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The Firefighters' Pension Scheme (Wales) Order 2007

Type Welsh-Statutory-Instrument

Publication 2007-03-28

State In force

Jurisdiction Wales

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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must, as soon as reasonably practicable after accepting that offer, give notice in writing to each authority by which a pension is payable to that person under Part 3, specifying the name of that person’s employing authority.

Withdrawal of early payment of deferred pension

4

A person who, on dismissal from an authority’s employment, becomes entitled to a deferred pension under rule 3 of Part 3, is not entitled to early payment of the deferred pension before reaching the age of sixty five, unless the authority by which the pension is payable determine otherwise.

Withdrawal of pension on conviction of certain offences

5

(1) Where paragraph (2) applies, the authority by which a pension under Part 3 or 4 is payable may withdraw the pension in whole or in part and permanently or temporarily as they think fit.

(2) This paragraph applies where—

(a) the pensioner has been convicted of an offence referred to in paragraph (3), and, in the case of a pension under Part 4, the offence was committed after the death on which the pensioner became entitled to it, or

(b) the pensioner has been convicted of an offence, committed in connection with that pensioner’s employment by an authority, which is certified by the Secretary of State—

(i) as gravely injurious to the interests of the State; or

(ii) as likely to lead to serious loss of confidence in the public service.

(3) The offences mentioned in paragraph (2)(a) are—

(a) an offence of treason, and

(b) one or more offences under the Official Secrets Acts 1911 to 1989[^f00031] for which the pensioner has been sentenced, on the same occasion—

(i) to a term of imprisonment of at least ten years, or

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

(4) The authority may, at any time and to such extent as they think fit—

(a) apply for the benefit of any dependant of the pensioner, or

(b) restore to the pensioner,

so much of any pension as has been withdrawn under this rule.

Forfeiture of award

6

A person who has been convicted of an offence under subsection (6) of section 34 of the Fire and Rescue Services Act 2004 (acts or omissions for purposes of obtaining awards or other sums), forfeits the whole or part of an award or sum obtained by that person under this Scheme, as the authority think fit.

PART 10 — QUALIFYING SERVICE AND PENSIONABLE SERVICE

Qualifying service

1

For the purposes of this Scheme, the following periods are periods of a person’s qualifying service—

(a) the period during which the person is a firefighter member of the Scheme and for which the person receives pensionable pay;

(b) any period during which the person—

(i) is a firefighter member of the Scheme,

(ii) is on unpaid leave other than unauthorised absence,

(iii) has made an election under rule 4(1) of this Part, and

(iv) has paid such contributions as are required to be paid under rule 4(2) in respect of that period;

(c) in relation to the second pension under rule 7 of Part 3 (entitlement to two pensions), the period of qualifying service taken into account in calculating the first pension under that rule;

(d) any period of additional service purchased under Part 11;

(e) a period credited on acceptance of a transfer under Part 12;

(f) where the person was a member of the 1992 Scheme, the period of service used for determining the person’s eligibility for an award under that Scheme; and

(g) any period of service that may be credited to the firefighter member resulting from maternity, paternity or adoption leave.

Reckoning of pensionable service

2

(1) Subject to paragraph (6), for the purposes of this Scheme, a person’s pensionable service accrues as pension contributions are paid, and consists of—

(a) any period in respect of which the person has paid pension contributions as a member of this Scheme;

(b) any period of service taken into account for the purposes of an award under rule 3 (deferred pension) or rule 7 (entitlement to two pensions) of Part 3 where, on again taking up employment with an authority —

(i) the person becomes a member of the Scheme; and

(ii) in accordance with rule 4 of Part 3 (cancellation of deferred pension), the award under rule 3 or rule 7 is cancelled;

(c) any period which the person is entitled to reckon as pensionable service under rule 4 (reckoning of unpaid period of absence) or rule 5 (reckoning of maternity, paternity and adoption leave, etc) of this Part or under any of rules 5 to 9 of Part 11;

(d) any period of pensionable service taken into account for the purposes of an ill-health award under rule 2 of Part 3, other than any period included by way of enhancement, where—

(i) the award is cancelled under rule 2 of Part 9; and

(ii) the person remains a member of this Scheme (whether or not as an employee of the authority which made the award);

(e) if the person rejoins this Scheme on again taking up employment with an authority, any period of service as a former member of the Scheme, in respect of which—

(i) no pension has been paid;

(ii) no refund of pension contributions has been made; and

(iii) no transfer value payment has been made; and

(f) any period of service credited to the Scheme as pensionable service on acceptance of a transfer into the Scheme under Part 12.

(2) The pensionable service of a firefighter member may not exceed forty five years.

(3) A person may not—

(a) buy additional service if that would increase that person’s pensionable service to more than forty years by normal retirement age; or

(b) transfer service into the Scheme if the aggregate of—

(i) that service,

(ii) that person’s prospective service to normal retirement age, and

(iii) any service already accrued in the Scheme,

would exceed forty years by normal retirement age.

(4) Any additional period of service purchased or in the process of being purchased under Part 11 is reckonable as pensionable service; but where only a portion of the pension contributions payable in respect of a period of additional service has been paid, only the equivalent portion of the period is reckonable as pensionable service.

(5) Subject to paragraph (6), an additional period of service purchased or in the process of being purchased under Part 11 is to be taken into account for the purposes of determining—

(a) the amount of pension payable to the firefighter member or to the firefighter member’s survivors; and

(b) the amount of service a firefighter member has or may accrue in the Scheme.

(6) An additional period of service is not to be taken into account in assessing—

(a) the amount of the higher tier ill-health pension included in a higher tier ill-health award under Part 3; or

(b) the amount of a death grant under Part 5.

Non-reckonable service

3

The following periods are not reckonable as pensionable service—

(a) any period of unpaid leave, other than a period that is reckonable by virtue of rule 4 of this Part;

(b) any period of service that has been taken into account for the purposes of a pension under rule 3 of Part 3 (deferred pension) that has not been cancelled under rule 4 of that Part;

(c) any period of absence resulting from sickness or injury attributable to the person’s misconduct which the authority determine should be unpaid leave;

(d) any period of additional maternity or adoption leave in respect of which the person entitled has declined to pay the required contributions; and

(e) any period of service that is pensionable service by virtue of any other provision of this Part.

Reckoning of unpaid period of absence

4

(1) A firefighter member may reckon as pensionable service all or part of a period of absence without pay if the firefighter member elects to pay the pension contributions that the firefighter member and the firefighter member’s employing authority would have paid in accordance with Part 11 in respect of that period if it had been a period of absence with pay.

(2) An election under paragraph (1) is to be made by written notice given to the employing authority not later than six months from the end of the period of unpaid leave for which contributions are due.

(3) An authority may pay the employer’s pension contributions that would otherwise fall to be paid by the employee as a result of the firefighter member’s election.

(4) Contributions falling to be paid by the employee under this rule must be paid within six months of the date on which the notice under paragraph (2) is given.

Reckoning of maternity, paternity and adoption leave, etc

5

(1) A firefighter member is entitled to reckon as pensionable service any period of—

(a) paid maternity leave,

(b) unpaid ordinary maternity leave, and

(c) unpaid maternity leave in respect of which the firefighter member has paid pension contributions in accordance with rule 4 of Part 11.

(2) A firefighter member is entitled to reckon as pensionable service any period of—

(a) paternity leave,

(b) ordinary adoption leave,

(d) unpaid additional adoption leave in respect of which the member has paid pension contributions in accordance with rule 4 of Part 11.

(3) Where there is a period of pensionable service both before and after a period of maternity or adoption leave in respect of which a person is entitled to pay pension contributions but does not do so, those periods must be treated for the purposes of this Scheme as if they were continuous.

Calculation of pensionable service

6

(1) Paragraphs (3) to (5) are subject to rule 2(2) and (3).

(2) For the purposes of paragraphs (3) and (4), a period which comprises three hundred and sixty five completed days including 29 February must be treated as a completed year.

(3) The pensionable service of a regular firefighter member must be calculated in accordance with the formula—

$$A+(B÷365)years,$ where— A is the number of completed years in the period, and B is the number of completed days in any remaining part of a year.$

(4) The pensionable service of a part-time regular firefighter member must be calculated as a proportion of whole-time service by applying the formula—

$$AB×C,$ where— A is the person’s weekly contractual hours, B is the weekly whole-time equivalent conditioned hours, and C is the period of the person’s part-time service in years (calculated in accordance with the formula in paragraph (3), and with regard to paragraph (2)),$

and in this paragraph “conditioned hours” (“oriau wedi'u pennu”) means the number of hours that the person was required to work each week under the terms of that person’s contract of employment.

