The National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019

Regulations 51 and 68 introduce a new definition of “surviving scheme partner” into the 2008 Regulations in place of “surviving nominated partner” and consequential changes are provided in regulations 50, 54, 55(2), 67, 71 and 72(2) to replace references to “nominated partner” with “scheme partner” or “surviving scheme partner” as appropriate.

Similarly, regulation 87 introduces a new provision setting out the requirement to be a “surviving scheme partner” (instead of a “nominated partner”) into the 2015 Regulations and regulations 86, 90 and 91(2) makes consequential changes to terminology.

In the 1995 Scheme only, survivor pensions for nominated partners and spouses of female members are generally based on the member’s service from 6th April 1988 onwards. As a consequence, an additional survivor pension (for dependent surviving spouses and co-habiting partners) based on the member’s service before that date may be available, if certain qualifying criteria are met. Regulation G15 of the 1995 Regulations provides for this additional survivor pension. Regulation 19 makes consequential amendment to this to reflect the removal of the nomination requirement in regulation G14 but the nomination requirement in respect of the additional survivor pension remains in regulation G15.

Provisions that allow a partner nomination made under the 1995 Regulations to have effect under the 2008 Regulations are removed by regulations 57, 58, 74 and 75.

Further consequential amendments relating to survivor benefits are also made by regulations 96 to 98 (the AVC Regulations), regulations 100 to 105 (the Injury Benefits Regulations) and regulation 107 (the Transitional Regulations).

The third main purpose of this instrument is to provide the survivors of civil partners and same sex spouses with the same pension as widows, in the 1995 Regulations. The amendments are made with retrospective effect: to 5th December 2005 for civil partners (the date civil partnerships were introduced) and to 13th March 2014 for same sex couples (the date marriage of same sex couples was introduced).

Survivor benefits for civil partners and same sex spouses are already the same as opposite sex spouses in the 2008 Regulations and the 2015 Regulations; therefore amendments are not being made to those regulations. Under regulation A4 of the 1995 Regulations, the provisions relating to civil partnerships apply to same sex spouses with effect from 13th March 2014; therefore amendments are only necessary to the provisions regarding civil partners.

The main changes in respect of this are as follows.

Survivor benefits for same sex couples are the same as for widows, with a number of variations. This instrument removes those variations.

In particular, regulation 14 removes the provision that provides that a member’s service before 6th April 1988 is disregarded for the purposes of calculating survivor pensions for civil partners or same sex spouses.

Regulation 15 removes the requirement for a member to nominate their civil partner or same sex spouse to receive an additional survivor’s pension in respect of that service as that is unnecessary.

Regulations 16, 17 and 40(4) remove further provisions in relation to purchasing a survivor pension for service before 6th April 1988, again because these are no longer necessary. Regulations 20, 21(a) and (c), 32(2), 33(2) and 38 make further consequential changes.

The fourth main purpose of this instrument is to amend the provisions regarding forfeiture of pension. The 1995 Regulations, the 2008 Regulations and the 2015 Regulations include provisions giving the Secretary of State power to forfeit a right to pension and other benefits where a member (or their beneficiary) has been convicted of certain offences. Regulations 37(3), 55(3), 72(3) and 91(3) amend these provisions to give the Secretary of State further power to suspend a right to pension benefits prior to a forfeiture decision, where a member or beneficiary has been charged with, or convicted of, an offence and the Secretary of State is of the opinion the charge or conviction relates to an offence which may lead to benefits being forfeited. In circumstances where benefits otherwise due for payment are suspended, the amendments also contain provisions regarding the payment of those benefits plus interest where there is subsequently no forfeiture. Where the amount suspended is greater than any amount forfeited, payment of the difference between the two, together with interest will be made.

The fifth main purpose of this instrument is to exempt certain pay increases from final pay control charges. This is in respect of the 1995 Regulations and is achieved by regulation 6.

Regulation D3 of the 1995 Regulations (which is a final salary scheme), contains provisions regarding final pay controls, the aim of which is to protect the pension scheme from excessive pensionable pay increases for members nearing retirement. The pay controls are not intended to capture pay increases which have been awarded under an agreement between the NHS and Trade Unions, known as the Framework agreement on the reform of Agenda for Change. Regulation 6 of this instrument makes that clear.

