Technical query log v20 April 2020

TECHNICAL QUERY LOG

Contents ABATEMENT ........................................................................................................................................... 3

ADDED YEARS/ PENSION...................................................................................................................... 10

ADMINISTRATION ................................................................................................................................ 11

ANNUAL ALLOWANCE .......................................................................................................................... 11

APBs ...................................................................................................................................................... 12

COMMUTATION ................................................................................................................................... 14

COMPENSATION SCHEME .................................................................................................................... 15

COMPENSATION SCHEME – PROTECTED RIGHT AWARDED TO RETAINED FIREFIGHTERS EMPLOYED

PRIOR TO 6 APRIL 2006 AND WITH QUALIFYING INJURY PRIOR TO 1 APRIL 2014 ............................ 25

CONTRIBUTION BANDING .................................................................................................................... 30

CONTRIBUTIONS DURING ABSENCE .................................................................................................... 31

DEATH BENEFITS ................................................................................................................................... 34

DEFERRED BENEFITS ............................................................................................................................. 37

ELIGIBILITY ............................................................................................................................................ 40

FINAL PAY ............................................................................................................................................. 42

FPS 2006 SPECIAL MEMBERS ............................................................................................................... 43

ILL HEALTH RETIREMENT ...................................................................................................................... 49

ILL HEALTH REVIEW .............................................................................................................................. 52

LEAVING THE SCHEME BEFORE RETIREMENT ...................................................................................... 59

LOCAL PENSION BOARD MEMBERSHIP ............................................................................................... 60

MEDICAL APPEAL .................................................................................................................................. 61

PARTIAL RETIREMENT .......................................................................................................................... 62

PENSIONS INCREASE (PI) ...................................................................................................................... 63

PENSION SHARING ............................................................................................................................... 63

REFUND ................................................................................................................................................. 65

SCHEME PAYS ....................................................................................................................................... 66

SURVIVORS PENSION ........................................................................................................................... 70

TRANSFERS ........................................................................................................................................... 71

TWO PENSIONS .................................................................................................................................... 74

UNAUTHORISED PAYMENTS ................................................................................................................ 77

Disclaimer ............................................................................................................................................. 79

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ABATEMENT Date received

Scheme/ Member type

Query Status Date replied LGA response

29/03/2019 2015 with transitional 2006 benefits. Abatement

Does abatement apply on re-employment where a member is in receipt of an ill-health pension paid under the 2015 scheme with transitional 2006 benefits

Closed 01/04/2019 Under the terms of the 2015 scheme, an ill-health pension is paid under the 2015 scheme rules, this is known as ‘one-pot’1. The regulations direct a payment made known as ‘equivalent amount’, which is the amount that would have been payable under the 1992 or 2006 scheme. At normal pension age2 of the 1992 or 2006 scheme the equivalent amount becomes a continued pension payable under the 1992 or 2006 scheme Under the 2015 regulations there is no requirement to abate, however in the case of an ill-health pension once the equivalent amount becomes a continued pension payable under the 1992 or 2006 scheme it becomes liable for abatement upon employment with any FRA.

29/03/2019 2015 scheme member with APBs payable under 2006 scheme. Abatement

Does abatement apply to any additional pension benefit (APB)3 payable under FPS 1992 or FPS 2006 where the ill-health pension is paid from the 2015 scheme

Escalated 01/04/2019 APBs payable under the 1992 or 2006 scheme for an ill-health pension would be liable for abatement. This is because there is no direction from the 2015 scheme under [65(4b)] to pay APB benefits in the ‘equivalent amount’. This has been discussed by the technical group (see 16.02.16 9e and the actions summary). Home Office have previously advised they are content for the regulations to remain unamended. This query will be discussed by the technical group at their next meeting. The technical group agreed for the query to be escalated to SAB.

1 Slide 10 ‘Quick Guide Ill-health and Injury Scheme Rules’ 2 NPA for a 1992 member is attainment of 30 years’s service or age 55, for a 2006 member is 60 3 APB Factsheet - http://www.fpsregs.org/images/admin/APBv1.pdf

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03/09/2019 Abatement Re-employed as a contractor and is currently in receipt of 1992 pension, are they to be considered to be ‘employed’ by any fire and rescue authority in whatever capacity under rule K4 or Para 3, sub para 3 of Part 9

Closed 01/10/2019 A likely test as to whether the member is considered to be ‘employed’ by the fire and rescue authority, subject to abatement, is how they are assessed under the IR35 rules. If through that assessment they are classed as an employee for tax purposes, then it is likely they will also be classed as an employee for abatement purposes too. Another test would be whether they qualify under auto enrolment as a ‘worker’ - http://www.thepensionsregulator.gov.uk/docs/detailed-guidance-1.pdf

03/09/2019 Abatement Re-employed by a different FRA to that FRA paying the pension, who is responsible / liable for abatement.

Closed 01/10/2019 It is the responsibility of the FRA paying the pension to whom the regulations fall. They are statutorily responsible for assessing, monitoring and implementing abatement and if not for paying into the notional pension fund

If another FRA is employing the firefighter they have a moral duty to ensure the firefighter is aware their pension might be abated and to inform the FRA paying the pension. However they can’t enforce abatement. Under the 2006 regulations there is a requirement on the firefighter under sub para 4 to ‘ give written notice to each authority by which a pension is payable to him under Part 3, specifying the name of his employing authority.’

03/09/2019 Abatement What are the regulations that apply to abatement

Closed 01/10/2019 • FPS 1992 K4 K4. The fire and rescue authority by whom a pension is payable may, in their discretion, withdraw the whole or any part of the pension, except a pension under Part C (awards on death–spouses and civil partners), for any period during which the person entitled to it is employed by any fire and rescue authority in whatever capacity.

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LA(9)

(9) Where an authority exercises its discretion not to withdraw the payment in whole or in part of any pension under rule K4 (withdrawal of pension whilst employed by a fire and rescue authority), the authority shall in the financial year in which payment is not withdrawn, transfer into the FPF an amount equal to the amount of pension paid during that financial year to that person which could have been abated or withdrawn

• FPS 2006

Part 9, Para 3

Withdrawal of pension during service as firefighter 3.—(1) Subject to paragraph (2), the authority by which a pension under Part 3 is payable may withdraw the whole or any part of the pension for any period during which the person entitled to it is again employed as a firefighter by any authority. (2) Where a person who is entitled to pensions under this Scheme in respect of both regular and retained or volunteer service (whether from the same authority or from different authorities)— (a)resumes regular service, but does not resume retained or volunteer service, or (b)resumes retained or volunteer service, but does not resume regular service, paragraph (1) applies only as regards the pension referable to his previous retained or volunteer service or, as the case may be, his previous regular service. (3) An authority may abate a pension to which a person is entitled under Part 3 so long as he is employed (in whatever capacity) by any authority. (4) A person who— (a)is entitled to a pension under Part 3, and (b)accepts an offer of employment with an authority (in whatever capacity), shall, as soon as reasonably practicable after accepting that offer, give written notice to each authority by which a pension is payable to him under Part 3, specifying the name of his employing authority.

Part 13, Para 2, Sub Para 11

(11) Where an authority exercises its discretion not to withdraw or abate the whole or any part of a pension under rule 3 (withdrawal of pension during service as a firefighter) of Part 9 (review, withdrawal and forfeiture of awards), the authority shall in the financial year in which payment is not withdrawn or abated, transfer into the

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FPF an amount equal to the amount of pension paid during that financial year to that person which might have been abated or withdrawn

19/08/2019 Abatement – Treatment for inter-service

Does re-employment in a green book role or a grey book non-operational role qualify as in-service abatement or inter-service abatement?

Closed 12/09/2019 FPSC 10/2009 as published in September 2009 within the definition of in-service abatement confirms, “Whilst the rules of the FPS stop short of dealing with the abatement of a retired member's pension when they are re-employed to a position other than that of a regular firefighter, it is DCLG's view that abatement of the FPS pension should be applied where a retired member has been re-employed to any position by any FRA.” The scheme rules were later changed to support this point. The circular then goes onto deal with inter-service abatement, which is where “retired public servants are re-employed to any employing public sector organisation without going through an open competition”, inter-service abatement however is not a regulatory requirement and it is only CLG’s view that this should be applied. It could therefore be argued that this is at the discretion of the Fire Authority to apply but not a requirement. The factsheet produced by LGA in 2018 which confirms abatement should continue for the duration of the employment refers to re-employment by the FRA in any capacity, which does not differ to the advice in the DCLG circular, it does not comment on the treatment of abatement for inter-service. Therefore in-service abatement is any re-employment by the FRA in any capacity (i.e. includes green book and grey book non-operational roles) and should continue for the duration of the employment.

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01/10/2019 Pensionable pay for abatement purposes

What is the basis for the calculation of the “before” salary – is it just the basic salary or can it include any non-pensionable additional responsibility allowances. When we calculate the new salary and pension to calculate the abatement, do we measure it against the basic, or basic plus a non-pensionable temporary allowance?

Closed 01/10/2019 Fifth paragraph of 1.1 in FPSC 10/2009 confirmed for the purposes of comparison “the substantive pay at the last day of service comprised of all permanent elements of pensionable pay, expressed as an annual rate, should be the level of earnings used for the comparison”. DCLG circulars are not endorsed by Home Office or LGA, however we can see no reason to deviate from its contents in this instance and therefore conclude that non-pensionable pay would not be used for the purpose of comparison

04/09/2019 Abatement for transition member retiring from 1992 scheme only

Re-employment of a transition member who transitioned into 2015 scheme from 1992 scheme in 2017. Has retired from 1992 scheme and has deferred 2015 scheme benefits.

Closed 02/10/2019 Normal retirement from the scheme is treated as ‘two-pot’ benefits, with each pot being treated under the rules of the scheme. This means that when someone retires from the 1992 scheme, their pension is treated under the rules of the 1992 scheme, and any subsequent 2015 benefits treated under the rules of the 2015 scheme. Therefore in this case, you would apply rule K4 to the 1992 portion. This query was included in the abatement workshop at the recent Fire Pensions Conference for consensus, and the workshop agreed unanimously

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Do you abate the 1992 scheme pension?

that you would abate. http://www.fpsboard.org/images/PDF/Events/AGM2019/AGM2019W2.pdf

08/10/2019 2007 (Wales) 2006 (English) Retained Firefighters

Should Part 9, Paragraph 3, sub paragraph 2 be interpreted so that abatement is not applicable for retained firefighters only.

Closed 25/11/2019 No, the public sector policy on abatement is that anyone in receipt of both pension and salary from the public purse the total amount should not be more than the salary prior to retirement, this applies equally to retained firefighters. Special Firefighter members are subject to the 2007 scheme rules. Part 9, Paragraph 3, deals with abatement for the 2007 scheme. Sub-Para 1 makes it clear that abatement applies to any firefighter who might be in receipt of a pension payable under part 3 and is re-employed. Paragraph 2 simply serves to confirm that where prior to retirement a person has been employed as both a regular and retained firefighter and receives a pension, and is then re-employed in only one of those roles, it is only the pension for the matching re-employment that is abated under Part 9, Para 3.

08/10/2019 2007 (Wales) 2006 (English) Retained firefighters

If an authority decides not to abate a pension for a retained firefighter are they responsible for paying the equivalent amount into the notional pension fund?

