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The National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013

Type Scottish-Statutory-Instrument

Publication 2013-05-28

Last updated 2025-10-31

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(5) If the employed pensioner exercised the option under regulation 2.D.14 (general option to exchange part of pension for lump sum) in relation to the old service pension, the resulting reduction in the pension is ignored for the purposes of this regulation.

(6) The resulting reduction in the pension is to be taken into account for the purposes of this regulation if the employed pensioner—

(a) exercised the option under regulation 2.D.17 (election to allocate pension) in relation to the old service pension; or

(b) is a 2008 Section Optant who was entitled to a lump sum under regulation 2.K.12 (amount of pension and lump sum to be paid to a 2008 Section Optant) in relation to the old service pension.

(7) In this regulation, references to the amount of a pension for any financial year are to its amount for that year after any increases payable under the Pensions (Increase) Act 1971[^f00321] in respect of that pension, including the increases that would have been payable in respect of any amount not paid because of a reduction ignored under paragraph (5).

Meaning of “previous pay”: general

2.H.5

(1) For the purposes of this Chapter and subject to paragraph (3) and regulations 2.H.6 (members with concurrent employments) and 2.H.7 (part-time employment), an employed pensioner’s previous pay is the greater of—

(a) the employed pensioner’s reckonable pay for the purposes of the old service pension; and

(b) the annual rate of pay for the old employment at the time it ceased.

(2) In this regulation “annual rate of pay” means the sum of—

(a) the annual rate of so much of the employed pensioner’s pensionable pay immediately before the old service pension became payable as consisted of—

(i) salary;

(ii) wages; or

(iii) other regular payments,

of a fixed nature; and

(b) so much of any fees and other regular payments not of a fixed nature as—

(i) was payable to the employed pensioner during the period of 12 months ending with the day the old employment ceased; and

(ii) formed part of the employed pensioner’s pensionable pay.

(3) Subject to regulation 2.H.6, the amount to be taken as the employed pensioner’s previous pay must be adjusted in each financial year for inflation.

(4) The reference in paragraph (3) to adjusting that amount in each financial year for inflation is to increasing it by the same amount as that by which an annual pension equal to that amount would have been increased under the Pensions (Increase) Act 1971[^f00402] at 6th April in that financial year if—

(a) that pension was eligible to be so increased; and

(b) the beginning date for that pension were the same as the beginning date for the old service pension.

(5) In this regulation, “the beginning date” in relation to a pension means the date on which it is treated as beginning for the purposes of the Pensions (Increase) Act 1971 (see section 8(2) (meaning of “pension” and other supplementary provisions) of that Act).

Meaning of “previous pay”: members with concurrent employments

2.H.6

(1) In the case of an employed pensioner who held one or more other NHS employments at the same time as the old employments, the amount to be taken as the employed pensioner’s previous pay is the sum of—

(a) the amount of the employed pensioner’s previous pay, in accordance with regulation 2.H.5 (meaning of “previous pay”: general);

(b) in respect of any of the other NHS employments which is held in the financial year mentioned in regulation 2.H.3(2) (reduction of pension), the annual rate of pay for those employments in that financial year; and

(c) in respect of any of the other NHS employments which is not held in this Section of the financial year mentioned in regulation 2.H.3(2), the pensionable pay for that employment for the period of 12 months ending with the day before the old employment ceased (or, if the employed pensioner was not a member of this Section of the scheme in that employment in that period, the amount that would have been the pensionable pay for it assuming that the employed pensioner had been such a member.

(2) The amount to be taken as the employed pensioner’s previous pay in accordance with paragraph (1) must be adjusted in each financial year for inflation in the manner set out in regulation 2.H.5(4).

Application of this Chapter to part-time employment

2.H.7

(1) This regulation provides for the application of this Chapter where the old employment or the new employment is a part-time employment.

(2) The amount of the employed pensioner’s reckonable pay for the purposes of the old service pension, as referred to in regulation 2.H.5(1)(a) (meaning of “previous pay”: general), must be determined without reference to regulation 2.A.14 (non-concurrent part-time employment) or 2.A.15 (concurrent part-time employments).

Employed pensioners with more than one pension

2.H.8

(1) This regulation provides for the application of this Chapter where a person is entitled to more than one old service pension falling within regulation 2.H.1(1)(c) (application of Chapter 2.H) in any financial year.

(2) In regulation 2.H.3 (reduction of pension), for paragraphs (1) to (3) substitute—

(1) If the condition in paragraph (2) is met, the amount of the old service pensions for any financial year is reduced. (2) The condition is that the employed pensioner’s relevant income for the financial year exceeds the employed pensioner’s previous pay for all the old employments. (3) The amount of the reduction under paragraph (1) in the case of each of the pensions is equal to the same proportion of that excess as the amount of the pension for the financial year before the reduction bears to the sum of the pensions for that year before the reduction.

(3) In regulation 2.H.4(1)(b) (meaning of “relevant income”), for “the old service pension” substitute “all the old service pensions”.

(4) Regulation 2.H.9 (provisional reductions and later adjustments) applies as if references to the old service pension were references to all those pensions.

Provisional reductions and later adjustments

2.H.9

(1) If it appears to the Scottish Ministers that the condition in regulation 2.H.3(2) (reduction of pension) will be met in any financial year in respect of the old service pension for that year, the Scottish Ministers may reduce the amount of that pension paid at any time in the financial year.

(2) Where the old service pension for a financial year is being reduced under this Chapter, the Scottish Ministers must review the amount of the reduction—

(a) at the end of the financial year; and

(b) at any time during the financial year if it appears to the Scottish Ministers that—

(i) the amount of the reduction made for the year is or may become incorrect; or

(ii) no reduction should be made.

(3) If at any time during the financial year it so appears, the Scottish Ministers must make such adjustments, whether by altering the amount of the reduction or by repaying to the employed pensioner any amount that should not have been deducted from the pension, as appear to the Scottish Ministers to be required.

(4) If at the end of the financial year it is apparent that—

(a) the reduction in the old service pension for the year was excessive; or

(b) no such reduction should have been made,

the Scottish Ministers must repay the amount due to the employed pensioner.

(5) If at the end of the financial year it is apparent that the old service pension paid for the year exceeded the amount due because the reduction in the old service pension required under regulation 2.H.3 (reduction of pension) was not made, the employed pensioner must repay the excess to the Scottish Ministers.

(6) Paragraph (5) does not affect the Scottish Ministers’ right to recover a payment or overpayment in any case where the Scottish Ministers consider it appropriate to do so.

CHAPTER 2.J — MISCELLANEOUS AND SUPPLEMENTARY PROVISIONS

Scheme administrator

Appointment of scheme administrator

2.J.1

For the purposes of this Part and of Part 4 (registered pension schemes: tax reliefs and exceptions) of the 2004 Act, the scheme administrator is the Scottish Public Pensions Agency.

Claims

Claims for benefits

2.J.2

(1) A person claiming to be entitled to benefits under this Part (“the claimant”) must make a claim in writing to the Scottish Ministers.

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

(a) evidence of entitlement;

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

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

as the Scottish Ministers may from time to time require for the purposes of this Part.

(3) A claim referred to in paragraph (1) may be made by a person or persons other than the claimant where the Scottish Ministers so provide.

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

(5) In this regulation, “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000[^f00403].

Provision of information

Provision of information: continuing entitlement to benefit

2.J.3

(1) The Scottish Ministers may specify a date by which a person who is in receipt of a benefit under this Section of the scheme is to provide the Scottish Ministers with all or any of the following material—

(a) evidence of the person’s identity;

(b) the person’s contact details; and

(2) Where a person fails to provide the material referred to in paragraph (1) in accordance with that paragraph the Scottish Ministers may withhold all, or any part, of any benefit payable to that person.

Power to extend time limits

2.J.4

The Scottish Ministers may extend any time limit mentioned in this Part as it applies in any particular case.

Beneficiaries who are incapable of looking after their affairs

2.J.5

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

(a) use any amount due to the beneficiary under this Section of the scheme for the beneficiary’s benefit; or

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

(2) Payment of an amount to a person other than the beneficiary under paragraph (1) discharges the Scottish Ministers from any obligation under this Section of the scheme in respect of the amount.

