The National Health Service Pension Scheme Regulations 2008

CHAPTER 3.J E+W MISCELLANEOUS AND SUPPLEMENTARY PROVISIONS

Scheme administrator E+W

3.J.1    Appointment of Scheme administrator E+W

For the purposes of this Part and of Part 4 of the 2004 Act, the Scheme administrator is the NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG)(1).

Claims E+W

[F1 3.J.2    Claims for benefits E+W

(1) A person claiming to be entitled to benefits under this Part (“the claimant”) shall make a claim in writing to the Secretary of State.

(2) Pursuant to such a claim, the claimant and, where appropriate, the member’s employing authority (including any previous employing authority of the member) shall provide such—

(a) evidence of entitlement,

(b) information required in order to deal with the claim, and

(c) authority or permission as may be necessary for the release by third parties of information in their possession relating to the claimant or member,

as the Secretary of State may from time to time require for the purposes of this Part.

(3) A claim referred to in paragraph (1) may be made by a person or persons other than the claimant where the Secretary of State so provides.

(4) Any claim for benefit required in writing under this Part, and any evidence, information, authority or permission given in connection with that claim, may be made or given by means of an electronic communication where such method of communication is approved by the Secretary of State from time to time.

(5) In this regulation, “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000.]

Textual Amendments

F1 Regs. 3.J.2(1)-(5) substituted for reg. 3.J.2 (1.10.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(3), 79 (with reg. 93)

Power to extend time limits E+W

3.J.3    Power to extend time limits E+W

The Secretary of State may extend any time limit mentioned in this Part as it applies in any particular case.

Beneficiaries who are incapable of looking after their affairs E+W

3.J.4    Beneficiaries who are incapable of looking after their affairs E+W

(1) In the case of a beneficiary who, in the opinion of the Secretary of State, is by reason of illness, mental disorder, minority or otherwise unable to look after the beneficiary’s affairs, the Secretary of State may—

(a) use any amount due to the beneficiary under the Scheme for the beneficiary’s benefit, or

(b) pay it to some other person to do so.

(2) Payment of an amount to a person other than the beneficiary under paragraph (1) discharges the Secretary of State from any obligation under the Scheme in respect of the amount.

Commutation of small pensions E+W

3.J.5    Commutation of small pensions E+W

(1) The Secretary of State may pay any person entitled to a pension under the Scheme a lump sum representing the capital value of the pension and of any benefits that might have become payable under the Scheme on the person’s death apart from the payment if the conditions specified in paragraph (2) are met.

(2) The conditions are that the payment complies with the following requirements (so far as apply)—

(a) the contracting-out requirements,

(b) the preservation requirements,

(c) regulation 2 of the Occupational Pension Schemes (Assignment, Forfeiture, Bankruptcy etc.) Regulations 1997(2),

F2 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the lump sum rule (see, in particular, paragraph 7 of Schedule 29 to the 2004 Act: trivial commutation lump sums for the purposes of Part 4 of that Act), and

(f) the lump sum death benefit rule (see, in particular, paragraph 20 of that Schedule: trivial commutation lump sum death benefit for the purposes of that Part).

(3) The lump sum must be calculated by the Secretary of State in accordance with advice from the Scheme actuary.

(4) The payment of a lump sum under this regulation discharges all liabilities of the Secretary of State in respect of the pension in question and of any other such benefits as mentioned in paragraph (1).

Textual Amendments

F2 Reg. 3.J.5(2)(d) omitted (1.4.2009 with effect from 6.4.2009) by virtue of The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2)(3), 80 (with reg. 89)

Reduction in and forfeiture of benefits E+W

3.J.6    Reduction in benefits in cases where loss caused by member’s crime, negligence or fraud E+W

(1) If, as a result of a member’s criminal, negligent or fraudulent act or omission, a loss to public funds occurs that arises out of or is connected with the member’s employment relationship with the member’s employer, the Secretary of State—

(a) may reduce any pension or other benefit payable to, or in respect of, the member under these Regulations by an amount less than or equal to the loss, or

(b) in a case where the loss equals or exceeds the value of the pension or other benefit, reduce them to nil or by any amount less than that value.

(2) Paragraph (1) does not apply so far as the pension or other benefit—

(a) is a guaranteed minimum pension or safeguarded rights which are derived from rights to such a pension, or

(b) arise out of a transfer payment.

