Statutory Instrument 1997 No. 3048 (S.192)

The Local Government Superannuation (Scotland) Amendment (No.4) Regulations 1997

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© Crown Copyright 1997

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Amendment of the Local Government Superannuation (Scotland) Regulations 1987
     2. The Local Government Superannuation (Scotland) Regulations 1987[2] (referred to in these Regulations as "the principal Regulations") shall be amended in accordance with regulations 3 to 37 below.

Interpretation
     3. After regulation A2(1) there shall be inserted-

    " (1A) Schedule 1A shall have effect for the purpose of making further provision as to the meaning of "remuneration".".

Pensionable employees
     4. At the beginning of Part B there shall be inserted-

" Pensionable employees
     B1.  - (1) As from 1st April 1998, a person is a pensionable employee if-


(a) he is an eligible employee as defined in regulation B2, and

(b) he either-


(i) was a pensionable employee before that date, or

(ii) has made, or is deemed to have made, an application under regulation B4,



and has not given any relevant notification under regulation B4A(1) or, if he has given such a notification, has subsequently made an election under regulation B4B(1) to become a pensionable employee.".

Eligible employees
     5. In regulation B2-

(a) for the heading there shall be substituted "Eligible employees";

(b) in paragraphs (1) (except sub-paragraphs (h) and (i)) and (3) for the words "pensionable employees" and "pensionable employee" wherever they occur there shall be substituted "eligible employees" and "eligible employee" respectively;

(c) in paragraph (1)(a), (e) and (f) after the word "whole-time" there shall be inserted the words "or part-time";

(d) paragraph (2) shall be deleted;

(e) in paragraph (3) the words "or (2)" shall be omitted; and

(f) after paragraph (4) there shall be added-

    " (5) For the purposes of these Regulations-


(a) an employee is a variable-time employee if in accordance with his terms of office or contract of employment he is to be treated as such for the purposes of these Regulations and either-


(i) his remuneration is calculated by reference to his obligations in his employment (rather than necessarily by reference to the number of hours he has worked), or

(ii) he holds an office or employment the functions of which are only exercisable on an occasional basis;



(b) an employee is a whole-time employee if his contractual hours are not less than the number of hours which, in accordance with his terms of employment, is the number of contractual hours for a person employed in that employment on a whole-time basis; and

(c) an employee is a part-time employee if he is neither a whole-time employee nor a variable-time employee.



    (6) In these Regulations-



"the contractual hours" means-
(i) the number of hours the employing authority are entitled to require the employee to work in each of the contractual weeks, or

(ii) if there is any cyclical variation in those hours, the average of those hours over the cycle, or

(iii) if there is any variation in those hours which is not cyclical, the average of those hours over the weeks in such period (not exceeding 12 months) as the employing authority consider appropriate, being a period for which, assuming that there will be no unpaid leave of absence, a wage or salary is payable to the employee; and



"the contractual weeks" means the number of weeks in every period of 12 months for which (on that assumption) a wage or salary is payable to the employee.

    (7) Any person who immediately before 1st April 1998 was a pensionable employee, or had the right to make an election to become a pensionable employee, shall not be prevented from being an eligible employee by reason only of the coming into force of paragraph (5).".

Other eligible employees
     6. Regulation B3 shall be deleted.

Opting into pensionable employment
     7. Before regulation B4A there shall be inserted-

" Opting into pensionable employment
     B4.  - (1) Subject to paragraphs (2) to (6), an eligible employee (including a person who is about to take up employment in which he will be an eligible employee) who was not a pensionable employee immediately before 1st April 1998 shall, if he wishes to become a pensionable employee, apply to do so by notice given in writing to his employer or future employer.

    (2) Subject to paragraph (3), a person commencing employment on or after 1st April 1998 who is entitled to make an application under paragraph (1) is deemed to have made an application to become a pensionable employee unless, before commencing his employment, he notifies his employer in writing that he does not wish to become a pensionable employee.

    (3) Paragraph (2) does not apply to a person whose employment is of a casual nature.

    (4) Where a person who has ceased to be employed in an employment in which he was a pensionable employee at the time of cessation commences a new employment in which he is an eligible employee, he is deemed to have made an application to become a pensionable employee unless, before commencing his new employment, he notified his employer in writing that he did not wish to be a pensionable employee.

    (5) An application under this regulation may be withdrawn at any time before the applicant becomes a pensionable employee.

    (6) If an eligible employee is in two or more employments under a single scheduled body, an application under paragraph (1) in respect of any one of them is of no effect unless applications are made in respect of all of them.

Effective date of becoming a pensionable employee
     B4ZA.  - (1) An eligible employee who has or is deemed to have applied under regulation B4 shall become a pensionable employee on the appropriate day.

