Citation and commencement

1.—(1) These Regulations may be cited as the National Health Service Pension Schemes (Scotland) Amendment Regulations 2022.

(2) These Regulations come into force on 1 April 2022.

Amendment of the National Health Service Superannuation Scheme (Scotland) Regulations 2011

2.  In the National Health Service Superannuation Scheme (Scotland) Regulations 2011( 3), in regulation B3 (restrictions on further participation in this Section of the scheme), at the beginning insert—

“(A1)  A person may not contribute to or accrue further pensionable service under this Section of the scheme in relation to the person’s service after 31st March 2022.

(A2)  Paragraphs (1) to (18) of this regulation apply to a person’s service under this Section of the scheme before 1st April 2022. ”.

Amendment of the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013

3.—(1) The National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013( 4) are amended as follows.

(2) In regulation 2.B.3 (restrictions on eligibility: general)( 5), at the beginning insert—

“(A1)  A person is not eligible to be an active member of this Section of the scheme in respect of service in NHS employment after 31st March 2022.

(A2)  Paragraphs (1) to (7) of this regulation apply in respect of service in NHS employment before 1st April 2022. ”.

(3) In regulation 3.B.3 (restrictions on eligibility: general)( 6), at the beginning insert—

“(A1)  A person is not eligible to be an active member of this Section of the scheme in respect of practitioner service after 31st March 2022.

(A2)  Paragraphs (1) to (8) of this regulation apply in respect of practitioner service before 1st April 2022. ”.

Amendment of the National Health Service Pension Scheme (Scotland) Regulations 2015

4.  In the National Health Service Pension Scheme (Scotland) Regulations 2015( 7) in regulation 19 (restrictions on membership), for sub-paragraph (c) substitute—

“(c) is on 31st March 2022—

(i) a member of the 1995 Section who is no longer required to pay contributions pursuant to regulation D1(26) or (27) (contributions by members: age and pensionable service limits) of the 2011 Regulations; or

(ii) in relation to the 2008 Section, a non-contributing member within the meaning of regulation 2.A.1 (interpretation of Part 2: general) or 3.A.1 (interpretation of Part 3: general) of the 2013 Regulations; ”.

Amendment of the National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015

5.—(1) The National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015( 8) are amended as follows.

(2) In regulation 11 (contribution rate setting: Groups A to C)—

(a) in paragraph (1) for “31st March 2015” substitute “31st March 2022”;

(b) in paragraph (2),—

(i) for “1st April 2015” substitute “1st April 2022”; and

(ii) in sub-paragraph (b), for “1st April 2014 to 31st March 2015” substitute “1st April 2021 to 31st March 2022”.

(3) In regulation 12 (contribution rate setting: Group D)—

(a) in paragraph (1), for “31st March 2015” substitute “31st March 2022”,

(b) in paragraph (2), for “1st April 2015” substitute “1st April 2022”.

(4) In regulation 18(1) (uprating of old scheme practitioner earnings)( 9) for “after 31st March 2015” substitute “in which the member is a member of the new scheme”.

(5) In regulation 25 (decoupling of benefits derived from additional contributions)—

(a) in paragraph (2)—

(i) in sub-paragraph (a), after “except as provided for in paragraph (10) below” insert “, or, if later, the date on which the member joins the new scheme”,

(ii) in sub-paragraph (b), after “except as provided for in paragraph (10) below” insert “, or, if later, the date on which the member joins the new scheme”,

(iii) in the closing text—

(aa) after “date or”, omit “the member’s”,

(bb) at the end, insert “or, if later, the date on which the member joins the new scheme”,

(b) in paragraph (6), for the words from “requires,” to the end substitute—

“requires—

(a) no later than one month before the member’s chosen date or chosen birthday (as applicable); or

(b) if—

(i) the member joins the new scheme less than six months before the member’s chosen date or chosen birthday (as applicable); or

(ii) the member joins the new scheme on or after the member’s chosen date or chosen birthday (as applicable),

no later than three months after the date on which the scheme administrator provides the notification referred to in paragraph (9). ”,

(c) in paragraph (9), from “regulation” to the end of the paragraph substitute—

“regulation—

(a) at least six months before the member’s chosen date or chosen birthday (as applicable); or

(b) if the member joins the new scheme at a time specified in paragraph (6)(b)(i) or (ii), no later than three months after the date on which the member joins the new scheme. ”,

(d) after paragraph (9), insert—

“(9A)  A notice for the purpose of paragraph (9) must specify—

(a) the date on which any pension payable pursuant to this regulation would come into payment were an election to be made;

(b) the amount of any pension payable under this regulation (before any option to commute part of the pension into a lump sum); and

(c) the date by which the election under this regulation must be received by the scheme administrator pursuant to paragraph (6). ”.

