The National Health Service (Superannuation Scheme, Pension Scheme, Injury Benefits and Additional Voluntary Contributions) (Scotland) Amendment Regulations 2010

• “pension debit member” means a member of this Section of the scheme whose benefits, or future benefits, under this scheme have been reduced under section 31 of the Welfare Reform and Pensions Act 1999 (reduction under pension sharing order following divorce or nullity of marriage), whether before or after he became a member of this Section of the scheme;

• (3) Omit the definitions of “capped transferred-in service” and “the NHS Superannuation Scheme for Scotland 1995”.

• (4) For the definition of “the scheme” substitute—

• “the scheme” means the National Health Service Pension scheme for Scotland

Amendment of regulation 3.A.3

54

In regulation 3.A.3(1) (meaning of “pensionable service”) after sub-paragraph(c), insert—

; and (d) any period of pensionable service the member is entitled to count under Chapter3.K (2008 Section Optants).

Amendment of regulation 3.A.5

55

In regulation 3.A.5(1) (meaning of “qualifying service”)—

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

• (b) after sub-paragraph (e) insert—

; and (f) in the case of a 2008 Section Optant, any period of qualifying service the member is entitled to count under Chapter 3.K (2008 Section Optants).

Amendment of regulation 3.A.7

56

After regulation3.A.7(4) (meaning of “pensionable earnings”) insert—

(5) The pensionable earnings of a principal practitioner include the amount of any pensionable earnings the practitioner is entitled to count under Chapter 3.K (2008 Section Optants).

Omission of regulation 3.A.11

57

Omit regulation 3.A.11 (restriction on pensionable earnings used for calculating benefits in respect of capped transferred-in service).

Amendment of regulation 3.A.12

58

After regulation 3.A.12(3) (meaning of pensionable earnings in relation to other practitioners), insert—

(4) The pensionable earnings of an assistant practitioner or a locum practitioner, include the amount of any pensionable earnings the practitioner is entitled to count under Chapter3.K (2008 Section Optants).

Amendment of regulation 3.B.1

59

• (1) Regulation 3.B.1 (eligibility: general) shall be amended as follows.

• (2) In paragraph (3)—

• (a) in sub-paragraph (a) omit “and meets any one of the other scheme conditions (see paragraph (5))”;

• (b) after sub-paragraph (b) insert (as full out words)—

and meets any one of the other scheme conditions (see paragraph (5)).

New regulation 3.B.1A

60

After regulation 3.B.1 (eligibility: general), insert—

(3.B.1A) that person shall cease to be eligible to be an active member of this Section of the scheme from the date the Scottish Ministers make that determination. (1) A person is eligible to be an active member of this Section of the scheme if— (a) the Scottish Ministers have accepted that person’s option to join this Section of the scheme under Chapter 3.K; and (b) that person is not prevented by regulation 3.B.2 or 3.B.6 from doing so. (2) If a person referred to in paragraph (1)— (a) is entitled to a lower tier ill health pension under regulations E2A(3)(a) of the 1995 Regulations; and (b) as a result of a determination made by the Scottish Ministers under regulationE2B(3) of those Regulations, that person becomes entitled to an upper tier ill health pension in place of that lower tier ill health pension,

Amendment of regulation 3.C.6

61

After regulation 3.C.6(8) (member’s option to pay additional periodical contributions to purchase additional pension) insert—

(9) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.4.

Amendment of regulation 3.C.8

62

After regulation 3.C.8(6) (member’s option to pay lump sum contribution to purchase additional pension) insert—

(7) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.4.

Amendment of regulation 3.C.9

63

After regulation 3.C.9(5) (payment of additional lump sum contributions by employing authority) insert—

(6) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.4.

Amendment of regulation 3.C.12

64

• (1) Regulation 3.C.12 (effect of payment of additional contributions under this Chapter) shall be amended as follows.