Commutation of small pensions

2.J.6

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

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

(a) the contracting-out requirements;

(b) the preservation requirements;

(c) regulation 2 of the Occupational Pension Schemes (Assignment, Forfeiture, Bankruptcy etc.) Regulations 1997[^f00404];

(d) the lump sum rule (see, in particular, paragraph 7 (trivial commutation lump sums) of Schedule 29 to the 2004 Act);

(e) the lump sum death benefit rule (see, in particular, paragraph 20 (trivial commutation lump sum death benefit) of that Schedule); and

(f) regulation 12 (payments by larger pension schemes) of the Registered Pension Schemes (Authorised Payments) Regulations 2009[^f00405].

(3) The lump sum must be calculated by the Scottish Ministers in accordance with advice from the scheme actuary.

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

Reduction in and forfeiture of benefits

Reduction in benefits in cases where loss caused by member's crime, negligence or fraud

2.J.7

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

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

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

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

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

(b) arise out of a transfer payment.

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

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

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

(b) in consequence of an award of an arbiter to be appointed (failing agreement by the parties) by the sheriff, or, in England and Wales an arbitrator.

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

Forfeiture of rights to benefits

2.J.8

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

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

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

(2) The offences are—

(a) an offence in connection with employment that qualifies the member to belong to this Section of the scheme, in respect of which the Scottish Ministers have issued a forfeiture certificate; and

(b) one or more offences under the Official Secrets Acts 1911 to 1989[^f00406] for which the member has been sentenced on the same occasion to—

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

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

(3) In paragraph (2)(a) “forfeiture certificate” means a certificate that the Scottish Ministers are satisfied that the offence—

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

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

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

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

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

(b) a dependant of the member;

(c) a person not falling within sub-paragraph (a) or (b) who is specified in a notice given under regulation 2.E.22(3) (payment of lump sums or pensions on death); or

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

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

Provisions about tax

Deduction of tax

2.J.9

(1) The Scottish Ministers may deduct from any payment under this Section of the scheme any tax which is required to be paid in respect of it.

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

(a) which is a benefit crystallisation event under section 216 (benefit crystallisation events and amounts crystallised) of the 2004 Act; and

(b) a lifetime allowance charge under section 214 (lifetime allowance charge) of the 2004 Act arises when that event occurs,

the tax charged must be paid by the scheme administrator.

(3) Paragraph (4) applies if—

(a) a member has given the scheme administrator a statement in accordance with regulation 2.E.23 (tax treatment of lump sums payable on pensioners’ deaths) that a lump sum payable under that regulation is to be treated as a pension protection lump sum death benefit in accordance with paragraph 14 of Schedule 29 to the 2004 Act; and

(b) has not withdrawn that statement.

(4) Without prejudice to the generality of paragraph (1), before the lump sum is paid, the scheme administrator may deduct the tax payable under section 206 (special lump sum death benefits charge) of the 2004 Act[^f00407] from the lump sum.

(5) Paragraph (6) applies if—

(a) a lump sum is payable on the death of a pensioner member in accordance with regulation 2.E.17(2) (amount of lump sum: single capacity members and recent leavers); and

(b) that lump sum is payable in respect of a member who had reached age 75 at the date of the member’s death.

(6) Without prejudice to the generality of paragraph (1), before the lump sum is paid, the scheme administrator may deduct the tax payable under section 206 (special lump sum benefits charge) of the 2004 Act from the lump sum.

(7) Paragraph (8) applies if—

(a) an active member, a non-contributing member or a pension credit member exercises the option in regulation 2.D.15(1) (option for members in serious ill health to exchange whole pension for lump sum) to exchange a relevant pension for a lump sum in accordance with paragraph (3)(a) of that regulation; and

(b) that lump sum payment is to be made to a member who has reached age 75.

(8) Without prejudice to the generality of paragraph (1), before the lump sum is paid, the scheme administrator may deduct the tax payable under section 205A (serious ill health lump sum charge)[^f00408] of the 2004 Act from the lump sum.

(9) Without prejudice to the generality of paragraph (1), a person who—

(a) is liable to an annual allowance charge in accordance with section 237A (liability of individual)[^f00409] of the 2004 Act; and

(b) meets the conditions specified in paragraph (1) of section 237B (liability of scheme administrator)[^f00410] of the 2004 Act,

may give notice in writing to the scheme administrator specifying that the scheme administrator and the person are to be jointly and severally liable for the payment of the annual allowance charge due in respect of that person in accordance with section 237B of the 2004 Act.

(10) Unless the scheme administrator’s liability to an annual allowance charge referred to in paragraph (9) is discharged in accordance with section 237D (discharge of scheme administrator’s liability)[^f00411] of the 2004 Act—

(a) that annual allowance charge is to be paid by the scheme administrator on behalf of the member; and

(b) the member’s present or future benefits in respect of which that charge arises are to be adjusted in accordance with section 237E (consequential benefit adjustments to be reasonable etc.)[^f00412] of the 2004 Act and calculated by reference to advice provided by the scheme actuary for that purpose.

Interest on delayed payments

Interest on late payment of benefits and refunds of contributions

2.J.10

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

(2) This regulation applies to any amount payable by way of a pension, lump sum or refund of contributions under this Section of the scheme (other than any amount due under regulation 2.C.5 (contributions by employing authorities: general) or 2.C.6 (contributions by employing authorities: early retirement on termination of employment) or interim or substitute award.

(3) The Scottish Ministers 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 Scottish Ministers are satisfied that the unpaid amount was not paid on the due date because of some act or omission on the part of the member or other person to whom it should have been paid.

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

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

(a) in the case of an amount in respect of a pension or lump sum payable to a member under Chapter 2.D (members’ retirement benefits) or a lump sum under regulation 2.K.12 (amount of pension and lump sum to be paid to a 2008 Section Optant), the day immediately following that of the member’s retirement from pensionable employment;

(b) in the case of an amount in respect of a pension payable on a member’s death, other than a pension payable under regulation 2.E.21 (pension payable when member dies on or after reaching age 75), the day after the date of death;

(c) in the case of an amount in respect of a lump sum under Chapter 2.E (death benefits) that is payable to the member’s personal representatives, the earlier of—

(i) the date on which confirmation of an executor nominate or dative was produced to the Scottish Ministers; and

(ii) the date on which the Scottish Ministers were satisfied that the lump sum may be paid as provided in regulation 2.E.22(9) (payment of lump sums or pensions on death);

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

(e) in the case of an amount in respect of a refund of contributions, the day after that on which the Scottish Ministers received from the Commissioners of Her Majesty’s Revenue and Customs the information required for the purposes of calculating the amount to be subtracted under regulation 2.C.18(3) or (4) (repayment of contributions); and

(f) in the case of an amount in respect of a pension under regulation 2.E.21 that is payable to—

(i) the member’s personal representatives, the date on which any document that is by law sufficient evidence of the grant of confirmation as executor of the member, was produced to the Scottish Ministers;

(ii) any person or body to whom the pension has been assigned by the member’s personal representatives, the date on which the notice under regulation 2.E.22(10) was received by the Scottish Ministers; and

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

(6) The due date for an unpaid amount—

(a) referred to in paragraph (5) in respect of which the Scottish Ministers were 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; and

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

is the first day on which the Scottish Ministers are in possession of all the information necessary to calculate that pension, lump sum, refund of contributions or interim or substitute award.

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

(a) any amount paid by way of an interim payment calculated by reference to an expected benefit under this Section of the scheme pending final calculation of the full value of that benefit;

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

(c) any amount paid that increases the amount of an earlier payment due to the payment of an upper tier ill health pension under regulation 2.D.8 (early retirement on ill health: active members and non-contributing members) paid to a member in substitution for a lower tier ill health pension under that regulation following a determination by the Scottish Ministers under regulation 2.D.9 (re-assessment of entitlement to an ill health pension).