(6) In regulation 27 (ill-health benefits: continuity of existing applications)—

(a) in paragraph (1)—

(i) after “This regulation applies”, insert “during the application period”,

(ii) in sub-paragraph (a)—

(aa) for “apart from the operation of this regulation” substitute “on 1st April 2022 (“the transition date”),

(bb) in head (i), after “further”, insert “pensionable”, for “Section—”substitute “Section; and”, omit sub-heads (aa) and (bb),

(cc) in head (ii), omit the words from “on” to the end.

(dd) in head (ii), omit the words from “on” to the end.

(b) in paragraph (2)—

(i) for the words before sub-paragraph (a) substitute “For the purposes of paragraph (1), “ the application period” in relation to a member is the period which ends with the day on which—”,

(ii) in sub-paragraph (b)—

(aa) after “to” insert “an”,

(bb) for the words from “under” to “applicable)” substitute “in respect of that application”,

(c) in paragraph (3)—

(i) for the words before sub-paragraph (a) substitute “For the purposes of paragraph (2)(b), a determination becomes final and binding when—”

(ii) in sub-paragraph (a), for head (iii), substitute “by proceedings before a court or tribunal;”,

(iii) in sub-paragraph (b), omit “that” in the first place it occurs,

(d) omit paragraphs (4) to (6),

(e) at the end insert—

“(7)  Where this regulation applies—

(a) the member’s application for ill-health pension is considered in accordance with paragraph (8) or (9) (whichever is relevant); and

(b) the member’s benefits, if any, are paid in accordance with paragraph (10) and the further provisions referred to in that paragraph.

(8)  If the member was in pensionable employment in the 1995 Section on 31st March 2022, the member’s application for ill-health pension is considered—

(a) as an application for ill-health pension for the purposes of 2015 regulation 89 (entitlement to ill-health pension); and

(b) as if it were also an application for ill-health pension for the purposes of 2011 regulation E3.

(9)  If the member was an active member of the 2008 Section on 31st March 2022, the member’s application for ill-health pension is considered—

(a) as an application for ill-health pension for the purposes of 2015 regulation 89; and

(b) as if it were also an application for ill-health pension for the purposes of 2013 regulation 2.D.8 or 2013 regulation 3.D.7.

(10)  The member’s benefits will be paid in accordance with—

(a) paragraph (13) if, as a result of consideration under paragraph (8), the member satisfies the lower tier condition or the upper tier condition for the purposes of paragraph (2)(b)(i) or (ii) of 2011 regulation E3 (together “the 2011 regulation E3 ill-health conditions”) but does not satisfy the lower tier condition or upper tier condition for the purposes of paragraph (2)(c) or (3)(b) of 2015 regulation 89 (together “the 2015 regulation 89 ill-health conditions”);

(b) paragraph (14) if, as a result of consideration under paragraph (9), the member satisfies the condition at paragraph (2)(a) or (3)(a) of 2013 regulation 2.D.8 or 2013 regulation 3.D.7 (together “the 2013 ill-health regulations”) but does not satisfy either of the 2015 regulation 89 ill-health conditions;

(c) paragraph (16) if—

(i) as a result of—

(aa) consideration under paragraph (8), the member satisfies one or both of the 2011 regulation E3 ill-health conditions and one or both of the 2015 regulation 89 ill-health conditions; or

(bb) consideration under paragraph (9), the member satisfies one or both of the 2013 ill-health conditions and one or both of the 2015 regulation 89 ill-health conditions; and

(ii) the annual rate of ill-health pension to which the member would have been entitled under 2011 regulation E3, 2013 regulation 2.D.8 or 2013 regulation 3.D.7, as determined in accordance with the pension comparison calculation, if the member had retired from pensionable employment or ceased NHS employment on 31st March 2022.

