# The National Health Service Pension Scheme Regulations 2008, Regulation 2.B.2: Restrictions on eligibility: general

Extent: E+W

(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 (14) of this regulation apply in respect of service in NHS employment before 1st April 2022.
(A3) Nothing in paragraphs (1A) and (1C) to (1LF) of this regulation prevents a member’s remediable service within the meaning of section 1 of the Public Service Pensions and Judicial Offices Act 2022 being treated as pensionable service under this Section of the Scheme in accordance with section 2 of that Act (remediable service treated as pensionable under Chapter 1 legacy schemes).
(1) A person who is entitled to the immediate payment of a pension under this Section of the Scheme under a regulation that requires the person not to be in NHS employment may only be an active member in accordance with—
(a) regulation 2.D.5 (partial retirement (members aged at least 55)),
(b) regulation 2.G.4 (effect of re-employment on tier 2 ill-health pensions),
(c) regulation 2.D.13 (exceptions to requirement that NHS employment must have ceased), or
(d) Chapter 2.G.
(1A) A person who was born on, or after, 1st September 1960 is not eligible to be an active member of this Section of the Scheme in respect of service in NHS employment on, or after, 1st April 2015.
(1B) A person is not eligible to be an active member of this Section of the Scheme if that person has had a break in service ending on or after 2nd April 2012, and any of the following apply—
(a) that break in service is for any one period of five years or more;
(b) that person receives a repayment of contributions under regulation 2.C.18 in respect of their service before that break (see regulation 2.B.1(3)(a));
(c) that person becomes entitled to a repayment of contributions under regulation 2.C.18 by virtue of paragraph (2)(a) to (c) of that regulation in respect of their service before that break; or
(d) that person’s rights under this Section of the Scheme in respect of their service before that break have been extinguished under regulation 2.F.7 because a transfer value payment is made in respect of them.
(1C) A person who on 1st April 2012 has attained the age of 55 may not contribute to or accrue further pensionable service under this Section of the Scheme unless that person either—
(a) is, on 1st April 2015, an active member of this Section of the Scheme in accordance with regulation 2.B.1; or
(b) returns to NHS employment on or after 2nd April 2015 in circumstances where paragraph (1B)(a) does not apply.
(1D) Paragraph (1E) applies to a person—
(a) who, on 1st April 2012, has attained the age of 51 years and 7 months but has not attained the age of 55, and
(b) whose eligibility cessation date has not been reached (see paragraph (1F)).
(1E) A person referred to in paragraph (1D) may not contribute to or accrue further pensionable service under this Section of the Scheme unless that person either—
(a) is, on 1st April 2015, an active member of this Section of the Scheme in accordance with regulation 2.B.1, or
(b) returns to NHS employment on or after 2nd April 2015 in circumstances where paragraph (1B)(a) does not apply.
(1F) For the purposes of paragraph (1D), a person’s eligibility cessation date is to be determined according to the formula—
A−(2×T)where—
A is 1st April 2022
T is the number of months (rounded up to the nearest whole month) by which the person’s age on 1st April 2012 is less than 55.
(1G) For the purposes of paragraphs (1C)(b) and (1E)(b), any break in service where the member was in pensionable service in an existing scheme (within the meaning of Schedule 5 to the 2013 Act) is to be disregarded.
(1H) Paragraph (1I) applies to a person who in the opinion of the Secretary of State—
(a) was previously an active member of a corresponding 2008 scheme,
(b) the regulations governing that corresponding scheme include provisions pursuant to subsection (5) of section 18 of the 2013 Act or subsection (5) of section 18 of the 2014 Act that provide for exceptions to subsection (1) of those sections, and
(c) pursuant to those provisions, the member would have been eligible to re-join that corresponding scheme if the member had returned to NHS employment for the purposes of that scheme on the day the member commenced NHS employment within the meaning of these Regulations.
(1I) The Secretary of State may permit a person referred to in paragraph (1H) to join this Section of the Scheme and, for the purposes of paragraphs (1C) to (1G), the member’s previous pensionable employment under the corresponding scheme referred to in paragraph (1H) will be treated as if it were previous pensionable employment under this Section of the Scheme.
(1J) Paragraph (1K) applies to a person who, in the opinion of the Secretary of State—
(a) was previously an active member in respect of service in an existing scheme (within the meaning of Schedule 5 to the 2013 Act or Schedule 5 to the 2014 Act),
(b) is not receiving a pension in respect of that service on the relevant day,
(c) the regulations of that existing scheme include provisions pursuant to subsection (5) of section 18 of the 2013 Act or subsection (5) of section 18 of the 2014 Act that provide for exceptions to subsection (1) of those sections,
(d) pursuant to those provisions, the person would have been eligible to be an active member of the existing scheme if the member had returned to employment for the purposes of that scheme on the relevant day, and
(e) the member would, if the member’s previous service in the existing scheme had been previous service under this Section of the Scheme, have been eligible for active membership of this Section of the Scheme on the relevant day pursuant to paragraphs (1A) to (1G).