Determinations

Determination of questions

2.J.11

(1) Except as otherwise provided by this Part, any question arising under this Section of the scheme is to be determined by the Scottish Ministers.

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

(3) In relation to decisions within paragraph (4), the Scottish Ministers may require any person entitled, or claiming to be entitled, to a benefit under this Part to submit to a medical examination by a registered medical practitioner[^f00413] selected by the Scottish Ministers and in that event, the Scottish Ministers must also offer the person an opportunity of submitting a report from the person’s own medical adviser as a result of an examination by that medical adviser, and the Scottish Ministers must take that report into consideration together with the report of the medical practitioner selected by the Scottish Ministers.

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

(a) regulation 2.D.8(2)(a) or (3)(a) (early retirement on ill health: active members and non-contributing members);

(b) regulation 2.D.9(1)(a) or (b) or (3) (re-assessment of entitlement to an ill health pension);

(d) regulation 2.D.15(1) (option for members in serious ill health to exchange pension);

(e) regulation 2.D.18(6)(b) (procedure for election under regulation 2.D.17);

(f) regulation 2.E.9(1)(b)(ii) (meaning of “dependent child”);

(g) regulation 2.J.5(1) (beneficiaries who are incapable of looking after their affairs); or

(h) determining whether an individual satisfies the severe ill health condition for the purposes of section 229(3)(a) (total pension input amount) of the 2004 Act.

General prohibition on unauthorised payments

2.J.12

Nothing in these Regulations requires or authorises the making of any payment, which, if made, would be an unauthorised payment for the purposes of Part 4 (pension schemes etc.) of the 2004 Act (see definition of “unauthorised payment” in section 160(5) of that Part[^f00414]).

Prohibition on assignment or charging of benefits

2.J.13

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

(2) On the bankruptcy or sequestration of any person entitled to a benefit under this Section of the scheme, no part of the benefit may be paid to the person’s trustee in bankruptcy or other person acting on behalf of the creditors, except in accordance with an order under section 310 (income payments orders) of the Insolvency Act 1986[^f00415].

Record keeping and contribution estimates

Employing authority and certain member record keeping and contribution estimates

2.J.14

(1) As regards a member who is a non-GP provider who derives practitioner income from the contracts, agreements or payments referred to in regulation 2.A.9(6) (meaning of “pensionable pay”), in respect of each scheme year, the member must provide the contracting Health Board (or someone appointed to act on its behalf) with a certificate of the member’s 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 & Customs in respect of the member’s earnings for that year,

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

(2) As regards a GMS practice, a section 17C agreement provider or an HBPMS contractor, in respect of each scheme year, the practice or contractor must provide the Scottish Ministers with a statement of estimated pensionable earnings in respect of any non-GP provider that is a section 17C agreement provider or HBPMS contractor or who assists in the provisions of NHS services provided by that GMS practice, section 17C agreement provider or an HBPMS contractor, at least one month before the beginning of that scheme year.

(3) Subject to paragraphs (4) and (5) if, in respect of a scheme year, a non-GP provider has failed to comply with the requirements of paragraph (1), the non-GP provider’s pensionable earnings for that scheme year must be zero.

(4) If, in respect of a scheme year—

(a) a non-GP provider has failed to comply with the requirements of paragraph (1);

(b) a benefit is payable for, or in respect of the non-GP provider’s service; and

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

the Scottish Ministers may treat that figure as the amount of the non-GP provider’s pensionable earnings for that year.

(5) If, in respect of a scheme year, a non-GP provider—

(a) dies without complying with the requirements of paragraph (1); or

(b) is, in the opinion of the Scottish Ministers, unable to look after the non-GP provider’s own affairs by reason of illness or mental disorder,

the Scottish Ministers may require that non-GP provider’s personal representatives to provide the relevant certificate—

(i) within the period referred to in paragraph (1); or

(ii) within such other period as the Scottish Ministers permit.

(6) All employing authorities under this Part of the Regulations must, for each scheme year—

(a) provide the Scottish Ministers with a statement of estimated total contributions due to this Section of the scheme under regulation 2.C.1 (contributions by members) and 2.C.5 (contributions by employing authorities: general); and

(b) maintain records of contributions to this Section of the scheme made under regulations 2.C.1 and 2.C.5.

(7) The statement referred to in paragraph (6)(a) must be provided to the Scottish Ministers no later than two months after the end of each scheme year.

(8) Except where the Scottish Ministers waive such requirement, an employing authority must provide the Scottish Ministers with a statement of contributions to this Section of the scheme recorded in accordance with paragraph (6)(b) no later than 2 months after the end of each scheme year.

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

(a) must be in such form as the Scottish Ministers may from time to time require; and

(b) may be provided to the Scottish Ministers in such manner as the Scottish Ministers may from time to time permit.

CHAPTER 2.K — 2008 SECTION OPTANTS

Application and options

Application of Chapter 2.K

2.K.1

(1) This Chapter makes provision in relation to persons who are active members of the 1995 Section on or after 1st October 2009 and who opt to become members of this Section of the scheme on the basis set out in this Chapter, including persons who—

(a) return to NHS employment in respect of which there is a liability to pay contributions to the scheme in accordance with regulation D1 (contributions by members) of the 2011 Regulations within a period of less than 5 years beginning with the day on which they last left such employment (whether or not that period includes 1st October 2009);

(b) become members of the 1995 Section (whether for the first time or for a second or subsequent time having previously been a member of that Section) in accordance with regulation B2(3) (age limits and restrictions on membership) of the 2011 Regulations;

(i) became entitled to a pension under regulation E6 (early retirement pension (redundancy etc.)) or E7 (early retirement pension (redundancy etc. new starters and post-transition)) of the 2011 Regulations on leaving employment with one employing authority; and

(ii) elected to continue to be an active member of the 1995 Section in respect of any other continuing pensionable employment in accordance with regulation R4(6) (members doing more than one job) of those Regulations.

(2) This Chapter does not apply to a person if—

(a) that person is an active member of the 1995 Section by virtue of regulation E2(12) (early retirement pension on ill health grounds (pre 1st April 2008)) of the 2011 Regulations; or

(b) that person is a former member of a corresponding 1995 scheme and the administrators of that scheme have confirmed that the person did not elect to join the relevant corresponding 2008 scheme when offered the opportunity to do so.

(3) In this Part, a member of this Section of the scheme to whom this Chapter applies is referred to as a “2008 Section Optant”.

Options for a member of the 1995 Section to join this Section of the scheme

2.K.2

(1) A person who by virtue of that person’s employment—

(a) was an active member of the 1995 Section—

(i) on, or after, 1st October 2009; and

(ii) on the day that person’s option to join this Section of the scheme was received by the Scottish Ministers; and

(b) would be eligible to join this Section of the scheme if that person met the condition in regulation 2.B.1(3)(a) (eligibility: general),

may join this Section of the scheme under the terms of this Chapter.

(2) A person who satisfies the conditions in paragraph (1) may only join this Section of the scheme if that person opts to do so.

(3) Subject to paragraphs (4) and (8) and regulation 2.K.19 (circumstances in which a member of the 1995 Section may defer making an option to join this Section of the scheme), the option may only be exercised by giving notice in writing to the scheme administrator—

(a) in such form as the Scottish Ministers require; and

(b) before the date the Scottish Ministers specify for that purpose in the comparative statement of benefits under the 1995 Section and this Section of the scheme issued to that person (“the comparative statement”).

(4) For the purpose of paragraph (3)—

(a) the date specified by the Scottish Ministers in the comparative statement must be a date that is at least four months later than the comparative statement issue date; and

(b) the notice must be—

(i) irrevocable; and

(ii) treated as having been given on the date on which it is received by the scheme administrator.

(5) Subject to paragraph (13)—

(a) the option must be effective from the first day of the member’s pensionable employment in the 1995 Section falling on or after 1st April 2008;

(b) the person must be treated as if that person had been a member of this Section of the scheme from that date; and

(c) the member’s service both for the purpose of ascertaining entitlement to, and calculation of, benefits under the 1995 Section must count under this Section of the scheme only to the extent that it would have counted had the member been an active member of this Section of the scheme from that date.