(11)  If the member was in pensionable employment in the 1995 Section on 31st March 2022, for the purposes of the pension comparison calculation, the pensions (“ P ”) under—

(a) 2011 regulation E3; and

(b) regulation 28(3)(a)(ii), are each increased by applying the formula—

(12)  If the member was an active member of the 2008 Section on 31st March 2022 and is entitled to a lump sum (“ LS ”) under regulation 28(3)(b)(ii) or (iii), for the purposes of the pension comparison calculation, the pensions under—

(a) 2013 regulation 2.D.8 or 2013 regulation 3.D.7; and

(b) regulation 28(3)(a)(ii),

are each increased by the amount found by applying the formula—

(13)  Where this paragraph applies to the member (see paragraph (10)(a)), the annual rate of ill-health pension and the lump sum payable from the new scheme is equal to—

(a) either—

(i) if the member satisfies the lower tier condition in 2011 regulation E3, the lower tier ill-health pension the member would have been entitled to under that regulation if the member had retired from pensionable employment on 31st March 2022; or

(ii) if the member satisfies the upper tier condition in 2011 regulation E3, the upper tier ill-health pension the member would have been entitled to under that regulation if the member had retired from pensionable employment on 31st March 2022; and

(b) the lump sum to which the member would have been entitled under regulation E13 (lump sum on retirement) of the 2011 regulations a consequence of becoming entitled to payment of one of those pensions.

(14)  Where this paragraph applies to the member (see paragraph (10)(b)), the annual rate of ill-health pension and the lump sum payable from the new scheme is equal to—

(a) if the member satisfies the lower tier condition of 2013 regulations 2.D.8 or 3.D.7, the lower tier ill-health pension then member would have been entitled to under whichever of those regulations applies to the member if the member had ceased NHS employment on 31st March 2022; or

(b) if the member satisfies the upper tier condition of 2013 regulations 2.D.8 or 3.D.7, the upper tier ill-health pension the member would have been entitled to under whichever of those regulations applies to the member if the member had ceased NHS employment on 31st March 2022.

(15)  On the payment of a pension to a member in accordance with paragraph (13) or (14), all rights in respect of that member under the old scheme are extinguished.

(16)  Where this paragraph applies to the member (see paragraph (10)(c))—

(a) the annual rate of ill-health pension payable from the new scheme under regulation 28 is increased by an amount equal to the difference between the annual rate of the member’s ill-health pension under 1995 regulation E3, 2013 regulation 2.D.8 or 2013 regulation 3.D.7 and the annual rate of the member’s ill-health pension under regulation 28(3)(a) or (4), determined in accordance with the pension comparison calculation; and

(b) that increase is applied to the member’s ill-health pension under regulation 28 after the calculation of the upper tier addition (if any).

(17)  Paragraphs (18) and (19) apply if a member receiving an ill-health pension under paragraph (10)(a) or (b) dies (“the deceased member”).

(18)  If a surviving adult dependent of the deceased member is entitled to a pension in accordance with regulation 115 (amount of pension: survivor of pensioner member) of the 2015 Regulations, the annual rate of the adult survivor pension payable is—

(a) 50% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (13) of this regulation on that date; and

(b) 37.5% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (14) of this regulation on that date.

(19)  If a child’s pension becomes payable in respect of an eligible child of the deceased member in accordance with regulation 123 (amount of child pension: deceased pensioner member) of the 2015 Regulations, the basic death pension for the purposes of that regulation is—

(a) 100% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (13) of this regulation on that date; and

(b) 75% of the pension to which the member was entitled at the date of death (disregarding any additional pension) if the member was receiving a pension under paragraph (14) of this regulation on that date.