• (2) In paragraph (3) after—

• (a) “Chapter 3.D (members’ retirement benefits)” insert “or Chapter 3.K (Section 2008 Optants)”; and

• (b) “3.D.5” insert “and 3.K.17”.

• (3) After paragraph (10) insert—

(11) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.4.

Amendment of regulation 3.C.14

65

After regulation 3.C.14(5) (effect of part payment of periodical contributions) insert—

(6) In the case of 2008 Section Optant this regulation is subject to regulation 3.K.4.

Amendment of regulation 3.C.15

66

In regulation 3.C.15(2) (revaluation of increases bought under options: members’ pensions) for “3.C.14 to 3.C.16” substitute “3.C.12 to 3.C.14”.

Amendment of regulation 3.D.1

67

After regulation 3.D.1(7) (normal retirement pensions) insert—

(8) In the case of 2008 Section Optant this regulation is subject to regulation 3.K.11.

Amendment of regulation 3.D.3

68

After regulation 3.D.3(4) (late payment of pension with actuarial increase) insert—

(5) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.17.

Amendment of regulation 3.D.4

69

After regulation 3.D.4(4) (early payment of pension with actuarial reduction) insert—

(5) In the case of 2008 Section Optant this regulation is subject to regulation 3.K.11.

Amendment of regulation 3.D.5

70

After regulation 3.D.5(8) (partial retirement: members aged at least 55) insert—

(9) In the case of 2008 Section Optant this regulation is subject to regulation 3.K.11.

Amendment of regulation 3.D.7

71

• (1) Regulation 3.D.7 (early retirement on ill health (active members and non-contributing members)) shall be amended as follows.

• (2) For paragraph (5)(b) substitute—

(b) is not increased by the enhancement period in the circumstances referred to in sub-paragraph(a) if— (i) the member’s pensionable service before and after the break is treated separately under regulation 3.G.2; or (ii) the member’s pensionable service in respect of an earlier service credit is treated separately under regulation 3.K.7.

• (3) In paragraph (17) for the definition of “permanently” substitute—

• “permanently” means— the period until age 65; and in the case of a 2008 Section Optant who, before joining this Section, was assessed by a medical adviser as being— permanently incapable of efficiently discharging their duties for the purposes of regulation E2A(2)(b)(i) of the 1995 Regulations, that Optant shall be deemed to be permanently incapable of discharging the duties of the Optant’s employment efficiently for the purposes of paragraph (2)(a); or permanently incapable of regular employment of like duration for the purposes of regulation E2A(2)(b)(ii) of the 1995 Regulations, that Optant shall be deemed to be permanently incapable of engaging in regular employment of like duration for the purposes of paragraph (3)(a);

• (4) After paragraph (17) insert—

(18) In the case of a 2008 Section Optant this regulation is subject to regulations 3.K.11, 3.K.13 to 3.K.16 and 3.K.18.

Amendment of regulation 3.D.8

72

• (1) Regulation 3.D.8 (re-assessment of entitlement to an ill health pension determined under regulation 3.D.7) shall be amended as follows—

• (2) For paragraph (2) substitute—

(2) A member to whom a notice under paragraph (1)(b) has been given may apply to the Scottish Ministers for a review of whether the member subsequently meets the condition in regulation 3.D.7(3)(a) if— (a) the member makes the application in writing— (i) within three years of the date of issue of the notice; or (ii) in the case of a member who engages in further NHS employment during the period of three years referred to in paragraph (1)(b), before the first anniversary of the day on which that employment commences or, if sooner, before the end of that period; (b) the application for a review is accompanied by further written medical evidence— (i) relating to whether the condition in regulation 3.D.7(3)(a) is satisfied at the date of the Scottish Ministers’ review; (ii) that evidence relates to the same physical or mental impairment as a result of which the member met the condition in regulation 3.D.7(2)(a); (iii) no previous application for a review has been made under this paragraph; and (iv) the member has not become entitled to an upper tier ill health pension in respect of any later service under regulation 3.G.5.

