Explanatory note

These Regulations further amend the National Health Service Pension Scheme Regulations 1995 (S.I.1995/300) (“the 1995 Regulations”), the National Health Service Pension Scheme Regulations 2008 (S.I. 2008/653) (“the 2008 Regulations”), the National Health Service Pension Scheme Regulations 2015 (S.I. 2015/94) (“the 2015 Regulations”) and the National Health Service (Injury Benefits) Regulations 1995 (S.I. 1995/866) (“the Injury Benefits Regulations”).

The Regulations come into force on 1st July 2021, although regulations 1(3) to (11) provide for certain provisions to take effect from an earlier date. Section 12(1) of the Superannuation Act 1972 (c.11) and section 3(3)(b) of the Public Service Pensions Act 2013 (c. 25) provide that Scheme Regulations may make retrospective provision.

The Regulations are divided into six Parts, amending the 1995 Regulations, the 2008 Regulations, the 2015 Regulations and the Injury Benefits Regulations respectively.

The Regulations implement the following main changes.

First, the Regulations amend the 1995 Regulations in relation to survivor benefits. Regulations 6 to 10 amend regulations G7 to G9 and G16 to G17 of the 1995 Regulations to provide that female members in opposite-sex marriages or civil partnerships have the same survivor entitlements as female members in same-sex marriages or civil partnerships. The amendments are made with retrospective effect to 5th December 2005, which is the date on which same-sex civil partnerships were introduced under the Civil Partnership Act 2004 (c. 33). Survivor benefits for opposite-sex spouses and civil partners are already the same as those for same-sex spouses and civil partners in the 2008 Regulations and the 2015 Regulations and therefore no amendments are required to those regulations.

Regulations 3(2) and 4 remove amendments to the 1995 Regulations made by the Civil Partnership (Opposite-sex Couples) Regulations 2019 (S.I. 2019/1458) (“the Civil Partnership Regulations”). Those amendments equalised the survivor entitlements of opposite-sex civil partners with those of opposite-sex spouses in the 1995 Regulations. The removal of those amendments is made with retrospective effect to 2nd December 2019, which is the date on which the Civil Partnership Regulations came into force.

Second, the Regulations make changes in relation to the final pay control provisions in the 1995 Regulations. The 1995 Regulations provide for a final salary pension scheme. Provisions regarding final pay control are set out in regulation D3 of the 1995 Regulations, the aim of which is to protect the pension scheme from excessive pensionable pay increases for members nearing retirement.

The main changes in respect of final pay controls in the 1995 Regulations are as follows.

The percentage figure relevant to the calculation of the “allowable amount” in regulation D3 is increased to 7% by regulation 5(2).

Regulation 5(4) inserts paragraphs (12A) to (12G) into regulation D3 to provide a means by which an employer who has been notified of a liability to pay an excess employer contribution on or after 1st April 2018 may apply for a determination under the final pay control provisions as amended by this instrument.

Regulation 5(6) further amends regulation D3 by inserting paragraphs (19C) to (19G), which exempt particular pay increases from final pay control charges.

An increase in a member’s pensionable pay by reason of an amount in respect of a national award recommended by the Advisory Committee on Clinical Excellence Awards is exempt under paragraph (19D). Consequently, regulations D3(7) to (11) are no longer necessary and are removed by regulation 5(3) of the Regulations.

The third main purpose of the Regulations is to make payments and allowances under the “New to Partnership Payment Scheme” non-pensionable for certain medical practitioners and non-GP providers (regulations 12(2)(b) and (3), 14(a), 15, 19(b), 20 and 28).

The fourth main purpose of the Regulations is to introduce new definitions, correct drafting and clarify the operation of particular provisions. The main changes in this respect are as follows.

Regulations 3(3), 14(b), 19(c) and 30(3) update the definition of NHS standard sub-contract and refer to up-to-date guidance.

Regulations 11, 18, 23 and 26 replace references to “nominated partner” with “scheme partner” or “surviving scheme partner” as appropriate.

Regulations 12(2)(a) and 19(a) amend the definition of “locum practitioner” in the 1995 Regulations and the 2008 Regulations to align these definitions with the definition of the same term in the 2015 Regulations.

Regulations 16 and 21 correct errors in regulations 2.D.8 and 3.D.7 of the 2008 Regulations, which deal with early retirement on ill-health grounds.

Regulations 17, 22 and 29 remove incorrect references to increases under the Pensions (Increase) Act 1971 (c.56) from provisions in the 2008 and 2015 Regulations relating to lump sums payable following the death of a pension credit member and make related amendments.

Regulation 25 corrects an error in regulation 135 of the 2015 Regulations, which makes provision for application for a statement of entitlement.

Regulation 30(2) inserts a definition of “dental performer” in the 2015 Regulations and regulation 27 makes a related amendment to the definition of “dental practitioner” in the 2015 Regulations.

Regulation 32 corrects an error and includes a new reference to section 1B of the Welfare Reform Act 2007 (c.5) in regulation 4(6)(b)(vi) of the Injury Benefits Regulations.

Regulation 33(2) inserts new provisions in regulation 7(3) of the Injury Benefits Regulations. Similar provisions were omitted from regulation 7(3) of the Injury Benefits Regulations in error by the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019 (S.I. 2019/418).

Regulation 33(3) amends regulation 7(3A)(b) of the Injury Benefits Regulations to clarify that “civil partnership” in that context is limited to same-sex civil partnerships.

Part 6 provides that deferred members or members who are in receipt of a relevant benefit who may be detrimentally affected by these Regulations may elect for the provisions not to apply to them by giving notice in writing within six months of the coming into force of these Regulations (regulation 34).

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.