(5) The pensionable service of a retained or volunteer firefighter for any year or part of a year of the firefighter’s service must be assessed as a proportion of whole-time service in accordance with the formula—

$$AB×365,$ where— A is the actual pensionable pay received in that year, and B is the retained or volunteer firefighter’s reference pay for that year.$

(6) Where, for the purpose of calculating an award payable to or in respect of a firefighter member—

(a) it is necessary to determine the firefighter member’s pensionable service reckonable by reason of service or employment before or after a particular date (“the material date”), and

(b) by virtue of the receipt by an authority of a transfer value payment, the firefighter member is entitled to reckon a period of pensionable service (“the credited period”) by reason of employment for a period (“the previous employment period”) which includes that date,

the credited period counts as pensionable service reckonable by reason of employment before and after the material date in the same proportion as that between the parts of the previous employment period falling before and after the material date.

PART 11 — PENSIONABLE PAY, PENSION CONTRIBUTIONS AND PURCHASE OF ADDITIONAL SERVICE

CHAPTER 1 — PENSIONABLE PAY AND PENSION CONTRIBUTIONS

Pensionable pay

1

(1) Subject to paragraph (3) and rule 3(3), the pensionable pay of a firefighter member is the aggregate of—

(a) the firefighter member’s pay in relation to the performance of the duties of the firefighter member’s role, other than any allowance or emoluments that are paid to the firefighter member on a temporary basis, and

(b) the firefighter member’s permanent emoluments (including, in the case of a retained firefighter, any retaining allowance).

(2) Where a firefighter member surrenders the right to receive part of the firefighter member’s pensionable pay in exchange for the provision by the firefighter member’s employing authority of any non-cash benefit, the amount forgone must continue to be treated as part of the firefighter member’s pensionable pay for all purposes of this Scheme (including determining pension contributions and calculating awards).

(3) A firefighter member’s pensionable pay in any tax year must not be taken to include any amount in excess of the permitted maximum for that year.

(4) For the purposes of this rule and rule 2, the permitted maximum for a tax year is £108,600; but in relation to a tax year other than the tax year ending in 2007, this is subject to paragraph (5).

(5) Where the retail price index for the month of December in the tax year preceding the tax year in question is higher than it was for the previous December, the permitted maximum for the tax year in question shall be the amount arrived at —

(a) by increasing the permitted maximum 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, by rounding it up to the nearest amount which is a multiple of £600.

Final pensionable pay

2

(1) For the purpose of calculating pensions under this Scheme, the final pensionable pay of a firefighter member is the aggregate of pensionable pay received in respect of the three hundred and sixty five pensionable pay days ending with the relevant date, but this is subject to the following paragraphs of this rule.

(2) Subject to paragraph (3), “the relevant date” (“y dyddiad perthnasol”) for the purposes of paragraph (1)—

(a) in relation to a firefighter member who is entitled to two pensions under rule 7 of Part 3, means—

(i) as regards the first pension, the date on which the firefighter member was last paid at the higher rate (before changing roles and accepting a reduction in pensionable pay);

(ii) as regards the second pension, the last day of the firefighter member’s membership of the Scheme[^f00032] or, if the firefighter member dies in service, the date of the firefighter member’s death;

(b) in any other case, means the date of the firefighter member’s last day of pensionable service or, if the firefighter member dies in service, the date of the firefighter member’s death.

(3) Where a firefighter member’s final pensionable pay would have been more than the amount calculated in accordance with paragraph (1) if the relevant date had occurred on the corresponding day in either of the two periods of three hundred and sixty five pensionable pay days preceding the first day of the period of three hundred and sixty five pensionable pay days ending with the relevant date (as defined in paragraph (2) without reference to this paragraph), that corresponding day in whichever of those periods produces the higher amount must be treated as the relevant date for the purposes of paragraph (1).

(4) Subject to paragraph (7), where a firefighter member is entitled to count only part of a year as a period of membership of the Scheme (“the membership period”), the firefighter member’s final pensionable pay is the amount of pensionable pay received in the membership period multiplied by three hundred and sixty five and divided by the number of days in the membership period.

(5) For the purposes of paragraph (1), any reduction of pensionable pay as a result of—

(a) sick leave;

(b) stoppage of pay by way of punishment;

(d) paid additional maternity leave or additional adoption leave;

(e) unpaid periods in respect of which the firefighter member has paid pension contributions; or

(f) unpaid additional maternity leave or additional adoption leave in respect of which pension contributions have been paid, must be disregarded.

(6) The final reference pay of a retained or volunteer firefighter must be determined by reference to the equivalent whole-time rate of pay for a regular firefighter of similar service, role and experience.

(7) A firefighter member’s final pensionable pay in any tax year is not to be taken to include any amount in excess of the figure which is the permitted maximum for that year.

Pension contributions

3

(1) A firefighter member must pay pension contributions to the authority at the rate of 8.5 per cent. of the firefighter member’s pensionable pay for the time being.

(2) The contributions payable under paragraph (1) may be deducted by the authority from each instalment of pensionable pay as it becomes due, but this is subject to any other method of payment that may be agreed between the authority and the member.

(3) For the purposes of this rule, the pensionable pay of a firefighter member during a period of maternity, paternity or adoption leave is the pay that the person receives for that period including the value of any statutory maternity, paternity or adoption pay under the Social Security Contributions and Benefits Act 1992[^f00033].

Optional pension contributions during maternity and adoption leave

4

(1) A firefighter member who—

(a) is on maternity or adoption leave, which would not otherwise count as pensionable service under rule 2 of Part 10; and

(b) who, for the whole or part of the leave period, is not entitled to receive pay (including any statutory maternity or adoption pay under the Social Security Contributions and Benefits Act 1992),

may elect to pay pension contributions in respect of that leave period.

(2) The contributions must be calculated by applying rule 3 to the pensionable pay (including any statutory maternity or adoption pay under the Social Security Contributions and Benefits Act 1992) received immediately before the start of the unpaid period in question.

(3) Subject to paragraph (6), an election must be made by giving written notice to the authority before the expiry of the period of thirty days (or such longer period as the authority may allow) beginning with—

(a) the day on which firefighter member returns to work, or

(b) if the firefighter member does not return to work after the leave period, the day the firefighter member ceases to be employed by the authority.

(4) On receipt of the notice, the authority must calculate the amount of contributions due and must give written notice of that amount to the person concerned.

(5) Where the full amount of contributions due has not been paid within six months of the date of the notice given under paragraph (4), the person concerned is entitled to reckon as pensionable service such proportion of the period in respect of which contributions were due as the amount of contributions paid bears to the total amount of contributions due.

(6) Where a person dies before the end of the period of thirty days referred to in paragraph (3) without having given the required notice—

(a) that person is deemed to have given the notice, and

(b) the authority—

(i) must give to the person’s personal representatives a statement of the amount of contributions due; and

(ii) may collect the contributions by deducting their amount from the amount of the death grant payable under Part 5.

CHAPTER 2 — PURCHASE OF ADDITIONAL SERVICE

Purchase of additional service

5

(1) A person who satisfies the conditions specified in paragraph (2) may, in accordance with the following provisions of this Chapter, elect to purchase additional service for the purpose of securing increased benefits under this Scheme.

(2) The conditions are that the person—

(a) is a firefighter member of the Scheme,

(b) is not a pension credit member, and

(3) Additional service may be purchased as years or part of a year, but the aggregate of—

(a) the period purchased,

(b) the person’s pensionable service up to the date of the purchase, and

must not exceed forty years.

(4) Additional service may be purchased—

(a) by payment of a lump sum calculated in accordance with tables provided by the Scheme Actuary; or

(b) subject to paragraphs (5) and (6), by deduction from the person’s pensionable pay of periodical contributions of such percentage of that pay as are determined by the Scheme Actuary.

(5) An authority may permit a part-time regular firefighter to purchase additional service by periodical contributions at a rate that bears to the percentage determined by the Scheme Actuary the same proportion as that firefighter’s pensionable pay bears to the pensionable pay of a full-time regular firefighter serving in the same role.

