The Teachers’ Pensions (Miscellaneous Amendments) Regulations 2008
Made
28th February 2008
Laid before Parliament
7th March 2008
Coming into force
1st April 2008
The Secretary of State for Children, Schools and Families makes the following Regulations in exercise of the powers conferred by sections 9 and 12 of, and Schedule 3 to, the Superannuation Act 1972(1).
In accordance with section 9(5) of that Act, he has consulted with representatives of local education authorities and of teachers and with representatives of other persons likely to be affected.
In accordance with section 9(1) of that Act these Regulations are made with the consent of the Treasury(2).
In regulation 12(6) for “the period of 5 years” substitute “a period specified in the notice, being a period of no less than 5 years and no more than 10 years”.
In paragraph (1) of regulation B1 (which makes general provision about pensionable employment) for “regulations B4 to B6” substitute “regulations B4 to B6A”.
(2)
After regulation B6 insert—
B6A.
“Discounted periods of pensionable employment where teachers’ contributions are not made
(1)
This regulation applies where—
(a)
the Secretary of State makes a demand under paragraph (2) of regulation C18 in respect of contributions of any of the kinds referred to in paragraph (1)(a) of that regulation (“the demand”);
(b)
the whole of the sum so demanded has not been paid at the end of the period of 3 years beginning on the date on which the demand is made;
(c)
the Secretary of State decides that this regulation should apply and gives written notice to that effect to the person to whom the demand was given; and
(d)
where any amount has been paid to the Secretary of State in part satisfaction of the demand, the Secretary of State repays that amount to the person on giving the notice referred to in sub-paragraph (c).
(2)
Any period of employment to which the contributions referred to in paragraph (1)(a) relate is not to be treated as a period of pensionable employment for the purposes of these Regulations.”.
In regulation C1 (which makes provision about the salary on which contributions are payable)—
(a)
in paragraph (8)—
(i)
for “paragraphs (9) and (10)” substitute “regulation C1A”, and
(ii)
omit “in terms of section 590C of the Taxes Act”;
(b)
omit paragraphs (9), (10) and (11); and
(c)
in paragraph (12), after the definition of “pay order” insert—
““permitted maximum” has the meaning given to it by regulation 1(2) of the Registered Pension Schemes (Modification of the Rules of Existing Schemes) Regulations 2006(6);”.
(2)
After regulation C1 insert—
C1A.
“Removal of the cap on contributable salary
(1)
Regulation C1(8) only applies to a person—
(a)
who is a relevant person, and
(b)
in respect of whom that regulation has not ceased to apply by virtue of paragraph (2).
(2)
Regulation C1(8) will cease to apply (in accordance with paragraphs (9) to (11)) to a relevant person—
(a)
who on or after 1st April 2008 elects in accordance with paragraph (4) for that provision not to apply for the purposes of determining the amount of the person’s contributable salary; or
(b)
who does not make such an election but the circumstances specified in paragraph (5) or (8) apply to that person.
(3)
In this regulation a “relevant person” is a person—
(a)
who is in pensionable employment immediately before 1st April 2008; and
(b)
who immediately before that date is a person to whom regulation C1(8) applies.
(4)
The election referred to in paragraph (2)(a) must—
(a)
be made by giving written notice to the Secretary of State;
(b)
include a written notice from the person’s employer confirming that the employer consents to regulation C1(8) not applying for the purposes of determining the amount of the person’s contributable salary; and
(c)
be received by the Secretary of State on or before 31st December 2008.
(5)
Subject to paragraph (7), the circumstances are that at any time on or after 1st April 2008 the relevant person referred to in paragraph (2)(b) begins a new employment.
(6)
For the purposes of paragraph (5), a person is to be treated as beginning a new employment if the person—
(a)
begins pensionable employment with an employer who is different from the employer in relation to the pensionable employment referred to in paragraph (3)(a), or
(b)
continues in pensionable employment with the same employer but in a new post under a different contract of employment.
(7)
Paragraph (5) does not apply where the person begins pensionable employment with a different employer by reason of a transfer of undertakings.