(6) If contributions due from the member under Chapter 2.C (contributions) in respect of any periods beginning on or after 1st April 2008 are not made when they are due because of the time when the option is exercised, the amount overdue is to be paid by deduction from the member’s pensionable pay in such manner and at such rate as the Scottish Ministers require.

(7) If, in a case where paragraph (6) applies, the member ceases to be an active member of this Section of the scheme before the amount overdue has been paid under that paragraph, the amount outstanding becomes payable immediately.

(8) The Scottish Ministers may extend the time limit in paragraph (3) if the Scottish Ministers consider that the person has not had a reasonable opportunity to consider whether to exercise the option.

(9) The Scottish Ministers may accept an option to join this Section of the scheme that is received after the person ceases to be an active member of the 1995 Section if either paragraph (10) applies to that person or that person satisfies all of the following—

(a) a comparative statement of benefits under the 1995 Section and this Section of the scheme was issued to the person whilst that person was an active member of the 1995 Section;

(b) but for the exercise of the option, the person would otherwise become entitled to the immediate payment of benefits under Part E (benefits for members) of the 2011 Regulations;

(c) the person has provided the Scottish Ministers with a notice in writing in such form as the Scottish Ministers may require that benefits are not to be paid from the 1995 Section and has not revoked that notice; and

(d) the person exercises the option before the end of the four month period beginning with the comparative statement issue date.

(10) This paragraph applies to a person who—

(a) has ceased to pay contributions in accordance with regulation D1(26) (special class officers) or (27) (non special class officers) of the 2011 Regulations;

(b) is continuing in NHS employment; and

(11) A person may revoke a notice given for the purposes of paragraph (9)(c)—

(a) at any time;

(b) in writing in such form as may be required by the Scottish Ministers for that purpose.

(12) A person who has revoked a notice in accordance with paragraph (11) may not provide a further notice under paragraph (9).

(13) A person exercising an option under this regulation who is entitled to a pension under regulation E3 (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations may count as qualifying service for the purpose of this Section of the scheme a period of service, measured in years and days, equal to the qualifying service that person was entitled to count under regulation C3 (meaning of “qualifying service”) of the 2011 Regulations in determining the person’s entitlement to that pension.

(14) For the purposes of paragraphs (4), (9) and (10) the comparative statement issue date is the date on which the comparative statement of benefits under the 1995 Section and this Section of the scheme is sent (whether by electronic communication or otherwise)—

(a) to the person; or

(b) to the person’s employing authority.

(15) Subject to paragraph (1)(a)(ii) and any extension of time in accordance with paragraph (8), where paragraph (14)(b) applies the person must have a period equal to at least four months ending on the date specified by the Scottish Ministers in accordance with paragraph (4)(a) in which to opt to join this Section of the scheme.

Transfer of service from the 1995 Section

Service credited from the 1995 Section

2.K.3

(1) A 2008 Section Optant who—

(a) becomes a member of this Section of the scheme; and

(b) is not entitled to a pension under regulation E3 (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations,

is entitled to count the following service under this Section of the scheme.

(2) The member may count as qualifying service a period equal in length to the period of qualifying service up to, and including, 31st March 2008 which the member was entitled to count under the 1995 Section (but not exceeding 45 years).

(3) Subject to paragraph (6) and regulation 2.K.13, the period of pensionable service which a 2008 Section Optant who is under age 60 on 1st October 2009 may count under this Section of the scheme is a period equal in length to the period of pensionable service up to and including 31st March 2008 which the Optant was entitled to count under regulation C2 (meaning of “pensionable service”) of the 2011 Regulations.

(4) Subject to paragraph (6) and regulation 2.K.13, the period of pensionable service which a 2008 Section Optant who is age 60 or over on 1st October 2009 may count under this Section of the scheme is a period equal in length to the pensionable service up to, and including, 31st March 2008 which the Optant was entitled to count under regulation C2 (meaning of “pensionable service”) of the 2011 Regulations calculated by multiplying that period of service (specified in days) by the factor specified in paragraph (5) applicable to that case.

(5) The factor referred to in paragraph (4) is the factor specified by the Scottish Ministers for that purpose.

(6) For the purposes of paragraphs (3) and (4), the pensionable service which the 2008 Section Optant is entitled to count under regulation C2 of the 2011 Regulations—

(a) does not include any pensionable service the Optant was entitled to count under regulation C2(1)(d) of those Regulations;

(b) is to be calculated without regard to regulation R3(5) (mental health officers) of those Regulations; and

(c) where the Optant is entitled to count any part-time pensionable service in the 1995 Section, is to be calculated in accordance with regulation C4 (part-time employment) of those Regulations.

(7) Where a 2008 Section Optant becomes a member of this Section of the scheme under this Part, all rights in respect of that Optant under the 1995 Section are extinguished.

Treatment of additional pension

2.K.4

(1) This regulation applies to a 2008 Section Optant who, whilst a member of the 1995 Section, had exercised an option to purchase additional pension (“an OPAP”) under regulations Q8 (option to pay periodical contributions) or Q10 (option to pay lump sum) or whose employing authority had done so under regulation Q11 (additional lump sum) of the 2011 Regulations.

(2) Where paragraph (1) applies, the amount of additional pension that will count under this Section of the scheme must be calculated in accordance with—

(a) paragraph (3) when all the contributions required to be made under the OPAP have been made in accordance with regulation Q14 (effect of payment of additional contributions) of the 2011 Regulations; and

(b) paragraph (4) when the OPAP has ceased or been cancelled in accordance with regulation Q13 (cancellation and cessation of options) of the 2011 Regulations.

(3) Where paragraph (2)(a) applies, the amount of additional pension that will count under regulation 2.C.14 (effect of payment of additional contributions) must be equal to the amount of additional pension—

(a) purchased in the 1995 Section under regulation Q14 of the 2011 Regulations where the person’s chosen birthday under the OPAP was 65;

(b) subject to paragraph (9), that would have been purchased in the 1995 Section under regulation Q14 of the 2011 Regulations if the person’s chosen birthday had been 65 and, in determining that amount, the Scottish Ministers must have regard to the advice of the scheme actuary, where the person’s chosen birthday under the OPAP was 60.

(4) Where paragraph (2)(b) applies, the amount of additional pension that will count under regulation 2.C.16 (effect of part payment of periodical contributions) must be equal to the amount of additional pension—

(a) purchased in the 1995 Section under regulation Q13 of the 2011 Regulations, where the person’s chosen birthday under the OPAP was 65;

(b) subject to paragraph (9) that would have been purchased in the 1995 Section under regulation Q13 of the 2011 Regulations if the person’s chosen birthday had been 65 and, in determining that amount, the Scottish Ministers must have regard to the advice of the scheme actuary, where the person’s chosen birthday under the OPAP was 60.

(5) The additional pension referred to in paragraph (3) or (4) that counts in this Section of the scheme must do so from the effective date specified in regulation 2.K.2(5) (options for a member of the 1995 Section to join this Section of the scheme).

(6) This paragraph applies—

(a) to a person referred to in paragraph (1); and

(b) where at the effective date specified in regulation 2.K.2(5)—

(i) that person—

(aa) was making additional contributions in accordance with an OPAP exercised under regulation Q8 of the 2011 Regulations;

(bb) had applied to make, but had not yet begun making, additional contributions under regulation Q8 of the 2011 Regulations; or

(cc) had applied to make, but had not yet made, a single lump sum contribution in accordance with an OPAP exercised under regulation Q10 of the 2011 Regulations; or

(ii) that person’s employing authority had applied to make, but had not yet made, a single lump sum contribution on the person’s behalf, in accordance with an OPAP exercised under regulation Q11 of the 2011 Regulations.

(7) Where paragraph (6) applies and the person’s chosen birthday referred to in regulation Q8 (option to pay additional periodical contributions to purchase additional pension) of the 2011 Regulations was 65, the OPAP referred to in that paragraph applies in this Section of the scheme as if the OPAP were an option to purchase additional pension in accordance with whichever of regulation 2.C.8 (periodical contributions), 2.C.10 (lump sum contribution) or 2.C.11 (lump sum contributions by employing authority) would apply in that case.

