The Health and Personal Social Services (Superannuation Scheme and Injury Benefits) and Health and Social Care (Pension Scheme) (Amendment) Regulations (Northern Ireland) 2009

(a) in the case of— (i) a deceased active member, the rate of the deceased’s pensionable earnings during the last complete quarter before the member died, or (ii) a deceased non-contributing member, the rate of the monthly average of the deceased’s uprated earnings on the last day of the member’s pensionable service, and (b) the rate of the pension being received by the deceased (if any) at the date of death.

• (4) In paragraph (5)—

• (a) in sub-paragraph (a) after “active member”, insert “or a non-contributing member”;

• (b) in sub-paragraph (b) after “active members”, insert “or non-contributing members”.

• (5) For paragraph (6)(a), substitute—

(a) the service taken into account (in regulation 203(3)) for the purposes of the calculation of the amount referred to in paragraph (5)(a), and

Amendment of regulation 210

72

• (1) Regulation 210 (Amount of lump sum: single capacity members and recent leavers (disregarding regulation 180 employments)) is amended as provided by paragraphs (2) to (5).

• (2) For paragraph (1), substitute—

(1) The lump sum payable on death of an active member or a non-contributing member, who is not a deferred member or a pensioner member, is an amount equal to— (a) in the case of a deceased active member, twice the annual average of the member’s uprated earnings at the date of death; or (b) in the case of a deceased non-contributing member, twice the annual average of the member’s uprated earnings on the member’s last day of pensionable service.

• (3) In paragraph (2)—

• (a) after “active member”, insert “or a non-contributing member”;

• (b) in sub-paragraph (b) for “at the date of death”, substitute “by which the pension was calculated”;

• (c) at the end, insert (as full-out words) “This is subject to regulations 213A and 214.”.

• (4) In paragraph (3) for “is not an active member”, substitute “was not an active member or a non-contributing member”.

• (5) In paragraph (8)(a) for “is an active member”, substitute “was an active member or a non-contributing member”.

Amendment of regulation 211

73

• (1) Regulation 211 (Amount of lump sum: dual capacity members (disregarding regulation 180 employments)) is amended as provided by paragraphs (2) and (3).

• (2) In paragraph (1)—

• (a) in sub-paragraph (a) for “is an active member”, substitute “was an active member or a non-contributing member”;

• (b) in sub-paragraph (b) for “is”, substitute “was”.

• (3) In paragraph (2) for sub-paragraph (a), substitute—

(a) five times the annual rate of pension— (i) payable under regulation 182(5) (tier 2 ill-health pension), if the deceased had not reached the age of 65, (ii) payable under regulation 176 (normal retirement pensions), if the deceased had reached the age of 65, to which the member would have been entitled— (aa) in the case of a deceased active member, at the member’s date of death, or (bb) in the case of a deceased non-contributing member, on the last day of the member’s pensionable service, and

Amendment of regulation 212

74

• (1) Regulation 212 (Amount of lump sum: dual capacity members: members with pensions under regulation 180) is amended as provided by paragraphs (2) to (4).

• (2) In paragraph (1)—

• (a) in sub-paragraph (a) for “is an active member”, substitute “was an active member or a non-contributing member”;

• (b) in sub-paragraph (b) for “is”, substitute “was”.

• (3) For paragraph (2), substitute—

(2) The lump sum is an amount— (a) equal to the sum of— (i) in the case of a deceased active member, twice the appropriate fraction of the annual average of the member’s uprated earnings at the date of death, or (ii) in the case of a deceased non-contributing member, twice the appropriate fraction of the annual average of the member’s uprated earnings at the member’s last day of pensionable service, and

• (4) In paragraph (5) (in the definition of “DPS”) after “active member”, insert “or a non-contributing member”.

Amendment of regulation 240

75

• (1) Regulation 240 (Re-employed tier 1 ill-health pensioners) is amended as provided by paragraphs (2) and (3).

• (2) In paragraph (4) at the end, insert (as full-out words) “This is subject to paragraph (5).”.

• (3) After paragraph (4) add—

(5) If the re-employed member— (a) ceases to be entitled to a tier 1 ill-health pension in respect of the earlier service; (b) becomes entitled to a tier 2 ill-health pension in respect of that earlier service in accordance with regulation 183(3); and (c) on the termination of the later service, the member becomes entitled to a tier 1 or, as the case may be, tier 2 ill-health pension in respect of that later service, the re-employed member is entitled to the benefits set out in paragraph (6). (6) The benefits mentioned in paragraph (5) are— (a) a tier 2 ill-health pension paid in accordance with regulation 182 in respect of the member’s earlier service; and (b) a tier 1 ill-health pension in respect of the member’s later service.

Amendment of regulation 252

76

In paragraph (2) of regulation 252 (Commutation of small pensions), omit sub-paragraph (d).