• (3) After paragraph (3) insert—

(4) In the case of a 2008 Section Optant this regulation is subject to regulations 3.K.15 and 3.K.16.

Amendment of regulation 3.D.9

73

After regulation 3.D.9(9) (early retirement on ill health (deferred members)) insert—

(10) In the case of a 2008 Section Optant this regulation is subject to regulation3.K.11.

Amendment of regulation 3.D.10

74

After paragraph (9) of regulation 3.D.10 (general option to exchange part of pension for lump sum) insert—

(10) In the case of a 2008 Section Optant this regulation is subject to regulations3.K.8(4) (pension debit members) and 3.K.11 (amount of pension and lump sum to be paid to a 2008 Section Optant).

Amendment of regulation 3.D.12

75

For regulation 3.D.12 (reduction in pension debit member’s benefits) substitute—

(3.D.12) (1) The benefits to which a pension debit member is entitled under this Chapter are subject to the reduction to be made under section 31 of the 1999 Act (reduction under pension sharing order following divorce or nullity of marriage). (2) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.8(2).

Amendment of regulation 3.E.2

76

After regulation 3.E.2(2) (meaning of “surviving nominated partner”) insert—

(3) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.12 (nominations and notices accepted by the Scottish Ministers under the 1995 Section to apply under Chapter 3.E of that Section ).

Amendment of regulation 3.E.3

77

• (1) Regulation 3.E.3 (amount of pensions under regulation 3.E.1: active and non‑contributing members) shall be amended as follows.

• (2) At the start of paragraph (2)(b) insert “Subject to paragraph (7),”.

• (3) At the start of paragraph (3) insert “Subject to paragraph (7),”.

• (4) After paragraph (6) insert—

(7) For the purposes of paragraphs (2)(b) and (3) any increase under— (a) regulation 3.D.3; or (b) regulation 3.K.17, is ignored.

Amendment of regulation 3.E.4

78

• (1) Regulation 3.E.4 (amount of pensions under regulation 3.E.1: pensioner members) shall be amended as follows.

• (2) For paragraph (3) substitute—

(3) For the purpose of paragraph (1) any reduction in the rate of the member’s pension under— (a) Chapter 3.H; (b) regulation 3.D.10; or (c) regulation 3.K.11, is ignored. (3A) For the purpose of paragraph (2)— (a) any reduction in the rate of the member’s pension under— (i) regulation 3.D.4; (ii) regulation 3.D.10; or (iii) regulation 3.K.11; and (b) any increase in the rate of the member’s pension under— (i) regulation 3.D.3; or (ii) regulation 3.K.17, is ignored.

• (3) Omit paragraph (8).

Amendment of regulation 3.E.7

79

For regulation 3.E.7(3)(b) (re-employed pensioners: adult survivor pensions in initial period) substitute—

(b) the rate of the deceased member’s pension payable at the time of death after taking account of any reduction in the rate of the pension under— (i) Chapter 3.H; (ii) regulation 3.D.10; and (iii) regulation 3.K.11.

Amendment of regulation 3.E.10

80

In regulation 3.E.10 (amount of children’s pension under regulation 3.E.8: deceased active members and deceased non-contributing members) at the end of paragraph (3) insert (as full out words)—

in the case of a 2008 Section Optant, this is subject to regulation 3.K.23 (children’s pensions payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E2A of the 1995 Section).

Amendment of regulation 3.E.11

81

• (1) Regulation 3.E.11 (amount of children’s pension under regulation 3.E.8: deceased pensioner members) shall be amended as follows.

• (2) At the end of paragraph (3) insert (as full out words)—

in the case of a 2008 Section Optant, this is subject to regulation 3.K.23.

• (3) For paragraph (8) substitute—

(8) For the purposes of paragraphs (3), (5) and (6) any reduction in the member’s pension under regulation 3.D.10 (general option to exchange part pension for lump sum) and regulation 3.K.11 (amount of pension and lump sum to be paid to a 2008 Section Optant) will be ignored.