(6) An authority may permit a retained or volunteer firefighter to purchase additional service by periodical contributions; and in such a case they must calculate the amount of the contributions by applying the rate determined by the Scheme Actuary to the firefighter’s reference pay.

Election to purchase additional service

6

(1) An election to pay a lump sum—

(a) must be made by written notice given to the authority not later than twelve months after the date on which the person last became employed by the authority as a firefighter, and

(b) if the sum is not paid within three months after the date on which notice was given, must be treated as not having been made.

(2) An election to pay periodical contributions must be made by written notice given to the authority at least two years before the person’s normal retirement age, but no such election may be made where the person and the authority have agreed that the person will leave the Scheme with an entitlement under any of rules 1, 2, 3, 5 and 6 of Part 3.

(3) Unless paragraph (1)(b) applies, an election under this rule—

(a) takes effect on the day on which the written notice is received by the authority, and

(b) is irrevocable once the lump sum has been paid or, as the case may be, the first contribution has been deducted.

Duration of periodical contributions and premature cessation

7

(1) Subject to paragraph (2), where a person has elected under rule 6(2) to pay periodical contributions, they are payable from the person’s next birthday and continue to be payable until normal retirement age.

(2) Paragraph (1) ceases to apply to a person who leaves the authority’s employment before normal retirement age—

(a) where the person is entitled to a pension under rule 3 of Part 3 (deferred pension), on that person’s last day of service,

(b) where the person becomes entitled to a second pension under rule 7 of that Part (entitlement to two pensions), on that person’s last day of service in the second period of employment,

(d) on the date on which any contributions election takes effect.

(3) Where a sub-paragraph of paragraph (2) applies, the period of additional service purchased up to the date referred to in that sub-paragraph must be treated as if it were the period ascertained in accordance with the formula:

$$A×BC$ where— A is the number of 60ths of additional service which the person elected to purchase, B is the period in respect of which contributions have been made, and C is the period in respect of which contributions would, but for the cessation of the person’s employment, have been made in accordance with the election.$

(4) The period of additional service calculated in accordance with paragraph (3) is treated—

(a) where the person qualifies for an ordinary pension (rule 1 of Part 3), as part of the pensionable service on which the ordinary pension is calculated;

(b) where the person qualifies for a deferred pension (rule 3 of Part 3), as part of the pensionable service on which the deferred pension is calculated;

(c) where the person takes member-initiated early retirement (rule 5 of Part 3), as part of the award to which the actuarial reduction is applied;

(d) where the person takes authority-initiated early retirement (rule 6 of Part 3), as part of the person’s pensionable service;

(e) where, on commencing a second period of employment with the same authority, the person becomes entitled to two pensions (rule 7 of Part 3)—

(i) to the extent that it is attributable to the first period of employment, as part of the service on which the first pension is calculated; and

(ii) to the extent that it is attributable to the second period of employment, as part of the service on which the second pension is calculated.

(5) The period of additional service calculated in accordance with paragraph (3) is not to be treated as part of the pensionable service on the basis of which—

(a) the amount of any higher tier ill-health pension is calculated under rule 2 of Part 3, or

(b) the notional ill-health pension calculated where a survivor’s pension is awarded on a firefighter member’s death in service is calculated (rule 2(1) of Part 4).

(6) Additional service purchased by the payment of periodical contributions accrues annually in accordance with the contributions paid.

Discontinuance and resumption of periodical contributions

8

(1) An authority may—

(a) at the request of a firefighter member who has elected to purchase additional service by the payment of periodical contributions; and

(b) solely on the grounds of the firefighter member’s financial circumstances,

agree to discontinue the making of deductions from the firefighter member’s pay by way of such contributions.

(2) Where the firefighter member and the authority agree that deductions should be discontinued for a period not exceeding six months (“the discontinuance period”), the authority must resume the making of deductions as soon as reasonably practicable after the end of that period or, at the request of the firefighter member, at such time before the end of that period as may be agreed.

(3) Where the firefighter member and the authority agree that deductions should be discontinued for a period of six months or more, the member’s election under rule 6 must be treated as cancelled with effect from the date of the agreement.

(4) The period of additional service purchased up to the date on which the last contribution was deducted is to be treated as if it were the period ascertained in accordance with the formula:

$$A×BC$ where— A is the number of 60ths of additional service which the firefighter member elected to purchase, B is the period in respect of which contributions have been made, and C is the period in respect of which contributions would have been made in accordance with the election (disregarding for this purpose any deemed cancellation under paragraph (3)).$

(5) Subject to paragraph (6), where—

(a) deductions were discontinued under paragraph (2), and

(b) the firefighter member wishes to purchase additional service referable to the discontinuance period,

a deduction of an amount equal to the aggregate of the contributions that would otherwise have been made in respect of that period must be made on the same occasion as the first resumed deduction is made.

(6) Where the firefighter member’s rate of pay at the end of the discontinuance period is less than at the beginning of that period, deductions in respect of the discontinuance period must be made at the rate that would have applied if deductions had been made from the firefighter member’s salary during that period.

Periodical contributions in respect of periods of unpaid service or unpaid absence

9

(1) A firefighter member who—

(a) has elected to purchase additional service in respect of a period of unpaid service or unpaid leave which falls within the period in respect of which contributions are payable in accordance with rule 7(1), and

(b) complies with the requirements of paragraph (2),

is entitled to require the authority to treat that period of unpaid service or unpaid leave as a period of pensionable service.

(2) The requirements of this paragraph are that the firefighter member must, not later than one month after the end of the period of unpaid service or leave (as the case may be), require the authority to deduct from the firefighter member’s pay an amount equal to the aggregate of the contributions that would have been made in respect of that period if it had been a period of paid service.

(3) In paragraphs (1) and (2) “unpaid leave” (“seibiant di-dâl”) means adoption leave, additional adoption leave, additional maternity leave or ordinary maternity leave or other absence without pay (including absence while participating in a strike).

(4) Contributions payable under paragraph (2) may be paid—

(a) during the unpaid leave period; or

(b) within six months of returning to duty after the end of that period; or

Effect of purchasing additional service by lump sum payment

10

(1) Subject to paragraph (2), where a period of additional service has been purchased by way of a lump sum payment, the firefighter member’s pensionable service is increased by that period as regards any award payable to the firefighter member under this Scheme.

(2) A period of additional service purchased by way of a lump sum payment is not treated as part of the pensionable service on which the amount of any higher tier ill-health pension is calculated under rule 2 of Part 3.

(3) If the firefighter member takes member-initiated early retirement the period of additional service is part of the total to which the actuarial reduction is applied under rule 5 of Part 3.

(4) If the firefighter member takes authority-initiated early retirement the period of additional service is part of the pensionable service on which the pension is calculated under rule 6 of Part 3.

PART 12 — TRANSFERS INTO AND OUT OF THE SCHEME

CHAPTER 1 — INTERPRETATION OF PART 12 AND ENTITLEMENT TO TRANSFER VALUE PAYMENT

Interpretation of Part 12

1

In this Part—

“guaranteed cash equivalent transfer value payment” (“taliad gwerth trosglwyddo o'r cyfwerth arian parod gwarantedig”) means a payment of the description mentioned in rule 4(2); and

“public sector transfer arrangements” (“trefniadau trosglwyddo sector cyhoeddus”) means arrangements approved by the Assembly as providing reciprocal arrangements for the payment and receipt of transfer values between this Scheme and other occupational pension schemes.

Entitlement to transfer value payment

2

(1) This Part supplements the rights conferred by Chapter IV of Part IV of the 1993 Act (transfer values) (“Chapter IV”).

(2) Subject to rule 12 (transfer of pension history between Welsh authorities), a firefighter member or deferred member—

(a) to whom Chapter IV applies[^f00034], and

(b) who is neither a pension credit member nor pensioner member of this Scheme,

is entitled to require the payment of a transfer value in respect of the rights to benefit that have accrued to or in respect of that firefighter member or deferred member under this Scheme.

(3) Subject to the provisions of this Part, any former firefighter member, other than a pensioner member, is entitled to require such a payment as if such rights had accrued to or in respect of the former firefighter member by reference to the pensionable service the former firefighter member is entitled to count under this Scheme (and references in this Part to the former firefighter member’s accrued rights or benefits are to be read accordingly).

(4) Paragraph (3) does not apply if the contributions the former member has paid during the period of service ending with the former member ceasing to be a firefighter member are refunded under rule 8 of Part 3 and, where applicable, in accordance with Chapter V of Part IV of the 1993 Act.

