The Scottish Ministers, in exercise of the powers conferred by section 26 of the Fire Services Act 1947[1], section 8 of the Fire Services Act 1959[2], sections 12 and 16 of the Superannuation Act 1972[3] and of all other powers enabling them in that behalf, and after consultation with the Scottish Central Fire Brigades Advisory Council, hereby make the following Order: Citation, commencement, effect and extent 1. - (1) This Order may be cited as the Firemen's Pension Scheme (Pension Sharing on Divorce) (Scotland) Order 2001. (2) This Order shall come into force on 5th October 2001 and shall have effect from 1st December 2000. (3) This Order extends to Scotland only. Amendment of the Firemen's Pension Scheme Order 1992 2. The Firemen's Pension Scheme Order 1992[4] ("the 1992 Order") shall be amended in accordance with articles 3 to 5 of this Order. Pension sharing on divorce 3. After Part M of Schedule 2 to the 1992 Order there shall be inserted- Interpretation of Part N N1. - (1) The definitions of expressions contained in Parts I and IA[5] of Schedule 1 to this Scheme shall, unless the context indicates that they have a different meaning, apply for their interpretation in this Part of the Scheme. (2) All provisions in Parts A to M of this Scheme shall, unless the context indicates otherwise, be subject to the provisions of this Part. Pension sharing mechanism in the Scheme N2. - (1) Pension sharing is available under this Scheme in respect of any of a person's shareable rights under this Scheme except as otherwise provided in this rule. (2) Excluded from shareable rights for the purposes of this Part of this Scheme are any rights under this Scheme in respect of which a person is in receipt of a pension by virtue of being the surviving spouse or other dependant of a deceased member with pension rights under this Scheme[6]. Pension sharing order activates pension sharing, creating pension debits and credits N3. On the coming into effect of a pension sharing order-
(b) the transferee becomes entitled to a credit of that amount ("pension credit"[8]) as against this Scheme.
Calculation of appropriate amount
(b) the cash equivalent of the relevant benefits on the valuation day.
(3) Where the transferor is in pensionable service under this Scheme on the transfer day, the relevant benefits for the purposes of paragraphs (1) and (2) are the benefits or future benefits to which he would be entitled under this Scheme by virtue of his shareable rights under it had his pensionable service terminated immediately before that day.
(b) which is a qualifying benefit,
is reduced by the appropriate percentage.
(b) which corresponds to a qualifying benefit,
is reduced by an amount equal to the appropriate percentage of the corresponding qualifying benefit.
(b) if the relevant order or provision specifies an amount to be transferred, the percentage which the appropriate amount for the purposes of subsection (1) of section 29 of the 1999 Act represents of the amount mentioned in subsection (3)(b) of that section;
Effect of pension sharing on protected rights and guaranteed minimum pension Discharge of pension credit liability N7. - (1) A fire authority, in relation to a pension credit derived from this Scheme, may discharge its liability in respect of the credit by conferring appropriate rights as defined in paragraph (3) under this Scheme on the ex-spouse. (2) If this Scheme becomes closed to new members, the liability in respect of any pension credit derived from the Scheme may be discharged in accordance with paragraphs 2(3) to (5) of Schedule 5 to the 1999 Act and in accordance with regulations made under paragraph 2(3) of Schedule 5 to that Act. (3) For the purposes of this rule, rights conferred on the ex-spouse are appropriate if-
(b) their value, when calculated in accordance with regulations made by the Secretary of State under section 30(1) of the 1999 Act in relation to the calculation of cash equivalents[12], equals the amount of the credit.
Adjustment to the amount of the pension credit - payments made without knowledge of the pension debit
(b) a fire authority makes a payment which is referable to those rights without knowing of the pension debit, and (c) the cash equivalent of the member's shareable rights after deduction of the payment is less than the amount of the pension debit,
the pension credit shall be reduced to the lesser amount[13].
(b) the first day on which the fire authority in relation to the relevant pension sharing order is in receipt of-
(ii) such information relating to the transferor and transferee as the Secretary of State may prescribe by regulations made under section 34(1)(b)(ii) of the 1999 Act[15].
(2) The reference in paragraph (1)(b)(i) to the relevant matrimonial documents is to copies of-
(b) the order, decree or declarator responsible for the divorce or annulment to which it relates,
and, if the pension credit depends on provision falling within sub-section (1)(f) of section 28 of the 1999 Act, to documentary evidence that the agreement containing the provision is one to which sub-section (3)(a) of that section applies.
(b) provide for that section to have effect with modifications where the pension credit depends on a pension sharing order and the order is the subject of an application for leave to appeal out of time[17].
Failure to discharge liability in respect of pension credit within the implementation period and death of ex-spouse before implementation has taken place
(b) section 10 of the Pensions Act 1995[19] (power of the Regulatory Authority to impose civil penalties) shall apply where any fire authority has failed to take all such steps as are reasonable to ensure that liability in respect of the credit was discharged before the end of the implementation period for it.