(3) If the Secretary of State proposes to exercise the power under paragraph (1), the Secretary of State must give the member a certificate specifying the amount of the loss to public funds and of the reduction in benefits.

(4) If the amount of the loss is disputed, no reduction may be made under paragraph (1) until the member’s obligation to make good the loss has become enforceable—

(a) under the order of a competent court, or

(b) in consequence of an award of an arbitrator or, in Scotland, an arbiter to be appointed (failing agreement by the parties) by the Sheriff.

(5) If the loss is suffered by an employing authority, the amount of any reduction under paragraph (1) must be paid to that authority.

3.J.7    Forfeiture of rights to benefits E+W

(1) The Secretary of State may direct that all or part of any rights to benefits or other amounts payable to or in respect of a member under these Regulations be forfeited if—

(a) the member is convicted of any of the offences specified in paragraph (2), and

(b) the offence was committed before the benefit or other amount becomes payable.

(2) The offences are—

(a) an offence in connection with employment that qualifies the member to belong to the Scheme, in respect of which the Secretary of State has issued a forfeiture certificate,

(b) one or more offences under the Official Secrets Acts 1911 to 1989 for which the member has been sentenced on the same occasion to—

(i) a term of imprisonment of at least 10 years, or

(ii) two or more consecutive terms amounting in the aggregate to at least 10 years.

(3) In paragraph (2)(a) “forfeiture certificate” means a certificate that the Secretary of State is satisfied that the offence—

(a) has been gravely injurious to the State, or

(b) is liable to lead to serious loss of confidence in the public service.

(4) The Secretary of State may direct that all or part of any rights to benefits or other amounts payable in respect of a member under these Regulations be forfeited where the benefits or amounts are payable to a person to whom paragraph (5) applies who has been convicted of the murder or manslaughter of that member or of any other offence of which unlawful killing of that member is an element.

(5) This paragraph applies to a person who is—

(a) the member’s widow, widower, nominated partner or surviving civil partner,

(b) a dependant of the member,

(c) a person not falling within sub-paragraph (a) or (b) who is specified in a notice given under regulation 3.E.21(3) [F3 or (10)] (payment of lump sum [F4 or pension] on death), or

(d) a person to whom such benefits or amounts are payable under the member’s will or on the member’s intestacy.

(6) A guaranteed minimum pension or safeguarded rights which are derived from rights to such pensions may be forfeited only if paragraph (1) applies in the case of an offence within paragraph (2)(b).

This is subject to paragraph (7).

(7) This regulation is without prejudice to section 2 of the Forfeiture Act 1870(3) (under which forfeiture is required in cases of treason, subject to whole or partial restoration under section 70(2) of the Criminal Justice Act 1948)(4).

Textual Amendments

F3 Words in reg. 3.J.7(5)(c) inserted (1.10.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(3), 80(a) (with reg. 93)

F4 Words in reg. 3.J.7(5)(c) inserted (1.10.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(3), 80(b) (with reg. 93)

Provisions about tax E+W

3.J.8    Deduction of tax E+W

(1) The Secretary of State may deduct from any payment under the Scheme any tax which is required to be paid in respect of it.

(2) Without prejudice to the generality of paragraph (1), if a person becoming entitled to a benefit under this Part—

(a) is a benefit crystallisation event under section 216 of the 2004 Act, and

(b) a lifetime allowance charge under section 214 of that Act arises when that event occurs,

the tax charged must be paid by the Scheme administrator.

(3) Paragraph (4) applies if—

(a) a member has given the Scheme administrator a statement in accordance with regulation 3.E.22 (tax treatment under the 2004 Act of lump sums payable on pensioners’ death) that a lump sum payable under that regulation is to be treated as a pension protection lump sum death benefit in accordance with paragraph 14 of Schedule 29 to the 2004 Act, and

(b) has not withdrawn that statement.

(4) Without prejudice to the generality of paragraph (1), when the lump sum is paid, the Scheme administrator may deduct the tax payable under section 206 of that Act (special lump sum death benefits charge) from the lump sum.

Interest on delayed payments E+W

3.J.9    Interest on late payment of benefits and refunds of contributions E+W

(1) This regulation applies if the whole or part of an amount to which this regulation applies is not paid by the end of the period of one month beginning with the due date.