Amendment of regulation 256

77

• (1) Regulation 256 (Interest on late payment of benefits and refunds of contributions) is amended as provided by paragraphs (2) to (6).

• (2) In paragraph (2) after “interim” insert, “or substitute”.

• (3) For paragraph (3), substitute—

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

• (4) In paragraph (5) after “unpaid amount”, insert “(other than an unpaid amount in respect of an interim or substitute award)”.

• (5) For paragraph (6), substitute—

(6) The due date for an unpaid amount— (a) referred to in paragraph (5) in respect of which the Department was not in possession of all the information necessary for the calculation of the amount of the pension, lump sum or refund of contributions referred to in that paragraph on the date which would, in accordance with paragraph (5) be the due date; (b) in respect of an interim or substitute award, shall be the first day on which the Department was in possession of all the information necessary to calculate that pension, lump sum, refund of contributions or interim or substitute award.

• (6) In paragraph (7)—

• (a) for “interim award” substitute “interim or substitute award”;

• (b) at the end of sub-paragraph (a), omit “and”;

• (c) at the end of sub-paragraph (b), add—

; and (c) any amount paid that increases the amount of an earlier payment due to the payment of a tier 2 ill-health pension under regulation 182 paid to a member in substitution for a tier 1 ill-health pension under that regulation following a determination by the Department under regulation 183.

Amendment of regulation 260

78

For regulation 260 (Employing authority and certain member record keeping and contribution estimates), substitute—

(260) (1) As regards a principal medical practitioner, in respect of each scheme year, the member shall provide each relevant host Board with a certificate of their pensionable earnings based on— (a) the accounts drawn up in accordance with generally accepted accounting practice by the practice of which the member is a member; and (b) the return that member has made to Her Majesty’s Revenue and Customs in respect of their earnings for that year, no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs. (2) As regards an assistant medical practitioner or a locum practitioner, in respect of each scheme year, the member shall provide each relevant host Board with a certificate of their pensionable earnings based on— (a) the payments they receive from employing authorities for practitioner services; and (b) the return that member has made to Her Majesty’s Revenue and Customs in respect of their earnings for that year, no later than 1 month after the date on which that return was required to be submitted to Her Majesty’s Revenue and Customs. (3) As regards a principal dental practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their superannuable earnings based on— (a) the notice of superannuable earnings referred to in regulation 148; and (b) their superannuable earnings as a principal dental practitioner from all other principal dental practitioner sources, no later than 6 months after the end of that scheme year. (4) As regards an assistant dental practitioner, in respect of each scheme year, the member shall provide each relevant host Trust or Board with a certificate of their superannuable earnings based on— (a) the payments they receive from employing authorities for practitioner services; and (b) their superannuable earnings as an assistant dental practitioner from all other assistant dental practitioner sources, no later than 6 months after the end of that scheme year. (5) As regards a GMS practice or APMS contractor, in respect of each scheme year, the practice or contractor shall provide the Department with— (a) a statement of estimated pensionable earnings in respect of principal medical practitioners who perform medical services as, or on behalf of, the practice or contractor and assistant medical practitioners employed by the practice or contractor; and (b) an end-of-year statement of— (i) pensionable earnings, (ii) contributions to the Scheme made under regulation 160 (Contributions by members), (iii) contributions to the Scheme made under regulation 162 (Contributions by employing authorities: general), and (iv) any superannuable earnings deemed in accordance with regulation 144 of this Part, in respect of assistant medical practitioners employed by the practice or contractor. (6) The Department shall be provided with— (a) the statement referred to in paragraph (5)(a) at least 1 month before the beginning of that scheme year; (b) the statement referred to in paragraph (5)(b) no later than 3 months after the end of that scheme year. (7) A host Board shall, for each scheme year and no later than 13 months after the end of each scheme year, forward to the Department a copy of the records the host Board maintains in respect of practitioners under regulation 164(17)(b). (8) All employing authorities shall, for each scheme year— (a) provide the Department with a statement of estimated total contributions due to the Scheme under regulation 160 (contributions by members) and 162 (contributions by employing authorities: general); and (b) maintain records of contributions to the Scheme made under regulation 160 and regulation 162. (9) The statement referred to in paragraph (8)(a) shall be provided to the Department and no later than 2 months after the end of each scheme year. (10) Except where the Department waives such requirement, an employing authority shall provide the Department with a statement of contributions to the Scheme recorded in accordance with paragraph (8)(b) no later than 2 months after the end of each scheme year. (11) If, in respect of a scheme year, a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to that member, the member’s pensionable earnings for that scheme year shall be zero. - This is subject to paragraph (12). (12) If, in respect of a scheme year— (a) a member has failed to comply with the requirements of whichever of paragraphs (1) to (4) applies to the member; (b) a benefit is payable to, or in respect of that member, under this Part of these Regulations; and (c) the member’s employing authority is in possession of a figure representing all or part of the member’s pensionable earnings for that year, the Department may treat that figure as the amount of the member’s pensionable earnings for that year. (13) If, in respect of a scheme year, a member— (a) dies without complying with the requirements of whichever of paragraphs (1) to (4) applies to the member; or (b) is, in the opinion of the Department, unable to look after the member’s own affairs by reason of illness or lack of capacity, the Department may require that member’s personal representatives to provide the relevant certificate— (i) within the period referred to in whichever of paragraphs (1) to (4) was or is applicable to the member, or (ii) within such other period as the Department should permit. (14) The certificates and statements referred to in this regulation— (a) shall be in such form as the Department shall from time to time require; (b) may be provided to the Department in such manner as it may from time to time permit. (15) A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment or of a disturbance in the functioning of his mind or brain.