Closed 25/11/2019 Yes under Part 13, rule 2, paragraph 11 if an authority does not apply abatement they must transfer the amount equal to the amount that should have been abated into the notional pension fund until the re-employment ceases. Inserted by Wales [WSI 2014/3254] England [SI 2013/1393] Northern Ireland [NISR 2014/168]

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02/10/2019 2015 scheme member with 1992 transitional benefits and a non pensionable retained firefighter role

How should abatement apply where a member has two posts, of which is one is not pensionable. Retires from one post and after the appropriate breaks is re-employed in both roles

Pending Technical Group

29/11/2019 The policy behind abatement is that both a pension and salary from the public purse should not be more than the earnings before retirement. Ie the income from the public purse should not be unfairly increased by the addition of a pension. In the case where a person has two roles before retirement, but one is not pensionable and goes onto be re-employed in those roles (with the appropriate breaks), my view is that the test that should be applied is to the pensionable role only. My line of thinking is that if you have two incomes and one of those incomes is replaced by a pension, then the test should be whether that stream of income only is increased by the public purse on re-employment. Therefore I would agree that scenario belowis the appropriate route. Use the rate of pay at date of leaving his full time role, deduct the pension and the difference is what he can earn in new part time post. Then ignore any earnings from his new retained role, as he does not receive a pension for his retained role However, this is only an informal opinion and I will take this query to the next technical group to be held in February for discussion. Home Office do not prescribe advice on abatement and so it is for each FRA to decide whether they are complying or not, however it has been agreed that some general advice would improve consistency, and we commenced a project at the AGM in September 2019 to produce a guide.

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ADDED YEARS/ PENSION Date received Scheme/

Member type Query Status Date replied LGA response

25/03/2019 1992 A member of the FPS 1992 elected to purchase increased benefits (“added years”) , contributions for which were due to cease at age 55, but the member has now retired (under normal circumstances) at age 54 and 7 months (having over 25 years service). This means the original amount of service being purchased has to be: 1) apportioned, based on period paid for as a fraction of total period due to be paid for 2) and, according to FPS92 reg G8(6), reduced by actuarial valuation. Is the requirement to reduce by actuarial valuation still in operation, and if so what are the reductions? There appears to be no GAD guidance on this area so does it require individual submissions for each case to GAD for appropriate factors?

Escalated I agree that the regulations are not clear on how to treat the added years pension and that there is no guidance or circulars that can be found. The query has been escalated to the Home Office.

12/06/2019 1992 Active member (Taper Protected)

Member is currently taper protected and in the 1992 scheme. Under the 1992 scheme rules the member would NOT be eligible for purchasing added 60ths as they reach

Closed 17/06/2019 No, added 60ths are purchased under the terms of the 1992 scheme only. The scheme rules have not been amended to reflect the 2015 scheme

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30 years’ service before normal retirement age. However the member now tapers into the 2015 scheme before reaching 30 years’ service Does the fact that the member can no longer achieve 30 years’ service in the 1992 scheme now make them eligible for added 60ths?

ADMINISTRATION Date received Scheme/

Member type Query Status Date replied LGA response

07/08/2018 N/A Is there a list of providers of Third Party Administration services for the Firefighters’ Pension Scheme?

Closed 07/08/2018 The current shareable list of Fire pension administrators is available here

ANNUAL ALLOWANCE Date received Scheme/

Member type Query Status Date replied LGA response

29/11/2019 Ill-Health Does annual allowance apply to a person retiring on ill-health?

Closed 29/11/2019 Pension payments can be exempt from annual allowance if the severe ill-health test is met. This is legislated for in the Finance Act 2004, section 229, paragraph 4, and further

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information is available in the HMRC pension tax manual. In the firefighters pension scheme, the authority needs to ask the IQMP to complete a medical certificate certifying the conditions of the act are met. These certificates are available for Fire Authorities to download on the password protected page - http://fpsregs.org/index.php/member-area/ill-health-and-injury

APBs Date received Scheme/

Member type

Query Status Date replied LGA response

07/11/2018 1992 A member was temporary promoted prior to the amendment of the regulations which were backdated from 01 July 2013; therefore this element of temporary promotion was protected so to speak. However, the member in question was then temporary promoted to a higher rank with no break in service and this was substantiated a few months later. Should the elements of the “temporary promotion period” be treated as an APB

Closed 12/02/2019 I would be inclined to suggest that it shouldn’t count as an APB as it is still part of the same TP that started before July 2013, but like you can’t find anything to substantiate that in the regulations. I have asked the Home Office if they would be able to comment. Otherwise, we can consider asking the legal adviser of the scheme advisory board. 11/02/2019 - Received informal view from Home Office. It is their view that the change to the temporary promotion represents a second TP and is therefore pensionable as an

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prior to the post being made substantive?

APB. However as always that is an informal view and the devil is in the detail about the circumstances of the TP. It is not for the Home Office or LGA to review details of contracts / promotions etc to consider whether the promotion changed the contractual terms of the first TP, but it is the general opinion that this would be counted as a second TP and therefore qualify for an APB. The technical group agreed with this view at their meeting on 12/02/2019, albeit it is caveated that the fine detail may depend on the contractual arrangements of the TP.

03/06/2019 FPS 1992 Entitlement to APB

Is a person who is entitled to immediate pension benefits under Rule B1 of FPS 1992 also entitled to immediate payment of APBs under rule B5D(2), if the reason for leaving is dismissal? (2) Where the firefighter resigns or is dismissed or makes an election under rule G3, additional pension benefit is payable at normal benefit age(2); and paragraphs (4) and (5) of rule B5 (deferred pension) shall apply in relation to that benefit as if it were a deferred pension to which he was entitled under that rule.

Closed 08/07/2019 B5D(2) is intended to cover any scenario where the member leaves service without immediate entitlement to benefits. Therefore if there is an immediate entitlement, i.e. age 50 with >25 years, B5D(1) would apply, regardless of the reason for the ordinary pension coming into payment. The commentary also does not make any distinction for leaving on the grounds of dismissal https://webarchive.nationalarchives.gov.uk/20120920004737/http://www.communities.gov.uk/documents/fire/pdf/919171

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If you would like to refer this to the technical group on 24 September, please let me know.

COMMUTATION Date received Scheme/

Member type Query Status Date replied LGA response

17/05/2019 FPS 1992 Can a firefighter give a notice of commutation under FPS 1992 Rule B7 after his pension has come into payment? Rule B7 sub-paragraph 7 states that “In order to commute a portion of a pension a person must, not earlier than 4 months before his intended retirement nor later than the day before the pension comes into payment, give the Fire and Rescue Authority written notice specifying the portion.” However, sub-paragraph 9(b) states “within three months of the date of his retirement, pay him the lump sum; but where payment of the pension had commenced before commutation, that sum shall be reduced by the difference between the aggregate payments made in respect of the pension and the aggregate payments that would have

Closed 20/05/2019 I agree that although the wording of paragraph 9b appears to be quite clumsy, I don’t think it can be read as suggesting that a member can elect to receive a lump sum after payment of their pension has commenced, rather that the paragraph was amended to reflect the tax changes of A-day. The explanatory memorandum for SI 2006/1810 which amended paragraph 9b, doesn’t expressly refer to rule B7, however paragraph 7.9 refers to amendments made across the scheme to avoid payments being unauthorised payments. However this change was commented on in FPSC 9/2006.

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been made in respect of it if it had been reduced from the date of retirement”. This paragraph appears to allow a member to give notice of commutation after the pension has come into payment and therefore contradicts sub-paragraph 7 We believe that as the members pension has come into payment a further second notice of commutation cannot be accepted, therefore we propose to reject the dispute on the basis that the original commutation cannot be replaced.

COMPENSATION SCHEME Date received Scheme/

Member type Query Status Date replied LGA response

10/09/2018 Compensation Scheme

Has there been a guide published for the Compensation Scheme for members or optants-out of the 2015 Scheme

Closed 13/09/2018 No there have been no guides published, other than those already in existence - http://www.fpsregs.org/index.php/member-area/scheme-guides (you will need your password to login) However, the quick guide is a useful summary of scheme rules - http://www.fpsregs.org/images/admin/Illhealth.pdf, published in bulletin 4. The compensation scheme applies equally across the 1992, 2006 & 2015 scheme, the

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benefits are based on service not which scheme somebody is in.

27/02/2019 Compensation Scheme

What service is used to calculate the injury pension where the person has received enhanced service under a ill-health pension. Reckonable service was 13 yrs 54 days, however the enhanced serviced on ill-health was 20 yrs 54 days

Closed 28/03/2019 Under Schedule 1, Part 1, article 1A, paragraph 2 relevant service is defined as being calculated in accordance with the pension scheme they would have been eligible of (2) In the event that an award is payable to a person who is not an active member of the 2015 Scheme, or has elected not to make pension contributions under the New Firefighters’ Pension Scheme or the Firefighters’ Pension Scheme, when calculating an award payable under this scheme, the person’s ‘relevant service’ is determined according to the pension scheme the person would have been eligible to be a member of when they sustained the qualifying injury. Pensionable service is defined under Part F of the FPS 2007 scheme Therefore the service you should use to calculate the injury pension and gratuity is the reckonable service, in this case 13 years.

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29/05/2019 Compensation Scheme Retained Firefighter

A retained firefighter was referred to IQMP. The IQMP has determined that the disability is not permanent; therefore, we assume no ill health benefits are payable. However, the IQMP also stated that the injury was not attributed to the Firefighters own default in a medical context. In such a scenario, and where an index event has been identified, is it possible that a firefighter can have an award in the Compensation Scheme without receiving Ill Health retirement benefits

Closed 30/05/2019 Eligibility to an award from the compensation scheme4 is as per Part 2, Rule 1 This states eligibility is based on permanent disablement and a qualifying injury 1.—(1) This rule applies to a firefighter who has retired and is permanently disabled if the infirmity was occasioned by a qualifying injury.

Part 1, rule 8, paragraphs 2 & 3 confirms that permanent disablement in this context means that the person can no longer perform the duties of the role and this will continue to normal pension age 2) In determining whether a disablement is permanent, a fire and rescue authority shall have regard to whether the disablement will continue until the person’s normal pension age (3) Subject to paragraph (4), disablement means incapacity, occasioned by infirmity of mind or body, for the performance of duty, except that, in relation to a child, it means incapacity, so occasioned, to earn a living.

Therefore if the IQMP has stated in the context of permanency that the person is not permanently disabled from the performance of duty they do not qualify for an injury pension.

4 English Regulations - http://www.fpsregs.org/index.php/regulations/firefighters-compensation-scheme

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FRAs have a duty to ‘not act blindly’ on receipt of an IQMP opinion. We reported in bulletin 13 and 14 on the responsibility of the decision maker (the authority) to not act blindly in accepting a medical opinion, and should ensure the IQMP reaches their opinion in a proper manner. Various case law was cited in the bulletins. Therefore to ensure the IQMP has reached their decision in a proper manner you should ensure they have been given the correct forms to complete, and ask the IQMP to state any reasons given if they feel the member would not be permanently incapable from the performance of duty.

27/06/2019 Compensation Scheme

Review of Injury Award and Re-assessment. A firefighter has requested a re-assessment of an injury award which has been in payment since 1991. Should this be reviewed

Closed 11/07/2019 Part 9 of the compensation scheme rule 1 allows for the authority to review the injury pension at intervals as appropriate and gives discretion for the authority to cease reviews after 5 years in payment. Slide 24 of the ill-health and injury guide refers. Page 7 of medical certificate A for the original assessment of the injury asks for the IQMP to give a suggested date of review, medical certificate C should be used for the review, please contact Bluelight.pensions@local.gov.uk for certificates.

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28/10/2019 Compensation Scheme (Wales)

What pay should be used in the calculation of an injury pension for a member of the 2015 scheme with 1992 transitional benefits.