Amendment of regulation 3.E.12

82

After regulation 3.E.12(3) (amount of children’s pension under regulation 3.E.8: deceased deferred members) insert—

(3A) In the case of a 2008 Section Optant paragraph(3) is subject to regulation3.K.23.

Amendment of regulation 3.E.17

83

• (1) Regulation 3.E.17 (amount of lump sum: single capacity members and recent leavers (disregarding regulation 3.D.5 employments)) shall be amended as follows.

• (2) After paragraph (1) insert—

(1A) In the case of a 2008 Section Optant, paragraph(1) is subject to regulation 3.K.22 (lump sum payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E2A of the 1995 Section).

• (3) For paragraph (2)(b), substitute—

(b) an amount equal to twice the annual average of the member’s uprated earnings by reference to which the pension was calculated, less the aggregate of— (i) any lump sum paid to the member when the pension came into payment as a result of the member exercising the option under regulation 3.D.10 (general option to exchange part of pension for lump sum); and (ii) in the case of a 2008 Section Optant, the lump sum paid to the Optant under regulation 3.K.11 (amount of pension and lump sum to be paid to a 2008 section Optant).

• (4) For paragraph (6) substitute—

(6) The reference in paragraph (2)(a) to the annual rate of the member’s pension is to the member’s pension after it has been reduced to take account of— (a) the exercise by the member of an option under regulation 3.D.10 (general option to exchange part of pension for lump sum); and (b) in the case of a 2008 Section Optant, the lump sum paid to the Optant under regulation 3.K.11 (amount of pension and lump sum to be paid to a 2008 section Optant).

Amendment of regulation 3.E.18

84

• (1) Regulation 3.E.18 (amount of lump sum; dual capacity members (disregarding regulation 3.D.5 employments)) shall be amended as follows.

• (2) At the start of paragraph (2) insert “Subject to paragraph (4),”.

• (3) After paragraph (3) insert—

(4) In the case of a 2008 Section Optant— (a) the reference to the annual rate of pension in paragraph (2)(b)(i) is to the annual rate of pension after it has been reduced to take account of the lump sum paid to the Optant under regulation 3.K.11 (amount of pension and lump sum paid to a 2008 Section Optant); and (b) the amount of the Optant’s uprated earnings for the purposes of paragraph(2)(b)(ii) shall be reduced by the aggregate of— (i) the amount of the lump sum paid to the Optant under regulation 3.K.11; and (ii) the lump sum under regulation 3.D.10 referred to in paragraph (2)(b)(ii).

Amendment of regulation 3.E.19

85

• (1) Regulation 3.E.19 (amount of lump sum: dual capacity members with pensions under regulation 3.D.5) shall be amended as follows.

• (2) After paragraph (2)(a) insert—

(b) if the member had been entitled to any pensions under regulation 3.D.5 for less than 5 years, the lesser of— (i) the total of the guarantee amounts for each of those pensions (see paragraph(3)); and (ii) the aggregate lump sum cap (see paragraph (4)).

• (3) After paragraph(2) insert—

(2A) In the case of a 2008 Section Optant paragraph(2) is subject to paragraph (4) and regulation 3.K.22 (lump sum payable on the death of a 2008 Section Optant who is in receipt of a lower tier ill health pension under regulation E2A of the 1995 Regulations).

• (4) For paragraph (4) substitute—

(4) The aggregate lump sum cap is equal to twice the appropriate fraction of the annual average of the member’s uprated earnings by reference to which the pension to which the member became entitled on last exercising the option under regulation 3.D.5 was calculated, less the total of any lump sums paid to the member— (a) in exchange for pensions under regulation 3.D.5 as a result of the member exercising the option under regulation 3.D.10 (general option to exchange part of pension for lump sum); and (b) in the case of a 2008 Section Optant the lump sum paid to that Optant under regulation 3.K.11.

