Citation, commencement and effect

1.  These Regulations may be cited as the National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2008 and come into force on 28th June 2008 but have effect from 1st April 2008(3).

Amendment of the National Health Service Superannuation Scheme (Scotland) Regulations 1995

2.  The National Health Service Superannuation Scheme (Scotland) Regulations 1995(4) are amended in accordance with regulations 3 to 64 of these Regulations.

Amendment of regulation A2

3.—(1) Regulation A2(4) (interpretation) is amended as follows.

(2) Insert the following definitions in the appropriate place in alphabetical order–

(3) For the meaning of “final year’s pensionable pay” substitute “The meaning given in regulation C1”.

Replacement of regulation B2

4.  For regulation B2 (age limits and restrictions on membership) substitute–

“Age limits and restrictions on membership

B2.—(1) A person is not eligible to join the scheme if–

(a) that person is–

(i) under the age of 16;

(ii) over the age of 75; or

(iii) over the age of 70 on or before 31st March 2008;

(b) that person is a special class officer over the age of 65;

(c) that person is an officer in “contributory service” under the Teachers' Superannuation (Scotland) Regulations 2005(6) in any hospital vested in the Scottish Ministers;

(d) that person holds an honorary appointment and does not at the same time hold any other employment which entitles him to join the scheme;

(e) that person, on or after 1st April 2008, enters NHS employment for the first time and has not previously been a member of the scheme;

(f) that person, on or after 1st April 2008, returns to NHS employment and was entitled to a refund of contributions under regulation E9 (early leavers' entitlement to refund of contribution) when he last left employment, unless paragraph (4), but not paragraph (5), of regulation L1 (treatment of pensionable service of early leavers returning to pensionable employment) applies to that person;

(g) that person–

(i) leaves pensionable employment on, or after, 1st April 2008; and

(ii) before returning to NHS employment, exercises his right to transfer out all of his benefits in the scheme in accordance with regulation M1 (member’s right to transfer or buy-out) or M2 (exercising a right to transfer or buy-out); or

(iii) that person has been a member of the National Health Service Pension Scheme whose membership was determined by the National Health Service Pension Scheme Regulations 2008(7).

(2) In paragraph (1), “pensionable employment” includes employment that qualified the member for a benefit under a health service scheme.

(3) The Scottish Ministers may permit a person who would otherwise not be eligible to join the scheme in accordance with paragraph (1)(f) to (h) to do so if–

(a) that person’s employment is transferred to an employing authority by virtue of a transfer of undertakings or by virtue of arrangements equivalent to a transfer of undertakings (whether or not the transferring employer is in the public sector provided that person’s employment was originally transferred out of the public sector); and

(b) the employment from which the member is transferred–

(i) qualified the member for benefits under an occupational pension scheme; and

(ii) the rules of that scheme (in the opinion of the Scottish Ministers) entitle the member to receive benefits on retirement upon, or prior to, attaining the age of 60.

(4) The reference in paragraph (3)(a) to arrangements equivalent to a transfer of undertakings is to arrangements–

(a) which the Scottish Ministers consider to be equivalent to the transfer of an undertaking; and

(b) under which the parties to the arrangements have agreed that the rights of the persons whose employments are being transferred should as far as practicable be treated in the same way as they would have been under a transfer of an undertaking.

(5) For the purposes of paragraph (3)(b)(ii) a person is not to be treated as being entitled under the rules of a pension scheme to receive benefits upon, or prior to, attaining the age of 60 years, where such entitlement arises by virtue of any scheme rule making special provision–

(a) as to early retirement on the grounds of ill health, redundancy or otherwise; or

(b) for benefits to be reduced for early payment.

(6) Before permitting a person referred to in paragraph (3) to join the scheme the Scottish Ministers must take advice from the scheme actuary.”.

Amendment of regulation B3

5.—(1) Regulation B3 (restrictions on further participation in the scheme) is amended as follows.

(2) For paragraph (1) substitute –

“(1) Members who–

(a) cease to satisfy the conditions for eligibility for membership specified in regulation B1(1); or

(b) opt out of the scheme in accordance with regulation B4,

may not continue to contribute to or accrue further pensionable service under the scheme.”.