    (2) In this regulation, "the appropriate day" means-


(a) in the case of a person who has applied under regulation B4(1) at least one month before the date on which he commences his employment (or such lesser period before that date as his employer allows), the date on which he commences his employment or such later date as he has specified in his application;

(b) in any other case where an application is made under that regulation, the first day of the first payment period following the application;

(c) in the case of a person who is deemed to have applied under regulation B4(2) the date on which he commenced his employment.



    (3) In paragraph (2)(b), "payment period" means a period of service to which the employee's payment of wages or salary relates.".

Opting out of pensionable employment
     8. In regulation B4A-

(a) in paragraph (2) there shall be inserted at the beginning the words "Subject to paragraphs (7) and (8),";

(b) paragraph (4) shall be deleted;

(c) at the end there shall be added-

    " (7) Where a person gives notification under paragraph (1) within one month after first becoming a pensionable employee, he shall be treated as never having been a pensionable employee.

    (8) Where-


(a) a person to whom the Local Government Superannuation (Reserve Forces) (Scotland) Regulations 1992[3] apply has given notification under paragraph (1) before ceasing his former employment or beginning his leave of absence in order to perform his relevant service (within the meaning of those Regulations), and

(b) he is still a pensionable employee immediately before he commences his relevant service,



then, subject to paragraph (9), the notification shall be of no effect.

    (9) A person may elect that paragraph (8) is not to apply, by notice given in writing to the appropriate administering authority before the end of the period of 12 months beginning with the end of his relevant service (or within such longer period as they may allow), and they shall take all practicable steps to secure that a person entitled to make such an election is notified of his entitlement.

    (10) Any contributions paid by a person with respect to a period during which, by virtue of a notification under paragraph (1), he is not a pensionable employee shall be returned to him.

    (11) If an eligible employee is in two or more employments under a single scheduled body, a notification under paragraph (1) in respect of any one of them is of no effect unless notifications are given in respect of all of them.".

Rejoining pensionable employment
     9. At the end of regulation B4B there shall be added-

    " (9) If an eligible employee is in two or more employments under a single scheduled body, an election under paragraph (1) in respect of any of them is of no effect unless elections are made in respect of all of them.".

Power to admit employees of other bodies
     10. In regulation B6 in paragraphs (2) and (5) for the words "a pensionable employee" there shall be substituted the words "an eligible employee".

Purchase by part-time employees of additional periods of reckonable service
     11. After regulation C6A there shall be inserted-

" Purchase by part-time employees of additional periods of reckonable service
     C6B.  - (1) Subject to the following provisions of this regulation, where a person makes an election under regulation C6 in relation to a part-time employment to make additional contributions-


(a) the period he may reckon as an additional period of reckonable service under regulation D5 is the appropriate fraction of the period he would be entitled to reckon in respect of that period if he were a whole-time employee ("the notional whole-time period");

(b) the maximum which applies in his case by virtue of regulation C6(2) is the appropriate fraction of the maximum which would apply in his case if he were a whole-time employee; and

(c) the amount to be paid by him in accordance with Part II of Schedule 5 shall be calculated in the same manner as if he were a whole-time employee purchasing the notional whole-time period, but taking his remuneration as his actual remuneration for the time being (and not the remuneration he would have been paid for a single comparable whole-time employment).



    (2) In paragraph (1) "appropriate fraction", in relation to an employee, means the fraction of which the numerator is the number of his contractual hours and the denominator is the number of contractual hours of a single comparable whole-time employment.

    (3) Where any person has made an election under regulation C6, if-



(a) his employment ceases to be part-time and becomes whole-time employment;

(b) his employment ceases to be whole-time and becomes part-time employment; or

(c) his contractual hours in the part-time employment alter,



his additional contributions shall continue to be payable at the same percentage of his pay but the additional period counted by reason of contributions paid after the change shall be calculated as if the change had occurred immediately before the election.

    (4) The previous provisions of this regulation do not apply to an election made by a person under regulation C6 before 12th January 1998 but,if he so elects by notice in writing to the appropriate administering authority, then-



(a) payments made by him on and after the date when the election takes effect shall be made by reference to his actual remuneration for the time being; and

(b) the period of reckonable service which he is entitled to count by virtue of them shall be calculated on the same basis as if the previous provisions of this regulation had always applied in respect of his election.



    (5) A person may not make an election under paragraph (4) after attaining the age of 64 years.".

Reckonable service
     12. In regulation D1(2) after sub-paragraph (a) there shall be inserted-

" (aa) any period during which he is absent from duty by reason of illness or injury (whether or not he has paid such contributions for it),".

Guaranteed minimum pension for certain pensionable employees and their widows
     13. In regulation E1-

(a) in paragraph (3) after the word "and" where it first appears there shall be inserted the words ", in relation to service before 6th April 1997,"; and

(b) in paragraph (4) for the words from "in the tax years" to the end there shall be substituted the words "for the period beginning with the tax year 1988-89 and ending with the tax year 1996-97, be increased in accordance with the requirements of section 109 of the Pension Schemes Act 1993[4]".