Amendment of regulation 3.E.21

86

After paragraph (11) of regulation 3.E.21 (payment of lump sums or pensions on death) insert—

(12) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.12 (nominations and notices accepted by the Scottish Ministers under the 1995 Section to apply under Chapter 3.E of these Regulations).

Amendment of regulation 3.F.6

87

• (1) Regulation 3.F.6 (calculating amounts of transfer value payments) shall be amended as follows.

• (2) For paragraph (4) substitute—

(4) In paragraph (3) “minimum transfer value” means— (a) in the case of a person other than a 2008 Section Optant the sum of— (i) any transfer value payments that have been made to this Section of the scheme in respect of the person as a result of which the person is entitled to count any pensionable service under this Section of the scheme by reference to which the accrued rights subject to the transfer are calculated; and (ii) any contributions paid by the person under Chapter 3.C as a result of which the person is entitled to count such service; (b) in the case of a 2008 Section Optant the sum of— (i) any transfer value payments that have been made to the 1995 Section in respect of the Optant; (ii) any contributions paid by the Optant under regulation D1 (contributions by members) of, as modified by paragraph 10 of Schedule 1 to the 1995 Regulations in respect of pensionable employment in that Section on or before 31stMarch 2008; and (iii) any payments made by the Optant under regulation Q1 (right to buy additional benefits) of, as modified by paragraph 19 of Schedule 1 to, the 1995 Regulations for the purchase of additional service, which entitle the Optant to count, under Chapter 3.K of this Section, any pensionable service by reference to which the accrued rights subject to the transfer are calculated.

• (3) At the end of paragraph (5)(b) insert—

; and (c) separately in respect of— (i) the aggregate of any amounts of pensionable earnings that the member is entitled to count for the purpose of calculating benefits payable to, or in respect of, the member that fall to be treated as— (aa) a capped increase to pensionable earnings in accordance with regulation 3.F.12; or (bb) an amount of capped Optant pensionable earnings in accordance with regulation 3.K.9; and (ii) any amount of pensionable earnings that do not fall to be so treated.

• (4) After paragraph (5) insert—

(6) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.11.

Amendment of regulation 3.F.8

88

After regulation 3.F.8(4) (right to apply for acceptance of transfer value payment from another scheme) insert—

(5) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.10.

Amendment of regulation 3.F.9

89

• (1) Regulation 3.F.9 (procedure for applications under regulation 3.F.8), shall be amended as follows.

• (2) In paragraph (1)(d) in—

• (i) paragraph (i) after “of the” insert “increase to pensionable earnings and the”; and

• (ii) paragraph (ii) after “of the” insert “increase to pensionable earnings and the”.

• (3) In paragraph (2)(a) for “3.A.11 (restriction on pensionable earnings used for calculating benefits in respect of capped transferred-in service)” substitute “3.F.12 (meaning of “capped increase to pensionable earnings”)”.

• (4) For paragraph (3) substitute—

(3) A statement given to the member of a corresponding 1995 Section of the scheme in pursuance of such a request as is mentioned in paragraph (1)(d) must inform the member of the amount of— (a) the increase to pensionable earnings that will count under this Section of the scheme for the purposes of calculating benefits payable to or in respect of the member; and (b) the amount of pensionable service that will count for the purposes of determining whether or not the member has reached 45 years of pensionable service for the purposes of regulation 3.A.3.