(1K) The Secretary of State may permit a person referred to in paragraph (1J) to join this Section of the Scheme and, for the purposes of paragraphs (1C) to (1G), the member’s previous service as an active member under the existing scheme referred to in paragraph (1J) will be treated as if it were previous service as an active member of this Section of the Scheme.
(1L) For the purposes of paragraphs (1J) and (1K) “the relevant day” is the day the member commences NHS employment for the purposes of these Regulations.
(1LA) Paragraph (1LE) applies to a person if—
(a) paragraph (1LB) is satisfied, and
(b) that person’s employment was originally transferred out of the public sector (whether or not the employment from which that person is being transferred for the purposes of paragraph (1LB) to (1LF) is in the public sector).
(1LB) This paragraph is satisfied if, in the opinion of the Secretary of State—
(a) the person’s employment is transferred to an employing authority by virtue of—
(i) a transfer of undertakings, or
(ii) arrangements equivalent to a transfer of undertakings; and
(b) the employment from which the person is transferred—
(i) qualified that person for benefits under an occupational pension scheme, and
(ii) the rules of that scheme (in the opinion of the Secretary of State) entitle that person to receive benefits on retirement upon attaining the age of 65 years.
(1LC) The reference in paragraph (1LB) to arrangements equivalent to a transfer of undertakings is to arrangements—
(a) which the Secretary of State considers to be equivalent to the transfer of an undertaking, and
(b) under which the parties to the arrangements have agreed that the rights of a person whose employment is being transferred should, as far as practicable, be treated in the same way as they would have been under a transfer of an undertaking.
(1LD) For the purposes of paragraph (1LB)(b)(ii), a person is not to be treated as being entitled under the rules of a pension scheme to receive benefits upon, or prior to, attaining the age of 65 years, where such entitlement arises by virtue of any scheme rule making special provision—
(a) as to early retirement on the grounds of ill health, redundancy or otherwise, or
(b) for benefits to be reduced for early payment.
(1LE) The Secretary of State may permit a person referred to in paragraph (1LA) who would otherwise not be permitted to join this Section of the Scheme in accordance with regulation 2.B.1 to do so and, for the purposes of paragraphs (1C) to (1G), the member’s previous service as an active member under the occupational pension scheme referred to in paragraph (1LB)(b)(i) will be treated as if it were previous service as an active member of this Section of the Scheme.
(1LF) Before permitting a person referred to in paragraph (1LE) to join this Section of the Scheme the Secretary of State must take advice from the Scheme actuary.
(1M) A person referred to in paragraph (1C), (1E), (1I) , (1K) or (1LE) may elect, using a form provided by the Secretary of State, not to make contributions or accrue further service under this Section of the Scheme in accordance with whichever of those paragraphs apply, but instead (where eligible) to become an active member of the 2015 Scheme.
(1N) Such an election—
(a) is irrevocable;
(b) must be given to the Secretary of State before the date specified by the Secretary of State in the election form;
(c) is to be treated as having been given on the date the election form is received by the Secretary of State.
(1O) The date referred to in (1N)(b) must be a date that is at least three months later than the date on which the Secretary of State provided the member with an election form.
(1P) An election shall be effective from the first day of the member’s pensionable employment in the 2008 Section falling on, or after, 1st April 2015, and from that date—
(a) that member is to be treated as if that member had been an active member of the 2015 Scheme, and
(b) contributions made in respect of the member in the 2008 Section shall be treated as if they had been contributions made in respect of that member in the 2015 Scheme.
(1Q) The Secretary of State may allow a member to exercise an election after the date specified under paragraph (1N)(b) where the Secretary of State considers that the member has not had a reasonable opportunity to consider whether to exercise an election before that date.
(2) A person is not eligible to be an active member of this Section of the Scheme if the person—
(a) became a pensioner member of the 1995 Section or a corresponding 1995 scheme on, or before, 1st April 2008 (except if paragraph (1)(b)(i) of regulation 2.B.1A applies to that person), or
(b) became a pensioner member of the 1995 Section or a corresponding 1995 scheme on, or after, that date (except if paragraph (1)(b)(i) or (ii) of regulation 2.B.1A applies to that person or that person became an active member of this Section of the Scheme before reaching normal benefit age for the purposes of the 1995 Section), ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) A person is not eligible to be an active member of this Section of the Scheme in respect of service in an employment if the person is an active member of a superannuation scheme established under section 1 or 9 of the Superannuation Act 1972 in respect of service in that employment.
(4) A person who is employed by a GDS or PDS contractor (other than a dentist performer) is not eligible to be an active member of the Scheme in respect of service in that employment.
(5) A person who holds an honorary appointment and does not at the same time hold any other employment which entitles him to be a member of this Section of the Scheme is not eligible to be an active member of this Section of the Scheme.