(5) Paragraphs (2) and (3) do not apply to rights that are directly attributable to a pension credit.

CHAPTER 2 — TRANSFERS OUT OF THE SCHEME

Applications for statements of entitlement

3

(1) A member who requires a transfer value payment to be made must apply in writing to the authority for a statement of the amount of the cash equivalent of the member’s accrued benefits under the Scheme at the guarantee date (“a statement of entitlement”).

(2) In this Chapter, “the guarantee date” (“y dyddiad gwarantu”) means any date that—

(a) falls within the required period,

(b) is chosen by the authority,

(d) is within the period of ten days ending with the date on which the member is provided with the statement of entitlement.

(3) In counting the period of ten days referred to in paragraph (2)(d), Saturdays, Sundays, Christmas Day, New Year’s Day and Good Friday are excluded.

(4) In paragraph (2) “the required period” (“y cyfnod gofynnol”) means—

(a) the period of three months beginning with the date of the member’s application for a statement of entitlement, or

(b) such longer period (not exceeding six months beginning with that date) as may reasonably be required if, for reasons beyond the control of the authority, the requisite information cannot be obtained to calculate the amount of the cash equivalent.

(5) The member may withdraw the application for a statement of entitlement by written notice at any time before the statement is provided.

(6) Where, in any period of twelve consecutive months, a member—

(a) has made, and not withdrawn, two applications for a statement of entitlement, and

(b) makes a third (or subsequent) application,

the authority are not required to entertain the application if it is not accompanied by a payment of such amount as the authority may reasonably require.

Applications for transfer value payments

4

(1) A member who has applied for and received a statement of entitlement under rule 3 may apply in writing to the authority for a transfer value payment to be made.

(2) On making such an application a member becomes entitled to payment of an amount equal, or amounts equal in aggregate, to the amount specified in the statement of entitlement (or such other amount as may be payable by virtue of paragraph (9)).

(3) An application under paragraph (1) must be made before the end of the period of three months beginning with the guarantee date, and the payment must be made no later than—

(a) six months after that date, or

(b) if it is earlier, the date on which the member reaches normal benefit age.

(4) The application must specify the pension scheme or other arrangement to which the payment or payments should be applied.

(5) Subject to paragraph (6), an application by a person who is entitled to apply for a guaranteed cash equivalent transfer value payment under Chapter IV of Part IV of the 1993 Act may only be made before—

(a) the beginning of the period of one year ending with the date on which the member reaches normal benefit age, or

(b) the end of the period of six months beginning with the day after that on which the member’s pensionable service ends, provided that service ends at least one year before normal benefit age,

whichever is the later.

(6) An application for a transfer value payment to be made under public sector transfer arrangements may only be made—

(a) before the first anniversary of the day on which the member becomes eligible to be a firefighter member of the scheme to which the transfer is to be made, and

(b) before the member reaches normal benefit age.

(7) An application by a person who is not entitled to apply for a guaranteed cash equivalent transfer value payment under Chapter IV of Part IV of the 1993 Act may only be made—

(a) on or before the first anniversary of the day on which the applicant ceases to be a firefighter member of this Scheme, and

(b) before the member reaches normal benefit age.

(8) An application under this rule may be withdrawn by written notice, unless an agreement for the application of the whole or part of the guaranteed cash equivalent transfer value payment has been entered into with a third party before the notice is given.

(9) If the payment is made later than six months after the guarantee date, the amount of the payment to which the member is entitled must be increased by—

(a) the amount by which the amount specified in the statement of entitlement falls short of the amount it would have been if the guarantee date had been the date on which the payment is made, or

(b) if it is greater and there was no reasonable excuse for the delay in payment, interest on the amount specified in the statement of entitlement, calculated on a daily basis over the period from the guarantee date to the date when the payment is made at an annual rate of one per cent. above base rate.

(10) In this rule—

“base rate” (“cyfradd sylfaenol”) means the base rate for the time being quoted by the reference banks or, where there is for the time being more than one such base rate, the rate which, when the base rate quoted by each bank is ranked in descending sequence of seven, is fourth in the sequence; and

“the reference banks” (“y banciau cyfeirio”) means the seven largest persons for the time being who— have permission under Part IV of the Financial Services and Markets Act 2000 (permission to carry on regulated activities)[^f00035] to accept deposits; are incorporated in the United Kingdom and carrying on there a regulated activity of accepting deposits; and quote a base rate in sterling, and for the purpose of this definition the size of a person at any time is to be determined by reference to the gross assets denominated in sterling of that person, together with any subsidiary (as defined in section 736 of the Companies Act 1985 (“subsidiary”, “holding company” and “wholly owned subsidiary”))[^f00036], as shown in the audited end-of-year accounts last published before that time.

Ways in which transfer value payments may be applied

5

(1) A member who is entitled to a guaranteed cash equivalent transfer value payment under Chapter IV of Part IV of the 1993 Act may only require the authority to apply the guaranteed cash equivalent transfer value payment in one or more of the ways permitted under section 95 of that Act.

(2) A member who is not entitled to a guaranteed cash equivalent transfer value payment under Chapter IV of Part IV of the 1993 Act may only require the authority to apply the guaranteed cash equivalent transfer value payment in one of the ways permitted under section 95 of that Act.

(3) The whole of the guaranteed cash equivalent transfer value payment must be applied, unless paragraph (4) applies.

(4) The benefits attributable to—

(a) the member’s accrued rights to a guaranteed minimum pension, or

(b) the member’s accrued rights attributable to service in contracted-out employment on or after 6 April 1997,

may be excluded from the guaranteed cash equivalent transfer value payment if section 96(2) of the 1993 Act applies (trustees or managers of certain receiving schemes or arrangements able and willing to accept a transfer payment only in respect of the member’s other rights).

(5) A transfer payment may only be made to—

(a) a pension scheme that is registered under Chapter 2 of Part 4 of the Finance Act 2004, or

(b) an arrangement that is a qualifying recognised overseas pension scheme for the purposes of that Part [^f00037].

Calculating amounts of transfer value payments

6

(1) Subject to paragraph (3), the amount of the guaranteed cash equivalent transfer value payment is to be calculated in accordance with guidance and tables provided by the Scheme Actuary for use at the guarantee date.

(2) In preparing those tables the Scheme Actuary must use such factors as the Scheme Actuary considers appropriate, having regard to section 97 of the 1993 Act and regulations under that Act (whether or not the payment is in respect of a person entitled to a guaranteed cash equivalent transfer value payment under that Act).

(3) If the amount calculated in accordance with paragraph (1) is less than the minimum transfer value, the amount of the guaranteed cash equivalent transfer value payment is to be equal to that value instead.

(4) In paragraph (3) “the minimum transfer value” (“lleiafswm y gwerth trosglwyddo”), in relation to any person, means the sum of—

(a) any transfer value payments that have been made to the Scheme in respect of that person, and

(b) any contributions paid by that person under rule 3 of Part 11.

(5) If the transfer value payment is made under public sector transfer arrangements, the amount of the transfer value payment is to be calculated—

(a) in accordance with those arrangements rather than paragraphs (1) to (3), and

(b) by reference to the guidance and tables provided by the Scheme Actuary for the purposes of this paragraph that are in use on the date used for the calculation.

Effect of transfers-out

7

Where a transfer value payment is made under this Chapter in respect of a person’s rights under this Scheme, those rights are extinguished.

CHAPTER 3 — TRANSFERS INTO THE SCHEME

Applications for acceptance of transfer value payment from another scheme

8

(1) Subject to the provisions of this Part, a firefighter member may apply for a transfer value payment in respect of some or all of the rights that have accrued to or in respect of that member under—

(a) another occupational pension scheme registered under Chapter 2 of Part 4 of the Finance Act 2004,

(b) an arrangement that is a qualifying recognised overseas pension scheme for the purposes of that Part[^f00038], or

to be accepted by the authority for the purposes of this Scheme.

(2) Paragraph (1) does not apply to rights that are directly referable to a pension credit.

(3) Paragraph (1) does not apply if the member is on unpaid leave that does not count as pensionable service.