PART 4 — AMENDMENT OF THE HEALTH AND PERSONAL SOCIAL SERVICES (INJURY BENEFITS) REGULATIONS (NORTHERN IRELAND) 2001

Amendment of the Injury Benefit Regulations

79

The Health and Personal Social Services (Injury Benefits) Regulations (Northern Ireland) 2001[^f00004] shall be amended as provided by regulations 80 to 83.

Amendment of regulation 2

80

In regulation 2(1) (Interpretation) at the appropriate place in the alphabetical order, insert—

• “ophthalmic provider” has the same meaning as in whichever of the 1995 Regulations or 2008 Regulations apply to that provider;

Amendment of regulation 2A

81

• (1) Regulation 2A (Meaning of “practitioner”) is amended as provided by paragraphs (2) and (3).

• (2) After paragraph (1)(b)(ii), add—

or (c) an ophthalmic provider.

• (3) After paragraph (2)(b)(ii), add—

or (c) an ophthalmic provider.

Amendment of regulation 4

82

In paragraph (6) of regulation 4 (Scale of benefits), after sub-paragraph (b)(v), add—

(vi) employment and support allowance payable under section 1 (2)(a) of the Welfare Reform Act (Northern Ireland) 2007[^f00005], in respect of the injury or disease, during the assessment phase referred to in section 2 of that Act, or as the case may be, after that phase has ended.

Amendment of regulation 14

83

In regulation 14 (Review and adjustment of allowance), after paragraph (1) insert—

(1A) For the purposes of paragraph (1)(b)— (a) employment and support allowance payable during the assessment phase for that benefit and employment and support allowance payable after that phase has ended shall be treated as separate benefits; and (b) where employment and support allowance was awarded to a person prior to 1st April 2009 and that person continues to be entitled to that allowance on that day, payment of that allowance shall be deemed to have commenced on that day.

PART 5 — MISCELLANEOUS

Option to persons detrimentally affected by these Regulations

84

• (1) This regulation applies in relation to any benefit which is being paid or may become payable under the regulations amended by these Regulations to or in respect of a person who, having served in an employment or office, service in which qualified the person to participate in the benefits provided under the regulations amended by these Regulations, ceased to serve therein before these Regulations came into operation.

• (2) Where, in a case to which this regulation applies, any provision of these Regulations would operate in relation to any person so as to place that person in a worse position than that person would have been if that provision had not applied, that person may elect that the provision shall not apply by giving notice in accordance with paragraph (3).

• (3) A notice given pursuant to paragraph (2) shall be in writing and shall be delivered to the Department within 6 months of the coming into operation of these Regulations or such longer period as it may allow.

• (4) An election pursuant to paragraph (2) shall have effect in relation to the benefit referred to in paragraph (1) only to the extent that such benefit has accrued by virtue of periods of service rendered prior to the cessation referred to in paragraph (1) (or, if there has been more than one such cessation, the last of them before the coming into operation of these Regulations) and in determining entitlement to, and the amount of, the benefit to that extent, such person shall be treated as if that person had never recommenced service at any time after that cessation (or, as the case may be, the last such cessation).

Signed

Sealed with the Official Seal of the Department of Health, Social Services and Public Safety on 8th May 2009.

Diane Taylor — A senior officer of the — Department of Health, Social Services and Public Safety

The Department of Finance and Personnel consents to the foregoing Regulations.

Sealed with the Official Seal of the Department of Finance and Personnel on 8th May 2009.

Mary McIvor — A senior officer of the — Department of Finance and Personnel

Explanatory note

(This note is not part of the Regulations)

These Regulations amend the Health and Personal Social Services (Superannuation) Regulations (Northern Ireland) 1995 (S.R. 1995 No. 95) (“the 1995 Regulations”), the Health and Social Care (Pension Scheme) Regulations (Northern Ireland) 2008 (S.R. 2008 No. 256) (“the 2008 Regulations”) and the Health and Personal Social Services (Injury Benefits) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 367) (“the Injury Benefits Regulations”).