The sixth main purpose of this instrument is to reflect changes to provisions regarding the contracting-out of scheme members from the Additional State Pension Scheme. The Pensions Act 2014 made various amendments to the legislation regarding contracting-out; in particular these amendments provided for the end of contracting-out with effect from 6th April 2016 and the preservation of contracting-out rights earned by members up to that date, although some of the provisions remained in force for a transitional period, pursuant to the Pensions Act 2014 (Savings) Order 2015, until 6th April 2019. This instrument now amends the 1995 Regulations, the 2008 Regulations and the 2015 Regulations to reflect the end of the transitional period.

The main changes in respect of this are as follows.

Regulations 3(2), 43(3)(a), 59(2), 94(a) insert a definition of the “2016 Order” into the 1995 Regulations, the 2008 Regulations and the 2015 Regulations.

Regulations 11, 28, 29, 31, 44, 48, 52, 53, 60, 65, 69, 70, 77, 84, 88 and 89 are amended to ensure that the provisions relating to the payment of Contribution Equivalent Premiums are made in accordance with that legislation.

Section 9(2B) of the Pensions Schemes Act 1993 set out members’ rights in respect of contracted-out service after 5th April 1997. Those rights are now defined in the Occupational Pension Schemes (Schemes that were Contracted-out) (No.2) Regulations 2015. Regulations 3(7), 43(3)(a), 49, 66, 85 and 94(c) insert a revised definition of “section 9(2B) rights” and update related references to reflect this updated legislation.

Regulation 3(4) inserts a revised definition of “contracting-out requirements” in the 1995 Regulations to reflect updated legislation. This definition is used in the 1995 Regulations in regulations E1, E2, E2A and L1 and these are amended by regulations 7 to 9 and 30. The term is no longer used in the 2008 Regulations and accordingly is removed by regulation 43(3)(c) and 59(3).

Regulation 27 amends the definition of “contracting-out conditions” in the 1995 Regulations to refer to relevant updated legislation.

These regulations also amend certain other definitions and clarify certain provisions. The main changes in this respect are as follows.

To update the definition of NHS standard sub-contract and refer to up-to-date guidance (regulations 3(5), 43(3)(d), 59(4), 94(b)).

To provide that where particular practices and contractors do not provide a statement of the annual estimated pension contributions of some of its practitioners in accordance with the requirements in the Regulations, those particular practitioners will pay contributions at the highest level, based on estimated pensionable pay as determined by the host Board. The schemes have arrangements in place in practice if it transpires that a member has paid too high a rate as a result (regulations 40(6), 73(2), 93(2)).

Regulations 40(3)(b), 63(a), 82 and 83 substitute a new definition for how the number of days of dentist performer service (and in the 2015 regulations, practitioners and non-GP provider service) (NDPS) is calculated. The scheme Regulations are now clear that NDPS is calculated by reference to the number of days of pensionable service in the scheme year. These changes are retrospective to reflect how the calculation has always been carried out. No one will be detrimentally affected by this change.

Regulations 39, 56(3), 73(3) and 81 ensure that employing authorities are only required to provide statements of estimated contributions if the Secretary of State or the scheme manager (as the case may be) requests it rather than the requirement being mandatory. The changes do not extend to GPs or Independent Providers.

Provisions regarding pensionable earnings are clarified so that certain payments (in respect of health related functions exercised under section 75 of the 2006 Act), are pensionable if they are made by an employing authority or a local authority (regulations 40(2), 61, 62(2) and 92).

Provisions in the 1995 Regulations regarding the payment of the supplementary charge on the late payment of employer contribution surcharges (regulation 41) are substituted to refer to “further” supplementary charges instead of “a” supplementary charge.

To remove the definition of CCT in the 1995 Regulations as this is no longer necessary (regulation 3(8)).

To amend the definition of officer in the 1995 Regulations and 2008 Regulations to reflect the definition in the 2015 Regulations (regulations 3(6), 43(3)(e), 59(5)).