Procedure for applications under rule 8

9

(1) An application under rule 8—

(a) must be made in writing,

(b) must specify the scheme or arrangement from which the transfer value payment is to be made and the anticipated amount of the payment, and

(i) before the beginning of the period of one year ending with the date on which the member reaches normal retirement age; and

(ii) in the case of a transfer value payment from a non-occupational pension scheme, during the period of one year beginning with the day on which the member becomes eligible to be a firefighter member, or such longer period as the authority may allow.

(2) In the case of a transfer value payment to be made under public sector transfer arrangements, the application under rule 8—

(a) must be made during the period of one year beginning with the day on which the member becomes eligible to be a firefighter member, or such longer period as the authority may allow, and

(b) must be received by the authority before the applicant reaches the age which is the normal pension age under the scheme by which the transfer value payment is to be made.

Acceptance of transfer value payments

10

(1) Subject to paragraph (3) below and paragraphs (2) and (3) of rule 2 of Part 10 (reckoning of pensionable service), where an application is duly made by a member under rule 8, the authority may accept the transfer value payment.

(2) If the authority accept the payment, the member is entitled to count the period calculated in accordance with rule 11 as pensionable service for the purposes of this Scheme.

(3) The authority may not accept a transfer value payment if—

(a) it would be paid otherwise than under public sector transfer arrangements,

(b) it would be applied in whole or in part in respect of the member’s or the member’s spouse’s or civil partner’s entitlement to a guaranteed minimum pension, and

(c) it is less than the amount required for that purpose, as calculated in accordance with guidance and tables prepared by the Scheme Actuary for the purposes of this paragraph.

Calculation of transferred-in pensionable service

11

(1) Subject to paragraph (3), the period of pensionable service that a member is entitled to count under rule 10(2) must be calculated as at the date on which the transfer value payment is received by the authority and in accordance with guidance and tables provided by the Scheme Actuary for the purpose.

(2) For the purposes of that calculation, the member’s pensionable earnings are to be taken to be the amount of those earnings as at—

(a) two months after the application under rule 8 is received, or

(b) the date on which the transfer value payment is received,

whichever is the later; and, in a case where the transfer value payment is received earlier than two months after that application is received, any necessary adjustment must be made to that calculation to reflect any change in the amount of those earnings.

(3) If the transfer value payment is accepted under public sector transfer arrangements, the period that the member is entitled to count must be calculated—

(a) subject to paragraph (4), in accordance with those arrangements, and

(b) by reference to the guidance and tables provided by the Scheme Actuary for the purposes of this paragraph that are in use on the date that is used by the transferring scheme for calculating the transfer value payment.

(4) If the period that the member would be entitled to count would be greater if the transfer value payment were accepted otherwise than under public sector transfer arrangements—

(a) those arrangements do not apply, and

(b) paragraph (1) of this rule applies instead.

CHAPTER 4 — TRANSFERS BETWEEN WELSH AUTHORITIES

Transfer of pension history between Welsh authorities

12

(1) Subject to paragraph (7), where a firefighter member—

(a) leaves the employment of a Welsh authority (the firefighter member’s “former authority”),

(b) without a break of service, takes up employment as a firefighter with another Welsh authority (the firefighter member’s “new authority”), and

the firefighter member’s former authority must, not later than six months after the firefighter member left their employment, supply the firefighter member’s new authority with a certificate showing the pensionable service the firefighter member was entitled to reckon as at the date on which the firefighter member left the firefighter member’s former authority’s employment (“the material date”).

(2) At the same time as the former authority supply a certificate under paragraph (1), they must send a copy of it to the person concerned, together with a statement of its effect on completion of the transfer.

(3) Subject to paragraph (7), if the person concerned is dissatisfied with the information specified in a certificate under paragraph (1), the person may, within three months after being supplied with a copy of it, ask the former authority to determine the accuracy of the information contained in it.

(4) A person who makes a request under paragraph (3) must send a copy of it to that person’s new authority.

(5) A request under paragraph (3) must be considered by means of the arrangements for the resolution of disagreements implemented by the authority pursuant to the requirements of section 50 of the Pensions Act 1995[^f00039] (resolution of disputes) and the Occupational Pension Schemes (Internal Dispute Resolution Procedures) Regulations 1996[^f00040]; and the authority must either confirm the certificate or issue a new certificate.

(6) If the person concerned does not make a request under paragraph (3), the certificate as supplied, and if the person does make such a request, the certificate as confirmed or the new certificate issued (as the case may be), is conclusive as to the pensionable service the person was entitled to reckon at the material date.

(7) If, after the material date but before a certificate has been supplied under paragraph (1), the person concerned—

(a) claims a pension or lump sum under this Scheme,

(b) claims a pension or lump sum under the Compensation Scheme, or

that paragraph ceases to apply.

(8) If an event mentioned in any of sub-paragraphs (a) to (c) of paragraph (7) occurs before the certificate in question has become conclusive, the certificate ceases to have effect and paragraph (3) ceases to apply.

(9) As soon as reasonably practicable after a certificate has become conclusive, the new authority must give effect to it by crediting the person concerned with the pensionable service shown in the certificate.

CHAPTER 5 — MIS-SOLD PENSIONS AND RESTITUTION PAYMENTS

Interpretation of Chapter 5

13

(1) In this Chapter—

“calculated amount” (“swm a gyfrifir”) means the amount which, in accordance with rule 15, an authority calculate would need to be made as a restitution payment in respect of the firefighter concerned;

“relevant methods and assumptions” (“dulliau a rhagdybiaethau perthnasol”) means the methods and assumptions notified by the Scheme Actuary for the calculation of cash equivalent values for occupational pension schemes; and

“relevant period” (“cyfnod perthnasol”), in relation to a firefighter, means the total of any periods of opted-out and, where appropriate, transferred-out service.

(2) For the purposes of this Chapter—

(a) a person is taken to have opted out if the person had made a contributions election and for any period during which the person was a firefighter that person instead made contributions to a personal pension scheme; and

(b) a person is taken to have transferred out if an authority have made a transfer value payment in respect of that person under Chapter 2 of this Part to the administrator of a personal pension scheme.

Mis-sold pensions

14

(1) This rule applies to a firefighter who—

(a) has opted out or transferred out, or both, and

(b) has suffered actionable loss as a result of a contravention which is actionable under section 150 of the Financial Services and Markets Act 2000[^f00041] (actions for damages in respect of contraventions of rules etc made under the Act).

(2) A firefighter to whom this rule applies who has given notice—

(a) under rule 6 of Part 2 cancelling the firefighter’s contributions election, or

(b) under rule G3(5) of the 1992 Scheme (cancellation of election not to pay contributions),

may give written notice to the authority that the firefighter wishes them to accept a transfer value payment in order to create or restore that firefighter’s pensionable service.

(3) Paragraph (4) or (5) applies where, within twelve months of the date of a notice given under paragraph (2) or such longer period as the authority may allow, the authority have accepted a transfer value payment in relation to the firefighter who gave the notice (whether or not the firefighter has ceased to be a firefighter after the date of the notice) not exceeding the calculated amount.

(4) Where the amount of the transfer value payment is equal to the calculated amount—

(a) the whole of the relevant period is treated as pensionable service, and

(b) for the purposes of calculating any award under this Scheme, the firefighter who gave the notice is treated as having made pension contributions throughout that period.

(5) Where the amount of the transfer value payment is less than the calculated amount—

(a) the authority must, in accordance with the relevant methods and assumptions, calculate the period of pensionable service that the transfer value payment represents, and treat that period as pensionable service,

(b) for the purposes of calculating any award under this Scheme, the firefighter who gave the notice is treated as having made pension contributions throughout that period, and

(6) Where a firefighter who is being credited under paragraph (4) or (5) with a period of pensionable service has previously been credited, in respect of the relevant period, with—

(a) an additional period of pensionable service calculated in accordance with this Part, or

(b) an additional period of reckonable service calculated in accordance with Part 4 of Schedule 6 to the 1992 Scheme (amount of transfer value),

the authority may adjust the amount of the transfer value payment that they accept under this rule to ensure that no part of the additional period of pensionable or reckonable service that was previously credited is included in the period of pensionable service credited under paragraph (4) or (5).

Calculation of amount of restitution payment

15

(1) An authority must, in accordance with paragraph (2), calculate the restitution payment that would need to be made to them in respect of a person to whom rule 14 applies to create or restore the person’s position to what it would have been if the person had not opted-out or, where relevant, transferred-out.