(8) Subject to paragraph (9) where paragraph (6) applies and the person’s chosen birthday referred to in regulation Q8 (option to pay additional periodical contributions to purchase additional pension) of the 2011 Regulations was 60, the OPAP referred to in that paragraph applies in this Section of the scheme—

(a) as if the OPAP were an option to purchase additional pension in accordance with whichever of regulation 2.C.8, 2.C.10 or 2.C.11 would apply in that case; and

(b) after adjustment, having regard to the advice of the scheme actuary, so that—

(i) the amount of the additional pension purchased in this Section of the scheme is the same as that which would have been purchased in the 1995 Section; and

(ii) the additional periodical or lump sum contributions payable, regard being had to the normal retirement age of 65 applying in this Section of the scheme, reduce or (where appropriate) cease to be payable.

(9) If paragraph (3)(b), (4)(b) or (8) applies and—

(a) the amount of the additional pension calculated in accordance with paragraph (3)(b) or (4)(b) will exceed the limit on the total increase in the member’s pension referred to, as the case may be, in regulation 2.C.8, 2.C.10 or 2.C.11; or

(b) the limit on the total increase in the member’s pension referred to in regulation 2.C.8 will be exceeded by the amount of additional pension that counts in this Section of the scheme in accordance with paragraph (8)(b)(i) notwithstanding any reduction in, or cessation of, additional contributions payable in accordance with paragraph (8)(b)(ii),

the total increase in the member’s pension under this regulation, taken together with any other increase under regulations 2.C.8, 2.C.10 or 2.C.11 is subject to the limit on the total increase in the member’s pension described in regulation 2.C.8, 2.C.10 or 2.C.11.

(10) The amount of additional pension that counts in this Section of the scheme in accordance with paragraphs (2) to (8) that exceeds the limit in paragraph (9) is to be converted to pensionable service for the purpose of regulation 2.A.3(1)(d) (meaning of “pensionable service”), and in determining the amount of additional pension to be converted into pensionable service, the Scottish Ministers must have regard to the advice of the scheme actuary.

Treatment of additional service

2.K.5

(1) A 2008 Section Optant—

(a) who becomes a member of this Section of the scheme; and

(b) is buying or has already bought a period of additional service that counts as pensionable service under regulation C2(1)(d) (meaning of “pensionable service”) of the 2011 Regulations,

is able to count as pensionable service in this Section of the scheme the service referred to in whichever of paragraphs (5) or (6) apply to that Optant.

(2) Subject to paragraphs (3) and (4), the additional service referred to in paragraph (1) is—

(a) any additional service bought under regulation Q1 (right to buy additional service) of the 2011 Regulations before the date that person’s option to join this Section of the scheme was received by the Scottish Ministers in accordance with regulation 2.K.2 (options for a member of the 1995 Section to join this Section of the scheme); and

(b) any additional service bought under regulation 27 (purchase of added years of contributing service) or regulation 28 (additional payments to reckon certain periods of service as contributing service at actual length) of the National Health Service (Superannuation) (Scotland) Regulations 1980[^f00416].

(3) The additional service referred to in paragraph (2)(a) is to be calculated in accordance with—

(a) regulation Q1(6) and, as the case may be, regulation Q1(15) (right to buy additional service) of the 2011 Regulations, in the case of an election that had ceased and was paid for in full by the date referred to in paragraph (2)(a);

(b) regulation Q7(1), (5) and (6) (but not (7)) (part payment for additional service or unreduced retirement lump sum) of the 2011 Regulations, in the case of an election that had ceased but had only partially been paid for at that date; or

(c) subject to paragraph (7), regulation Q7(1), (5) and (6) (but not (7)) of the 2011 Regulations, in the case of an election that remained in force immediately before that date.

(4) The additional service referred to at paragraph (2)(b) is to be calculated in accordance with whichever of—

(a) regulation 27(3) or (4)(b); or

(b) regulation 28(1) or (3)(b),

of the National Health Service (Superannuation) (Scotland) Regulations 1980[^f00417] applies to the Optant.

(5) The period of pensionable service which a 2008 Section Optant who is under age 60 on 1st October 2009 may count under this Section of the scheme is a period equal in length to the period of additional service calculated in respect of that Optant in accordance whichever of paragraphs (3) or (4) apply to the Optant.

(6) The period of pensionable service which a 2008 Section Optant who is age 60 or over on 1st October 2009 may count under this Section of the scheme is the period found by—

(a) first taking a period equal in length to the period of additional service (specified in days) calculated in respect of that Optant in accordance with whichever of paragraph (3) or (4) applies (“Period AS”); and

(b) then multiplying Period AS by the factor specified by the Scottish Ministers for that purpose.

(7) Where a member was buying additional service by means of regular additional contributions immediately before the date referred to in paragraph (2)(a)—

(a) the member’s election to buy additional service ceases from that date; and

(b) any additional contributions due under the election that are unpaid at that date must be deducted from the member’s pensionable pay in accordance with regulation 2.K.2(6) and (7) (options for a member of the 1995 Section to join this Section of the scheme).

(8) Subject to regulation 2.K.18, for the purposes of calculating the Optant’s benefits under this Section of the scheme the pensionable service that the Optant is entitled to count under paragraph (5) or, as the case may be, paragraph (6) is to be added to the pensionable service the member is entitled to count under—

(a) regulation 2.K.3(3), if the member is under age 60 on 1st October 2009; or

(b) regulation 2.K.3(4), if the member is age 60 or over on that date.

Treatment of unreduced retirement lump sum

2.K.6

(1) This regulation applies to a 2008 Section Optant who becomes a member of this Section of the scheme and, at the date that person’s option to join this Section of the scheme was received by the Scottish Ministers in accordance with regulation 2.K.2 (options for a member of the 1995 Section to join this Section of the scheme), elects under regulation Q2 (right to buy an unreduced retirement lump sum) of the 2011 Regulations to—

(a) purchase an unreduced retirement lump sum for service before 25th March 1972; or

(b) buy additional survivor’s pension for service before 6th April 1988,

which satisfies any of the conditions in paragraph (2).

(2) Those conditions are that the election—

(a) was paid for in full by the date referred to in paragraph (1);

(b) ceased before the date referred to in paragraph (1), but before completion of the additional contributions payable;

(c) was payable by additional contributions and remained in force immediately before the date referred to in paragraph (1); or

(d) was payable by deduction from the member’s retirement lump sum.

(3) If paragraph (1) applies, the election referred to in that paragraph ceases to be effective from 1st April 2008 and—

(a) any additional contributions under the election that were due but not paid at that date must be deducted in accordance with regulations 2.K.2(6) and (7);

(b) any liability to pay additional contributions under the election ceases from 1st April 2008; and

Treatment of 2008 Section Optants to whom regulation L1(3) of the 2011 Regulations applied immediately before 1st April 2008

2.K.7

(1) This regulation applies to a 2008 Section Optant—

(a) whose benefits on retirement or death would, but for this regulation, be calculated in accordance with Chapters 2.D (members’ retirement benefits) and 2.E (death benefits); and

(b) who, but for joining this Section of the scheme, would otherwise have been entitled to have benefits on retirement or death calculated in accordance with regulation L1(3) (treatment of pensionable service of early leavers returning to pensionable employment) of the 2011 Regulations.

(2) Subject to paragraph (3) for the purpose of calculating the benefits on retirement or death of a 2008 Section Optant referred to in paragraph (1), the Optant may, where it would be more beneficial to the Optant be treated—

(a) as a deferred member of this Section of the scheme in respect of any period of pensionable service credited to that Optant under regulation 2.K.3 that relates to one or more periods of pensionable employment in the 1995 Section that occurred before a break of 12 months or more in such employment (“an earlier service credit”); and

(b) as if the Optant became an active member for the first time on the first day of any period of pensionable service credited to that Optant under regulation 2.K.3 that relates to a period of pensionable employment in the 1995 Section that occurred after a break of 12 months or more in such employment.