(8)
The circumstances are that at any time on or after 1st April 2008—
(a)
the contract of employment of the relevant person is varied so that he is required to undertake functions which are materially different from those the person was required to undertake before the variation was made; and
(b)
the employer gives written notice to the Secretary of State of the variation of the person’s contract of employment.
(9)
In the case of a person to whom paragraph (2)(a) applies, regulation C1(8) ceases to apply on the last day of the month in which notice of the election is received by the Secretary of State in accordance with paragraph (4).
(10)
In the case of a person to whom paragraphs (2)(b) and (5) apply, regulation C1(8) ceases to apply immediately before the date on which the person begins the new employment referred to in paragraph (5).
(11)
In the case of a person to whom paragraphs (2)(b) and (8) apply, regulation C1(8) ceases to apply immediately before the date on which the variation in the contract of employment takes effect.”.
(3)
In regulation D1(1) for “regulation D2” substitute “regulations D2 and D5”.
(4)
After regulation D4 insert—
D5.
“Calculation of reckonable service where cap on contributable salary is removed
(1)
This regulation applies for the purposes of determining the length of reckonable service of a person—
(a)
who is a relevant person within the meaning of paragraph (3) of regulation C1A (removal of the cap on contributable salary); and
(b)
who has made the election referred to in paragraph (2)(a) of that regulation, or is a person to whom paragraph (2)(b) and either paragraph (5) or (8) of that regulation apply.
(2)
The reckonable service of such a person is (rounded up to the nearest day)—
where—
A
is the aggregate of periods of uncapped reckonable service;
B
is the aggregate of periods of capped reckonable service;
C
is the permitted maximum which has effect on the relevant date; and
D
is—
(a)
the amount of the person’s contributable salary in the period of 12 months ending on—
(i)
in a case to which paragraph (2)(a) of regulation C1A applies, the last day of the month in which notice of the election is received by the Secretary of State in accordance with paragraph (4) of that regulation;
(ii)
in a case to which paragraphs (2)(b) and (5) of regulation C1A apply, the last day of the person’s pensionable employment referred to in paragraph (3)(a) of that regulation; or
(iii)
in a case to which paragraphs (2)(b) and (8) of regulation C1A apply, the day immediately before the date on which the variation of the contract of employment takes effect; or
(b)
where the amount referred to in sub-paragraph (a) is less than the permitted maximum, the permitted maximum.
(3)
In this regulation—
(a)
the reference to periods of capped reckonable service are to periods of employment or service which apart from this regulation the person would be entitled to count as reckonable service in accordance with the provisions of this Part, and in respect of which—
(i)
regulation C1(8) applies; or
(ii)
in the case of transferred-in service, the benefits payable in respect of the employment or service under the relevant pension scheme were subject to the limits imposed under section 590C of the Taxes Act(7) or regulation 4 of the Registered Pension Schemes (Modification of the Rules of Existing Schemes) Regulations 2006;
(b)
references to periods of uncapped reckonable service are to any periods which apart from this regulation the person would be entitled to count as reckonable service in accordance with the provisions of this Part and which are not periods of capped reckonable service;
(c)
“permitted maximum” has the meaning given in regulation C1(12);
(d)
in paragraph (3)(a)—
(i)
the reference to transferred-in service is to service which the person is entitled to count as reckonable service by virtue of regulation F4(8) (acceptance of transfer values) or regulation F4A(3) (acceptance of transfer values as part of a bulk transfer); and
(ii)
the reference to the relevant pension scheme, in relation to transferred-in service, is to the previous scheme (within the meaning of regulation F4(1)) or, as the case may be, the pension scheme under which the past service pension rights referred to in regulation F4A(1) had accrued;
(e)
the reference to the amount of contributable salary received by the person is to the amount of contributable salary calculated in accordance with regulations C1 and C2, but disregarding paragraph (8) of regulation C1; and
(f)
the relevant date is—
(i)
in the case of a person to whom paragraph (2)(a) of regulation C1A applies, the first day of the first month after the date on which notice of the election is received by the Secretary of State in accordance with paragraph (4) of that regulation;
(ii)
in the case of a person to whom paragraphs (2)(b) and (5) of regulation C1A apply, the date on which the person begins the new employment referred to in paragraph (5) of that regulation; or
(iii)
in the case of a person to whom paragraphs (2)(b) and (8) of regulation C1A apply, the date on which the variation of the contract of employment takes effect.”.