(3) In paragraph (2)–

(a) omit “applies” where it first occurs; and

(b) after “(further pensionable employment under the age of 50 after early retirement pension (ill health) becomes payable)” insert “, E2A(11) (ill health pension on early retirement) applies”.

Amendment of regulation C1

6.—(1) Regulation C1 (meaning of “pensionable pay”) is amended as follows.

(2) After paragraph (1) insert–

“(1A) Paragraphs (2) to (4) and (5) to (6) apply in respect of pensionable employment before 1st April 2008.”.

(3) After paragraph (4) insert–

“(4A) Paragraphs (4B) to (6) apply in respect of pensionable employment on, or after, 1st April 2008.

(4B) Subject to paragraph (4C), pensionable pay in excess of the permitted maximum will not be ignored.

(4C) Pensionable pay in excess of the permitted maximum will be ignored in respect of additional service being bought under regulation Q1 (right to buy additional service) and an unreduced lump sum being bought under regulation Q2 (right to buy an unreduced retirement lump sum) if–

(a) the member elected to make such a purchase under regulation Q6(3) (electing to buy additional service or unreduced retirement lump sum) from a birthday falling before 1st April 2008;

(b) the member’s pensionable pay was restricted under paragraph (2) before that date; or

(c) the member’s pensionable pay would have been restricted under that paragraph if it had exceeded the permitted maximum.”.

(4) After paragraph (5) insert–

“(5A) Subject to paragraph (5B), in these Regulations “final year’s pensionable pay” means pensionable pay in respect of the member’s last year of pensionable employment, ending on the date the member ceases to be in such employment, or dies, whichever occurs first, except–

(a) if the member was in pensionable employment for less than 12 months, “final year’s pensionable pay” means–

(b) ifFormula pensionable pay was greater in either or both of the two consecutive years immediately preceding the last year, “final year’s pensionable pay” means pensionable pay in respect of the year immediately preceding the last year or, if greater, pensionable pay in respect of the first of those two consecutive years.

(5B) If the pensionable pay of a member credited with any period of pensionable service under regulation N2 (transfers made under the public sector transfer arrangements) or N4 (special terms for transfers in (bulk transfers etc.)) has exceeded the permitted maximum and either–

(a) paragraph 20 of Schedule 6 to the Finance Act 1989(8) applied to the member without the modification made by regulation 5 of the Retirement Benefits Schemes (Continuation of Rights of Members of Approved Schemes) Regulations 1990(9) in respect of benefits derived from all or part of that service under the transferring scheme; or

(b) any equivalent scheme provision applied to the member in respect of all or part of that service when that person was a member of the transferring scheme from which the transfer was accepted,

that excess shall be ignored for the purposes of calculating the final year’s pensionable pay under paragraph (5A) in respect of the corresponding period of pensionable service credited under regulation N2 or N4.”.

(5) For paragraph (6) substitute–

“(6) In this regulation, “permitted maximum” means–

(a) in relation to any tax year before the tax year 2006 07, the figure specified for that tax year in an order made under section 590C of the Income and Corporation Taxes Act 1988(10); or

(b) subject to paragraphs (7) and (8), the figure for any later year is £108,600.

(7) If the retail prices index for the month of September preceding the tax year 2007 08 or any later tax year is higher than it was for the previous September, the figure for that year is an amount arrived at by–

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

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

(8) If the retail prices index for the month of September preceding the tax year 2007 08 or the month of September preceding any later tax year is not higher than it was for the previous September, the figure for that year shall be the same as for the previous tax year.”.

Amendment of regulation C2

7.—(1) Regulation C2 (meaning of “pensionable service”) is amended as follows.

(2) After paragraph (2)(f) insert–

“(g) in the case of a member who is not a special class officer, any period of pensionable service in excess of 40 years that relates to a period before–

(i) the member’s 60th birthday; and

(ii) 1st April 2008.”.

(3) For paragraph (4) substitute–

“(4) Subject to paragraph (2), the benefits described in these Regulations will be calculated by reference to a maximum of–

(a) 45 years' pensionable service in the case of a member who is not a special class officer; and

(b) 45 years' pensionable service (of which only 40 years may relate to the period before the member reaches age 55) in the case of a member who is a special class officer),

and if the member’s pensionable service exceeds these limits, the amount of the excess will be ignored.”.

