfer of member's accrued rights without consent);

(f) which ensures that any payment made by the scheme, relating to rights which accrued on or after 6th April 2006, is not an unauthorised member payment;

(g) which ensures that the scheme administrator can pay—

(i) any short service refund lump sum charge or special lump sum death benefits charge under sections 205 and 206 of the 2004 Act (short service refund lump sum charge and special lump sum death benefits charge) for which it is liable;

(ii) any lifetime allowance charge for which, under section 217 of the 2004 Act (persons liable to charge), it is jointly and severally liable with the individual (to whom the charge relates);

(h) which has the same effect as any or all of the modifications in regulations 3 to 8 of the 2006 Regulations (modification of rules of existing schemes), but without limitation to the transitional period; or

(i) which provides in relation to all or part of a member's subsisting rights that after his death—

(i) a surviving civil partner is treated in the same way as a widow or widower, and

(ii) the rights of any other survivor of the member are determined as if the surviving civil partner were a widow or widower.

Textual Amendments

F1 Reg. 3(d) omitted (6.4.2012) by virtue of Pensions Act 2008 (Abolition of Protected Rights) (Consequential Amendments) Order 2011 (S.I. 2011/1246), arts. 1(2)(a), 23(3)

Marginal Citations

M1 Section 91 was amended by paragraph 57 of Schedule 12 to, and Schedule 13 to, the Welfare Reform and Pensions Act 1999, section 266 of the Pensions Act 2004 and paragraph 23 of the Schedule to S.I. 2005/2053.

M2 Section 92 was amended by paragraph 58 of Schedule 12 to, and Schedule 13 to, the Welfare Reform and Pensions Act 1999 and paragraph 23 of the Schedule to S.I. 2005/2053.

M3 S.I. 1991/167; the relevant amending instruments are S.I. 1992/1531, 1993/1822, 1994/1062, 1995/3067, 1996/2131, 1997/786, 1999/2543 and 2000/1403.