(2) If a fire authority fails to perform the obligation imposed by paragraph (1)(a) above, section 10 of the Pensions Act 1995 shall apply. Appropriate rights and pension credit benefits under this Scheme N11. - (1) Except as referred to in rule N7, in this rule, or otherwise in this Part of the Scheme, the appropriate rights under this Scheme to which a pension credit member shall be entitled shall consist only of a pension and rights in relation to a death grant as provided under paragraph (10). (2) Pension credit benefits are subject to the same indexing as other benefits payable under this Scheme, beginning on the day on which the relevant pension sharing order takes effect[21]. (3) A pension credit member is entitled to his benefits on the later of-
(b) the day on which he attains age 60.
(4) If on the day on which the relevant pension sharing order takes effect the pension debit member has not commuted part of his pension under rule B7, the pension credit member may commute for a lump sum a portion of the pension to which he is entitled under paragraph (1).
(b) the day on which the pension credit member attains age 60.
(6) The commuted portion must not be such that the lump sum exceeds two and a quarter times the annual rate of the pension before commutation.
(b) the day on which he attains age 60,
give the fire authority written notice of commutation, specifying the portion to be commuted.
(b) the date on which the pension becomes payable.
(9) When a pension credit member's notice of commutation takes effect, the fire authority shall-
(b) pay him the lump sum, reduced, where the effective date is the date of receipt of the notice, by the difference between the aggregate payments made in respect of the pension and the aggregate payments which would have been made in respect of it if it had been reduced from the later of-
(ii) the day on which the pension credit member attained age 60.
(10) If a pension credit member dies before any benefits deriving from the pension credit have become payable to him under this Scheme, there shall be payable to his personal representatives a lump sum death grant amounting to two and a quarter times the annual rate of the pension to which he would have become entitled if he had attained age 60 on the date of his death. Charges in respect of pension sharing costs N15. - (1) A fire authority may recover from the parties involved in pension sharing charges as set out in paragraph (2). (2) The charges referred to in paragraph (1) are any costs reasonably incurred by a fire authority in connection with pension sharing activity other than those costs specified in paragraph (3). (3) The costs specified in this paragraph are any costs which are not directly related to the costs which arise in relation to an individual case[24]. (4) A fire authority shall, before a pension sharing order is made, inform the member or his spouse, as the case may be, in writing of its intention to recover costs incurred with any description of pension sharing activity and provide the member or his spouse, as the case may be, with a written schedule of charges in accordance with regulations which may be made by the Secretary of State under section 41(1) of the 1999 Act[25]. Excluded membership N16. - (1) Pension credit rights or pension credit benefits may not be aggregated with any other rights or benefits under this Scheme (including those attributable to a different pension credit). (2) Where a pension credit member is also an active member, he may not count any period which may count for any purpose in connection with his pension credit benefit towards any membership period required under this Scheme. Assignment N17. Except as may be required by law, or is necessary in law to give effect to a pension sharing order or is otherwise permitted for the purpose of this Part of this Scheme, pension credit benefits under this Scheme may not be assigned, charged or otherwise made subject to a security. Calculation of debits and credits N18. Calculations under this Part of this Scheme shall, so far as legally possible, be made in accordance with any relevant guidance issued by the Government Actuary. Application of rules of this Scheme to pension credit members etc. N19. The following provisions of this Scheme apply to pension credit members and awards payable to or in respect of them-
rule L5(1) to (5) and (10) (payment of awards - supplementary).".
Interpretation of the Firemen's Pension Scheme Order 1992
(ii) for the wholly separate provision of a pension credit benefit, where benefits accrue or have accrued to that individual under the Scheme for any other reason;
1. In rule A3 (exclusive application to regular firefighters)-
(b) after paragraph (3) there shall be inserted-
2.
In rule A7 (reckoning of service for purposes of awards), after paragraph (3) there shall be inserted-
3.
In rule B7 (commutation - general provision), after paragraph (11) there shall be inserted-
4.
In rule B8 (commutation - small pensions) in paragraph (1) after the words "together with" there shall be inserted "any pension to which he is entitled under rule N11 and".
B12. Where a pension debit member is entitled to an award under rule B1, B2, B3 or B5-
(b) rules B7 to B10 have effect accordingly.".
7.
After rule C9 the following rule shall be inserted-
C10. Where a pension debit member dies leaving a surviving spouse, any award under rule C1, C4, C5, C6, C7 or C8, and the pension under any of those rules by reference to which any payment under rule C9 is made, is calculated by reference to the member's rights under this Scheme as reduced by virtue of section 31 of the Welfare Reform and Pensions Act 1999 and in accordance with such tables and other guidance as are provided for the purpose by the Government Actuary.".
8.
After rule D5 the following rule shall be inserted:-
D6. Where a pension debit member dies leaving a child, the reduction in his rights under this Scheme by virtue of section 31 of the Welfare Reform and Pensions Act 1999 is disregarded for the purposes of calculating any award payable under this Part.".