Amendment of regulation C4

8.  For regulation C4(6) (pensionable service in respect of part time employment) substitute–

“(6) If a member with pensionable service in part-time employment becomes entitled to a pension under regulation E2 (early retirement pension (ill health)), E2A (ill health pension on early retirement), E3 (early retirement pension (redundancy etc.)) or E3A (early retirement pension (redundancy etc., new starters and post-transition))–

(a) the member’s pensionable service in part-time employment will count at its full length for the purpose of calculating–

(i) whether and (if so) to what extent, the pensionable service upon which the pension under regulation E2 or E2A is based should be increased under either of those regulations; or

(ii) the qualifying service for the purposes of regulation E3(2)(a) or regulation E3A(2)(a); and

(b) the pension will be based on the whole-time equivalent of the period of part time employment and, in the case of a pension under regulation E2 or E2A, the increase under either of those regulations will be limited to such amount as bears the same proportion to the amount that would have been paid had the pensionable service not been part-time as the whole time equivalent bears to comparable whole time employment.”.

Amendment of regulation D1

9.—(1) Regulation D1 (contributions by members) is amended as follows.

(2) For paragraphs (1) and (2) substitute–

“(1) Each member in pensionable employment must contribute to the scheme in accordance with the following paragraphs of this regulation.

(1A) For the 2008–2009 scheme year a member who meets one of the conditions referred to in paragraph (1B) must contribute 5 per cent of the member’s pensionable pay.

(1B) The conditions referred to in paragraph (1A) are–

(a) the member is in pensionable employment on both 31st March 2008 and 1st April 2008 with the same employer and that employment is by way of manual labour; or

(b) the member returns to pensionable employment on or after 1st April 2008 and both that employment and the period of pensionable employment immediately preceding that employment is by way of manual labour.

(1C) For the 2008–2009 scheme year paragraph (1D) applies to a member who does not meet any of the conditions referred to in paragraph (1B).

(1D) For the 2008–2009 scheme year, a member whose pensionable pay falls into a pay band specified in column 1 of the following table must contribute the percentage of the member’s pensionable pay specified in column 2 of that table in respect of that amount.

(2) The Scottish Ministers may make a determination substituting any or all of the pay bands or contribution percentage rates specified in paragraphs (1A) and (1D) with effect from a date specified in the determination.

(2A) Before making a determination under paragraph (2), the Scottish Ministers must consider–

(a) the advice of the scheme actuary; and

(b) in accordance with regulation U4 (cost sharing), advice from such employee and employer representatives as the Scottish Ministers consider appropriate.

(2B) For the purposes of this regulation “primary employment” means a single pensionable employment for which an employing authority specifies the member’s working hours or working patterns.

(2C) For the purposes of determining the relevant contribution percentage rate for the 2008–2009 scheme year paragraphs (2D) to (2J) apply to a member who is in pensionable employment with the same employing authority on both 31st March 2008 and 1st April 2008.

(2D) For the purposes of paragraphs (2E) to (2J)–

(a) a member shall be regarded as being in pensionable employment throughout the 2007–2008 scheme year regardless of any period in that year during which the member continues to be employed by the same employer but does not make contributions to the scheme;

(b) for the purposes of calculating the member’s pensionable pay, contributions for any period referred to in sub-paragraph (a) shall be deemed to have been paid;

(c) the amount of pensionable earnings determined in accordance with those paragraphs shall be rounded down to the nearest whole pound; and

(d) if a member holds two or more pensionable employments at the same time–

(i) the determinations referred to in those paragraphs apply to each such employment separately; and

(ii) each such employment shall be treated separately for the purpose of paying contributions.

(2E) If a member–

(a) was in pensionable employment with an employing authority on a whole-time basis throughout the 2007–2008 scheme year; and

(b) is employed by that authority on 1st April 2008,

the member must pay contributions at the rate specified in column 2 of the table in paragraph (1D) in respect of the amount of pensionable pay referred to in column 1 of that table which corresponds to the member’s pensionable pay received during that year.