(2) The restitution payment is an amount equal to the sum of—

(a) the capitalised value at the material date, determined in accordance with the relevant methods and assumptions, which would produce a service credit equal to the person’s total period of opted-out service, including the capitalized value of any rights under the Pensions (Increase) Act 1971 and the Pensions (Increase) Act 1974; and

(b) in the case of a firefighter who also transferred out, the greater of—

(i) any transfer value paid by an authority to the administrator of a personal pension scheme in respect of the firefighter’s transferred-out service under Chapter 2 of this Part, increased by interest calculated at a rate approved by the Scheme Actuary over the period from the date of payment of that transfer value to the assumed calculation date; and

(ii) the cash equivalent transfer value that would be payable by the authority in respect of that transferred-out service if they were to pay a cash equivalent transfer value in respect of that service determined in accordance with the relevant methods and assumptions applicable immediately after the assumed calculation date.

(3) In this rule—

“assumed calculation date” (“dyddiad cyfrifo tybiedig”) means the date on which it is assumed, for the purpose of calculating a restitution payment, that a transfer value will be paid to the authority; and

“material date” (“dyddiad o bwys”) means the date on which the authority receive a notice under rule 14.

PART 13 — FIREFIGHTERS' PENSION FUND

Firefighters' Pension Fund: payments, receipts and transfers

1

(1) The Firefighters' Pension Fund established and maintained by the authority for the purposes of the 1992 Scheme[^f00042] (“the FPF”), must be used also for the purposes of payments and receipts required or authorised to be made by or under any provision of this Scheme.

(2) Without prejudice to the generality of paragraph (1), there must be credited to the FPF or, where a transfer is made to the FPF from any other fund maintained by the authority, credited to the FPF and debited to that other fund—

(a) sums receivable from firefighters in respect of periods treated as reckonable by virtue of rule 4 of Part 10 (reckoning of periods of unpaid leave or unauthorised absence);

(b) sums receivable under rule 10 of Chapter 3 of Part 12 (receipt of transfer value payments);

(c) sums receivable from an English or Scottish fire and rescue authority or the Northern Ireland Fire and Rescue Service Board by way of transfer value payments in respect of persons who take up employment with the authority; and

(d) amounts of the descriptions mentioned in paragraphs (2) and (3) of rule 2.

(3) Without prejudice to the generality of paragraph (1), there must be payable out of the FPF or, if a transfer is made from the FPF to any other fund maintained by the authority, debited to the FPF and credited to that other fund—

(a) sums payable under rule 8 of Part 3 (repayment of aggregate of employee’s contributions);

(b) awards payable under any provision of this Scheme (including the commuted portion of a pension to which rule 9 of Part 3 (commutation: general) applies); and

(4) Every amount paid or repaid to or by an authority under this Part must be credited or, as the case may be, debited, to their FPF.

(5) In this Part—

(a) references to the total amount payable out of an authority’s FPF do not include references to any amount which the Assembly requires the authority to pay to it under any of rules 5 to 8;

(b) references to the total amount credited to the authority’s FPF do not include references to any amount which the Assembly pays to the authority for crediting to their FPF under any of rules 5 to 8.

Payments and transfers into Firefighters' Pension Fund

2

(1) Each authority must make transfers into their FPF in accordance with the following paragraphs of this rule.

(2) In each financial year beginning with the financial year ending on 31 March 2008, each authority must, by transfer to their FPF from any other fund maintained by them, make a contribution towards the discharge of their future liability for the payment of pensions under this Scheme.

(3) The amount of the contribution under paragraph (2) must be such percentage of the authority’s estimate of the aggregate of the pensionable pay, as regards the year in respect of which the contribution is made, of those firefighters employed by the authority who are required to make pension contributions in that year, as determined and notified to them for that year by the Assembly.

(4) In respect of each firefighter employed by the authority who retires with an entitlement to immediate payment of a higher tier ill-health pension under rule 2 of Part 3, the authority must transfer into the FPF such amount as is determined and notified to them by the Assembly as the higher tier ill-health charge applicable in respect of that pension.

(5) In respect of each firefighter employed by the authority who retires—

(a) with an entitlement to immediate payment of a lower tier ill-health pension under rule 2 of Part 3; and

(b) with no entitlement to a higher tier ill-health pension,

the authority must transfer into the FPF such amount as is determined and notified to them by the Assembly as the lower tier ill-health charge applicable in respect of that pension.

(6) The amount to be transferred under paragraph (4) or (5) must be transferred in three equal instalments.

(7) The first instalment must be transferred on the date on which the employee retires.

(8) The second instalment must be transferred on 1 April in the financial year that follows the financial year in which the first instalment was transferred.

(9) The third instalment must be transferred on 1 April in the financial year that follows the financial year in which the second instalment was transferred.

(10) Where a pension is paid under rule 6 of Part 3 (authority-initiated early retirement), an amount equal to the difference between the amount of the pension paid and the amount that would have been paid had a pension been payable from the same date under rule 5 of that Part (member-initiated early retirement), must be transferred to the FPF from any other fund maintained by the authority.

Transfers from Firefighters' Pension Fund

3

(1) Where, in consequence of a review under rule 1 of Part 9—

(a) a higher tier ill-health pension is cancelled before all the instalments of the higher tier ill-health charge in respect of that pension have been transferred in accordance with rule 2 of this Part; and

(b) a lower tier ill-health pension continues to be paid,

the amount referred to in paragraph (2) must be transferred from the FPF to any other fund maintained by the authority.

(2) The amount is an amount equal to the difference between—

(a) the aggregate of such instalments of the higher tier ill-health charge as have been transferred in accordance with rule 2; and

(b) the aggregate amount that would have been transferred if—

(i) the lower tier ill-health charge had always applied in respect of the pension, and

(ii) instalments of that charge had been transferred on the dates on which instalments of the higher tier ill-health charge were transferred.

(3) For the purposes of ascertaining the amount to be transferred in accordance with paragraph (2), the authority concerned must request the Assembly to determine the amount of the notional lower tier ill-health charge in respect of the pension concerned.

(4) Where a person declines an offer of employment under rule 2(3)(b) of Part 9 and does not again take up employment with an authority in Wales—

(a) paragraph (4) or (5) of rule 2 (as the case may be), must be disregarded in that person’s case (to the extent that it remains to be complied with); and

(b) the authority which made the offer—

(i) must not make any transfer into the FPF in respect of that person as regards any time after the date on which they receive notice that the offer has been rejected; and

(i) must transfer from the FPF to any other fund maintained by them an amount equal to the aggregate of the instalments that have been transferred to the FPF in respect of the pension that has been terminated.

(5) Where—

(a) a higher tier ill-health pension or a lower tier ill-health pension is wholly and permanently withdrawn under any provision of Part 9; and

(b) the former recipient of that pension does not again take up employment with an authority in Wales,

paragraph (4) or (5) of rule 2 (as the case may be), must be disregarded in that person’s case (to the extent that it remains to be complied with); and the authority must transfer from the FPF to any other fund maintained by them an amount equal to the aggregate of the instalments that have been transferred to the FPF in respect of the pension that has been cancelled.

Excess amounts: information

4

(1) Beginning with the financial year ending on 31 March 2008, each authority must, in relation to each financial year, send the following information in writing to the Assembly —

(a) the total amount that the authority estimate will be payable out of their FPF in that year,

(b) the total amount that the authority estimate will be credited to their FPF in that year,

(c) the authority’s un-audited statement of accounts for that year, prepared and approved in accordance with regulations under section 39 of the Public Audit (Wales) Act 2004[^f00043],

(d) the authority’s statement of accounts for that year, as it is after the authority’s auditor issues the authority’s auditor’s certificate and opinion, including or together with that certificate and opinion,

(e) the total amount payable out of the authority’s FPF in that year, and

(f) the total amount credited to the authority’s FPF in that year.

(2) In relation to each financial year ending on 31 March 2008—

(a) the authority must send the information referred to in sub-paragraphs (a) and (b) of paragraph (1) to the Assembly not later than 31 March 2007 (“the 2008 estimate”), and

(b) if the authority revise the information referred to in those sub-paragraphs after they send the estimate to the Assembly, they may send that revised information to the Assembly in September 2007 (“the 2008 revised estimate”).

(3) In relation to each financial year ending on or after 31 March 2009 —

(a) the authority must send the information referred to in paragraph 1(a) and (b) to the Assembly in September in the financial year before the year in question (“the estimate”); and

(b) if the authority revises the information referred to in those sub-paragraphs after they send the estimate to the Assembly, they may send that revised information to the Assembly in September during the year in question (“the revised estimate”).