(5)
In regulation E28 (which makes provision about the amount of a surviving spouse’s, surviving civil partner’s, surviving nominated partner’s or nominated beneficiary’s long term pension)—
(a)
in paragraph (4), after “paragraphs (3), (5)” insert “, (7C)”;
(b)
in paragraph (6), for “paragraph (3)” substitute “paragraphs (3) and (7C)”;
(c)
in paragraphs (7) to (7B), in each case after “paragraphs (3)” insert “, (7C)”; and
(d)
after paragraph (7B) of regulation E28 insert—
“(7C)
Regulation D5 has effect for the purpose of calculating the length of the family benefit service of a deceased person, who was a person to whom paragraph (1) of that regulation applied, as that regulation would have had effect for the purpose of calculating the person’s reckonable service.
(7D)
For the purposes of paragraph (7C)—
(a)
references in regulation D5 to reckonable service shall be taken as references to family benefit service; and
(b)
references in paragraph (3)(a) and (b) of that regulation to the provisions of Part D shall be taken as references to paragraphs (3) to (7B) of this regulation.”.
(6)
In the second column of Schedule 1—
(a)
in the definition of “Permitted maximum”, for “Construe” substitute “Except as provided in regulations C1(12) and D5(2), construe”; and
(b)
for the definition of “Transfer of undertakings” substitute—
“Means—
(a)
where the transfer takes place on or after 6th April 2006, a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006(8); and
(b)
where the transfer takes place before that date, a transfer of undertakings within the meaning given by the Transfer of Undertakings (Protection of Employment) Regulations 1981(9).”.
In regulation C3C(11)(election in respect of additional benefits) for paragraph (1) substitute—
(1)
Any person in pensionable employment—
(a)
who has not attained the normal pension age, or
(b)
who is a pre-2007 entrant who has attained the age of 60 years but has not attained the age of 65 years,
may at any time elect to pay additional contributions in accordance with Schedule 2A in order to be credited with additional benefits.”.
(2)
In Schedule 2A(12)(election in respect of additional benefits)—
(a)
in paragraph 4—
(i)
in sub-paragraph (a) after “the normal pension age” insert “unless the person falls within sub-paragraph (aa)”and omit “and” at the end of that sub-paragraph;
(ii)
after sub-paragraph (a) insert the following—
(aa)
where the election is made by a person who is a pre-2007 entrant who has attained the age of 60 years, the period ends before the person attains the age of 65 years, and”; and
(b)
in paragraph 27(b), after “the normal pension age” insert “or, where the election is made in respect of a person who is a pre-2007 entrant who has attained the age of 60 years, the age of 65 years”.
In paragraph (2) of regulation EA1(13)(which defines various terms) after “in paragraph (3)” insert “or the condition in paragraph (3A)”.
(2)
After paragraph (3) of that regulation insert—
“(3A)
The condition is that—
(a)
the person enters pensionable employment on or after 1st January 2007;
(b)
the person enters pensionable employment by virtue of a transfer of undertakings or by virtue of arrangements equivalent to a transfer of undertakings; and
(c)
immediately before entering pensionable employment the person was—
(i)
in employment pensionable under a public service pension scheme, and
(ii)
entitled under the rules of that scheme to receive benefits on retirement from such employment before or on attaining the age of 60 years.
(3B)
In paragraph (3A)—
(a)
“public service pension scheme” has the same meaning as in section 1 of the 1993 Act(14) except that it does not include an occupational pension scheme established under section 7 of the Superannuation Act 1972; and
(b)
the reference to arrangements equivalent to a transfer of undertakings is to arrangements—
(i)
which do not constitute a transfer of undertakings, but
(ii)
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 undertakings.
(3C)
For the purposes of paragraph (3A)(c)(ii) a person is not to be treated as being entitled under the rules of a pension scheme to receive benefits before or on 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 grounds of ill health, redundancy or otherwise, or