9.
In rule E4 (payment of balance of contributions to estate) in sub-paragraph (2)(f) after the word "death" there shall be inserted "or any pension credit member's pension derived from the person's pension".
(b) after paragraph (5) there shall be inserted-
11.
- (1) The existing provisions of rule F8 (transfer payments between fire authorities) shall become paragraph (1) of that rule.
12.
In rule F9 (payment of transfer values)-
(b) after paragraph (8) there shall be inserted-
13.
- (1) In rule G5 (purchase of increased benefits), after paragraph (3), there shall be inserted-
(2) In rule G6 (election to purchase increased benefits), after paragraph (5), there shall be inserted-
(3) In rule G7 (payment of periodical contributions for increased benefits), after paragraph (4), there shall be inserted-
(4) In rule G8 (effect of payment for increased benefits), after paragraph (6), there shall be inserted-
14.
In rule K4 (withdrawal of pension during service as a regular firefighter), after the word "brigade" there shall be inserted the words ", save that such withdrawal shall not apply to any pension credit under Part N".
(4) In this Scheme "the relevant fire authority", in relation to a pension credit member, means-
(b) if he is not then employed by a fire authority, the fire authority by whom he was last employed.".
16.
In rule L4 (prevention of duplication) after paragraph (2)(d) there shall be inserted-
17.
In paragraph 2(2) of Part V of Schedule 2 (injury awards) after the words "this Schedule" there shall be inserted "or by virtue of a pension debit".
19.
In Part III of Schedule 6 (transfer payments between fire authorities) after paragraph 6 there shall be inserted-
20.
In Part IV of Schedule 6 (amount of transfer value) after paragraph 5 there shall be inserted-
Article 4, along with Schedule 1, inserts into Schedule 1 to the 1992 Scheme a new Part containing definitions of expressions relevant to the pension sharing provisions (Part IA). [3] 1972 c.11; section 16 applies section 12 with the necessary modifications to orders under section 26 of the Fire Services Act 1997.back [4] S.I 1992/129 as amended by S.I. 1997/2309 and 2851 and 1998/1010.back [5] Inserted by this order, article 4.back [6] See regulation 2(1) of the Pension Sharing (Valuation) Regulations 2000 (S.I. 2000/1052) which describes rights of a description which are not to be classed as shareable rights for the purposes of section 27(2) of the Welfare Reform and Pensions Act 1999 (c.30) ("the 1999 Act").back [7] This definition is that in section 29(1)(a) of the 1999 Act and under corresponding Northern Ireland legislation.back [8] This definition is that in section 29(1)(b) of the 1999 Act and under corresponding Northern Ireland legislation.back [9] This definition is that in section 29(8) of the 1999 Act.back [10] The definitions in this paragraph are those in section 31(5) of the 1999 Act.back [11] 1993 c.30. Sections 10(4) and (5) and 15A of that Act were inserted by section 32 of the 1999 Act.back [12] See the Pension Sharing (Valuation) Regulations 2000 (S.I. 2000/1052).back [13] See the 1999 Act, Schedule 5, paragraph 9 and regulation 17 of the Pension Sharing (Implementation and Discharge of Liability) Regulations 2000 (S.I. 2000/1053).back [14] See section 33(1) of the 1999 Act.back [15] See regulation 5 of the Pensions on Divorce etc. (Provision of Information) Regulations 2000 (S.I. 2000/1048).back [16] See regulation 7 of the Pensions on Divorce etc. (Charging) Regulations 2000 (S.I. 2000/1049), which specifies circumstances in which the implementation period may be postponed.back [17] See regulation 4 of the Pension Sharing (Implementation and Discharge of Liability) Regulations 2000 (S.I. 2000/1053).back [18] See regulation 2 of S.I. 2000/1053 which prescribes a 21 day period beginning with the day immediately following the end of the implementation period.back [20] See regulation 3 of S.I. 2000/1053.back [21] See section 39 of the Welfare Reform and Pensions Act 1999 (c.30), which amends the Pensions (Increase) Act 1971 (c.57) to apply it to pensions attributable to a pensioner having become entitled to a pension credit.back [22] See section 590(3)(bb) of the Taxes Act 1988 (c.1), inserted by the Finance Act 1999 (c.16), Schedule 10, paragraph 2(3).back [23] See S.I. 2000/1085 and 1093.back [24] See regulation 5 of the Pensions on Divorce etc. (Charging) Regulations 2000 (S.I. 2000/1049).back [25] See regulations 2 to 9 of S.I. 2000/1049.back [30] S.I. 1999/3147 (N.I. 11).back [31] Section 124 is amended by paragraph 61 of Schedule 12 to the Welfare Reform and Pensions Act 1999.back [32] S.I. 1992/129 as amended by S.I. 1997/2309 and 2851 and 1998/1010.back
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© Crown copyright 2001 | Prepared 25 September 2001 |