(4) The authority must send the un-audited information to the Assembly in July in the financial year following the year in question.

(5) The authority must send the audited information to the Assembly as soon as reasonably practicable after the authority’s auditor issues the authority’s auditor’s certificate and opinion on the authority’s accounts for the year in question.

(6) For the purposes of this rule, the auditor issues the auditor’s certificate and opinion when, in accordance with section 23 of the Public Audit (Wales) Act 2004[^f00044]—

(a) the auditor enters on the authority’s statement of accounts for the relevant year—

(i) a certificate that the auditor has completed the audit in accordance with that Act, and

(ii) the auditor’s opinion on the statement; or

(b) where the auditor makes a report to the authority under section 22 of that Act at the conclusion of the audit, the auditor includes the certificate and opinion referred to in sub-paragraph (a) in that report instead of making an entry on the statement.

(7) In this Part —

“audited information” (“gwybodaeth archwiliedig”) means the information referred to in paragraph 1(d); and if the authority revise the information referred to in paragraph (1)(e) and (f) after they have sent the un-audited information to the Assembly, that information as revised; and

“un-audited information” (“gwybodaeth nas archwiliwyd”) means the information referred to in paragraphs (1)(c), (e) and (f).

Excess amounts: estimated deficits

5

(1) Where, having taken into account the 2008 estimate, the 2008 revised estimate, or the estimate (as the case may be), and any other relevant information available to it, it appears to the Assembly that the total amount likely to be payable out of an authority’s FPF in the year in question will exceed the total amount likely to be credited to the authority’s FPF in that year, it must pay to the authority an amount equal to 80 per cent. of the likely deficit.

(2) Subject to paragraph (3), where, having taken into account any revised estimate and any other relevant information available to it, it appears to the Assembly that—

(a) the total amount likely to be payable out of the authority’s FPF in the year in question will exceed the total amount likely to be credited to the authority’s FPF in that year; and

(b) 80 per cent. of the likely deficit is more than—

(i) the amount paid or payable by the Assembly to the authority by virtue of paragraph (1) in relation to the relevant year; or

(ii) where no such amount was paid or payable by the Assembly, zero,

the Assembly may pay to the authority such amount as it thinks fit.

(3) The aggregate of the amounts paid to an authority under paragraphs (1) and (2) in relation to a particular year must not exceed 80 per cent. of the authority’s likely deficit for that year.

(4) Where the Assembly pays an amount to the authority under paragraph (2), any amount paid or payable to the Assembly in relation to the year in question under rule 6(1) is not payable and, if already paid, the Assembly must repay it to the authority.

(5) An amount payable to the authority under paragraph (1) must be paid in July in the year in question.

(6) Any amount payable or repayable by the Assembly to an authority under paragraph (2) or (4) must be paid or repaid before the end of the year in question.

Excess amounts — estimated surpluses

6

(1) Where, having taken into account the 2008 estimate, the 2008 revised estimate, or the estimate, (as the case may be) and any other relevant information available to it, it appears to the Assembly that the total amount likely to be credited to an authority’s FPF in the year in question will exceed the total amount likely to be payable out of their FPF in that year, it must require the authority to pay to the it an amount equal to 80 per cent. of the likely surplus.

(2) Subject to paragraph (3), where, having taken into account any revised estimate and any other relevant information available to it, it appears to the Assembly that—

(a) the total amount likely to be credited to the authority’s FPF in the year in question will exceed the total amount likely to be payable out of the authority’s FPF in that year; and

(b) 80 per cent. of the difference between those total amounts is more than—

(i) the amount paid or payable by the authority to the Assembly under paragraph (1) in relation to the year in question; or

(ii) where no such amount was paid or payable by the authority, zero,

it may require the authority to pay to it such amount as it may by notice specify.

(3) The aggregate of the amounts paid to the Assembly under paragraphs (1) and (2) in relation to a particular year must not exceed 80 per cent of the authority’s likely surplus for that year.

(4) Where the Assembly requires the authority to pay an amount to it by virtue of paragraph (2), any amount paid or payable by the Assembly to the authority under rule 5(1) is not payable and, if already paid, the authority must repay it to the Assembly.

(5) The Assembly must give to the authority, on or before 3 March in the year in question, written notice of the amount of any payment that it requires the authority to make under paragraph (1) or (2).

(6) An amount payable or repayable by the authority to the Assembly under paragraph (1), (2) or (4) must be paid or repaid in March in the year in question.

Excess amounts — actual deficits

7

(1) Where, having taken into account the un-audited information and any other relevant information available to it, it appears to the Assembly that the total amount likely to be payable out of an authority’s FPF in the year in question exceeds the total amount likely to be credited to the authority’s FPF in that year—

(a) where the likely deficit (“the un-audited deficit”) exceeds the total of any amounts paid or payable to the authority in relation to that year under rule 5(1) or (2) (“the rule 5 total”), the Assembly must pay to the authority the amount of the un-audited deficit less the rule 5 total;

(b) where the un-audited deficit is less than the rule 5 total, the amount of the rule 5 total less the un-audited deficit is not payable under rule 5(1) or (2) and, if already paid, the authority must repay that amount to the Assembly;

(c) where no amount was paid or payable by it to the authority in relation to the year in question under rule 5(1) or (2), it must pay to the authority the amount of the un-audited deficit; and

(d) any amount paid or payable to the Assembly in relation to that year under rule 6(1) or (2) is not payable and, if already paid, the Assembly must repay it to the authority.

(2) Where, having taken into account the audited information and any other relevant information available to the Assembly, it appears to it that the total amount paid or payable out of an authority’s FPF in the year in question exceeds the total amount credited to their FPF in that year—

(a) where the difference between those total amounts (“the audited deficit”) exceeds the total of any amounts paid (but not repaid or repayable) or payable to the authority in relation to that year under paragraph (1)(a) or (c) or rule 5(1) or (2) (“the un-audited total”), it must pay to the authority the amount of the audited deficit less the un-audited total;

(b) where the audited deficit is less than the un-audited total, the amount of the un-audited total less the audited deficit is not payable under paragraph (1)(a) or (c) or rule 5(1) or (2) and, if already paid, the authority must repay it to the Assembly;

(c) where no amount was paid or payable by it to the authority in relation to the year in question under paragraph (1)(a) or (c) or rule 5(1) or (2), it must pay to the authority the amount of the audited deficit; and

(d) any amount paid or payable to the Assembly in relation to the year in question under rule 6(1) or (2) or rule 8(1)(a) or (c) is not payable and, if already paid, the Assembly must repay it to the authority.

(3) An amount payable or repayable by the Assembly to an authority, or vice versa, under paragraph (1) must be paid or repaid in July in the financial year following the year in question (“the second year”).

(4) An amount payable or repayable by the Assembly to an authority, or vice versa, under paragraph (2), must be paid or repaid in July in the financial year following the second year.

Excess amounts — actual surpluses

8

(1) Where, having taken into account the un-audited information and any other relevant information available to it, it appears to the Assembly that the total amount credited to an authority’s FPF in the year in question exceeds the total amount paid out of the authority’s FPF in that year—

(a) where the difference between those total amounts (“the un-audited surplus”) exceeds the total of any amounts paid or payable to it by the authority in relation to that year under rule 6(1) or (2) (“the rule 6 total”), it must require the authority to pay to it the amount of the un-audited surplus less the rule 6 total;

(b) where the un-audited surplus is less than the rule 6 total, the amount of the rule 6 total less the un-audited surplus is not payable under rule 6(1) or (2) and, if already paid, the Assembly must repay it to the authority;

(c) where no amount was paid or payable to it by the authority in relation to the year in question under rule 6(1) or (2), it must require the authority to pay to it the amount of the un-audited surplus; and

(d) any amount paid or payable by it to the authority in relation to that year under rule 5(1) or (2) is not payable and, if already paid, the authority must repay it to the Assembly.