To amend the provisions in the 2008 Regulations regarding the provision of statements of pensionable earnings (regulation 56(2)). The provisions clarify that the GMS, PMS or APMS contractor must provide a statement of estimated pensionable earnings for any non-GP provider to the host Board.

To amend the provisions in the 2008 Regulations regarding when employing authorities must provide the Secretary of State with statements of estimated contributions (regulation 73(4)). This is now one month before the beginning of each scheme year and not two months after the end of each scheme year.

To remove superfluous paragraph numbering in the 2008 Regulations (regulation 43(2)).

To insert a definition of “the health service” into the 2008 Regulations (regulation 43(3)(b)).

To amend a provision in the 2015 Regulations to provide that the scheme may recover arrears of contributions from benefits on retirement provided that it notifies the member. There is no longer the requirement to seek consent. This makes the 2015 Regulations consistent with the 1995 and 2008 Regulations (regulation 93(3)).

Part 8 provides that deferred members or members who are in receipt of a relevant benefit who may be detrimentally affected by these Regulations may elect for the provisions not to apply to them by giving notice in writing within six months of the coming into force of these Regulations (regulation 108).

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.

Footnotes

[^f00001]: 1972 c.11. Section 10(1) was amended by sections 57 and 58 of, and Schedule 5 to, the National Health Service Reorganisation Act 1973 (c.32) and section 4(2) of the Pensions (Miscellaneous Provisions) Act 1990 (c.7) (‘the 1990 Act’). Section 10(2A) was inserted by section 8(5) of the 1990 Act. Section 12(2) was amended by section 10(1) of the 1990 Act.

[^f00002]: 2013 c.25 (the “2013 Act”).

[^f00003]: The Secretary of State has published a statement pursuant to section 21(2) of the 2013 Act of those persons he would normally expect to consult. That list can be found at www.gov.uk/government/publications/nhs-pension-scheme-consultee-list, or by writing to the Department of Health and Social Care, Quarry House, Leeds, LS2 7UE.

[^f00004]: The functions of the Minister for the Civil Service under section 10 were transferred to the Treasury by article 2 of the Transfer of Functions (Minister for the Civil Service and Treasury) Order 1981 (S.I. 1981/1670).

[^f00005]: S.I. 1995/300. Relevant amending instruments are S.I. 2005/661, 2008/654, 2009/381, 2010/234, 2010/1634, 2011/2586, 2013/413, 2014/570, 2015/96, 2016/245 and 2017/275.

[^f00006]: The definition of “the 2015 Scheme” was inserted by regulations 2 and 3 of S.I. 2015/96.

[^f00007]: S.I. 2016/252.

[^f00008]: S.I. 2015/1677.

[^f00009]: This definition was inserted by regulations 2 and 3(d) of S.I. 2016/245 and amended by regulations 2 and 3(3) of S.I. 2017/275.

[^f00010]: Electronic copies of the guidance referred to in that definition can be obtained from www.england.nhs.uk. E-mail: england.contactus@nhs.net. Hard copies may be obtained from NHS England at: NHS Customer Contact Centre, NHS England, PO Box 16738, Redditch, B97 9PT. Tel: 0300 311 2233.

[^f00011]: This definition was inserted by regulation 2(b) of S.I. 2005/661 and amended by article 7 and paragraph 16 of Schedule 3 to S.I. 2010/234.

[^f00012]: Paragraph (1A) was inserted by regulation 7(1) and (2) of S.I. 2008/654 and amended by regulations 2 and 5(1) and (2) of S.I. 2015/96.

[^f00013]: Paragraph (2) was amended by regulations 2 and 4 of S.I. 2010/1634 and regulations 2 and 7(1) and (2) of S.I. 2015/96.

[^f00014]: The Framework agreement covers the years from 1 April 2018 to 31 March 2021 and sets out, in Annex A, the new pay structure for those years. The Framework agreement can be found at www.nhsemployers.org/your-workforce/2018-contract-refresh/framework-agreement. Hard copies can be obtained from the NHS Pensions team, Department of Health and Social Care, Quarry House, Leeds, LS2 7UE.