(20)  For the purposes of the 2015 Regulations—

(a) a member’s pension entitlement under the new scheme that is equivalent to entitlement to one of the following pensions is treated as if it were entitlement to an ill-health pension at the lower tier under 2015 regulation 89—

(i) a lower tier pension under 1995 regulation E3 referred to in paragraph (13)(a)(i);

(ii) a lower tier pension under 2013 regulation 2.D.8 or 2013 regulation 3.D.7 referred to in paragraph (14)(a);

(b) a member’s pension entitlement under the new scheme that is equivalent to entitlement to one of the following pensions is treated as if it were entitlement to an ill-health pension at the upper tier under 2015 regulation 89—

(i) an upper tier pension under 2011 regulation E3 referred to in paragraph (13)(a)(ii);

(ii) an upper tier pension under 2013 regulation 2.D.8 or 2013 regulation 3.D.7 referred to in paragraph (14)(b);

(iii) a pension under regulation 28 that is increased in accordance with paragraph (16) by an amount equal to the difference between the annual rate of the ill-health pension payable under regulation 28(3)(a) and the annual rate of the member’s upper tier ill-health pension under 2011 regulation E3, 2013 regulation 2.D.8 or 2013 regulation 3.D.7 as determined in accordance with the pension comparison calculation.

(21)  In this regulation—

“ 1995 regulation E3 ” means regulation E3 of the 2011 Regulations;

“ 1995 regulation E3 ill-health conditions ” has the meaning given in paragraph (10)(a);

“2013 regulation 2.D.8” means regulation 2.D.8 of the 2013 Regulations;

“2013 regulation 3.D.7” means regulation 3.D.7 of the 2013 Regulations;

“ 2015 regulation 89 ” means regulation 89 of the 2015 Regulations;

“ the 2013 ill-health conditions ” has the meaning given in paragraph (10)(b);

“ the 2015 regulation 89 ill-health conditions ” has the meaning given in paragraph (10)(a);

“ the deceased member ” has the meaning given in paragraph (17);

“ the member’s application for ill-health pension ” has the meaning given in paragraph (1)(c);

“ the pension comparison calculation ” has the meaning given in paragraph (10)(c)(ii). ”.

(7) In regulation 28 (ill health benefits: members below old scheme normal pension age)( 10)—

(a) in paragraph (6B)—

(i) in the words before sub-paragraph (a), omit “the sum of”,

(ii) for sub-paragraphs (a) and (b) substitute—

“(a) if the member was in pensionable employment in the 1995 Section before becoming an active member of the new scheme, the sum of—

(i) 33.75% of the pension to which the member was entitled at the date of death (disregarding any additional pension) under the new scheme;

(ii) 16.25% of the amount (if any) by which that pension has been increased in accordance with regulation 27(16); and

(iii) 16.25% of the old scheme pension to which the member was entitled at the date of death in accordance with paragraph (3)(a)(ii) of this regulation; or

(b) if the member was an active member of the 2008 Section before becoming an active member of the new scheme, the sum of—

(i) 33.75% of the pension to which the member was entitled at the date of death (disregarding any additional pension) under the new scheme;

(ii) 3.75% of the amount (if any) by which that pension has been increased in accordance with regulation 27(16); and

(iii) 3.75% of the old scheme pension to which the member was entitled at the date of death in accordance with paragraph (3)(a)(ii) of this regulation. ”,

(b) in paragraph (6C)—

(i) in the words before sub-paragraph (a), omit “the sum of”,

(ii) for sub-paragraphs (a) and (b) substitute—

“(a) if the member was in pensionable employment in the 1995 Section before becoming an active member of the new scheme, the sum of—

(i) 67.5% of the deceased member’s annual pension (disregarding any additional pension) under the new scheme;

(ii) 32.5% of the amount (if any) by which that pension has been increased in accordance with regulation 27(16); and

(iii) 32.5% of the old scheme pension to which the member was entitled at the date of death in accordance with paragraph (3)(a)(ii) of this regulation; or

(b) if the member was an active member of the 2008 Section before becoming an active member of the new scheme, the sum of—

(i) 67.5% of the deceased member’s annual pension (disregarding any additional pension) under the new scheme;

(ii) 7.5% of the amount (if any) by which that pension has been increased in accordance with regulation 27(16); and

(iii) 7.5% of the old scheme pension to which the member was entitled at the date of death in accordance with paragraph (3)(a)(ii) of this regulation. ”.

(8) In regulation 35(1) (variations to lump sums for 1995 and 2008 pensioners joining new scheme)—

(a) for “and 6” substitute “, 6 and 7”,

(b) after “1 to 4”, in the second place it occurs, insert “, 6 and 7”.