(2) Where, having taken into account the audited information and any other relevant information available to it, it appears to the Assembly that the total amount credited to an authority’s FPF in the year in question exceeds the total amount payable out of the authority’s FPF in that year—

(a) where the difference between those total amounts (“the audited surplus”) exceeds the total of any amounts paid (but not repaid or repayable) or payable to it by the authority in relation to that year under paragraph (1)(a) or (c) or rule 6(1) or (2) (“the un-audited rule 6 total”), it must require the authority to pay to it out of their FPF the amount of the audited surplus less the un-audited rule 6 total;

(b) where the audited surplus is less than the un-audited rule 6 total, the amount of the un-audited rule 6 total less the audited surplus is not payable under paragraph (1)(a) or (c) or rule 6(1) or (2) and, if already paid, the Assembly must repay it to the authority;

(c) where no amount was paid or payable to it by the authority in relation to the year in question under paragraph (1)(a) or (c) or rule 6(1) or (2), it must require the authority to pay to the Assembly the amount of the audited surplus; and

(d) any amount paid or payable by it to the authority in relation to that year under rule 5(1) or (2) or rule 7(1)(a) or (c) is not payable and, if already paid, the authority must repay it to the Assembly.

(3) The Assembly must give to the authority, on or before 3 July in the financial year after the year in question (“the second year”), written notice of the amount of the payment that it requires the authority to make under paragraph (1)(a) or (c).

(4) An amount payable or repayable by the authority to the Assembly, or vice versa, under paragraph (1), must be paid or repaid in July in the second year.

(5) The Assembly must give to the authority, on or before 3 July in the financial year that is the second financial year after the year in question (“the third year”), written notice of the amount of any payment that it requires the authority to make under paragraph (2)(a) or (c).

(6) An amount payable or repayable by the authority to the Assembly, or vice versa, by virtue of paragraph (2), must be paid or repaid in July in the third year.

Duty to provide information

9

(1) An authority must provide the Assembly with such information relevant to the exercise of its functions under this Part as it may, by written notice to the authority, require.

(2) An authority must respond to a request under paragraph (1) within such period as the Assembly specifies in its notice under that paragraph, or such longer period as it may in any particular case allow.

Duty to have regard to guidance

10

An authority must have regard to such guidance as may be issued by the Assembly from time to time for the purposes of this Part.

PART 14 — PAYMENT OF AWARDS

Authorities responsible for payment of awards

1

(1) An award payable to or in respect of a person by reason of that person having been employed as a regular firefighter is payable by the authority by whom the person was last so employed.

(2) An award payable under Part 6 (pension-sharing on divorce) to or in respect of a pension credit member, and any sum paid in commutation of such an award, is payable by the authority which employed the pension debit member from whose rights the pension credit member’s award is derived when the pension sharing order took effect.

Deduction of tax and lifetime allowance charges

2

Where any payment that an authority are required to make under this Scheme is chargeable to tax or subject to a lifetime allowance charge under the Finance Act 2004[^f00045] they shall deduct the amount of tax charged or to be recovered from the payment.

Payment of awards

3

(1) Subject to paragraph (2), while an award is payable under this Scheme it must be paid monthly in arrears.

(2) The authority may—

(a) delay payment, in whole or part, to the extent necessary for determining any question as to their liability; and

(b) where they are of the opinion that, by reason of the amount of the award, its payment monthly in arrears would be impracticable, discharge their liability in respect of it by making payments at such reasonable intervals as they think fit.

(3) Lump sums under Part 5 and, subject to paragraphs (4) and (5), pensions under Part 4 are payable from the day after the date of the death.

(4) A pension under Part 4 in respect of a posthumous child is payable from the date of the child’s birth.

(5) Where—

(a) the authority are not informed of the death of a pensioner; and

(b) a pension to which the pensioner was entitled has continued in payment,

the authority may recover all or part of the overpayment, as they think fit; and may recover it by set-off against any other award payable under this Scheme in respect of the deceased.

(6) Where a person is entitled under rule 8 of Part 3 to the repayment of the person’s aggregate pension contributions, the authority are not obliged to make payment—

(a) until the expiration of a year from the date of the person’s retirement, or

(b) until the person requests payment,

whichever is the earlier.

Pensions under more than one contract of employment

4

Where a person is a member of this Scheme in respect of more than one contract of employment (whether with the same or different authorities), each employment must be treated separately for pension purposes.

Payments for minors and persons incapable of managing their affairs

5

(1) Any sum payable to a minor in respect of an award may, if the authority think fit, be paid to such other person as they may determine, who must, in accordance with any directions given by the authority, apply it for the minor’s benefit.

(2) If it appears to the authority that a person entitled to payment of an award is, by reason of mental disorder or otherwise, incapable of managing that person’s affairs—

(a) they may pay the award or any part of it to a person having the care of the person entitled, or such other person as they may determine, and

(b) insofar as they do not pay the award in that manner, they may apply it in such manner as they think fit for the benefit of the person entitled or that person’s dependants.

Payment of awards; further supplementary provision

6

(1) On the death of a person to whom there was due, in respect of an award, a sum not exceeding the amount specified[^f00046] in any order for the time being in force under section 6 of the Administration of Estates (Small Payments) Act 1965[^f00047], the authority may, without requiring the production of probate or any other proof of entitlement—

(a) where only one person appears to be beneficially entitled to the personal estate of the deceased, pay the sum to that person, or

(b) in any other case, either pay the sum to one of the persons appearing to be so entitled or distribute it among all or any of them in such proportions as the authority may determine.

(2) An assignment of, or charge on, an award is void to the extent that it is in favour of a person other than a dependant of the person entitled to the award.

(3) On the bankruptcy of a person entitled to an award, the award does not pass to any trustee or other person acting on behalf of the creditors.

(4) Subject to paragraphs (5) and (6), where as a result of fraud, theft or negligence on the part of a firefighter in connection with that firefighter’s employment, there has been a loss to the funds of an authority, the authority may withhold all or part of any sums becoming due to that firefighter from the authority in respect of an award.

(5) The total amount withheld under paragraph (4) must not exceed the amount of the loss; and in the event of any dispute as to the amount of the loss, nothing may be withheld unless the loss has become recoverable from the person entitled to the award under the order of a competent court.

(6) There must not in any case be withheld any part of a sum due that is not attributable to service as an employee of an authority.

(7) Where an amount is withheld under paragraph (4), the authority must provide the person entitled to the award with a certificate showing the amount withheld.

PART 15 — MISCELLANEOUS PROVISIONS

Guaranteed minimum pensions, etc.

1

(1) Subject to paragraph (8), paragraphs (2) to (5) of this rule apply where a member has an entitlement to a guaranteed minimum pension under section 14 of the 1993 Act (the member’s “guaranteed minimum”).

(2) If, apart from this rule—

(a) no pension would be payable to the member under this Scheme; or

(b) the weekly rate of the pension payable would be less than the member’s guaranteed minimum,

a pension, the weekly rate of which is equal to the member’s guaranteed minimum, is payable to the member for life from the date on which the member reaches state pensionable age.

(3) Subject to paragraph (4) if, when the member reaches state pensionable age—

(a) the member is still in employment which entitles the member to be a member of this Scheme (“scheme employment”); or

(b) where the member is not in scheme employment, the member consents to a postponement of the member’s entitlement under paragraph (2),

paragraph (2) does not apply until the member leaves employment.

(4) If the member—

(a) continues in employment for a further period of five years after reaching state pensionable age, and

(b) does not then leave it,

the member is entitled from the end of that period to so much of the member’s pension under this rule as equals the member’s guaranteed minimum, unless the member consents to a further postponement of the entitlement.

(5) Where paragraph (3) or (4) applies, the amount of the pension to which the member is entitled under this rule must be increased in accordance with section 15 of the 1993 Act.

(6) This paragraph applies where a person has ceased to be in employment that is contracted-out by reference to the Scheme, and either—

(a) all the person’s rights to benefits under the Scheme, except the person’s rights in respect of the person’s guaranteed minimum or the person’s rights under section 9(2B) of the 1993 Act[^f00048] (“the person’s contracting-out rights”), have been transferred under Part 12, or

(b) the person has no rights to benefits under the Scheme apart from the person’s contracting-out rights.

(7) Subject to paragraph (8), where paragraph (6) applies—

(a) from the date on which the person reaches state pensionable age, the person is entitled to a pension payable for life at a weekly rate equal to the person’s guaranteed minimum, and

(b) from the date on which the person reaches normal retirement age the person is entitled to a lump sum and pension in respect of the person’s rights under section 9(2B) of the 1993 Act,

but a person falling within paragraph (6) is not to be regarded as a pensioner for the purposes of Part 5 (awards on death).

(8) This rule does not apply if—

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