# The Local Government Pension Scheme (Amendment No. 2) Regulations (Northern Ireland) 2023, Note: Explanatory note

Extent: N.I.

(This note is not part of the Regulations)
The Public Service Pensions Act (Northern Ireland) 2014 (c. 2 (N.I.)) (“the 2014 Act”) makes provision and confers further powers to make provision (in the form of “scheme regulations” as defined in section 1 of that Act) about the establishment of public service pension schemes. The Local Government Pension Scheme Regulations (Northern Ireland) 2014 (S.R. 2014 No. 188, (“the 2014 Regulations”)) are the scheme Regulations establishing the successor local government pension scheme (“the Scheme”) to the pension scheme constituted by the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009, The Local Government Pensions Scheme (Administration) Regulations (Northern Ireland) 2009 and the Local Government Pension Scheme (Amendment and Transitional Provisions) Regulations (Northern Ireland) 2009 (“the 2009 Scheme”). The Local Government Pension Scheme (Amendment and Transitional Provisions) Regulations 2014 (S.R. 2014 No. 189, (“the Transitional Regulations)) provide transitional protection (“the statutory underpin”) for 2009 Scheme members including, in particular, for members who were within 10 years of their normal pension age under the 2009 Scheme. Similar transitional protection was made under the 2014 Act for members of judicial pension schemes and members of firefighters pension schemes. The transitional protection for members of the judicial and firefighters schemes was subsequently found to unlawfully discriminate between members of the respective schemes on the basis of age. Although the statutory underpin was not subject to legal action, all schemes established under the 2014 Act are subject to review. These Regulations do this in relation to the Scheme.
The Public Service Pensions and Judicial Offices Act 2022 (c. 7) (“the PSPJOA 2022”), at Chapter 3 of Part 1, makes provision, and confers powers for scheme regulations under the 2014 Act to make further provision, in relation to specified service (“remediable service”, as defined in section 77 of PSPJOA 2022) of members who benefitted from the statutory underpin or who did not by reason of their age. Section 85 of PSPJOA 2022 requires certain powers in Chapter 3 of Part 1 to be exercised in accordance with Treasury Directions.
These Regulations are scheme regulations under the 2014 Act and are made in accordance with PSPJOA 2022 in relation to a member’s remediable service in the local government legacy schemes and the Scheme. They are, to the extent required by section 85 of PSPJOA 2022, made in accordance with Treasury Directions (in the form of the Public Service Pensions (Exercise of Powers, Compensation and Information) Directions (Northern Ireland) 2023). These Regulations have retrospective effect, which is authorised by section 3(3)(b) of the 2014 Act, to specified dates.
The retrospective provisions contained in these Regulations do not appear to the Department to have significant adverse effects in relation to the pension payable to or in respect of members of the scheme, or members of previous schemes. Accordingly, the procedures set out in section 23 of the Act are not applicable in relation to these Regulations.
Part 1 of these Regulations makes general provision.
Part 2 amends the Transitional Regulations in relation to the statutory underpin:
Regulation 2(2) amends regulation 1 (citation, commencement interpretation and retrospection) to ensure that references to the definition of “scheme manager” should be read as “the Committee” in the Public Service Pensions (Exercise of Powers, Compensation and Information) Directions (Northern Ireland) 2023. The Northern Ireland Local Government Officers’ Superannuation Committee is the scheme manager for the Local Government Pension Scheme (Northern Ireland) and is referred to as “the Committee” in the LGPS Regulations.
Regulation 2(3) omits regulation 4 (which contained the original provision relating to the statutory underpin).
Regulation 2(4) inserts new regulations 4A to 4T, which, by their effect, replace regulation 4:
Regulation 4A makes provision in relation to the application of the replacement statutory underpin provisions to certain members (“eligible members”) and in respect of a certain period (“the underpin period”).
Regulation 4B makes provision for eligible members who become entitled to a pension on the basis of retirement, redundancy, or ill health to have their pension account increased by the final guarantee amount on the day after they become so entitled.
Regulation 4C makes provision for eligible members who become entitled to a pension on the basis of taking flexible retirement under regulation 31(6) of the 2014 Regulations to have their pension account increased by the final guarantee amount depending on the reason for their next final underpin date.
Regulation 4D prevents eligible members who take a lump sum payment from having their pension account increased by the final guarantee amount relating to the pension account.
Regulation 4E prevents eligible members who transfer to a different scheme from having a final guarantee amount determined in relation to their pension account.
Regulation 4F prevents eligible members who take a repayment of contributions from having a final guarantee amount calculated in respect of those repaid contributions.
Regulation 4G provides for an “underpin date” to be determined in respect of eligible members. The underpin date is the date in respect of which a provisional calculation of the member’s benefits under the Scheme and the 2009 Scheme in respect of the underpin period are made.