(3) Subject to regulation 2.D.8(5)(b)(ii) (early retirement on ill health: active members and non-contributing members), the Optant’s benefits in respect of an earlier service credit mentioned in paragraph (2)(a) must be calculated—

(a) separately; and

(b) by reference to the final year’s pensionable pay calculated in accordance with regulation C1 (meaning of “pensionable pay”) of the 2011 Regulations in respect of that particular period.

Pension debit members

2.K.8

(1) This regulation applies where, on becoming a member of this Section of the scheme, a 2008 Section Optant is a pension debit member.

(2) The amount of the reduction to be made to the Optant’s benefits under this Section of the scheme is the amount of the reduction that applied to the Optant’s benefits under the 1995 Section calculated in accordance with section (reduction of benefit: sharing of rights under pension arrangements) of the 1999 Act adjusted by the factor referred to in paragraph (3).

(3) The factor referred to in paragraph (2) is the factor specified by the Scottish Ministers for that purpose.

(4) The Scottish Ministers may, after taking advice from the scheme actuary, make such modifications to—

(a) the Optant’s rights; and

(b) the form of the Optant’s benefits,

as the Scottish Ministers consider necessary for the purpose specified in paragraph (5).

(5) If in the opinion of the Scottish Ministers, it is necessary for the purpose of giving effect to the pension sharing order to which the Optant’s rights are subject for some or all of the benefits under this Section of the scheme to be taken in a different form from that in which that Optant would otherwise be entitled to take them, the Scottish Ministers may modify those benefits as described in paragraph (4).

Treatment of 2008 Section Optants to whom regulation R8 of the 2011 Regulations applied immediately before 1st April 2008

2.K.9

(1) This regulation applies to a 2008 Section Optant—

(a) whose earnings in respect of pensionable employment in the 1995 Section were reduced;

(b) whose employer certified that the reduction in sub-paragraph (a) occurred in the circumstances described in regulation R8(2) (members whose earnings are reduced) of the 2011 Regulations;

(c) who, subject to the agreement of the Scottish Ministers, would, on retirement or death, have become entitled to have a preserved pension calculated and paid as described in regulation E12 (preserved pension) of the 2011 Regulations in respect of pensionable service in the 1995 Section before the Optant’s earnings were reduced; and

(d) whose benefits on retirement or death would, but for this regulation, be calculated in accordance with Chapter 2.D and 2.E.

(2) Subject to paragraph (3), for the purpose of calculating the benefits on retirement or death of a 2008 Section Optant referred to in paragraph (1), the Optant may, where it would be more beneficial to the Optant be treated—

(a) as a deferred member of this Section of the scheme in respect of any period of pensionable service credited to the Optant under regulation 2.K.3 that relates to one or more periods of pensionable service in the 1995 Section before that Optant’s earnings were reduced as described in paragraph (1) (“a protected service credit”); and

(b) as if the Optant became an active member for the first time on the first day of any period of pensionable service credited to that Optant under regulation 2.K.3 that relates to a period of pensionable service in the 1995 Section after that Optant’s earnings were reduced as described in paragraph (1).

(3) The Optant’s benefits in respect of a protected service credit mentioned in paragraph (2)(a) must be calculated—

(a) separately; and

(b) by reference to the final year’s pensionable pay calculated in accordance with regulation C1 (meaning of “pensionable pay”) of the 2011 Regulations in respect of that particular period.

Restriction on pensionable pay used for calculating benefits in respect of capped Optant service

2.K.10

(1) This regulation applies for determining the amount of a 2008 Section Optant’s pensionable pay for the purposes of calculating so much of any benefit under this Section of the scheme as falls to be calculated by reference to capped Optant service.

(2) If an Optant’s pensionable pay exceeds the permitted maximum, the excess is disregarded for the purposes of any such calculation as is mentioned in paragraph (1).

(3) In this regulation “permitted maximum” means—

(a) in relation to the tax year 2009/10, £123,600; and

(b) in relation to any later tax year, the figure found for that year under paragraphs (4) and (5).

(4) If the retail prices index for the month of September preceding the tax year 2010/11 or any later tax year is higher than it was for the previous September, the figure for that year is an amount arrived at by—

(a) increasing the figure for the previous tax year by the same percentage as the percentage increase in the retail prices index; and

(b) if the result is not a multiple of £600, rounding it up to the nearest amount which is such a multiple.

(5) If the retail prices index for the month of September preceding the tax year 2010/11 or any later tax year is not higher than it was for the previous September, the figure for that year is the same as for the previous tax year.

(6) In this regulation—

“capped Optant service” has the meaning given in regulation 2.K.11; and

“pensionable pay” has the meaning given in regulation 2.A.9.

Meaning of “capped Optant service”

2.K.11

(1) This regulation applies if a 2008 Section Optant is entitled to count a period of service under this Section of the scheme in accordance with—

(a) regulation 2.K.3 (service and pensionable earning credited from the 1995 Section); or

(b) regulation 2.K.5 (treatment of additional service),

in respect of service in the 1995 Section that was or included capped service.

(2) For the purposes of this Part, the same proportion of the total service that the member is entitled to count under regulations 2.K.3 and 2.K.5 as the capped service bears to the whole of the Optant’s service in the 1995 Section up to and including 31st March 2008 is capped Optant service.

(3) For the purposes of paragraph (1), the Optant’s service in the 1995 Section was capped service so far as—

(a) in the case of service before 6th April 2006—

(i) the Optant was an active member of the 1995 Section; and

(ii) that Optant’s pension under that Section in respect of the service was to be calculated by reference to remuneration limited in each tax year to the permitted maximum for that year within the meaning of section 590C(2) (earnings cap) of the Income and Corporation Taxes Act 1988[^f00418]; or

(b) in the case of service on or after 6th April 2006—

(i) the Optant was an active member of the 1995 Section; and

(ii) that Optant’s pension under that Section in respect of the service was to be calculated by reference to remuneration limited in each tax year to an amount calculated in the same manner as the permitted maximum under section 590C(2) (earnings cap) of the Income and Corporation Taxes Act 1988, was calculated for tax years ending before that date.

(4) For the purposes of paragraph (3), it does not matter whether, apart from the application of the limit referred to in that paragraph, the Optant’s remuneration in any tax year would have exceeded the amount of the limit.

Amount of pension and lump sum to be paid to a 2008 Section Optant

2.K.12

(1) This regulation applies to a 2008 Section Optant who—

(a) is entitled to an annual pension under Chapter 2.D (members’ retirement benefits); or

(b) is entitled to the payment of a transfer value under Chapter 2.F (transfers) in respect of the pension that has accrued to, or in respect of, that Optant under this Section of the scheme.

(2) In the case of a 2008 Section Optant referred to in paragraph (1)(a), that Optant is entitled to—

(a) the payment of a lump sum determined in accordance with whichever of the following paragraphs of this regulation that apply to that Optant; and

(b) the annual amount of pension referred to in paragraph (1)(a) to which that Optant is entitled, reduced by an amount equal to the amount of the lump sum referred to in sub-paragraph (a) divided by 12.

(3) In the case of a 2008 Section Optant referred to in paragraph (1)(b)—

(a) the transfer value must be calculated by reference to a lump sum determined under paragraph (5); and

(b) the pension by reference to which, apart from this regulation, the transfer value in respect of that Optant would otherwise be calculated must be reduced by an amount equal to the amount of the lump sum referred to in sub-paragraph (a) divided by 12.

(4) Subject to paragraphs (13) and (15), except in a case to which paragraph (6), (8), (10) or (12) applies, the amount of the lump sum must be determined as described in paragraph (5).

(5) The amount of the lump sum must be determined by—

(a) applying the formula—

$3 x ( R e l e v a n t S e r v i c e s × R e c k o n a b l e P a y ) 80$

; and

(b) rounding down the amount found under sub-paragraph (a) to the nearest amount of whole pounds that is divisible by 12.