Closed 01/11/2019 The regulations say in the table provided in schedule 1, Part 1, paragraph 1, that the pay used is the “average pensionable, pay final pensionable pay or final pay, as the case may be”. This was amended by WSI 2015/20135 “in paragraph 1, in the headings in the Table, for “or, as the case may be, final pensionable pay” in both places where the words occur substitute “final pensionable pay or final pay, as the case may be”;” The definitions of average pensionable pay, final pensionable pay and final pay can be found in the interpretations, Part 1, rule 2 and final pay was amended by WSI 2015/1013, Schedule 1, Part 16 to be given the same as final pay in the 2015 regulations, [regulation 102]7 ““final pay” has the meaning given in regulation 102 (meaning of “final pay”) of the 2015 Regulations;”;

Final Pay is the greater of

a)the amount of the member’s pensionable pay during the member’s continuous period of pensionable service in the period of 365 days ending with the last day of pensionable service;

5 In England this was amended by SI 2015/590, schedule 1, part 10, 2b 6 In England this was amended by SI 2015/590, schedule 1, Part 1, 2c 7 In England this is regulation 93

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and (b)the amount of the member’s pensionable pay during the member’s continuous period of pensionable service in the period of three years ending with the last day of pensionable service, divided by three.

04/10/2019 Compensation Scheme

How do you assess permanency for a person above normal pension age?

Closed 01/11/2019 PO-3586 directs the IQMP to consider permanency on the ombudsman remarks in paragraphs 36-39 36. The relevant wording is “…a fire and rescue authority shall have regard to whether the disablement will continue until the person’s normal pension age.” That is not the same as saying that in all cases in which the disablement will last until normal retirement age it is to be treated as permanent. The word “permanent” has not been redefined. It bears its ordinary meaning, but fire and rescue authorities are given a particular matter to bear in mind when considering any particular case.

37. In that context, in any particular case whether disablement would continue to normal retirement age would be given more or less weight depending on the degree to which it might distort what was generally understood by permanence. In Mr Beach’s case it cannot be greatly relevant. It would be a nonsense to regard Mr Beach’s case as permanent (that is likely to last indefinitely)

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simply because it has lasted beyond a date in the past.

38. If authorities have historically treated lasting to normal retirement age as being equating to permanence that would not make it right for Mr Beach to be treated as permanently disabled where the regulations do not justify that.

39. However, the Authority would obviously wish to avoid anomalous results in deciding permanence across all ages. It is slightly relevant to Mr Beach’s case – as it would be to a firefighter just below normal pension age – that, properly considered, a younger firefighter may have been more likely to have been treated as permanently disabled if it seemed likely that their disability would last to normal pension age. (Though it would also be material that such a person’s award would potentially be subject to periodic review.)

04/10/2019 Compensation Scheme

How do you calculate degree of disablement for a person over normal pension age

Closed 01/11/2019 The scheme rules do not define how to calculate the degree of disablement. This is covered in guidance only and does not cover cases of after-appearing injury where the person might be over normal pension age.

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In these cases, it is for the authority to show they have made a reasonable determination. The degree of disablement is a calculation to determine how income has been affected by the injury, therefore where a person is in receipt of a pension for the former employment, the fire authority could determine it is reasonable to use the income from the pension in the assessment of the loss of earnings due to the injury.

04/10/2019 Compensation Scheme (After appearing Injury)

A firefighter who;

• Retired on a full 30 year pension in 2018

• Was re-employed from 2009 to 2015 (did not join pension scheme)

Claimed for an injury pension aged over 60 in 2019 for an injury that occurred in 1986. The fire authority accepted the claim and referred the firefighter to an IQMP who found they were permanently disabled from firefighting. Clarity was sought on:

1. What is the person entitled to when the injury occurred during employment but they did not retire on ill-health and continued

Closed 01/11/2019 With regards to accepting an injury claim after normal pension age, Fire Authorities should be mindful of the eligibility criteria. 1. Eligibility The scheme rules [Part 2, rule 1], state eligibility to an injury pension and gratuity is paid where a firefighter is found to be ‘permanently disabled’ and occasioned by a ‘qualifying injury’. So to be eligible a firefighter has to be found to be

1. Disabled 2. For that disability to be permanent 3. To have had a qualifying injury

Disablement is defined under [Part 1, rule 8, Paragraph 3]

“(3) Subject to paragraph (4), disablement means incapacity, occasioned by infirmity of mind or body, for the performance of duty, except that, in

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to work as a firefighter after retirement.

2. What date should the benefits be paid from?

relation to a child, it means incapacity, so occasioned, to earn a living.”

Paragraph 3 of that rule shows that it means being incapable for the performance of duty.

Because the member was re-employed as a firefighter until 02/09/2015, the member does not meet the ‘disabled’ eligibility part of the test until 02/09/2015, as they have been capable of duty. Permanency is defined under [Part 1, rule 8, Paragraph 2]

“(2) In determining whether a disablement is permanent, a fire and rescue authority shall have regard to whether the disablement will continue until the person’s normal pension age.” How to determine permanency for a person who is found to have a qualifying injury close to, or after normal pension age is considered in PO-3586, which directs the IQMP to consider permanency on the ombudsman remarks in paragraphs 36-39

Qualifying injury, permanent disability from work has to be caused by a qualifying injury. Because this member continued to work, and was later re-employed so continued to work, it cannot be said the injury caused permanent disablement.

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However, Part 2, Rule 1, paragraph 4 does allow for a pension to be paid where the firefighter has retired before becoming permanently disabled. This is known as an after appearing injury.

In this case the member can seek an injury pension on an after appearing injury basis? 2. What date should it be paid from? As per Part 1, Rule 8, paragraph 6, in the case of an after appearing injury of the date on disablement cannot be established then it shall be paid from the date of claim established to determine the date of disablement.

6) Where— (a)a person has retired before

becoming disabled, and

(b)the date on which he becomes disabled

cannot be ascertained,

it shall be taken to be the date on which the claim

that he is disabled is first made known to the fire

and rescue authority.

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04/10/2019 Compensation Scheme

Who funds the pensions paid from the compensation scheme

Closed 01/11/2019 Paragraphs 3.23 to 3.29 of the Guidance for Fire and Rescue Authorities on new financial arrangements for firefighter pensions with effect from April 2006 are clear that any pension payable from the compensation scheme, whether that be ordinary injury pensions, compensatory ill-health pensions to retained firefighters, after appearing injuries and survivor benefits are payable from the Fire Authorities operating account.

COMPENSATION SCHEME – PROTECTED RIGHT AWARDED TO RETAINED FIREFIGHTERS EMPLOYED PRIOR TO 6

APRIL 2006 AND WITH QUALIFYING INJURY PRIOR TO 1 APRIL 2014 Date received Scheme/

Member type Query Status Date replied LGA response

03/09/2018 Compensation Scheme

Is a spouses pension paid on the ill-health pension paid under Part 8, rule 2 for retained firefighters?

Closed 03/09/2018 No spouse’s pension is payable on the non-taxable ill-health pension paid under Part 8, rule 2 unless the fire-fighter died from the effects of the qualifying injury they retired with. Part 8, rule 2 of the FCS 2006 confirms the rules on paying an award to a retained firefighter prior to 1st April 2014. Para 4 gives the retained firefighter an entitlement to a pension calculated on the ill-health rules of the pension scheme. Para 5 confirms that a spouses pension paid under para 6 is only payable where the member dies from the effects of a qualifying injury or infirmity of mind and body occasioned by a qualifying injury.

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27/02/2019 Compensation Scheme Retained Firefighter

Previously been awarded an ill-health pension as a protected retained firefighter. Now claiming an after appearing injury award, how should the injury award be calculated.

Closed 28/03/2019 The original ill-health pension was awarded in 2005. Entitlement to an ill-health benefit for a retained firefighter pre 2006 only occurs if the infirmity was occasioned by a qualifying injury, so you couldn’t have an ill-health pension awarded without the injury pension

04/03/2019 2006 and compensation scheme Ill-Health and Injury

This is a retained firefighter who was employed by a fire and rescue service before 6 April 2006 and joined the 2006 pension scheme as soon as they were able. The firefighter retired in 2013 and was not entitled to become a special member of the 2006 scheme as per Part 2, rule 1A, paragraph 15 - (15) A person who was employed as a retained firefighter and to whom paragraph (1) of rule 2 of Part 8 of the Compensation Scheme applies (award to or in relation to a retained firefighter) may not be a special member of this Scheme.”

Closed 11/04/2019 Northern Ireland statutory references have been used for ease because these are bookmarked by regulation, rather than the English compensation scheme. The regulations are virtually identical. The footnote gives the correct English version. The firefighter would have been entitled to

• An ill-health pension under the 2006 scheme, under Part 3, Paragraph 2

• A compensation pension under the compensation scheme, calculated under Part 8, rule 28 - An injury pension and gratuity as

if they had been a wholetime firefighter calculated under paragraph 2

8 The Northern Ireland regs are virtually identical but hyperlinked to make it easier to read certain sections of the regs - http://www.legislation.gov.uk/nisr/2007/143/schedule/ANNEX/part/8/paragraph/2/made

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The query is, what benefits are they entitled to and how should this have been calculated?

and - An ill-health pension calculated

under paragraph 4 The Calculation NFPS An ill-health pension under the 2006 scheme for the service while in the 2006 scheme. Calculated in line with Annex 1, noting paragraph 1, sub para 3 (3) For the purposes of sub-paragraph (2), the pensionable service of a retained firefighter is the same proportion of whole-time service as that which his actual annual pensionable pay bears to his reference pay. Compensation Scheme As they were employed before 6 April 2006 the member qualifies under Part 8 (special cases) Para 2. This provides for

1. An injury pension and gratuity, calculated as if the member were wholetime reduced by 75% of any other pension in payment. Sub Para 2

“A person to whom paragraph (1) applies shall be treated for the purposes of rules 1 and 3 of Part 2 (injury awards) as having

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been a regular firefighter falling within the description in paragraph (10) below ; but an award under rule 1 or 3 shall be reduced by 75 per cent. of any other pension under the 1992 Scheme or the 2006 Scheme that is then in payment.” So you would calculate the injury pension and gratuity as if the member had been wholetime using the table in Schedule 1, Part 19. Part 3, of schedule 1 only applies for a retained member who was employed after 6 April 2006. You would then deduct 75% of the NFPS ill-health pension in payment.

2. An ill-health pension calculated under paragraph 4 & 4A10 Part 8, rule 2

This would have provided for an ill-health pension to have been calculated as if the member had been a wholetime member in the 1992 scheme and reduced by any pension payable from the 2006 scheme.

9 Northern Ireland regulations used for ease of illustration - http://www.legislation.gov.uk/nisr/2007/143/schedule/1/part/1/paragraph/1/made 10 4A was inserted by SI 2006/3434 - http://www.legislation.gov.uk/uksi/2006/3434/schedule/paragraph/8/made

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(4) Subject to paragraph (4A), a person to whom paragraph (1) applies shall be treated for the purposes of rule B3 (ill- health awards) of the 1992 Scheme as having been a regular firefighter falling within the description in paragraph (10) below; and rules B7 (commutation), B9 (allocation), B10 (limitation of commuted or allocated portion), K1 (review of ill-health and certain deferred pensions), K1A (consequences of review) and K3 (reduction in case of default) of the 1992 Scheme or, if he has become a member of the 2006 Scheme, rule 9 or 11 of Part 3 of the 2006 Scheme, rule 1 of Part 9 of that Scheme (review of ill-health pension) and rule 2 of that Part (consequences of review) apply accordingly in relation to the awards to which he is thus entitled. (4A) In the case of a person who has become a member of the 2006 Scheme, the award under rule B3 of the 1992 Scheme shall be reduced by the amount of any award to which the person is entitled under rule 2 of Part 3 of the 2006 Scheme (award on ill-health retirement).

16/10/2019 1973 Scheme / Retained Firefighters

Should members who are in receipt of an ill-health pension and injury & gratuity under Rule 82 of the 1973 scheme also be tax exempt under section 644 ITEPA see EIM74012.