Regulation 4H provides for a “final underpin date” to be determined in respect of eligible members. The final underpin date is the date in respect of which the final calculation of the eligible members benefits under the Scheme and 2009 Scheme, on the basis of which the final guarantee amount is calculated.
Regulation 4I contains the calculation of an eligible member’s provisional assumed benefits. This is the provisional calculation of the benefits a member is entitled to under the Scheme.
Regulation 4J contains the calculation of an eligible member’s provisional underpin amount. This is the provisional calculation of the benefits a member would otherwise have been entitled to under the 2009 Scheme.
Regulation 4K provides for the calculation of an eligible member’s “final assumed benefits” for the purpose of the statutory underpin. This is the final calculation of the benefits the person is entitled to under the Scheme.
Regulation 4L provides for the calculation of an eligible member’s “final underpin amount” for the purpose of the statutory underpin. This is the final calculation of the benefits the person is entitled to under the 2009 Scheme.
Regulation 4M makes provision for the calculation of a “survivor guarantee amount” and for that amount to be added to a survivor member’s pension in respect of a deceased eligible member’s entitlement to a final guarantee amount.
Regulation 4N makes provision for the calculation of a “deferred guarantee amount” relating to an eligible member who is deceased and for that amount to be included in the calculation of a death grant payable in respect of the member.
Regulation 4O makes provision in relation to the calculation of provisional assumed benefits and provisional underpin amount for eligible members who have a pension account that has been aggregated from two or more pension accounts.
Regulation 4P makes provision for the calculation of the cash equivalent value of an eligible member’s relevant benefits (as defined in Article 26 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (1999 No. 3147 (N.I. 11)) where the eligible member is divorced or dissolves a civil partnership.
Regulation 4Q empowers the Committee to pay additional benefits under the Scheme, instead of an amount under section 82 of PSPJOA 2022, in respect of a compensatable loss that is a Part 4 tax loss.
Regulation 4R prevents the Committee from paying an amount by way of compensation under section 82 of PSPJOA 2022, or additional benefits under regulation 4Q, unless the eligible member concerned or their personal representatives have made an application. It makes provision for the contents of such an application, requires the Committee to determine the amounts payable to the eligible member or their personal representatives and for appeals against such determinations.
Regulation 4S provides that compensation under section 82 of PSPJOA 2022 or regulation 4Q may be paid from the pension fund concerned.
Regulation 4T makes provision for the payment of interest in respect of the payment of an additional benefit under regulation 4S.
Regulation 2(5) amends regulation 9 of the Transitional Regulations to provide that where a transfer payment is received into the Scheme, which includes a payment in respect of remediable service, in respect of a person from a different public service pension scheme, that payment entitles the person to benefits under the Scheme, so long as there has been no continuous break of more than 5 years in active membership since the remediable service was accrued.
Regulation 2(6) amends Schedule 1 (interpretation) of the Transitional Regulations and introduces the concept of the “final guarantee amount”. This is the amount by which a member’s benefits under the Scheme (as assessed in accordance with the amendments made by these Regulations) are exceeded by the amount the member would have been entitled to under the local government legacy schemes.
Regulation 3 makes consequential amendments to the 2014 Regulations, including the following:
Regulation 3(2) amends regulation 31 (retirement benefits) to provide, in respect of a member’s pension, that an enhancement (where the member receives their pension after their normal pension age), reduction, (where the member receives their pension earlier than their normal retirement age), or adjustment, (where the member reduces working hours or grade), does not apply to any final guarantee amount which has been added to the pension account in question.
Regulation 3(3) amends regulation 35 (commutation and small pensions) to provide that the pension used to calculate a member’s commutation payments may under certain circumstances include a final guarantee amount.
Regulation 3(4), (5), (7), (8), (9) and (10) exclude the final guarantee amount to which an eligible member may otherwise have been entitled from the pension the member would have been entitled to for the purpose of the calculation of survivor benefits.
Regulation 3(6) makes similar provision in relation to death grants.
Regulation 3(11) and (12) provides that compensation paid under section 82 of PSPJOA 2022 or additional benefits paid under regulation 4Q are liabilities for the purpose of actuarial valuations of a pension fund’s liabilities.
Regulation 3(13) amends regulation 91 (interest on late payment of certain benefits) to disapply its provisions on the payment of interest in relation to sums in respect of which interest is payable under regulation 4T of the Transitional Regulations or regulation 14.
Regulation 3(14) amends regulation 108 (rights to payment out of the fund) to provide that, where a non-Club transfer out of the pension fund is applied for by an eligible member under paragraph (1) of that regulation, the value of the transfer is to be calculated in accordance with actuarial guidance issued by the Department, taking into account the member’s provisional underpin amount and provisional assumed benefits.