(2) This regulation applies to any amount payable by way of a pension, lump sum, refund of contributions under the Scheme (other than any amount due under regulation 3.C.5 or 3.C.6) or interim [F5 or substitute] award.

[F6 (3) The Secretary of State must pay interest on the amount of a pension, lump sum, refund of contributions or an interim or substitute award which is unpaid (“the unpaid amount”) to the person to whom it should have been paid unless the Secretary of State is satisfied that the unpaid amount was not paid on the due date because of some act or omission on the part of the member or other person to whom it should have been paid.]

(4) The interest on the unpaid amount is calculated at the base rate on a day to day basis from the due date for the amount to the date of its payment and compounded with three-monthly rests.

(5) For the purposes of this regulation, except where paragraph (6) applies, “due date”, in relation to an unpaid amount [F7 (other than an unpaid amount in respect of an interim or substitute award)], means—

(a) in the case of an amount in respect of a pension or lump sum payable to a member under Chapter 3.D, the day immediately following that of the member’s retirement from pensionable employment,

(b) in the case of an amount in respect of a pension payable on a member’s death [F8 , other than a pension payable under regulation 3.E.20A (pension payable when member dies on or after reaching age 75)], the day after the date of death,

(c) in the case of an amount in respect of a lump sum under Chapter 3.E that is payable to the member’s personal representatives, the earlier of—

(i) the date on which probate or letters of administration were produced to the Secretary of State, and

(ii) the date on which the Secretary of State was satisfied that the lump sum may be paid as provided in regulation 3.E.21(9) (amount of lump sum: dual capacity members),

(d) in the case of an amount in respect of any other lump sum under that Chapter, the day after the date of the member’s death, and

(e) in the case of an amount in respect of a refund of contributions, the day after that on which the Secretary of State received from Her Majesty’s Commissioners of Revenue and Customs the information required for the purposes of calculating the amount to be subtracted under regulation 3.C.16(3) or (4) (repayment of contributions),

[F9 (f) in the case of an amount in respect of a pension under regulation 3.E.20A that is payable to—

(i) the member’s personal representatives, the date on which probate or letters of administration were produced to the Secretary of State,

(ii) any person or body to whom the pension has been assigned by the member’s personal representatives, the date on which the notice under regulation 3.E.21(10) was received by the Secretary of State, and

(iii) any person or body other than those referred to in (i) and (ii), the day immediately following the day of the member’s death.]

[F10 (6) The due date for an unpaid amount—

(a) referred to in paragraph (5) in respect of which the Secretary of State was not in possession of all the information necessary for the calculation of the amount of the pension, lump sum or refund of contributions referred to in that paragraph on the date which would, in accordance with paragraph (5) be the due date;

(b) in respect of an interim or substitute award,

shall be the first day on which the Secretary of State was in possession of all the information necessary to calculate that pension, lump sum, refund of contributions or interim or substitute award.]

(7) In this regulation, “[F11 interim or substitute award]” means—

(a) any amount paid by way of an interim payment calculated by reference to an expected benefit under the Scheme pending final calculation of the full value of that benefit, F12 ...

(b) any amount paid that increases the amount of an earlier payment due to a backdated or later increase in pensionable pay [F13 ; and

(c) any amount paid that increases the amount of an earlier payment due to the payment of a tier 2 ill-health pension under regulation 3.D.7 paid to a member in substitution for a tier 1 ill-health pension under that regulation following a determination by the Secretary of State under regulation 3.D.8.]

Textual Amendments

F5 Words in reg. 3.J.9(2) inserted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 81(a) (with reg. 89)

F6 Reg. 3.J.9(3) substituted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 81(b) (with reg. 89)

F7 Words in reg. 3.J.9(5) inserted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 81(c) (with reg. 89)

F8 Words in reg. 3.J.9(5)(b) inserted (1.10.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(3), 81(a) (with reg. 93)

F9 Reg. 3.J.9(5)(f) inserted (1.10.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(3), 81(b) (with reg. 93)

F10 Reg. 3.J.9(6) substituted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 81(d) (with reg. 89)

F11 Words in reg. 3.J.9(7) substituted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 81(e)(i) (with reg. 89)

F12 Word in reg. 3.J.9(7)(a) omitted (1.4.2009) by virtue of The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 81(e)(ii) (with reg. 89)

F13 Reg. 3.J.9(7)(c) and word added (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 81(e)(iii) (with reg. 89)

Determinations E+W

3.J.10    Determination of questions E+W

(1) Except as otherwise provided by this Part, any question arising under the Scheme is to be determined by the Secretary of State.