[^f00015]: Paragraph (12) was inserted by regulation 17 of S.I. 2008/654.

[^f00016]: Regulation G14 was inserted by regulation 29 of S.I. 2008/654.

[^f00017]: Paragraphs (4A) to (4E) were inserted by regulation 31(1) and (4) of S.I. 2008/654.

[^f00018]: “Nominated partner” was inserted by regulation 32(1) and (3) of S.I. 2008/654.

[^f00019]: Regulation H4(4) was amended by regulations 2 and 12 of S.I. 2013/413.

[^f00020]: “Nominated partner” was inserted by regulation 8(b)(i) of S.I. 2009/381.

[^f00021]: “Surviving nominated partner’s” was inserted by regulation 8(b)(ii) of S.I. 2009/381.

[^f00022]: As amended by regulation 8(c)(i) and (ii) of S.I. 2009/381.

[^f00023]: As amended by regulation 8(d)(i) and (ii) of S.I. 2009/381.

[^f00024]: “Nominated partner” was inserted by regulation 33(1) and (5)(a) of S.I. 2008/654.

[^f00025]: “Nominated partner” was inserted by regulation 33(1) and (5)(a) of S.I. 2008/654.

[^f00026]: As amended by regulation 33(1), (6)(a) and (b) of S.I. 2008/654.

[^f00027]: As amended by regulation 34(1) of S.I. 2008/654.

[^f00028]: As amended by regulation 34(2) of S.I. 2008/654.

[^f00029]: As amended by regulation 34(2) of S.I. 2008/654.

[^f00030]: Paragraph (5B) was inserted by regulation 45(1) and (5) of S.I. 2008/654.

[^f00031]: Paragraph (6) was amended by regulation 60 of S.I. 2008/654.

[^f00032]: Paragraph (10) was inserted by regulation 60 of S.I. 2008/654.

[^f00033]: Paragraph (11) was inserted by regulation 60 of S.I. 2008/654.

[^f00034]: Paragraph (12) was inserted by regulation 60 of S.I. 2008/654.

[^f00035]: Regulation S4A was inserted by regulation 61 of S.I. 2008/654.

[^f00036]: Inserted by regulations 2 and 21(1) and (4)(c) of S.I. 2013/413.

[^f00037]: As inserted by regulations 2 and 15(1) and (2) of S.I. 2015/96.

[^f00038]: Sub-paragraph (2S) was inserted by regulation 16(1) and (7)(b) of S.I. 2014/570.

[^f00039]: Paragraph 16B was inserted by regulation 65(1) and (13) of S.I. 2008/654.

[^f00040]: Sub-paragraph (14) was inserted by regulations 2 and 12(1) and (7) of S.I. 2011/2586.

[^f00041]: Schedule 2B was inserted by regulation 17 of S.I. 2014/570.

[^f00042]: S.I. 2008/653. Relevant amending instruments are S.I. 2009/2446, 2010/492, 2013/413, 2014/570, 2015/96, 2016/245 and 2017/275.

[^f00043]: S.I. 2016/252.

[^f00044]: S.I. 2015/1677.

[^f00045]: This definition was inserted by regulation 21(e) of S.I. 2016/245 and amended by regulation 12(1) and (4) of S.I. 2017/275.

[^f00046]: Electronic copies of the guidance referred to in that definition can be obtained from www.england.nhs.uk. E-mail: england.contactus@nhs.net. Hard copies may be obtained from NHS England at: NHS Customer Contact Centre, NHS England, PO Box 16738, Redditch, B97 9PT. Tel: 0300 311 2233.

[^f00047]: As amended by regulations 17 and 22(1) and (2) of S.I. 2015/96.

[^f00048]: Paragraph (4) was amended by regulations 17 and 26 of S.I. 2015/96.

[^f00049]: Chapter 2.K was inserted by regulation 52 of S.I. 2009/2446.

[^f00050]: Chapter 2.L was inserted by regulations 16 and 35 of S.I. 2010/492.