Amendment of regulation 3.F.10

90

For regulation 3.F.10 (acceptance of transfer value payments) substitute—

(3.F.10) (1) Subject to paragraph (10) if an application is duly made by a member under regulation3.F.8 the Scottish Ministers may accept the transfer value payment if such conditions as the Scottish Ministers may require are met. (2) Subject to paragraph (8) if the Scottish Ministers accept the payment the member is entitled to count— (a) the appropriate increase in the member’s pensionable earnings for the purposes of calculating benefits payable to, or in respect of, the member under this Section of the scheme; and (b) the relevant period of pensionable service for the purpose of determining whether or not the member has reached 45 years of pensionable service for the purposes of regulation 3.A.3. (3) In paragraph (2)(a) “the appropriate increase” means the increase calculated in accordance with regulation 3.F.11. (4) In paragraph (2)(b) “the relevant period” means the period calculated by reference to whichever of paragraph (5), (6) or (7) apply in respect of the transfer payment. (5) If the Scottish Ministers accept the payment in respect of a member of a corresponding 1995 Section of the scheme, “the relevant period” means the period calculated in accordance with any guidance, tables and other relevant factors provided by the scheme actuary for that purpose, having regard to the period of employment that qualified the member for the rights in the corresponding 1995 Section of the scheme. (6) If the Scottish Ministers accept the payment under the public sector transfer arrangements “the relevant period” means the period of pensionable service the member is entitled to count calculated— (a) in accordance with those arrangements; and (b) by reference to the guidance and tables provided by the scheme actuary for the purposes of this paragraph, that are in use on the date that is used by the transferring scheme for calculating the transfer value payment. (7) If the Scottish Ministers accept the payment from a scheme that does not participate in the public sector transfer arrangements “the relevant period” means a period equal to the period of employment that qualified the member for the rights in respect of which the transfer payment is being made. (8) Any part of a member’s increase to pensionable earnings under paragraph (2)(a) that falls to be treated as a capped increase to pensionable earnings shall count as a capped increase to pensionable earnings for the purpose of regulation 3.F.6(5). (9) For the meaning of “capped increase to pensionable earnings” see regulation 3.F.12. (10) Subject to paragraph (11) the Scottish Ministers may not accept a transfer value payment if— (a) it would be applied in whole or in part in respect of the member’s or the member’s spouse’s entitlement to a guaranteed minimum pension; and (b) it is less than the amount required for that purpose, as calculated in accordance with guidance and tables prepared by the scheme actuary for the purposes of this paragraph. (11) Paragraph (10) does not apply if the transfer would be paid under the public sector transfer arrangements. (12) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.10.

Amendment of regulation 3.F.11

91

• (1) Regulation 3.F.11 (calculation of transferred-in pensionable service) shall be amended as follows.

• (2) In the heading for “calculation of transferred-in pensionable service” substitute “calculation of increase to pensionable earnings as a result of a transfer-in”.

• (3) For paragraph (2) substitute—

(2) Subject to paragraph (4) for the purposes of the calculation under paragraph (1) the benefits in respect of the transfer payment will be calculated by increasing the member’s pensionable earnings for— (a) the financial year in which the member joined this Section of the scheme; or (b) the financial year in which the transfer payment is received if the payment is received more than 12 months after the day on which the member joined this Section of scheme (“the starting day”).

• (4) In paragraph (3)(b) after “payments)” insert “equal to the amount of the transfer payment”.

• (5) After paragraph (6) insert—

(7) In the case of a 2008 Section Optant this regulation is subject to regulation 3.K.10.

Amendment of regulation 3.F.12

92

• (1) Regulation 3.F.12 “meaning of “capped transferred-in service” shall be amended as follows.

• (2) In the heading, for “meaning of “capped transferred-in service”, substitute “meaning of capped increase to pensionable earnings”.

• (3) For paragraph (2) substitute—

(2) For the purposes of this Part— (a) any part of the increase to pensionable earnings that the member is entitled to count under regulation 3.F.10(2)(a); and (b) which is the result of capped service in employment to which the transferring scheme applied, is a capped increase to pensionable earnings.

• (4) After paragraph (4) insert—

(5) In the case of a 2008 Section Optant, this regulation is subject to regulation 3.K.10.

Amendment of regulation 3.J.9

93

In regulation 3.J.9(5)(a) (interest on late payment of benefits and refunds of contributions) after “Chapter 3.D (members’ retirement benefits)” insert “or a lump sum under regulation3.K.11 (amount of pension and lump sum to be paid to a 2008 Section Optant)”.

Insertion of Chapter 3.K

94

After Chapter 3.J (miscellaneous and supplementary provisions) insert—