Closed 06/11/2019 When determining the tax treatment for retained firefighters in receipt of a compensatory ill-health pension from the Compensation Scheme 2006, and as noted in the technical note, we were only able to

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trace an HMRC direction on this back to 2005. Fire Authorities were advised that it was an individual Fire Authority decision to refund further back than that and they were advised to take their own legal advice on whether the pension prior to 2006, paid under either rule J4 (amended by SI 2004/1912) of the 1992 scheme or Rule 82 of the 1973 scheme should be treated as if it had been paid as a compensatory pension or under the rules of the pension scheme.

CONTRIBUTION BANDING Date received Scheme/

Member type Query Status Date replied LGA response

30/01/2019 2015 Scheme / Retained Firefighter

Regulation 110 says (3) The amount of pensionable pay of a retained or volunteer firefighter for the purpose of the first column of the table must be that firefighter’s reference pay. (4) The amount of pensionable pay of a part-time regular firefighter for the purpose of the first column of the table must be the amount of pensionable pay of a whole-time regular firefighter of equivalent role and length of service.

Closed 30/01/2019 We agree the guide is incorrect and this will be updated. While LGA did not endorse the member guides, as they were circulated in early 2015 they are published here for reference.

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However the 2015 member guide states; “The pensionable pay shown in Column 1, in the case of part-time regular firefighters and retained and volunteer firefighters would be that of a whole-time regular firefighter of equivalent role and length of service. “

CONTRIBUTIONS DURING ABSENCE Date received Scheme/

Member type Query Status Date replied LGA response

21/11/2018 2015 Scheme A member was granted a Career break in the Firefighter Pension Scheme (Wales) 2015 and has now subsequently resigned. Could you please advise if the member is still able to buyback the “lost pension” for the duration of his Career Break up until the point of resignation, even though they are no longer an active member?

Closed 28/11/2018 In the scheme rules a career break would come under the umbrella ‘authorised unpaid absence’. The relevant rules that deal with contributions during absence from work are 12011 (paragraphs 4&5) & 12312 (paragraph 3). Neither rule makes a specific reference to returning to work or still being an active member at the time of making an election to repay contributions. However, I would draw your attention to the following points;

11 English Regulation - http://www.legislation.gov.uk/uksi/2014/2848/regulation/111/made 12 English Regulation - http://www.legislation.gov.uk/uksi/2014/2848/regulation/114/made

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• Under paragraph 4 of rule 120, where a member has been on ‘authorised unpaid absence’ the employer must make a scheme decision on whether the member is required to pay the employer contributions. We have previously suggested that there should be a policy on the scheme discretion in this case (4) If an active member is away from work during a period of authorised unpaid absence, the member may elect to pay contributions at the contribution rate ascertained in accordance with regulation 119 (member contributions) multiplied by the assumed pensionable pay that member is treated as receiving and, if required by the scheme employer, must pay the amount of employer contributions which the scheme employer would otherwise be required to pay by regulation 126(3) (employer contributions). • There is perhaps a catch 22 in the wording paragraph 5, which suggests that the contribution should be made within 6 months of the authorised unpaid leave starting. This might be relevant depending on the start date of the career break (5) Where paragraph (2), (3) or (4) applies, the contributions must be paid before the end of the period of six months starting with the date on which the member is treated as receiving assumed pensionable pay.

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• Finally, the regulation that deals with the actual repayment reg 123, paragraph 3, says that the payment can be made by lump sum or periodical contributions. Clearly a non-active member would only have the option to pay by lump sum. (3) Contributions which the member has elected to pay, or is required to pay, under regulations 120 (contributions during absence from work due to illness, injury, trade dispute or authorised absence) and 122 (contributions during child-related leave) may be paid by a lump sum or by deduction from instalments of pensionable pay as agreed between the scheme manager and the member. I am unable to provide a definitive reply and it remains the responsibility of the scheme to obtain legal advice if there is doubt over the interpretations of the scheme rules. You can if you wish escalate the query to the technical group for consensus, the technical group may escalate to the scheme advisory board to request legal advice if they feel they cannot provide guidance. Please confirm whether you would like this escalated to the next technical group to be held on 12 February 2018

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Update 12/02/2019 The technical group agreed that although there is no specific reference in the rules to returning to work or still being an active member at the time of making an election to repay contributions, they would allow a repayment to be made within 6 months of returning to work / leaving

DEATH BENEFITS Date received Scheme/

Member type Query Status Date replied LGA response

20/06/2018 2006 (transitional)

Is there any provision in the 2006 / 2015 regulations which prevents a DIS death grant payable under both the 2006 scheme and 2015 scheme, or a transitional provision which requires the death grant payable under the 2006 scheme to be offset from the death grant payable under the 2015 scheme (as in the 1992 scheme)?

Closed 26/10/2018 The policy intention is that any active transitional members of the 2015 Scheme member will, on death, be entitled to one death grant made in accordance with the 2015 scheme regulations. There would not be any lump sum death grant payable under the 1992 or 2006 Schemes. Part 2, Para 1B of Schedule 2 of the transitional regs taken with 1C account for the transition from a ‘firefighter member’ to a ‘connected member’. Part 5, Para 1 of the 2006 regs states that the death grant is payable to a person serving as a ‘firefighter member’, which they would not be at the point of death, rather they are a ‘connected member’.

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Payment of a duplicated award is therefore prevented, as effectively the member would not be a serving firefighter member of the 2006 scheme.

26/07/2019 1992: Death in Service Lump Sum

The Death Grant payable from E1 of the 1992 regulations seems to be just 2 time pay, yet some of our clients have suggested that we should also include the Refund of Aggregate contributions where the member is single or divorced similar to Article 64 of the Firefighters 1973 regulations

Closed 27/11/2019 Death benefits for those in the 1992 scheme and who die after April 1992 should be paid in line with Part E of the regulations, which include E1 (lump sum death grant) and E4 (balance of contributions to the estate. This is paid where the value of the contributions are worth more than the total value of relevant amounts. The commentary while un-endorsed provides a useful summary of these provisions Commentary – Rule E1 & Rule E4 Payment of balance of contributions to estate

E4.—(1) This rule applies where a person dies—

(a)while in receipt of an ordinary, short service or ill-health pension, or (b)while entitled to a deferred pension, or (c)while serving as a regular firefighter,

and the aggregate of the relevant amounts is less than the amount of his aggregate pension contributions.

(2) Where paragraph (1)(a) or (b) applies, the relevant amounts are—

(a)the sums paid in respect of the pension mentioned in paragraph (1) “the pension”),

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(b)if the pension was an ill-health pension and the deceased was also in receipt of an injury pension, the sums paid by way of pension and gratuity under rule B4, (c)if the pension was reduced under rule B7 (commutation), the lump sum paid under that rule, (d)if the pension was reduced under rule B9 (allocation), the sums that would otherwise have been paid in respect of the allocated portion, (e)any gratuity payable in respect of the death, and (f)the actuarial value, calculated from tables prepared from time to time by the Government Actuary, of any surviving spouse’s pension or child’s allowance payable in respect of the death.

(3) Where paragraph (1)(c) applies, the relevant

amounts are those described in paragraph (2)(e) and (f).

(4) The fire authority shall pay the difference between the aggregate of the relevant amounts and the deceased’s aggregate pension contributions to his personal representatives.

16/07/2019 Deferred 1992/2015 member

A deferred member of FPS 1992 and FPS 2015 has died - They do not leave any surviving

spouse/civil partner/co-habiting partner

- They do not leave any children

Can a refund of the member’s contributions to the FPS 2015 be paid to the estate?

Closed 05/12/2019 • 1992 Scheme - E4 applies to pay a refund of 1992 scheme contributions to the estate

• 2015 Scheme - There is no provision in the 2015 scheme for a lump sum death benefit to be paid to a deferred members estate

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DEFERRED BENEFITS Date received Scheme/

Member type Query Status Date replied LGA response

29/08/2018 Transition members

Does a transitional deferred member have to take both parts of their pension at the same time?

Closed 29/08/2018 No, there is no requirement to take both final salary benefit and CARE benefit together. A member can make individual decisions on their final salary benefit on when to take the benefit and whether to commute. The scheme rules on normal pension age apply to each type of benefit. The earliest a deferred pension can be taken in the 1992 or as a special member of the 2006 scheme is age 60. The earliest a deferred pension can be taken in the 2006 scheme is age 55 (with 2006 early retirement factors) or age 65 with no deductions. The earliest a deferred pension can be taken in the 2015 scheme is age 55 (with deferred early retirement factors [para 2.6]) or age 65 with no deductions. So a deferred 1992 transitional member could take early payment of their 2015 pension from age 55 and take their 1992 pension from age 60.

19/02/2019 1992/2015 (transitional)

Where a firefighter with transitional 1992 benefits in the 2015 scheme has retired before the age of 55, what is the status of the 2015 deferred pension?

Closed 26/03/2019 Agreed the regulations do not appear to provide guidance on this scenario. Have escalated to Home Office for consideration.

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4. Does it retain a link to the

retired employment (and if so what regulation supports that?)

Or 2.Does it stand alone as a 2015 deferred pension, if so would you agree that it could

• be linked [under regulation 49] to the new 2015 pension under the retained employment

• be transferred out under regulation 133

Relevant History Firefighter with transitional 1992 benefits in the 2015 scheme is retiring in August At retirement he will be aged under 55 The benefits he will be awarded are a 1992 pension into payment and he will defer his 2015 pension He is then being employed as a retained firefighter and will join the 2015 scheme (after appropriate break)

The following informal view has been received from the Home Office. While it is only an informal view, noting the caveat, I would agree that the regulations support this view. “My view is that the f-f has “used-up” his final salary link on his initial retirement by crystallising his benefits He can no longer take advantage of it because he is no longer a transition member for practical purposes – ie although he once qualified under Schedule 2 Part 1, he no longer does so because he does not qualify as “a member of the 1992 Scheme or the NFPS by virtue of his or her pensionable service under that scheme”. In the context this clearly means “active member”. However, on return to employment the deferred 2015 pension account should be reopened so that it can be put back into use for his new period of employment, as provided for by regulation 49. The fact that the f-f will be returning in a retained role does not in itself add to our answer, as in the 2015 scheme full-timers and retained f-frs are treated the same. If he were eventually to move to another profession, he should be able to transfer his CARE benefits, since they are being treated separately from 1992 benefits.

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Please note that it is the responsibility of each FRA to apply the rules of the pension scheme in accordance with their interpretation of the scheme and to obtain legal advice where they consider this is necessary. The Department can only give an informal view on the interpretation of the firefighters' pension scheme as only a Court can provide a definitive interpretation of legislation.”

28/02/2019 1992 (protected)

Can a fully protected member of the FPS 1992 who has completed 30 years’ service, elect to defer their FPS 1992 pension and join the FPS 2015. Then at retirement at age 60 they could collect both an active pension from FPS 2015 and a deferred pension under FPS 1992.

Closed 01/05/2019 No this option is not available. The member would still qualify as a protected member under rule 9 of schedule 2. If they did opt to defer their FPS 1992 and rejoin the pension scheme, the appropriate scheme to enrol them in would be FPS 2006. The only way to break the protection would be to have a gap of more than five years.

13/05/2019 All schemes I am trying to establish whether a breach has occurred as it would appear that no ABS’ have been sent out for deferred members. I have tried to look for the relevant legislation that covers annual benefit statements for deferred members. I can find it for the active members, but not for deferred. Are you able to point me in the right direction to find where the requirement

Closed 13/05/2019 Under the regulations, there is a statutory requirement for deferred members of the FPS2006 and the FPS2015 to be sent a deferred benefit statement (DBS). No such provision exists in the FPS1992, however, it is considered good practice to provide one under disclosure of information. FPS2006

Annual benefit statements

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is that an annual benefit statement for a deferred member is sent as a statutory requirement?