Part 1 of the Regulations provides for citation, commencement and effect, including that certain provisions are to take effect from various dates before commencement. Such retrospective effect is permitted under Article 14 of the Superannuation (Northern Ireland) Order 1972.

Parts 2 to 4 of the Regulations amend the 1995 Regulations, the 2008 Regulations and the Injury Benefits Regulations respectively, and Part 5 provides that certain persons detrimentally affected by these Regulations may elect for the provisions not to apply to them.

Parts 2 and 3 make similar amendments in respect of both the 1995 Regulations and the 2008 Regulations. They also introduce amendments specific to either the 1995 Regulations or the 2008 Regulations.

The changes dealing with similar issues in Parts 2 and 3—

• introduce changes to the way tiered contributions rates for members are assessed for the Scheme year 2009–10 and subsequently (regulations 4, 11, 18, 19, 20 and 52);

• introduce a new end-of-year certificate of HSC Scheme pensionable earnings and contributions, for assistant medical practitioner completion, and GP Practice start-of-year statements of estimated practitioner and Non-GP Provider earnings and contributions, and end-of-year statements for assistant medical practitioners. (regulations 11(4), 49 and 78);

• clarify the benefits payable in respect of a period of re-employment following ill health retirement and the benefits payable in respect of ill-health pensioners whose tier 1 ill-health pension is replaced by a tier 2 ill-health pension including, where appropriate, the payment of statutory interest (regulations 3, 5, 6, 7, 10, 13, 17, 27, 32(3) and (4), 46, 48, 51, 58, 59(3) and (4), 75 and 77);

• provide for pension debit members to access benefits on health grounds, or after minimum retirement age, with an actuarial reduction and to exchange an amount of pension for lump sum (regulations 12, 21, 30(2), 31(4), 32, 47, 53, 59(2), 60(4), 61 and 76);

• clarify the pay on which a lump sum death benefit is paid in respect of a practitioner (regulations 11(3), 64, 66 and 74).

The changes specific to Part 2 are—

• the inclusion of a reference to nominated partners in regulations providing for child pensions paid following the death of a pensioner (regulation 8);

• the inclusion of a reference to the requirements of the lump sum rule in the Finance Act 2004 in connection with benefits to be commuted on terminal illness (regulation 9).

The changes specific to Part 3 are—

• the introduction of a new definition of “non-contributing member” and the revision of the existing definition of “member” to include “non-contributing members” (regulations 14 and 50(a) and (b));

• provision for the benefits to be paid on the retirement or death of a non-contributing member (regulations 16, 22 to 26, 28, 29, 31(2) and (3), 33, 34, 35, 37, 38(2), (3), (5) and (6), 39, 40, 42 and 43, 44, 45, 54 to 57, 60(2) and (3), 62, 63, 64, 66, 67(2), (3), (5) and (6), 68, 69, 71, 72, 73, and 74);

• provision for the amount of service to be used when calculating a child’s pension (regulations 38(4), 41, 67(4) and 70);

• provision for abatement to be disregarded in certain circumstances following the death of a pensioner (regulations 36 and 65);

• changes cross references in regulations dealing with breaks in service (regulation 15);

The changes made to the Injury Benefits Regulations by Part 4—

• insert a definition of “ophthalmic provider” (regulation 80);

• amends the definition of practitioner to include an ophthalmic provider (regulation 81);

• provide for employment and support allowance payable under section 1 (2)(a) of the Welfare Reform Act (Northern Ireland) 2007 (c. 2) is taken into account in calculating benefits under the Injury Benefits Regulations (regulation 82);

• provide when employment and support allowance payable is taken into account in that calculation (regulation 83).

Part 5 provides that deferred members, or members in receipt of a relevant benefit, who are detrimentally affected by these Regulations may elect for the provisions not to apply to them by giving notice within six months of the coming into operation of these Regulations (regulation 84).

A full impact assessment has not been produced for this instrument as it has no impact on the costs of business, charities or the voluntary sector.

Footnotes

[^f00002]: S.R. 1995 No. 95 as amended by S.R. 1997 Nos. 217 and 390; S.R. 1998 No. 299; S.R. 1999 No. 293; S.R. 2002 No. 69; S.R.2004 Nos. 103 and 104; S.R. 2005 Nos. 155, 533, 534 and 565; S.R. 2006 Nos. 159 and 410; S.R. 2008 Nos. 96, 130 and 163 and S.R. 2009 No. 65

[^f00003]: S.R. 2008 No. 256

[^f00004]: S.R. 2001 No. 367 as amended by S.R. 2005 Nos. 155, 533, 534 and 565; S.R. 2006 Nos. 159 and 410; S.R. 2008 No. 130

[^f00005]: 2007 c. 2 (N.I.)