(6) In the case of an Optant who—

(a) becomes entitled to an annual amount of pension payable under regulation 2.D.4 (early payment of pension with actuarial reduction); and

(b) has not attained age 60 on the day of becoming entitled to that pension,

the amount of the lump sum must be determined as described in paragraph (7).

(7) The amount of the lump sum that is to be paid to an Optant referred to in paragraph (6) must be calculated by—

(a) applying the formula—

$3 x ( R e l e v a n t S e r v i c e s × R e c k o n a b l e P a y × R e d u c t i o n F a c t o r ) 80$

; and

(b) rounding down the amount found under sub-paragraph (a) to the nearest amount of whole pounds that is divisible by 12.

(8) In the case of an Optant who—

(a) becomes entitled to an annual amount of pension payable under regulation 2.D.5 (partial retirement: members aged at least 55) for the first time; and

(b) has not attained age 60 on the day of becoming entitled to that pension,

the amount of the lump sum must be determined as described in paragraph (9).

(9) The amount of the lump sum that is to be paid to an Optant referred to in paragraph (8) must be calculated by—

(a) applying the formula—

$3 x ( S p e c i f i e d S e r v i c e × R e c k o n a b l e p a y × R e d u c a t i o n F a c t o r ) 80$

; and

(b) rounding down the amount found under sub-paragraph (a) to the nearest amount of whole pounds that is divisible by 12.

(10) In the case of an Optant who—

(a) becomes entitled to an annual amount of pension payable under regulation 2.D.5 (partial retirement: members aged at least 55) for the first time; and

(b) has attained age 60 on the day of becoming entitled to that pension,

the amount of the lump sum must be determined as described in paragraph (11).

(11) The amount of the lump sum that is to be paid to an Optant referred to in paragraph (10) must be calculated by—

(a) applying the formula—

$3 × ( S p e c i f i e d S e r v i c e × R e c k o n a b l e P a y ) 80$

; and

(b) rounding down the amount found under sub-paragraph (a) to the nearest amount of whole pounds that is divisible by 12.

(12) In the case of an Optant—

(a) who is a pensioner member as respects a pension payable under regulation 2.D.5(9)(a); and

(b) who—

(i) subsequently exercises an option under that regulation for the second or final time; or

(ii) becomes entitled to any other pension under Chapter 2.D in respect of pensionable service not taken into account for the purposes of calculating the pension payable under sub-paragraph (a),

the amount of the lump sum payable under this regulation must be determined by the Scottish Ministers after taking advice from the scheme actuary.

(13) If, on becoming a member of this Section of the scheme, a 2008 Section Optant is a pension debit member the amount of the lump sum determined under this regulation must be reduced by the amount calculated under paragraph (14) (“the pension debit reduction”).

(14) The amount of the pension debit reduction referred to in paragraph (13) is to be calculated by—

(a) applying the formula—

$3 × ( 1 9 9 5 S e c t i o n P e n s i o n D e b i t × I n c r e a s e F a c t o r )$

; and

(b) rounding up the amount found in sub-paragraph (a) to the nearest amount of whole pounds that is divisible by 12.

(15) If any part of an Optant’s benefit under this Section of the scheme falls to be calculated by reference to capped Optant service under regulation 2.K.10 the determinations in this regulation must apply separately in respect of—

(a) the pension to which the Optant is entitled in respect of the service that falls to be calculated by reference to capped Optant service; and

(b) the pension to which the Optant is entitled in respect of the service that does not fall to be calculated by reference to capped Optant service.

(16) In this regulation—

“1995 Section Pension Debit” means the amount by which the Optant’s annual pension under the 2011 Regulations was to be reduced in accordance with section 31 (reduction of benefit) of the 1999 Act;

“annual amount” in relation to a pension, means the amount of the annual pension to which the member would be entitled under this Section of the scheme apart from this regulation, together with any increases payable under the Pensions (Increase) Act 1971[^f00419], calculated as at the time payment would first be due;

“Increase Factor” means the factor that would have applied to the 1995 Section Pension Debit for the purposes of section 29 (creation of pension debits and credits) of the 1999 Act if the Optant had become entitled to a pension under the 2011 Regulations— on the date that the Optant becomes entitled to a pension referred to in paragraph (1)(a); or on the day after the Optant’s last day of pensionable service if the Optant becomes entitled to the payment of a transfer value referred to in paragraph (1)(b);

“Reckonable Pay” means the Optant’s reckonable pay calculated under Chapter 2.A;

“Reduction Factor” means the reduction factor that the Scottish Ministers, after taking advice from the scheme actuary, determines would have applied to that Optant’s lump sum retiring allowance under regulation E14(7)(b) (deductions from lump sum) of the 2011 Regulations if that Optant had become entitled to a pension calculated under regulation E11 (early retirement pension (with actuarial reduction)) of those Regulations on the day the Optant became entitled to a pension under regulation 2.D.4 (early payment of pension with actuarial reduction) or, as the case may be, regulation 2.D.5 (partial retirement: members aged at least 55);

“Relevant Service” means a period (expressed in days), equal to the aggregate of— the period of pensionable service that the Optant is entitled to count under regulation 2.K.3 (service and pensionable earning credited from the 1995 Section); and the period of pensionable service (if any) that the Optant is entitled to count under regulations 2.K.5 (treatment of Additional Service) and 2.K.18 (transitional provision: treatment of additional service in respect of Optants retiring on the grounds of ill Health under regulation 2.D.8);

“specified percentage” means the percentage of the member’s pension in respect of which the member claims immediate payment under regulation 2.D.5(4)(a); and

“Specified Service” means the amount of the Optant’s Relevant Service (expressed in days) multiplied by the specified percentage.

(17) In the case of an 2008 Section Optant whose benefits are subject to the modification provided in Part 4, this regulation is subject to regulation 3.K.10(16).

Miscellaneous provisions

Transfers-in: transitional provision

2.K.13

(1) This regulation applies to a 2008 Section Optant who—

(a) commenced a period of pensionable employment in the 1995 Section on, or after, 1st April 2008; and

(b) within one year of the commencement of that employment makes an application to transfer accrued rights to benefits to the 1995 Section under regulation N1 (member’s right to transfer accrued rights to benefits to this Section of the scheme) of the 2011 Regulations.

(2) If—

(a) the Scottish Ministers accept the transfer payment in respect of the application referred to in paragraph (1) in accordance with regulation N1(5) of the 2011 Regulations; and

(b) that payment is received by the Scottish Ministers before the day on which the person’s option to join this Section of the scheme is received,

the period of pensionable service that the Optant is entitled to count in respect of that transfer payment for the purposes of calculating benefits payable to or in respect of the Optant under this Section of the scheme is to be calculated as described in paragraph (4).

(3) If the transfer payment in respect of an application referred to in paragraph (1) is received by the Scottish Ministers on, or after, the day on which the person’s option to join this Section of the scheme is received—

(a) the Scottish Ministers may accept that payment under this Section of the scheme—

(i) without requiring the Optant to make an application under regulation 2.F.8 (right to apply for acceptance of transfer value payment from another scheme); and

(ii) subject to such other conditions as the Scottish Ministers may require; and

(b) if the Scottish Ministers accept the payment, the period of pensionable service that the Optant is entitled to count in respect of that payment for the purposes of calculating benefits payable to or in respect of the Optant under this Section of the scheme is to be calculated as described in paragraph (4).

(4) Subject to paragraph (5) the period of pensionable service that the Optant is entitled to count for the purposes of calculating benefits payable to, or in respect of, that Optant under this Section of the scheme—

(a) is to be calculated in accordance with regulation 2.F.11 (calculation of transferred-in pensionable service); and

(b) the starting day for the purposes of regulation 2.F.11(2) and (3) is the day that the Optant’s pensionable employment referred to in paragraph (1) commenced.

(5) If the transfer value payment is accepted by the Scottish Ministers under the public sector transfer arrangements—

(a) regulation 2.F.12 (meaning of “capped transferred-in service”) applies to the Optant in respect of the period of pensionable service that the Optant is entitled to count under this regulation; and

(b) the reference in regulation 2.F.12(2) to the service that the member is entitled to count under regulation 2.F.10(2)(a) (acceptance of transfer value payments) must be read as a reference to the service the Optant is entitled to count under paragraph (4).