4.—(1) An authority shall issue an annual

benefit statement to each of their firefighter,

deferred and pension credit members.

FPS2015

Annual benefit information statements

183.—(1) The scheme manager must provide

an annual benefit information statement to each of

its members who are not pensioner members in

respect of the pension account for which the

statement is to be provided.

ELIGIBILITY Date received Scheme/

Member type Query Status Date replied LGA response

31/07/2018 All Under the definition of Firefighter for each of the 1992,2006 & 2015 scheme the person must be employed (a) by a fire and rescue authority as a firefighter (whether whole-time or part-time), other than as a retained or volunteer firefighter , and (b) on terms under which he is, or may be, required to engage in fire-fighting or, without a

Closed 28/08/2018 While the regulations do not define 'temporary' it is not considered that for the purposes of eligibility to the pension scheme a fixed term contract should be considered as being 'temporary' under this definition

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break in continuity of such employment, may be required to perform other duties appropriate to his role as a firefighter (whether instead of, or in addition to, engaging in firefighting) and whose employment is not temporary. Should a fixed term contract be considered as temporary?

03/10/2018 1992 Is a member eligible to remain in the 1992 scheme while seconded to a community interest company? The member is required to maintain competencies for their substantive role while on secondment.

Closed 28/11/2018 Membership of the 1992 scheme applies to ‘regular firefighters’ under rule A3 of the 1992 scheme, a ‘regular firefighter’ is determined under the rules of the scheme as being employed “on terms under which he is, or may be, required to engage in fire-fighting or, without a break in continuity of such employment, may be required to perform other duties appropriate to his role as a firefighter (whether instead of, or in addition to, engaging in firefighting) and whose employment is not temporary.” The ability to remain a member of the 1992 scheme whilst on secondment would depend on whether the secondment was appropriate to their role as a firefighter. The usual caveat however applies to confirm that reply does not constitute legal advice, LGA and my role as Firefighters Pension Adviser is there to help employers understand their role and duties under the regulations. Therefore I recommend that

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you speak to Welsh Government and get legal advice, as there may be other employment law provisions within this arrangement.

FINAL PAY Date received Scheme/

Member type Query Status Date replied LGA response

03/12/2018 2015 (NI) How should paragraph 1 & 2 of ‘Meaning of Final Pay’13 be interpreted for a retained firefighter? Paragraph 2 refers to members whose continuous period of pensionable service is less than 365 days. Does this imply for a member who for a continuous period of 365 days, accrues less than 365 days of service, i.e. a retained firefighter or for a member who for their total continuous period of service from when the member actually joined the pension scheme has less than 365 days, i.e. a member who was only in membership of a scheme for less than 365 days. The proposed solution is that you would apply paragraph 1 and paragraph 2 does not apply unless the actual service

Closed 03/12/2018 Paragraph 1 should apply for a retained firefighter. This is for two reasons. Firstly the definition of ‘continuous period of pensionable service’ is defined under regulation 3 ‘interpretations’ as being “continuous period of pensionable service” in relation to this scheme, means a period of pensionable service under this scheme disregarding any gap in pensionable service not exceeding 5 years unless otherwise provided” I therefore interpret paragraph 2 to mean where the total pensionable service for calculation of pension is less than 365 days. Secondly pensionable pay14 is defined as being ‘actual pay received for the performance of duties’; not a FTE pay as per the final salary schemes

13 Reg 93 in England and Scotland, 102 in Wales and 101 In Northern Ireland 14 Reg 17 for Scotland and England and Reg 26 for NI and Wales

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in the scheme has been less than 365 days

FPS 2006 SPECIAL MEMBERS Date received

Scheme/ Member type

Query Status Date replied LGA response

26/07/2018 2006 (Special)

Where is the latest version of the settlement calculator?

Closed 26/07/2018 The settlement calculator is available on the special 2006 member resources page - http://www.fpsregs.org/index.php/member-area/modified-2006-scheme-resources

03/09/2018 2006 (Special deferred)

Where an active member chose not to convert 2006 scheme membership, they were awarded a special deferred pension under Part 2, 1A, sub para 8. Can they draw that pension from normal benefit age (60) under Part 3, para 3, sub para 2 of the 2006 regulations, despite continuing the same active employment the special deferred pension is awarded for?

To be considered by technical group at meeting on 17/09/2018

There is nothing under Part 3, para 3 (as amended) to indicate that a special deferred pensioner cannot take their pension from age 60. However it is not standard practice to pay a pension for an on-going employment, as referenced in the original query. The query was referred to the Home Office for comment. The initial informal opinion of HO is to agree there is nothing preventing retirement in this case. This will be passed to the technical group to comment on. Awaiting issue of technical group minutes.

19/09/2018 2006 (Special)

If a special firefighter protected member of FPS 2006 changes their employment contract without a break in service are they eligible to remain a special member?

Open

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The change in contract requires that the employees continue with their retained duties but in addition they are contracted to work during the day where the normal hours of work would vary between a minimum of 21 and 42 hours per week.

25/01/2019 2007 (NI) Special Member

Does the legislation permit a special member of the NFPS who elected to pay contributions by periodical contributions have the opportunity to pay the balance by lump sum while remaining an active firefighter?

Closed 25/01/2019 No, a special member who elected to pay contributions periodically does not have the opportunity to pay the remaining balance by lump sum if they are still an active member. This is confirmed on slide 90 of the special members guide - http://www.fpsregs.org/images/admin/2006specialmembers.pdf And by Part 11, article 66A, paragraph 8 of the 2007 regulations15 - http://www.legislation.gov.uk/nisr/2015/9/schedule/paragraph/9/made (8) The mandatory special period pension contributions may be paid by periodic contributions which shall be calculated in accordance with tables provided by the Scheme Actuary so as to discharge his liability over a period of 10 years or may be paid by way of a lump sum contribution.

The only way a member can pay the remaining contributions by lump sum, is to leave or retire, this is confirmed in paragraph 9 of the above regulations.

15 English regulations, Part 11, Rule 6A - http://www.legislation.gov.uk/uksi/2014/445/schedule/paragraph/10/made

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05/02/2019 2007 (NI) Special Member

We have a special pension member. Who is currently off on long term sick leave from the Retained role. They elected to make monthly buyback payments over the 10 year period, however whilst on long term sick cannot afford to make these payments. It was always my understanding that once a member elected to buy-back service that they could not cease and recommence payments, does article 6816 apply?

Closed 05/02/2019 Either article 68 of Part 1117 or article 58 of Part 1018 could apply to this member and allow them to resume paying contributions once they return to work / financial position improves. If they do not pay the contribution the service is pro-rated.

NISR 2015/0919, Part 11, paragraph 10 amends article 68 by the insertion of paragraph 4A to apply to ‘special pensionable service’ 4A) Where the firefighter member is a special member, in paragraph (4) “A” is the number of 45ths of additional special pensionable service which the special member elected to purchase

Or

Article 58 of Part 10 allows a member to reckon an unpaid period of absence within 6 months of returning by paying contributions was amended by NISR 2015/920 to also apply to ‘special pensionable service’

Special pensionable service21, is defined by the legislation is to be construed in accordance with articles 56A to 59 of part 1022, which includes ‘any period during the limited period which he is entitled to

reckon as special pensionable service under article 66A

16 English Equivalent: Part 11, Rule 8 - http://www.legislation.gov.uk/uksi/2006/3432/schedule/1/part/11/chapter/2/paragraph/8/made 17 English Equivalent: Part 11, Rule 8 - http://www.legislation.gov.uk/uksi/2006/3432/schedule/1/part/11/chapter/2/paragraph/8/made 18 English Equivalent: Part 10, Rule 4 - http://www.legislation.gov.uk/uksi/2006/3432/schedule/1/part/10/paragraph/4/made 19 English Equivalent SI 2014/445 - http://www.legislation.gov.uk/uksi/2014/445/schedule/paragraph/10/made 20 English Equivalent, Paragraph 6 of SI 2014/445 - http://www.legislation.gov.uk/uksi/2014/445/schedule/paragraph/9/made 21 English equivalent - http://www.legislation.gov.uk/uksi/2014/445/schedule/paragraph/1/made 22 English Equivalent - 2A to 5 of Part 10 http://www.legislation.gov.uk/uksi/2014/445/schedule/paragraph/9/made

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(election to purchase service during the limited period) of Part 11’

21/02/2019 2006 (special member)

The amendments to the 2006 scheme to introduce special members, do not appear to have amended paragraph 3 of Annex 1 to apply the special member accrual rate of 45ths to retained or volunteer firefighters

Will keep open until regulations amended

07/03/2019 Referred to Home Office on 23/02/2019, as agree that the amendments to annex 1 of the 2006 scheme as part of the 2014 amendments to introduce special members do not amend paragraph 3 of the same annex to use an accrual rate of 45ths for calculating higher tier ill-health for retained special firefighter members.

Home Office have confirmed that the intent of the regulations should be that an accrual rate of 45ths should be used when calculating the higher tier for retained special firefighter members.

They agree that it does not appear that the regulations currently support this, and they will ask their legal colleagues to review with the intent of making amendments to the regulations to support this. In the meantime they agree that the calculation should be done on 45ths and there should be no change to software

11/06/2019 2006 Special Member

How do you calculate a deferred pension for someone who elected to convert standard to special service and has chosen NOT to a) pay the remaining contributions by lump sum or b)continue paying periodical contributions as a deferred member if they choose to do so (see slide 100)

Closed 17/06/2019 Service is pro-rated as per the formula given in

Part 12, Rule 17, paragraph 8

(8) Subject to paragraph (9), where rule 6A(3) (election to

purchase service during the limited period) of Part 11 applies,

and the member does not within the period specified in that

paragraph pay a lump sum equivalent to the balance of the

payment referred to in paragraph (5)(b), ascertained in

accordance with tables provided by the Scheme Actuary, the

period of service as a standard member converted to special

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pensionable service shall be treated as if it were the period

ascertained in accordance with the formula—

where—

A is the period of service as a standard member which he elected

to convert,

B is the period of that service in respect of which the payment

referred to in paragraph (5)(b) has been paid, and

C is the period of that service in respect of which the payment

referred to in paragraph (5)(b) would have been paid in

accordance with his election.

For the avoidance of doubt, the only time the election to convert is treated as revoked is where the member remains an active member but stops making contributions after three months Part 12, 17, paragraphs 10 & 11

See slide 102 `

22/05/2019 FPS 2006 How should a special members record be treated who resigned from their post and chosen not to repay contribution arrears as a special member. 1. The member did not join the

FPS 2006 until 01/07/2007, although they were

Closed 23/04/2020 I agree that because it was correct at the time to treat the member as tapered, subsequently not paying for pension contributions cannot revoke that. The proposed way forward is therefore to 1. Calculate the mandatory service purchased

using the formula in Part 11, Rule 6B, paragraph 6. Mandatory special service is the pre 2006 service that he opted to buy back.

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employed throughout as a retained firefighter.

2. Opted to purchase mandatory contributions from 01/07/2000 until 31/03/2007

3. Opted to convert standard service from 01/04/2007 to 31/07/2015 (election date)

4. Built up special member service in FPS 2006 until date of leaving 10/04/2019. Qualified for tapering under Schedule 2, Part 1, Para 3. Sub Para 4

(4) In the case of a tapered protection member of the NFPS who is a special member of the NFPS, the tapered protection closing date is the date found by applying the relevant date in column 3 of the 1992 Scheme table in Part 4 of this Schedule to the birthday referred to in column 1 and column 2.