(2) Any such disagreement as is referred to in section 50 of the 1995 Act (resolution of disputes) must be resolved by the Secretary of State in accordance with any arrangements applicable under that section.

3.J.11    Determinations by medical practitioners E+W

(1) The Secretary of State may make arrangements for functions under this Part in relation to decisions within paragraph (2) that are exercisable by the Secretary of State to be discharged by—

(a) a registered medical practitioner (whether practising alone or as apart of a group) whom the Secretary of State has approved to act on the Secretary of State’s behalf, or

(b) a corporate or unincorporated body which—

(i) employs registered medical practitioners (whether under a contract of service or a contract for services), and

(ii) is so approved.

(2) This paragraph applies to any decision as to a person’s health or degree of physical or mental infirmity F14 ... that is required for the purposes of this Part and, in particular, any such decision required for the purposes of—

[F15 (za) regulation 3.D.2(8) (pension credit members);]

(a) regulation 3.D.7(2)(a) or (3)(a) (early retirement on ill-health (active members)),

(b) regulation 3.D.8(1)(a) or (b) or (3) (re-assessment of ill-health pension),

(c) regulation 3.D.9(1)(a) or (2)(a) (early retirement on ill-health (deferred members),

[F16 (cc) regulation 3.D.11(1) (option for members in serious ill-health to exchange whole pension for lump sum),]

(d) regulation 3.D.15(6)(b) (procedure for allocation election under regulation 3.D.14),

(e) regulation 3.E.9(1)(b)(ii) (meaning of “dependent child”),

(f) regulation 3.J.4(1) (beneficiaries who are incapable of looking after their affairs).

[F17 (3) In relation to decisions within paragraph (2), the Secretary of State may require any person entitled, or claiming to be entitled, to a benefit under this Part to submit to a medical examination by a registered medical practitioner selected by the Secretary of State, and in that event, the Secretary of State shall also offer the person an opportunity of submitting a report from the person’s own medical adviser as a result of an examination by that medical adviser, and the Secretary of State shall take that report into consideration together with the report of the medical practitioner selected by the Secretary of State.]

Textual Amendments

F14 Words in reg. 3.J.11(2) omitted (with effect from 1.4.2008) by virtue of The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(6), 82(a)(i) (with reg. 93)

F15 Reg. 3.J.11(2)(za) inserted (1.4.2009 with effect from 6.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2)(3), 82 (with reg. 89)

F16 Reg. 3.J.11(2)(cc) inserted (1.10.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(3), 82(a)(ii) (with reg. 93)

F17 Reg. 3.J.11(3) inserted (1.10.2008) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2008 (S.I. 2008/2263), regs. 1(2)(3), 82(b) (with reg. 93)

General prohibition on unauthorised payments E+W

3.J.12    General prohibition on unauthorised payments E+W

Nothing in these Regulations requires or authorises the making of any payment, which, if made, would be an unauthorised payment for the purposes of Part 4 of the 2004 Act (see section 160(5) of that Act).

Prohibition on assignment or charging of benefits E+W

3.J.13    Prohibition on assignment or charging of benefits E+W

(1) Any assignment of, or charge on, or any agreement to assign or charge, any right to a benefit under the Scheme is void.

(2) On the bankruptcy of any person entitled to a benefit under the Scheme, no part of the benefit may be paid to the person’s trustee in bankruptcy or other person acting on behalf of the creditors, except in accordance with an order under section 310 of the Insolvency Act 1986(5) (income payments orders).

Record keeping and contribution estimates E+W

[F18 3.J.14    Employing authority and certain member record keeping and contribution estimates E+W

(1) As regards a type 1 medical practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on—

(a) the accounts drawn up in accordance with generally accepted accounting practice by the practice of which the member is a member; and

(b) the return that member has made to Her Majesty’s Revenue and Customs in respect of their earnings for that year,

no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs.

(2) As regards a type 2 medical practitioner or a locum practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on—

(a) the payments they receive from employing authorities for practitioner services, and

(b) the return that member has made to Her Majesty’s Revenue and Customs in respect of their earnings for that year,

no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs.