Revaluation of guaranteed minimum in certain cases
     14. For regulation E1A there shall be substituted-

     " E1A.  - (1) This regulation applies where-


(a) a person has ceased to be a pensionable employee; and

(b) the guaranteed minimum in relation to his pension is appropriately secured (within the meaning of section 19 of the Pension Schemes Act 1993).



    (2) The earnings factors of such a person shall be determined for the purposes of section 14(2) of that Act-



(a) by reference to the last order under section 21 of the Social Security Pensions Act 1975[5] or section 148 of the Social Security Administration Act 1992[6] to come into force before the end of the tax year in which he ceased to be a pensionable employee; and

(b) without reference to the last such order to come into force before the end of the final relevant year.



    (3) The weekly equivalent mentioned in section 14(2) of the Pension Schemes Act 1993 shall be increased by at least the prescribed percentage for each relevant year after the end of the tax year in which he ceased to be a pensionable employee and in accordance with such additional requirements as may be prescribed for the purposes of section 16(3)[7] of that Act.

    (4) In this regulation-



"relevant year" and "final relevant year" have the meanings given respectively in sections 14(8)[8] and 16(5) of that Act;
"prescribed percentage" has the meaning given in regulation 62 of the Occupational Pension Schemes (Contracting-out) Regulations 1996[9].".

Entitlement to preserved benefits on transfer to a new authority under the Local Government etc. (Scotland) Act 1994 or on dissolution of a development corporation
     15. After regulation E2 there shall be inserted-

" Entitlement to preserved benefits on transfer to a new authority under the Local Government etc. (Scotland) Act 1994 or on dissolution of a development corporation
     E2A.  - (1) Where a person has suffered a reduction of remuneration within the meaning of regulation E24-


(a)


(i) on transferring from an existing local authority to a new authority under or by virtue of an order under section 8 of the Local Government etc. (Scotland) Act 1994[10] or that section as extended by section 97 or 137 of that Act, or

(ii) on ceasing to be employed by a development corporation established under the New Towns (Scotland) Act 1968[11] and obtaining employment with a new authority, all as a consequence of the dissolution (or proposed dissolution) of that corporation; or



(b) after such transfer or change of employment and before 30th June 1997, which reduction is attributable to any provision of, or made under, the said Act of 1994,



and is in respect of that reduction entitled to be issued with a certificate under regulation E24, he may instead, unless at the date of transfer he fulfils the conditions of regulation E2(1)(a) or (b), elect to take preserved benefits in relation to his employment with the existing local authority.

    (2) An election for the purposes of paragraph (1) shall be made by giving notice in writing to the appropriate administering authority and the employing authority within 12 months after the date of the reduction in remuneration or 6 months after 12th January 1998 whichever is the later.

    (3) Where such an election is validly made, the person shall-



(a) notwithstanding any provision of the Local Government etc. (Scotland) Act 1994 regarding persons transferred, be treated for the purposes of these Regulations, other than regulations C12, E16 and E17, as having ceased to hold his employment with the existing local authority and as having entered a new local government employment at the date of transfer; and

(b) not be entitled to issue of a certificate under regulation E24 and any such certificate already issued shall cease to have effect.



    (4) In paragraph (1)



"existing local authority" has the same meaning as in section 9 of the Local Government etc. (Scotland) Act 1994 except that-
(a) in relation to persons transferring to a water and sewerage authority, it includes an island council and the Central Scotland Water Development Board established under section 3 of the Water (Scotland) Act 1967[12]; and

(b) in relation to persons transferring to the Scottish Children's Reporter Administration, it includes an islands council;


"new authority" means-
(a) any of the following established under the Local Government etc. (Scotland) Act 1994-


(i) a council established under section 2;

(ii) a water and sewerage authority established under section 62(1); or

(iii) the Scottish Children's Reporter Administration established under section 128; or



(b) a joint board the constituent authorities of which are all councils established under the said section 2.".

[2] 1987/1850, amended by S.I. 1988/625, 1989/422, 802 and 967, 1990/422 and 1284, 1991/78, 1992/1220, 1597 and 3025, 1993/1593, 2013 and 3044, 1994/531, 1995/214, 750, 2865 and 3294, 1996/414 and 1241 and 1997/674, 1143, 1373 and 1435.back

[3] S.I. 1992/1220.back

[4] 1993 c.48.back

[5] 1975 c.60; section 21 was repealed by the Social Security (Consequential Provisions) Act 1992 (c.6), section 3(1) and Schedule 1.back

[6] 1992 c.5.back

[7] 1993 c.48; section 16(3) was amended by the Pensions Act 1995 (c.26), Schedule 5, paragraph 28.back

[8] Section 14(8) was amended by the Pensions Act 1995, Schedule 5, paragraph 27.back

[9] S.I. 1996/1172.back

[10] 1994 c.39.back

[11] 1968 c.16.back

[12] 1967 c.78.back