(2F) If a member–

(a) was in pensionable employment with an employing authority on a part-time basis throughout the 2007–2008 scheme year; and

(b) is employed by that authority on 1st April 2008,

the amount of the member’s pensionable pay shall be determined by reference to the amount the Scottish Ministers determine would have been paid in respect of a single comparable whole-time employment during that year.

(2G) If a member–

(a) was in pensionable employment with an employing authority on a combination of a whole-time and part-time basis throughout the 2007–2008 scheme year; and

(b) is employed by that authority on 1st April 2008,

the amount of the member’s pensionable pay shall be the aggregate of the member’s pensionable pay received during that year in respect of the member’s whole-time employment and the amount the Scottish Ministers determine would have been paid in respect of a single comparable whole-time employment for that period in respect of the member’s part-time employment.

(2H) If a member–

(a) commences pensionable employment with an employing authority on a whole-time basis during the 2007–2008 scheme year; and

(b) is employed by that authority on 1st April 2008,

the amount of the member’s pensionable pay shall be determined by the formula–

(2I) If a member–

(a) commences pensionable employment with an employing authority on a part-time basis during the 2007–2008 scheme year; and

(b) is employed by that authority on 1st April 2008,

the amount of the member’s pensionable pay shall be determined by the formula–

(2J) If a member–

(a) commences pensionable employment with an employing authority during the 2007–2008 scheme year and has since been employed on both a whole-time and part-time basis; and

(b) is employed by that authority on 1st April 2008,

the amount of the member’s pensionable pay shall be determined by the formula–

(2K) Subject to paragraph (2P), if a member–

(a) commences primary employment at any time during the 2008–2009 scheme year; and

(b) does not have a previous primary pensionable employment during that scheme year in respect of which the member paid contributions under this regulation,

the member must pay contributions at the rate specified in column 2 of the table in paragraph (1D) in respect of the amount of pensionable pay referred to in column 1 of that table which corresponds to the member’s pensionable pay determined in accordance with paragraph (2O).

(2L) If, at any time during the 2008–2009 scheme year, a member who is in a primary employment (“the earlier employment”) commences a further primary employment (“the later employment”) that is held concurrently with the earlier employment, the member must pay contributions at the rate specified in column 2 of the table in paragraph (1D) in respect of the amount of pensionable pay referred to in column 1 of that table which corresponds to the member’s pensionable pay determined in accordance with paragraph (2O).

(2M) If a member–

(a) ceases to be in a primary employment (“the earlier employment”) that is not held concurrently with another primary employment at any time during the 2008–2009 scheme year;

(b) after so ceasing next commences a further primary employment (“the later employment”); and

(c) that further employment is not held concurrently with another primary employment,

the member must continue to pay contributions in respect of the later employment at the same rate as that which applied to the earlier employment.

(2N) If a member–

(a) at any time during the 2008–2009 scheme year ceases to be in two or more primary employments that were at one time held concurrently with each other (“the earlier employments”);

(b) those earlier employments did not all cease on the same day; and

(c) that member next commences a further primary employment (“the later employment”),

the member must continue to pay contributions in respect of the later employment at the same rate as that which applied to whichever of the earlier employments was the last to cease.

(2O) Where paragraph (2K) or (2L) apply the Scottish Ministers must determine the member’s pensionable pay–

(a) by applying the formula–

(b) if the later employment is part-time employment, by determining how much would be paid in respect of a single whole-time comparable employment,

with the amount determined under sub-paragraph (a) being the member’s pensionable pay for the purposes of this regulation if the later employment is whole-time employment and the amount determined under sub-paragraph (b) being the member’s pensionable pay for the purposes of this regulation if the later employment is part-time employment.

(2P) If a member–

(a) at any time during the 2008–2009 scheme year is in pensionable employment in respect of which he pays contributions in accordance with paragraph (10) of Schedule 1 (“the earlier employment”);

(b) ceases all such earlier pensionable employments; and

(c) after so ceasing, next commences a primary employment which is the first primary employment held by the member during the 2008–2009 scheme year (“the later employment”),