(3) As regards a type 1 dental practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on—

(a) the notice of pensionable earnings referred to in regulation 3.A.12; and

(b) their pensionable earnings as a type 1 dental practitioner from all other type 1 dental practitioner sources,

no later than 6 months after the end of that scheme year.

(4) As regards a type 2 dental practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their pensionable earnings based on—

(a) the payments they receive from employing authorities for practitioner services, and

(b) their pensionable earnings as a type 2 dental practitioner from all other type 2 dental practitioner sources,

no later than 6 months after the end of that scheme year.

(5) As regards a GMS or PMS practice or APMS contractor, in respect of each scheme year, the practice or contractor shall provide the Secretary of State with—

(a) a statement of estimated pensionable earnings in respect of type 1 medical practitioners who perform medical services as, or on behalf of, the practice or contractor and type 2 medical practitioners employed by the practice or contractor, and

(b) an end-of-year statement of—

(i) pensionable earnings,

(ii) contributions to the Scheme made under regulation 3.C.1 (contributions by members),

(iii) contributions to the Scheme made under regulation 3.C.3 (contributions by employing authorities: general), and

(iv) any pensionable earnings deemed in accordance with regulation 3.A.8 of this Part,

in respect of type 2 medical practitioners employed by the practice or contractor.

(6) The Secretary of State shall be provided with—

(a) the statement referred to in paragraph (5)(a) at least 1 month before the beginning of that scheme year;

(b) the statement referred to in paragraph (5)(b) no later than 3 months after the end of that scheme year.

(7) A host Trust or Board shall, for each scheme year and no later than 13 months after the end of each scheme year, forward to the Secretary of State a copy of the records the host Trust or Board maintains in respect of practitioners under regulation 3.C.5(17)(b).

(8) All employing authorities shall, for each scheme year—

(a) provide the Secretary of State with a statement of estimated total contributions due to the Scheme under regulation 3.C.1 (contributions by members) and 3.C.3 (contributions by employing authorities: general), and

(b) maintain records of contributions to the Scheme made under regulation 3.C.1 and regulation 3.C.3.

(9) The statement referred to in paragraph (8)(a) shall be provided to the Secretary of State no later than 2 months after the end of each scheme year.

(10) Except where the Secretary of State waives such requirement, an employing authority shall provide the Secretary of State with a statement of contributions to the Scheme recorded in accordance with paragraph (8)(b) no later than 2 months after the end of each scheme year.

(11) If, in respect of a scheme year, a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to that member, the member’s pensionable earnings for that scheme year shall be zero.

This is subject to paragraph (12).

(12) If, in respect of a scheme year—

(a) a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to the member,

(b) a benefit is payable to, or in respect of that member, under this Part of these Regulations, and

(c) the member’s employing authority is in possession of a figure representing all or part of the member’s pensionable earnings for that year,

the Secretary of State may treat that figure as the amount of the member’s pensionable earnings for that year.

(13) If, in respect of a scheme year, a member—

(a) dies without complying with the requirements of whichever of paragraphs (1) to (4) applies to the member, or

(b) is, in the opinion of the Secretary of State, unable to look after the member’s own affairs by reason of illness or lack of capacity within the meaning of the Mental Capacity Act 2005,

the Secretary of State may require that member’s personal representatives or person, or persons, duly authorised to act on that member’s behalf, to provide the relevant certificate—

(i) within the period referred to in whichever of paragraphs (1) to (4) was or is applicable to the member, or

(ii) within such other period as the Secretary of State permits.

(14) The certificates and statements referred to in this regulation—

(a) shall be in such form as the Secretary of State shall from time to time require;

(b) may be provided to the Secretary of State in such manner as the Secretary of State may from time to time permit.]

Textual Amendments

F18 Reg. 3.J.14 substituted (1.4.2009) by The National Health Service Pension Scheme and Injury Benefits (Amendment) Regulations 2009 (S.I. 2009/381), regs. 1(2), 83 (with reg. 89)

(1)

The Authority was established by S.I. 2005/2414.

(2)

S.I. 1997/785.

(3)

1870 c. 32.

(4)

1948 c. 58.

(5)

1986 c. 45. Section 310 is amended by paragraph 15 of Schedule 3 to the Pensions Act 1995 (c.26), paragraph 2 of Schedule 2 to the Welfare Reform and Pensions Act 1999 (c.30) and section 259 of the Enterprise Act 2002 (c.40).