Regulation 3(15) amends regulation 110 (bulk transfer (transfers of undertakings, etc) to provide that an actuary determining the amount of a bulk transfer payment must take into account the member’s provisional underpin amount and provisional assumed benefits.
Regulation 3(16) amends regulation 111 (calculation of the amount of transfer value payment) to ensure the actuary takes the member’s provisional underpin amount and provisional assumed benefits in to account when calculating a transfer value.
Regulation 3(17) amends Schedule 1 (interpretation) by adding definitions for the “final guarantee amount” and “the PSPJOA 2022”.
Part 3 makes provision in relation to certain specified classes of person to put them in the position they would have been had the amendments made by these Regulations been in operation from 2015. The provision being made is as follows:
Regulation 4 makes general provision, including about the persons to whom, or in respect of whom, provision is made.
Regulation 4(4) provides that in respect of specified categories of person the amendments made by regulations 2 and 3 are to have retrospective effect from 1st April 2015.
Regulation 5 makes provision in relation to members who retired or died before 1st October 2023. It is to be determined whether the person should be entitled to a final guarantee amount. If so, the amount is to be paid to the member’s pension account or personal representatives.
Regulation 6 makes provision in relation to death grants in respect of members who died before 1st October 2023. Provisional assumed benefits and a provisional underpin amount are to be calculated in respect of the member and regulation 46 (death grants: deferred members and pension credit members) of the 2014 regulations is to be applied to recalculate the death grant, with any excess being paid to the original recipients of the death grant.
Regulation 7 makes provision in relation to pensioner member death grants in respect of members who died before 1st October 2023. The death grant payable in respect of the person is to be recalculated under regulation 51 (death grants: pensioner members) and the amount is to be paid to the original recipients of the death grant.
Regulation 8 makes provision in relation to survivor benefits in respect of members who died before 1st October 2023. Provisional assumed benefits and a provisional underpin amount are to be calculated in respect of the member and regulation 4M is to be applied to the person and any survivor guarantee amount is to be added to the original survivor member’s pension account payable under regulation 41 (survivor benefits: partners of active members), 43 (survivor benefits: children of active members), 47 (survivor benefits: partners of deferred members), 48 (survivor benefits: children of deferred members), 52 (survivor benefits: partners of pensioner members) or 53 (survivor benefits: children of pensioner members) of the 2014 Regulations.
Regulation 9 makes provision in relation to members who transferred into the fund before 1st October 2023 from certain schemes. Where that transfer results in the person being entitled to benefits under the Scheme or having a transfer value accepted under regulation 112 (inward transfers of pension rights) of the 2014 Regulations, the transfer is to be treated as a transfer to which regulation 9(1ZA) (transfers) and, as the case may be (1ZB) of the Transitional Regulations applies.
Regulation 10 makes provision in relation to members who transferred out of the fund before 1st October 2023 under regulation 108 (rights to payment out of the pension fund) or 110 (bulk transfer (transfer of undertakings, etc) of the 2014 Regulations. Provisional assumed benefits and a provisional underpin amount are to be calculated in respect of the member and the transfer value is to be recalculated. Where a payment must be made, it is to be made to the trustees or manager of the new scheme for the benefit of the person.
Regulation 11 provides that where a person took a trivial commutation payment or lump sum under regulation 35(1) (commutation and small pensions) of the 2014 Regulations before 1st October 2023, it is to be determined whether the person is entitled to a final guarantee amount in accordance with regulations 4A to 4T of the Transitional Regulations.
Regulation 12 makes provision in relation to members who divorced or dissolved a civil partnership before 1st October 2023. The cash equivalent value of the person’s relevant benefits (for the purposes of Article 26 of the Welfare Reform and Pensions (Northern Ireland) Order 1999) is to be recalculated in accordance with actuarial guidance issued by the Department. Where the recalculated amount exceeds the original calculation, the annual pension awarded to the member’s spouse or civil partner is to be recalculated based on that amount.
Regulation 13 makes provision for a member with underpin dates (within the meaning of regulation 4G of the Transitional Regulations) that occur before 1st October 2023, but who do not have a final underpin date (within the meaning of regulation 4H of those Regulations) before that date. This regulation makes provision for the calculation of a provisional underpin amount and provisional assumed benefits in relation to the member and for the modification of the provision applying a final underpin date to the member.
Regulation 14 makes provision for the payment of interest in respect of sums payable under this Part of the Regulations.
Part 4 contains minor amendments unrelated to the changes made to the statutory underpin.
Regulation 15 has retrospective effect from 1st April 2009.
Regulation 16 has retrospective effect from 1st April 2015.
Regulations 17 and 18 have retrospective effect from 1st April 2023.

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Source: https://www.legislation.gov.uk/nisr/2023/149/note (the official version)
Page: https://openlegislation.uk/local-government-pension-scheme-amendment-no-2-regulations-northern-ireland-2023/note
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.