5. The member did not want to pay for remainder of contributions at leaving by lump sum or deferred

2. Converted service, this is the standard 2006

service the member opted to convert to special service; Either

a) calculate how much converted service should be treated as special service using formula in Part 12, Regulation 17, paragraph 8, [This will result in converted service being treated as a mix of 45ths and 60ths], or b) treat the election to convert as revoked and use the contribution paid against mandatory service as per Part 12, Regulation 17, Paragraphs 10 & 11. [This will be treated as 60ths only] 3. Current service, Calculate modified service from

election date to deferred date at 45ths Remedy proposals are still at early stages but are most likely to treat the member as if they had been final salary and provide an underpin to be treated as CARE if better. In this case the comparison has already been done and the member is better off under final salary, and has paid final salary contributions and been treated as a final salary member.

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periodical contributions on leaving

ILL HEALTH RETIREMENT Date received Scheme/

Member type Query Status Date replied LGA response

26/07/2018 1992 Can a member make different election options on commutation for an ill-health retirement?

Closed 26/07/2018 Yes a member can make different commutation options on the final salary and CARE elements of the ill-health pension

06/09/2018 2006 Does a decision on paying an after appearing injury for retained employment mean that by default an ill-health pension should be paid? The member has a deferred retained pension with a current lower tier ill-health pension in payment for wholetime employment.

Closed 14/09/2018 You would need to consider the ability to ill-health retire from the deferred retained employment in its own right. So you would need to consider afresh whether the member is capable of undertaking regular employment in order to determine whether you can pay the deferred pension as an ill-health pension. However any decision under the deferred retained employment would not affect the lower tier ill-health pension already in payment for the wholetime employment, because you cannot review an ill-health pension upwards, it is paid on the decision at the time of retirement.

28/01/2019 2006/ 2015 (transitional)

The query relates to an ill-health case that has already been to the IQMP. The question of Injury – PTSD – wasn’t included as the member / FBU couldn’t furnish evidence, but a lower-tier award

Closed The regulations do not allow a subsequent upwards award on the review of ill-health. The appeal regulations do not appear to allow further appeal on new evidence -

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was granted. It was appealed via the Board of Medical Referees, where they agreed with the lower-tier award as there was an expectation of ‘regular’ employment being possible if the appellant worked in another workplace. The question of Injury on Duty is now being discussed in light of additional evidence via the GP now becoming available. Can the tier of the award also be reconsidered in light of this additional evidence, or is the BMR assessment binding on the tier?

http://www.legislation.gov.uk/uksi/2014/2848/regulation/154/made However bulletins 13 & 14 recently commented on the role of the IQMP in ill-health and injury determinations, and the role of the Fire Authority to not act blindly, both bulletins reference case law where it was subsequently found the scheme manager should have acted. http://www.fpsboard.org/images/PDF/Bulletin14/Bulletin14.pdf http://www.fpsboard.org/images/PDF/Bulletin13/Bulletin13.pdf As the case involves PTSD and new evidence has been found, I would recommend letting the IQMP consider the evidence. The Home Office have been asked to provide a view. Update 26/04/2019 Having gathered further facts and considered the case with the Home Office, the IQMP process was properly considered and appealed and any further appeal is now out of time. The regulations do not support an upward review of the ill-health tier

26/04/2019 2015 Ill-Health

Does the employer need to make a contribution to the notional pension

Closed 26/04/2019 Yes, bulletin 9 included a reminder that the Home Office have confirmed that the level of ill-health charge for the 2015 scheme

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fund account in the same way as the 1992 and 2006 scheme

should continue at the same rate set for the 1992 and 2006 scheme, which is four times pensionable pay for higher tier ill-health and two times pensionable pay for lower tier ill-health.

14/05/2019 IQMP timescales

Is there any guidance on IQMP timescales. Our IQMP has advised that case might take a couple of months due to the complexity of the case and amount of information, and the former employee is not satisfied with the timescales.

Closed 11/07/2019 Neither the regulations or the IQMP guidance set out a timescale for concluding the IQMP process. The authority remain responsible for the process, we reported in bulletin 13 with regards to the authorities duty to ‘not act blindly’ in scrutinising an IQMP decision. The authority will need to consider what is ‘reasonable’ given the specific circumstances of the case. They may need to consider why did it take so long to find an IQPM willing to do the review and was the delay avoidable? Therefore the action here will be for the member to raise an IDRP with the authority,

the FRA should be mindful of the PO

guidance on non-financial injustice, ie

distress and inconvenience. The individual

could bring a claim for distress and

inconvenience once they have been

through the IDRP. However, depending

on whether the complaint could have

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been avoided or resolved at an earlier

stage, the FRA may not be too exposed

if they have done everything possible to

compete the review as quickly as

possible.

25/07/2019 1992 What is the retirement age for the purpose of the IQMP assessment. We have a firefighter who is a member of FPS 1992 going for ill health retirement, and we have referred to an IQMP. The firefighter will have completed 30 years’ service next year (at the age of 52) and he informed the IQMP that this is his retirement age. We believe the ‘normal retirement age’ to be 55 for this scheme, and that the 30 years’ service date is the date on which he could have chosen to take his benefits. Can you confirm what he retirement age for assessment should be?

Closed 26/07/2019 Regulation A10 (1A) confirms that in determining whether a disablement is permanent the authority shall have regard to whether the disablement continues to ‘normal pension age’. Regulation A13 confirms that the ‘normal pension age’ for a Firefighter is age 55. The quick guide confirms this across the schemes.

ILL HEALTH REVIEW Date received Scheme/

Member type Query Status Date replied LGA response

29/08/2018 2006 If on ill-health review the condition has deteriorated and the person is no longer able to perform any employment

Closed 29/08/2018 There is no facility to review an ill-health pension upwards.

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can you uprate the pension to the higher tier?

Page 11 of the ill-health quick guide - http://www.fpsregs.org/images/admin/Illhealth.pdf confirms the rules of the scheme. The relevant rule for the consequence of the review is Part 9, rule 2 - http://www.legislation.gov.uk/uksi/2006/3432/schedule/1/part/9/paragraph/2/made The regulations only allow the authority to cease the higher tier if the person has become capable of undertaking regular employment, or cease the lower tier if the person has become capable of performing the duties of the role from which they retired.

02/10/2018 1992 A firefighter who retired on higher tier ill health over 10 year ago and aged over 60 has become capable of casual variable employment (10-15 hours). Does this affect their entitlement to the pension?

Closed 02/10/2018 As per slide 11 of the Ill health and Injury quick guide, the period for ill-health review under regulation K1 is within 10 years of payment and under age 60, so this pension cannot now be reviewed. For the avoidance of doubt, higher tier ill-health is paid where a firefighter is incapable of undertaking ‘regular employment’, regular employment is defined in the regs B3, para 7 (amended by SI 2013/1392) as being at least 30 hours a week over a consecutive 12 month period. “In paragraphs (3) and (4) “regular employment” means employment for at least 30 hours a week on average over a period of not less than 12 consecutive months beginning with the date on which

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the question of his disablement arises for decision”

26/09/2018 2007 (NI) How should pension entitlement be calculated for a member who was reinstated following an ill health review? Previous Home Office guidance states that the period on ill health pension would be treated as a break in service. Upon retirement, a pension would be calculated from original start date excluding the break. The amount would be reduced by the earlier commutation amount, prior to a new lump sum being calculated.

Closed 03/12/2018 There are appears to be no guidance on this process within the FPSC circulars, archived commentary or explanatory memo. The Home Office have been asked for a steer on whether any guidance was published. FPSC circulars Archived commentary Explanatory memo SI 2006/1810 Nevertheless despite a lack of written guidance, the process you describe to deduct from the lump sum the amount originally paid out seems reasonable.

07/11/2019 1992 Deferred How should you treat a 1992 deferred pension on review if the person is found capable of regular employment. The regulations contradict each other. Regulation B5(4b)23 brings a deferred pension into early payment where the person is found disabled from engaging in firefighting only.

Closed 11/11/2019 Guidance in an email from Anthony Mooney at DCLG (now Home Office) was circulated in an email dated 16 January 2014. Home Office has stated this guidance still stands, replicated as below;

“Dear All - For your information and consideration.

During the last round of legislative changes to the pension scheme regulations an amendment was made to Rule K1A of the

23 Amended by SI 2005/2980

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But regulation K1A(5) says on review to cease pension if member found capable of regular employment.

1992 Scheme. Effectively, the amendment introduced a new sub-paragraph (5) which provides for the cessation of the early payment of a deferred pension where it is found on review that the member has become fit enough to undertake regular employment.

The qualifying criteria for entitlement to early payment of a deferred pension, as set out in Rule B54(b) of the 1992 Scheme, is that a deferred member will become entitled to early payment of their deferred pension from any time, before the age of 60, where it has been determined that he/she has become permanently disabled for engaging in firefighting or performing any other duties appropriate to his former role as a firefighter.

As such, the qualifying criteria for becoming entitled to receive early payment of a deferred pension (as set out in Rule B54(b)) is not consistent with the criteria for continual entitlement to receive early payment of a deferred pension (as set out in Rule K1A(5)). From a practical perspective, it is our view that these two provisions do not work together.

The Department has now decided to consider what the appropriate qualifying conditions should be that would entitle a member to the early payment of their deferred pension i.e. should it be permanently disabled for undertaking the role of their former role as a firefighter; or permanently disabled for undertaking regular employment, which is defined in the

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scheme's regulations. Obviously, any final proposal will require formal consultation and scheme amendment. We envisage that this work will be undertaken as part of the next round of amendments to the schemes later this year.

In the interim period until this work has been completed, we would recommend that FRAs do not cease any early payments of deferred pensions [in the 1992 scheme only] where it has been found that the member is able to undertake regular employment. If a FRA does decide to review any cases where a deferred pension has been paid early then we would suggest that the pension should only cease where the member no longer satisfies the qualifying criteria as set out in Rule B54(b) i.e. where the member is no longer permanently disabled for undertaking their former role as a firefighter.”

19/11/2019 1992 What scheme should a firefighter be placed in if they accept an offer of employment, called “a paragraph (2)(b) offer” under rule K1A

Open 04/12/2019 Agreed there does not appear to be guidance or regulations to answer this?

30/03/2020 FPS 1992 (Wales)

What is the requirement to review an ill-health pension lower tier. 1. Member has been retired for less than ten years 2. Member is now over normal pension age for FPS 1992

Closed 02/04/2020 The requirement for the Fire and Rescue Authority is to review an ill-health pension within a ten year period from the first entitlement to consider whether the person has become capable of carrying out the duty appropriate to the role of which they retired from on grounds of ill-health at such intervals as they think is proper [K1,1]. The issues in this case were;

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1.The member is now over the normal retirement age, so it is unlikely they will be capable of carrying out the duty appropriate to the role from which they retired. 2. When the IQMP originally assessed the firefighter they would have assessed whether the firefighter could perform the role until normal pension age, so if they were to re-assess what age would they assess on? PO-3586 gives some useful direction on assessing permanency for a person above normal pension age, albeit the decision relates to the compensation scheme. For a lower tier ill-health the consequences of such a review would be to a) Make an offer of employment in the

former role (this would be for the FRA to assess, but it seems unlikely in the case of a person past normal retirement age that would be an option)

b) They would become a deferred

pensioner, which would mean their pension would stop and they would not be able to claim until they were 60. [The member might claim this was unfair seeing as they could have retired

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from the scheme and received immediate payment at 55]

As we have discussed the regulations allow the fire authority to review at intervals as they think is proper, however the regulations do not provide further information on how that decision might be made. It seems reasonable that the fire authority would make that decision on a per case basis, perhaps with advice from the IQMP at the time of assessment as some conditions may not improve. Taking all the above into consideration, I think for this case it is reasonable for the authority to make a per case decision, under their ability to review at such intervals as they think is proper to not review in this case. However, we would recommend documenting the reasons for taking that decision.