[^f00051]: S.I. 2016/252.

[^f00052]: S.I. 2015/1677.

[^f00053]: This definition was inserted by regulations 20 and 39(e) of S.I. 2016/245 and amended by regulations 10 and 22(4) of S.I. 2017/275.

[^f00054]: Electronic copies of the guidance referred to in that definition can be obtained from www.england.nhs.uk. E-mail: england.contactus@nhs.net. Hard copies may be obtained from NHS England at: NHS Customer Contact Centre, NHS England, PO Box 16738, Redditch, B97 9PT. Tel: 0300 311 2233.

[^f00055]: Sub-paragraph (e) was inserted by regulations 22 and 53(1) and (5) of S.I. 2013/413.

[^f00056]: Sub-paragraph (d) was inserted by regulations 22 and 57(1) and (3) of S.I. 2013/413.

[^f00057]: Paragraph (4) was amended by regulations 22 and 57(1) and (5) of S.I. 2013/413 and regulations 20 and 43(1) and (3) of S.I. 2016/245.

[^f00058]: As amended by regulation 42 of S.I. 2014/570.

[^f00059]: Paragraph 22 was inserted by regulation 42 of S.I. 2014/570 and amended by regulations 17 and 41(1) and (3) of S.I. 2015/96.

[^f00060]: As amended by regulations 17 and 42 of S.I. 2015/96.

[^f00061]: Paragraph (7) was amended by regulation 103 and paragraph 1 of Schedule 2 of S.I. 2009/2446.

[^f00062]: Chapter 3.K was inserted by regulation 94 of S.I. 2009/2446.

[^f00063]: Chapter 3.L was inserted by regulations 16 and 52 of S.I. 2010/492.

[^f00064]: S.I. 2015/94. Relevant amending instruments are S.I. 2016/245 and 2017/275.

[^f00065]: S.I. 2016/252.

[^f00066]: This definition was inserted by regulations 29 and 49 (1) and (2) of S.I. 2017/275.

[^f00067]: Electronic copies of the guidance referred to in that definition can be obtained from www.england.nhs.uk. E-mail: england.contactus@nhs.net Hard copies may be obtained from NHS England at: NHS Customer Contact Centre, NHS England, PO Box 16738, Redditch, B97 9PT. Tel: 0300 311 2233.

[^f00068]: S.I. 2000/619. Relevant amending instruments are S.I. 2008/655 and 2015/96.

[^f00069]: This definition was inserted by regulation 2(1) and (2)(a) of S.I. 2008/655 and amended by regulations 53 and 54(1) and (2)(d) of S.I. 2015/96.

[^f00070]: Paragraphs (1A) to (1C) were inserted by regulations 53 and 54(1) and (3) of S.I. 2015/96.

[^f00071]: The expression “nominated partner” was inserted into sub-paragraphs (a) and (b) by regulation 2(1) and (12)(a) of S.I. 2008/655. A further relevant amendment to sub-paragraph (b) was made by regulations 53 and 62(1) and(3)(b) of S.I. 2015/96.

[^f00072]: The expression “nominated partner” was inserted by regulation 2(1) and (16)(d) of S.I. 2008/655.

[^f00073]: S.I. 1995/866. Relevant amending instruments are S.I. 2008/655 and 2015/96.

[^f00074]: The definition of “surviving partner” was inserted by regulation 3(1) and (2)(b) of S.I. 2008/655.

[^f00075]: Regulation 2C was inserted by regulations 47 and 50 of S.I. 2015/96.

[^f00076]: Paragraph (3) was last substituted by regulation 3(1) and (6) of S.I. 2008/655.

[^f00077]: The expression “nominated partner” was inserted by regulation 3(1) and (7)(a) of S.I. 2008/655.

[^f00078]: The expression “nominated partner’s” was inserted by regulation 3(1) and (8)(a) of S.I. 2008/655.

[^f00079]: The expression “nominated partner” was inserted by regulation 3(1) and (9)(b) of S.I. 2008/655.

[^f00080]: S.I. 2015/95, to which there are amendments not relevant to this instrument.