(6) A person is not eligible to be an active member of this Section of the Scheme in any further employment if the person—
(a) becomes entitled to a tier 2 pension under regulation 2.D.8, and
(b) opts to exchange that pension for a lump sum in accordance with regulation 2.D.15.
(7) A person is not eligible to be an active member of this Section of the Scheme in any future employment if the person—
(a) ceases to be entitled to a tier 1 ill-health pension under regulation 2.D.8, and
(b) becomes entitled to a tier 2 ill-health pension under that regulation on the date the Secretary of State makes a determination under regulation 2.D.9(3).
This is subject to paragraph (8).
(8) A person to whom paragraph (7) applies is eligible to be an active member of this Section of the Scheme in any further employment after the first anniversary of that person’s first day of such employment following the date of the Secretary of State’s determination under regulation 2.D.9.
(9) A person who satisfies Condition A or Condition B is not eligible to be an active member of this Section of the Scheme in respect of any period of NHS employment on or after 1st July 2009 (“the relevant employment”) with effect from the later of—
(a) that date, and
(b) the date on which Condition A or Condition B is met.
(10) Condition A is that on or after 13th January 2009—
(a) that person is employed by an employing authority,
(b) the relevant employment commences in accordance with an arrangement under which it is the intention of the employing authority to retain that person as an employee following that person’s objection to that person’s transfer to another body (which is not an employing authority) (“a retention arrangement”), and
(c) but for that retention arrangement—
(i) the transfer of that person’s employment would be a relevant transfer for the purposes of the TUPE Regulations, or
(ii) that person’s employment would, in the Secretary of State’s opinion, transfer from the employing authority to another employer in the public sector by virtue of an arrangement broadly equivalent to a TUPE transfer.
(11) Condition B is that on or after 13th January 2009—
(a) that person—
(i) is seconded from an employing authority to another body (which is not an employing authority), but
(ii) remains an employee of that employing authority during that secondment, and
(b) the purpose of that secondment is, in the opinion of the Secretary of State, for that person to assist that other body in the discharge of any functions which have previously transferred to that other body from that employing authority.
(12) A person referred to in paragraph (9) may be an active member of this Section of the Scheme in respect of the relevant employment referred to in that paragraph if the Secretary of State considers it appropriate, having regard to the nature of that employment and the circumstances under which it takes place, to accept that person as such a member.
(13) The reference in paragraph (10)(c)(ii) to an arrangement broadly equivalent to a TUPE transfer is to an arrangement—
(a) which, having regard to the purpose of the arrangement and its effect on the functions of the employing authority, the Secretary of State considers has that equivalence, and
(b) under which the Secretary of State requires the parties to agree that the rights of the person whose employment is being transferred should, as far as practicable, be treated no less favourably than they would have been under a TUPE transfer.
(13A) For the purposes of paragraphs (13B) to (13F), a retention arrangement is one under which—
(a) a person is seconded from an employing authority (“the sending employing authority”) to another body which is not an employing authority (“the other body”), and
(b) that person, pursuant to an intention of the sending employing authority, remains an employee of that authority in circumstances where that person’s performance of services pursuant to a qualifying contract for the other body counts as pensionable service only by reason of that retention arrangement.
(13B) A person who on 2nd April 2014, and pursuant to a retention arrangement which was entered into before that date, remains engaged by the other body to perform services pursuant to a qualifying contract, may not, from 1st April 2017 contribute to or accrue pensionable service under this Section of the Scheme in respect of the performance of those services.
This is subject to paragraph (13E).
(13C) A person who, pursuant to the retention arrangement referred to in paragraph (13B) is, on 2nd April 2014 engaged by the other body to perform services pursuant to the qualifying contract referred to in that paragraph, may not, from that date contribute to or accrue pensionable service under this Section of the Scheme in respect of the performance of any services under that contract.
This is subject to paragraph (13E).
(13D) A person who on, or after, 2nd April 2014 and pursuant to a retention arrangement (other than the one referred to in paragraph (13B)) is engaged by the other body to perform services pursuant to a qualifying contract, may not contribute to or accrue pensionable service under this Section of the scheme in respect of the performance of any services under that contract.
This is subject to paragraph (13E).
(13E) The Secretary of State may exceptionally allow a person referred to in paragraph (13B), (13C) or (13D) to contribute to or accrue pensionable service under this Section of the Scheme if the Secretary of State considers that appropriate having regard to the nature of the person’s employment and the circumstances under which it takes place.
(13F) Nothing in this regulation prevents the other body referred to in paragraph (13B), (13C) or (13D) from applying for approval as an employing authority pursuant to regulation 2.M.3.
(14) In this regulation—
“the TUPE Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006;
“a TUPE transfer” means a transfer of an undertaking to which the TUPE Regulations apply.

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Source: https://www.legislation.gov.uk/uksi/2008/653/regulation/2.B.2 (the official version)
Page: https://openlegislation.uk/national-health-service-pension-scheme-regulations-2008/regulation-2.B.2
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.