2008 Section Optants: transitional upper tier ill health pension

2.K.14

(1) This regulation applies to a 2008 Section Optant who—

(a) has submitted a form AW8 (or such other form as the Scottish Ministers are willing to accept) together with supporting medical evidence (if not included on the form) for the purposes of an ill health pension payable in accordance with regulation E3 (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations; and

(b) that form and supporting medical evidence was received by the Scottish Ministers before the date on which the Scottish Ministers received the Optant’s option to join this Section of the scheme.

(2) Subject to paragraph (5) if the Optant referred to in paragraph (1) becomes entitled to a pension under regulation 2.D.8(3) (“an upper tier ill health pension”) within a period of one year beginning with the day on which that Optant’s option to join this Section of the scheme is received—

(a) that Optant’s service must be increased by the enhancement period determined in accordance with paragraph (3) (“the transitional enhancement period”); and

(b) the transitional enhancement period must apply to that Optant’s service in place of the enhancement period that, apart from this regulation, would otherwise apply to the Optant’s service under regulation 2.D.8(6).

(3) Subject to paragraph (4), in this regulation—

“the transitional enhancement period” means two-thirds of the Optant’s assumed pensionable service; and

“the Optant’s assumed pensionable service” means the further pensionable service that the Optant could have counted if the Optant had continued in service until reaching age 60.

(4) If the transitional enhancement period determined under paragraph (3) is less than four years pensionable service, the transitional enhancement period by which the Optant’s pensionable service is increased must be the lesser of—

(a) 4 years pensionable service; and

(b) the pensionable service the Optant could have counted if the Optant had continued in service until reaching age 60.

(5) In the case of an Optant to whom this regulation applies, references to the “enhancement period” in regulation 2.D.8 are to be read as references to the “transitional enhancement period” determined under this regulation.

Treatment of ill health retirement applications made by 2008 Section Optants within one year of joining this Section of the scheme

2.K.15

(1) This regulation applies to a 2008 Section Optant who—

(a) submits a form AW8 (or such other form as the Scottish Ministers are willing to accept) together with supporting medical evidence (if not included on the form) for the purposes of an ill health pension payable in accordance with regulation 2.D.8 (early retirement on ill health: active members and non-contributing members); and

(b) that form and supporting medical evidence is received by the Scottish Ministers before the end of the period of one year commencing on the day the Scottish Ministers received the Optant’s option to join this Section of the scheme.

(2) Subject to paragraph (3) if, following a consideration of the form and medical evidence referred to in paragraph (1) an Optant referred to in that paragraph becomes entitled to a pension under regulation 2.D.8(3) (“an upper tier ill health pension”)—

(a) that Optant’s service must be increased by the enhancement period determined in accordance with whichever of regulation 2.K.14(3) or (4) apply to the Optant; and

(b) the transitional enhancement period must apply to that Optant’s service in place of the enhancement period that, apart from this regulation, would otherwise apply to the Optant’s service under regulation 2.D.8(6).

(3) In the case of an Optant to whom this regulation applies, references to the “enhancement period” in regulation 2.D.8 are to be read as references to the “transitional enhancement period” determined under this regulation.

Application of regulation 2.D.9 where a 2008 Section Optant has submitted an application for ill health retirement under the 1995 Section

2.K.16

(1) This regulation applies to a 2008 Section Optant who—

(a) submitted a form AW8 (or such other form as the Scottish Ministers are willing to accept) together with supporting medical evidence (if not included on the form) for the purposes of an ill health pension payable in accordance with regulation E3 (early retirement pension on ill health grounds (post 1st April 2008)) of the 2011 Regulations; and

(b) that form and supporting medical evidence was received by the Scottish Ministers before the date on which the Scottish Ministers received the Optant’s option to join this Section of the scheme.

(2) If following a consideration of the form and medical evidence referred to in paragraph (1) an Optant referred to in that paragraph becomes entitled to a pension under regulation 2.D.8(2) (early retirement on ill health: active members and non-contributing members) (“a lower tier ill health pension”)—

(a) within a period of one year beginning with the day on which that Optant’s option to join this Section of the scheme is received; and

(b) immediately before joining this Section of the scheme the Optant was notified under regulation E4 (re-assessment of ill health condition determined under regulation E3) of the 2011 Regulations that the Optant may ask the Scottish Ministers to consider whether that Optant subsequently meets the upper tier condition under that regulation,

that Optant must be entitled to a re-assessment of entitlement to an ill health pension determined under regulation 2.D.9 (re-assessment of entitlement to an ill health pension) in accordance with the following paragraphs of this regulation.

(3) For the purposes of assessing whether the Optant satisfies the condition in regulation 2.D.8(3)(a) at the date of the Scottish Ministers’ review, “permanently” means until age 60.

(4) If, after considering the further medical evidence provided by the Optant under regulation 2.D.9 the Scottish Ministers determine that the Optant meets the condition in regulation 2.D.8(3)(a), then as from the date on which that determination is made the Optant—

(a) ceases to be entitled to a lower tier ill health pension; and

(b) becomes entitled to an upper tier ill health pension under regulation 2.D.8 but must be calculated in accordance with paragraph (5).

(5) Subject to paragraph (6), for the purpose of calculating the upper tier ill health pension referred to in paragraph (4)—

(a) the Optant’s service must be increased by the transitional enhancement period determined in accordance with whichever of regulation 2.K.14(3) or (4) apply to that Optant; and

(b) the transitional enhancement period must apply to that Optant’s service in place of the enhancement period that, apart from this regulation, would otherwise apply to that Optant’s service under regulation 2.D.8(6).

(6) In the case of an Optant to whom this regulation applies—

(a) regulation 2.K.14(3) must be read as if the definition of “the Optant’s assumed pensionable service” included the words “from the date of the Scottish Ministers’ determination under regulation 2.D.9” after “continued in service”; and

(b) references to the “enhancement period” in regulation 2.D.8 are to be read as references to the “transitional enhancement period” determined under this regulation.

Application of regulation 2.D.9 where a 2008 Section Optant has submitted an application for ill health retirement under this Section of the scheme within a year of joining this Section of the scheme

2.K.17

(1) This regulation applies to a 2008 Section Optant who—

(a) submits a form AW8 (or such other form as the Scottish Ministers are willing to accept) together with supporting medical evidence (if not included on the form) for the purposes of an ill health pension payable in accordance with regulation 2.D.8 (early retirement on ill health: active members and non-contributing members);

(b) that form and supporting medical evidence was received by the Scottish Ministers before the end of the period of one year commencing on the day the Scottish Ministers received the Optant’s option to join this Section of the scheme; and

(i) the Optant becomes entitled to a lower tier ill health pension under regulation 2.D.8; and

(ii) at the time the Optant is awarded a pension under that regulation the Scottish Ministers give the Optant notice in writing in accordance with regulation 2.D.9(1)(b) (re-assessment of entitlement to an ill health pension) that the Optant’s case may be considered once within a period of three years commencing with the date of that award to determine whether the Optant meets the condition in regulation 2.D.8(3)(a) at the date of such a consideration.

(2) If, after considering the further medical evidence provided by the Optant under regulation 2.D.9, the Scottish Ministers determine that the Optant meets the condition in 2.D.8(3)(a), then as from the date on which that determination is made the Optant—

(a) ceases to be entitled to a lower tier ill health pension; and

(b) becomes entitled to an upper tier ill health pension under regulation 2.D.8 but which must be calculated in accordance with paragraph (3).

(3) Subject to paragraph (4) for the purpose of calculating the upper tier ill health pension referred to in paragraph (2)—

(a) the Optant’s service must be increased by the transitional enhancement period determined in accordance with whichever of regulation 2.K.14(3) or (4) applies to the Optant; and

(b) the transitional enhancement period must apply to that Optant’s service in place of the enhancement period that, apart from this regulation, would otherwise apply to the Optant’s service under regulation 2.D.8(6).

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