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LEAVING THE SCHEME BEFORE RETIREMENT Date received Scheme/

Member type Query Status Date replied LGA response

30/07/2018 1992 (transitional)

What is the impact on 1992 scheme if a member opts out of the 2015 scheme when transitioning?

Closed 31/07/2018 When a member opts out or leaves employment, they cease to have continuous employment. Therefore the 1992 benefits are deferred. Schedule 2, rule 35 confirms that if a member ceases to have continuous service they are a deferred member of the 1992 scheme. However, rule 33 confirms that a member with ‘continuity of service’ defined as less than a 5 year break from public service retains the final salary link. This means that if they re-join the person is treated as a deferred member in terms of retirement age, but the final salary link applies to the benefits at retirement. http://www.legislation.gov.uk/uksi/2015/589/schedule/1/paragraph/7/made 118 to 122 – of the training day slides refer- https://www.khub.net/group/thefirefighterspensionsdiscussionforum/group-forum/-/message_boards/message/14576774

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LOCAL PENSION BOARD MEMBERSHIP Date received Scheme/

Member type Query Status Date replied LGA response

14/11/2019 Governance An employer rep of the Local Pension Board has recently been delegated the task of hearing stage 1 IDRPs. The regs state: Regulation 4(B)(4) of the Firefighter Pension Scheme (Amendment)(Governance) Regulations 2015 states that no officer of the Authority who is responsible for the discharge of any function under these Regulations may be a member of the local pension board. The guidance suggests that this includes any decision taken under the pension scheme. Does this preclude the from being on the Board?

Closed 27/11/2019 The pensions board role is to assist the scheme manager24, the purpose of regulation 4b(4) is to avoid a situation where a person acting as a delegated scheme manager is also on the board with a role of assisting the scheme manager, ie in practice a person ends up in a role assisting themselves. The guidance in FPSC 1/2009 which put in place a two stage process does not mention the scheme manager role as this was not introduced into the regulations until 2014, however it is our understanding that the guidance that stage one should be considered by the Chief Fire Officer (CFO) or senior manager specified by the CFO should be translated to mean scheme manager under the 2014 regs. Therefore, I agree your interpretation that a person who hears a stage one IDRP cannot also be a member of the Local Pension Board.

24 4A - http://www.legislation.gov.uk/uksi/2015/465/regulation/4/made

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MEDICAL APPEAL Date received Scheme/

Member type Query Status Date replied LGA response

15/07/2019

All Medical appeals

Is FPSC circular 9/2010 the most up to date guidance on submitting medical appeals and where are the forms?

Closed 16/07/2019 I can advise that there has been no further update since bulletin 4 which re-released FPSC circular 9/2010 HML ran a workshop for us at the AGM last year (2018)– slides available here which gives more detail on their expectations. The Home Office are currently re-tendering for the medical appeal provider which means that currently HML do not intend to update the forms, therefore the current forms to use are on this link. To check when updated guidance has been published, please use the bulletin subject index and search by topic. The bulletin is published on the last working day of the month and is the primary route of communicating change.

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PARTIAL RETIREMENT Date received Scheme/

Member type Query Status Date replied LGA response

06/09/2018

1992 (transitional)

Is a 1992 transition member eligible to partially retire at the age of 55, receive payment of both FPS 1992 and FPS 2015; subject to any actuarial reductions, and continue to work for the Service, without a break, and potentially build up another pension account in the FPS 2015?

Closed 06/09/2018 While partial retirement is an option under the 2015 scheme, in order to draw the 1992 scheme benefits the firefighter would need to retire. It is unlikely that a member with transitional 1992 benefits would have built up a significant amount of 2015 pension that with the reductions that would be applied, make it beneficial for them to withdraw the 2015 pension only and continue working. Decision trees to help illustrate the retirement decisions available on leaving employment or opting out are available here.

08/10/2019 2015 Scheme Is Partial retirement a discretion for the authority, should they have a policy in place?

Closed 25/11/2019 Partial retirement under Part 5, chapter 3 of the 2015 scheme, is not an authority discretion. However there is a discretion over which form the notice must be given. This is listed in the FPS 2015 discretions documents. [Please note regulations 72 & 73 in the welsh regulations, are the same as regulations 63 & 64 in the English regulations]

08/10/2019 2015 scheme (with

Does a member who transfers into the 2015 scheme with transitional benefits

Closed 25/11/2019 No, normal retirement from the scheme is under the ‘two-pot’ basis, which means the

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transition benefits)

in the final salary, qualify for partial retirement across the whole of their benefits?

member retires under the rules of each of the pension schemes. While ill-health retirement is under the ‘one-pot’ basis that means the member retires under the rules of the 2015 scheme only, the condition of ill-health is that the member cannot work as a firefighter.

PENSIONS INCREASE (PI) Date received Scheme/

Member type Query Status Date replied LGA response

08/08/2018 1992 (Pensioner)

A 1992 pensioner has become entitled to pensions increase on the lump sum at age 55 because best of the last 3 years applied. As the member elected to commute the full 25% and incur a tax charge, does a further tax charge apply when awarding pensions increase?

Open

PENSION SHARING Date received Scheme/

Member type Query Status Date replied LGA response

16/10/2018 1992 (Pensioner)

The solicitor for a potential pension credit member during the pension share process has asked for details in writing as to what would happen if either party died

1. before the pension sharing order comes into effect

Escalated 28/11/2018 Your response is entirely reasonable. The firefighter pension regulations do not deal with this scenario so you cannot comment. You have signposted but cannot give legal advice.

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2. After the order has become effective but before it has been implemented.

We have stated that it is the pension credit’s solicitor’s responsibility to inform the pension credit member as to whether the pension sharing order still stands in those circumstances. We have signposted pension credit member to useful online information which answers her questions. Is it a Pension administrator’s responsibility to detail legally, who receives death benefits if a pension debit/credit member dies before the pension share is implemented or before the order is effective?

The regulations only deal with what happens if a pension credit member dies before the benefits have become payable. 1992: IA3 2006: Part 6, Rule 6 2015: Rule 99 Home Office have confirmed this is the correct approach, commenting; “The answer to this query, in so far as there may be one, lies much more in the arena of the overarching pensions-sharing-on-divorce-regime rather than the fire pensions regime.”

18/01/2019 2006 (Wales) Can a pension share order for a transition member be applicable against one scheme only (in this case the pension share order is for the for 2006 scheme only)

Escalated This issue was discussed at the technical meeting on 10 April 2018, members of the group agreed that with regards to CETVs partial benefits cannot be transferred and therefore the same applies to a divorce. An administrator MUST provide the whole value of the pension benefits including both schemes, but a court may subsequently order the pension share on one part. However it was agreed that there is not satisfactory evidence on how to proceed and

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the group agreed to get legal advice / escalate to the Home Office. This is being done presently. Minutes from the meeting on 10.04.2018 are available here and this is also referenced in the action summary under reference 10.04.2018 (5d) This query log will be kept open until a response is received from Home Office / legal adviser

REFUND Date received Scheme/

Member type Query Status Date replied LGA response

29/01/2019 2015 Refund

Please can you clarify the intent of Paragraph 2(b)(ii) in FPS 2015 regulation 116. “if a transfer payment has been received by this scheme in relation to the member it was from another occupational pension scheme”

as one of the criteria for allowing a Refund. Does this allow a refund after a transfer in, and if so would the contributions from the previous scheme have to be refunded as well.

Closed 30/08/2019 Agreed that the regulation is unclear and lacks clarity, escalated to Home Office on 30/01/2019. Home Office agree that the regulation lacks clarity and will refer to legal colleagues for review. 30/08/2019 Response from Home Office We have now had the opportunity to consider this further.

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We agree that Reg. 116(2)(b) would appear to have little (if any) practical application for two reasons. Firstly, it would appear unlikely that somebody would be able to import a transfer payment, have a period of service under the FPS and still have less than three months’ qualifying service. Secondly, identifying the member’s own contributions in respect of their membership of the non-fire scheme would appear to be problematic. We can consider amending (or withdrawing) this provision as part of some future amending SI.

SCHEME PAYS Date received Scheme/

Member type Query Status Date replied LGA response

09/08/2018 2015 (linked 1992 benefits)

Can the apportionment of scheme pays guidance be applied where the member has not breached £40k in either scheme but has breached as a total across the schemes?

Closed 28/08/2018 As per the guidance issued in January 2018, paragraph 24 confirms that having taken legal advice FRAs have a power of general competence which may be exercised reasonably where there are sufficient grounds for doing so. Paragraph 25 considers two circumstances proposed by the Home Office and agreed by the scheme advisory board that would meet the test of being ‘exercised reasonably’ It is the intention that in these circumstances the tax treatment should as

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near as possible mirror that would apply if MSP applied. Therefore where the total breach is more than £40,000 but the breach in either scheme is not greater than £40,000 then the scheme pays should still be apportioned across each of the two schemes in which the tax liability arose so for example the formula as given in the guidance dated 23 January 2018 would apply as follows: Assumes a 47 year old female) A = Final salary pension savings = £38000 (£2,375 * 16) B = Career Average Pension Savings = £14,500 (£906.25 * 16) C = Total Pension Savings = £52,500 D = Tax charge declared by member = £2,500 (£52,500 - £40,000 * 20%) E = Final salary scheme pays F – Career average scheme pays (A ÷ C) × D ÷ E = (£38000 / £52,500) * £2,500 / 13.70 = £132.08 (B ÷ C) × D ÷ F = (£14,500 / £52,500) * £2,500 / 10.53 = £65.57

14/09/2018 2015 Should the scheme pays factors in tables A1 & A2 be interpolated when the state pension age is between age 67 and 68? Example DPA – Male, 67 years 7 complete months and 8 days.

Closed 04/10/2018 The proposed solution given is to use interpolation; this is indeed the case and should be conducted as follows:

Step Description Step applied to

the member in

question

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1 Round up any

part months of

the DPA.

67 years, 7

months and 8

days rounded

up to 67 years

and 8 months.

2 Using the age

last birthday

and gender of

the member,

find the factors

from Table A1

or A2

corresponding

to the integer

DPAs either side

of the actual

DPA.

The member

was born on 29

November

1977 and so his

age last

birthday is 40.

Table A1 will

be used which

corresponds to

males.

The integer

DPAs either

side of his

actual DPA are

67 and 68.

The relevant

factors from

Table A1 are

therefore 7.24

and 6.80.

3 Interpolate

linearly

between the

Factor for NPA

67 + 8/12 x

(factor for NPA

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factors

according to the

number of

months found

in step 1.

68 – factor for

NPA 67).

i.e. 7.24 + 8/12

x (6.8 – 7.24) =

6.9466667

4 The result

rounded to 2

d.p. is the

scheme pays

factor for this

member.

The scheme

pays factor for

this member is

6.95

18/01/2019 2015 (with 1992 transitional benefits)

I’ve got two questions on Scheme Pays that I just need some clarification on. First question: Member has 1992 and 2015 membership Annual Allowance exceeded in the 1992 scheme, but not the 2015 scheme Does this fall under Voluntary or Mandatory scheme pays Second question Tapered annual allowance applies. Does this mean that all the scheme pays is treated as voluntary, or can some be treated as mandatory, as that is the advice that the member has received. It is my understanding that it is all voluntary

Closed 21/01/2019 Question one Where the member exceeds the £40,000 in one scheme but not in the other, then MSP applies to the scheme where £40k has been exceeded and VSP applies to the scheme where it hasn’t. However the member could choose to use VSP across both. Paragraphs 56 to 61 of the guidance refer. Question two

Where tapered annual allowance applies MSP cannot apply, this is because under tapered annual allowance, the members annual allowance is reduced below £40k, and MSP can only apply where the individual is subject to the standard annual

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allowance of £40k. See paragraphs 6 to 11, and 34 to 39 of the guidance

SURVIVORS PENSION Date received Scheme/

Member type Query Status Date replied LGA response

01/07/2019 2006 and 2015 Children’s Pensions

Where a child qualifies for a pension under Part 4, Paragraph 10 of FPS 2006 ‘Pension for child where no survivors’ pension paid’ is this paid in addition to the pension under paragraph 8.