(9) In schedule 1 (eligibility of pensioners)—

(a) in paragraph 1 (eligibility of 1995 Section pensioners to join new scheme), at the end of the table insert—

(b) in paragraph 2 (eligibility of 2008 Section pensioners to join new scheme), in the table—

(i) in the row in respect of Group 4, in column 2, for “regulation 2.G.5(5)(b)” substitute “regulation 2.G.4(5)(b)”,

(ii) at the end, insert—

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make amendments to the National Health Service pension schemes in Scotland as a consequence of provision made by the Public Service Pensions and Judicial Offices Act 2022 (c. 7).

They make amendments to the National Health Service Superannuation Scheme (Scotland) Regulations 2011 (“ the 2011 Regulations”), the National Health Service Superannuation Scheme (2008 section) (Scotland) Regulations 2013 (“ the 2013 Regulations”), the National Health Service Pension Scheme (Scotland) Regulations 2015 (“ the 2015 Regulations”) and the National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (“ the Transitional Regulations”). The amendments ensure that the pension schemes governed by the 2011 Regulations (“the 1995 Section”) and the 2013 Regulations (“the 2008 Section”) will, except for limited purposes, be closed to the accrual of pension benefits with effect from 1 April 2022. Any members currently in pensionable service under those pension schemes will, on that date, begin to accrue benefits in the scheme established by the 2015 Regulations.

Regulation 2 amends the 2011 Regulations to prevent any further contributions to, or accruals of service within, the 1995 Section. The transitional protections introduced for affected members on 1 April 2015 will only apply in respect of service before 1 April 2022.

Regulation 3 amends the 2013 Regulations for the same purpose and in an equivalent way in relation to members who had been allowed to remain in the 2008 Section after 31 March 2015. In this note, reference to the “ legacy scheme” includes the 1995 Section and the 2008 Section. Reference to “ the new scheme” is a reference to the pension scheme established by the 2015 Regulations.

Regulation 4 amends the 2015 Regulations so that members of the legacy scheme (other than pensioners) whose accrual of pensionable service ceased in that scheme on 31 March 2022 are eligible to join the new scheme from 1 April 2022.

Regulation 5 amends the Transitional Regulations, which apply to persons who are members of the legacy scheme and the scheme established by the 2015 Regulations (“ the new scheme”), as follows:

Paragraphs (2) and (3) amend regulations relating to the setting of contribution rates for the scheme year commencing 1 April 2022.

Paragraph (2) amends the regulation applicable to employed members of the new scheme to provide that where the member’s contribution rate is to be set by reference to that member’s pensionable earnings during a previous scheme year, those earnings can be derived from the member’s service in the legacy scheme.

Paragraph (3) amends the regulation applicable to self-employed practitioners and non-GP providers to provide that where the member’s contribution rate is to be set by reference to that member’s most recently certified or final pensionable earnings, those earnings can be also derived from the member’s service in the legacy scheme.

Paragraph (4) amends the regulation relating to the uprating of the earnings of practitioners who are members of the legacy scheme and the new scheme so that it applies after such a member joins the new scheme on or after 1 April 2022.

Paragraph (5) amends the regulation which provides for members of the 1995 Section to elect to take benefits derived from additional voluntary contributions at their chosen birthday without having to retire so that it also allows for elections by reference to the date on which the member joins the new scheme in circumstances where members have passed or are near to their chosen birthday on that date.

Paragraphs (6) and (7) amend the regulations which set out transitional arrangements relating to ill-health benefits to ensure that legacy members and their dependants are not placed in a less beneficial position than they would have been in had the outcome of their application been determined under legacy scheme criteria and their retirement on ill-health grounds had taken place before the closure of the legacy scheme on 31 March 2022.

Paragraph (9)(a) and (b)(ii) adds to the groups of legacy scheme pensioners set out in schedule 1 so that re-employed pensioners no longer able to accrue benefits in that scheme from 1 April 2022 are eligible to join the new scheme from that date. Paragraph (8) amends the regulation which provides for which of the pensioner groups set out in schedule 1 are entitled to a lump sum death benefit different from the one otherwise provided to active members of the new scheme by adding the new groups inserted by paragraph (9)(a) and (b)(ii).