Closed 01/07/2019 This was considered by the technical group at their meeting on 10 April 2018 and agreed that rule 10 children’s pension should be paid in addition to rule 8 under FPS 2006, which is in keeping with the similar rule under FPS 2016 regulation 90. Item 10.04.2018 5b (page 20) actions summary Technical queries paper Minutes 10.04.2018 item 5b

28/06/2019 1992 survivors pensions

Is interest due on the arrears payment of backdated pension for a survivors pension calculated under the 2019 amendment order25 2019/378

Closed 11/07/2019 There is no vires to pay interest without the legislation confirming to do so. Home Office have provided an informal view that no interest is payable, and that when on other unrelated occasions the application of interest in respect of benefits being backdated has been applied this does not set a general precedent for other reforms.

20/01/2020 1973 survivors pension

What amount is payable to a surviving spouse, for a member with service from

Closed 20/01/2020 This person would have retired under the terms of the 1973 scheme

25 Technical Note - http://www.fpsregs.org/images/admin/Technotes/Technote4.0319.pdf

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14/01/1971 to 26/02/1978 (7 years and 44 days)? He was retired on the grounds of injury while on duty at age 36. Assuming the widow’s pension is half his annual pension (subject to increases), is there also an entitlement to a spouse’s pension on the injury element?

http://www.legislation.gov.uk/uksi/1973/966/pdfs/uksi_19730966_en.pdf Widow’s ill-health pensions are paid under rule 22 (page 17 in the pdf) and injury widows pensions are paid under rule 23 (also page 17) a survivors injury pension is only paid where death is from the effects of the qualifying injury. The widows pension payable under rule 22, would be paid at half of the pension in payment as per Schedule 2, Part 1 (page 55) There is a survivors benefits quick guide available here - http://www.fpsregs.org/images/admin/Death081019.pdf

TRANSFERS Date received Scheme/

Member type Query Status Date replied LGA response

01/07/2019 1992 How should a cross border transfer be calculated

Closed 11/07/2019 Cross border transfers should be treated as per the following GAD Guidance FPS 1992 service in the transferring scheme should be transferred day for day to the receiving scheme, but club transfer calculation payment should be made to the receiving scheme as per 2.2.9 of the guidance dated 30 June 2009, using the relevant up to date factors..

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2.2.9 Transfers to other Fire Authorities For transfers between English Fire Authorities, the member’s service record should be transferred but there is no requirement to calculate a transfer value or to make a transfer payment. Transfers to fire authorities in Scotland, Wales and Northern Ireland require the calculation and payment of a transfer value. The member’s service should be transferred. The calculation of a service credit is not required. FPS 2006 service in the transferring scheme should be transferred day for day to the receiving scheme, but club transfer calculation payment should be made to the receiving scheme as per 2.2.9 of the guidance dated 30 April 2009, using the relevant up to date factors. FPS 2015 service in the transferring scheme should be calculated using the formula given in 4.4 of the guidance dated 7 April 2016, using the club transfer factors currently in force.

23/07/2019 2006 and 2015 Can 2006 scheme benefits be transferred into the 2015 scheme?

Closed 23/07/2019 No, this is not allowed by the scheme rules, page 5 of the attached slides confirms this http://www.fpsregs.org/images/admin/Transfers.pdf. You cannot transfer final salary benefits into a CARE scheme

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20/01/2020 1992 (Wales) Does it state within the regulations a time limit to request a transfer of pension rights into the Firefighters Pension Scheme 1992 (Wales)?

Closed 20/01/2020 Regulation F7(2) was amended by WSI 2007/1074 so that requests for a transfer in had to be within 12 months of employment. This quick guide is a useful reference.

04/03/2020 FPS 2015 with FPS 1992 transition benefits

Upon retirement from the transitional FPS 1992 portion of the scheme the FPS 2015 benefits are deferred. The member has commenced employment at civil service and wants to know if he can transfer FPS 2015 benefit under club transfer rules

Closed 18/03/2020 It has been previously agreed that the 2015 deferred benefit would standalone after the link to FPS 1992 has gone through retirement. However this member would potentially be given a right to remedy and that should be considered, as they would have a right to have benefits treated as FPS 1992 if it was better to do so. [It is important to note that remedy is not finalised] In this particular scenario the member in question accrued a full 30 years’ service in the Firefighters’ Pension Scheme 1992 before transitioning to FPS 2015 so the pension they have retired on is a full FPS 1992 pension and they have accrued a further right under the FPS 2015, in this scenario it is unlikely they would be in a better position treating their 2015 service as final salary.

22/10/2019 FPS 2015 with transitional FPS 1992 benefits

Can a transfer be accepted under inter-service rules [Regulation F8 was amended in 2006 by SI 2006/1810], even though the member did not indicate

Closed 04/03/2020 The regulations in place at the time would have allowed a transfer without needing an indication from the member. Therefore the member should be placed in the position

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they wanted to transfer when they started.

they should have been in had the inter-service transfer been actioned on joining.

TWO PENSIONS Date received Scheme/

Member type Query Status Date replied LGA response

10/01/2019 1992 (Scotland)

When calculating a split pension for a member who is age 50 do you apply PI to the salary at the split? Or because they are under 55 do you wait until then? We have a member who is retiring age 50 and is going to have a tax charge with or without applying PI, our concern is if we don’t apply the PI now he is going to have a further tax charge in 5 years time for a period in 2014.

Closed 15/01/2019 The English regulations were amended in 2018 to clarify how pension increase should be applied to split pensions, they did not change the practice of applying indexation. Details of the amendments were published in this technical note. When the pension is calculated at retirement age the first pension based on the higher rate of pay would be increased by the pension increase order. The second pension is calculated based on the pensionable pay on retirement. The two pensions would then be added together in order to compare against the alternative single pension, and the higher pension put into payment. Please note that whilst the value of Part 1 of the pension at retirement will include the equivalent PI amount, there will be no further increases under the pensions act until age 55 unless retirement is on ill health grounds.

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Consolidated B5A (English version) http://fpsregs.org/images/Regs/1992B5A2018clean.pdf Although these amendments have not been applied to the Scottish regulations yet, as they only clarify the intended practice I see no reason why you should not follow the same practice.

12/11/2019 1992. Pay used in calculation of two pension rule

When calculating APP for the purposes of Rule B5A of the 1992 Order, can we use the best of the last three years? As the wording explicitly sets out the final pay period, does this prohibit us from using the best of the last 3 years when calculating the first and second pensions?

Closed 09/12/2019 No, you cannot use the best of the last three years, the regulations specifically confirm that the pay to be used is ‘for the year ending with the last day of service’, either at the date of drop for the first part of the calculation or retirement for the second.

12/11/2019 PI application to both parts of pension

Where a member is entitled to two pensions under Rule B5A, do we treat them as two separate pensions for the purposes of applying the Pensions (Increase) Act 1971 I can’t see anywhere else that says that the aggregate of the two pensions is treated as a single pension. Therefore, it appears to me that when applying the PI Act, we treat the 2 pensions as separate pensions, with their own separate PI dates. Do you agree? Rule B5A(3A) sets out that we must pay the PI that would have applied to the

Closed 09/12/2019 I agree there appears to be no explicit direction to treat the two pensions as an aggregate, and the rule is worded as two ’pensions’. Nevertheless I believe the policy intention is clear that when the pension comes into payment, it is one pension calculated in two parts rather than two separate pensions, hence the colloquial name, split pension.

Paragraph 2.3 of FPSC 3/2010 confirms the policy intention of the increases to the first pension is to ‘give adequate protection to the higher rate of average pensionable pay at retirement’. B5A, paragraph 3A does not instruct the paying of PI on part one of

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first pension between the PI date of the first pension and the date of leaving, If you agree that the PI Act 1971 applies separately to the first pension, how do we apply PI under the Act to the first pension?

the pension, it instructs an increase to the first pension that is calculated equivalent to PI. The act does not actually apply PI to the first pension it just instructs an increase in value. This is confirmed both in the factsheet and FPSC 3/2010 paragraph 2.4.

Paragraph 2.4 goes further to say ‘the aggregate split pension will come into payment at “current value” on retirement”

The factsheet gives an example of increasing the first part of the pension.

Home Office amended rule B5A in 2018 and a further minor amendment in 2019 to clarify the intent of the indexation as a way of protecting the first part of the pension based on the higher salary. I believe if the policy intent was to pay the pensions as two separate entities this would have been clarified in those amendments.

27/02/2020 Two Pension Quote

If a two pension entitlement may apply is there a statutory obligation in the regulations to provide a pension benefit illustration for a member who is in not within 6 months of their projected retirement date.

Closed 27/02/2020 The Two Pension Factsheet confirms that it is not normally necessary to provide an estimate unless the member is significantly close to retirement. This factsheet provides confirmation of the rules and how the pension will be dealt with.

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The regulations assume that the calculation is done at the point of retirement, so do not specify any action with regards to a quote.

UNAUTHORISED PAYMENTS Date received Scheme/

Member type Query Status Date replied LGA response

08/11/2019 All (adjustment due to retrospective action on pensionable pay)

We are revising a number of pension benefits as a result of the pensionable pay court ruling Booth v MWWFRA. In most of these cases the revised lump sum is being paid to the member more than 12 months after the original benefit. Does this result in the payments being classed as an unauthorised payment, which occurs a 40% tax charge on the balance due? Is the scheme sanction charge payable?

Closed 22/11/2019 A lump sum made 12 months after the member is entitled is not a pension commencement lump sum and is therefore treated as unauthorised and subject to 40% tax. The reason for this, is that rule 166 of the Finance Act 2004 says that the lump sum must be a Pension Commencement Lump Sum to be considered an authorised payment, and Paragraph 1, sub paragraph 1c of schedule 29 says that to be a pension commencement lump sum it must be paid within 12 months of entitlement. In this regard we consider entitlement to be the day of the original retirement.26 In terms of whether a scheme sanction charge applies, we believe that Section 241(2) (c&d) of the Finance Act 2004 can apply to make the payment exempt from being a scheme chargeable payment, the exemptions include both

26 Slides 10, 11 & 15 LGA Tax Conference 12 November 2019

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(i) payments made in relation to complying with a court order; and

(ii) (ii) payments made on the grounds that a court or any such person or body is likely to order the making of the payment.

Therefore, in interpreting likely, it is not necessary for a court order to have actually been made in relation to that specific payment, our understanding is that the exemption would also cover circumstances where an error is made and a court would rule that the error has to be corrected (because the member is entitled under the scheme rules to the additional lump sum payment) or where fire authorities are complying with case law that has been decided in relation to a different fire authority. We have sought HMRC guidance on this.

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Disclaimer The LGA responses contained in this document should not be treated as a complete and authoritative statement of the law. Readers may wish, or will need,

to take their own legal advice on the interpretation of any particular piece of legislation. No responsibility whatsoever will be assumed by LGA for any direct

or consequential loss, financial or otherwise, damage or inconvenience, or any other obligation or liability incurred by readers relying on information

contained in this document.

While every attempt is made to ensure the accuracy of this document, it would be helpful if readers could bring to the attention of the Firefighters’ Pension

Adviser any perceived errors or omissions. Please email bluelight.pensions@local.gov.uk