McCloud and Sargeant -pre-2015 public service pension schemes
Following the Supreme Court’s refusal of the government’s application for permission to appeal the Court of Appeal’s judgment in Lord Chancellor and Secretary of State for Justice v McCloud and Secretary of State for the Home Department v Sargeant [2018] EWCA Civ 2844, a provisional hearing was listed at the Employment Tribunal for 18 December 2019 to agree how discriminatory treatment in the firefighters pension schemes will be remedied.
The Court of Appeal had ruled that the manner in which the transitional protections in the judges’ and firefighters’ pension schemes were implemented, and under which judges’ and firefighters’ entitlement to remain active members were defined by reference to their age, gave rise in both cases to unlawful direct age discrimination which could not be justified. Protections were applied to all members within ten years of retirement in all public service schemes, with the form that protection took varying from scheme to scheme.
This is a complex area and NARPO Members can either contact ceo@narpo.org, or if retiring or recently retired from the Police, their respective Staff Associations; Police Federation, Police Superintendents’ Association or CPOSA.
Update 06/10/2023
HMRC has published two sets of new guidance on the McCloud public service pensions remedy, one for scheme administrators and one for members. The new guidance has been published as part of the McCloud remedy regulations that came into force on 1 October 2023 across the public service pension schemes.
The McCloud remedy for members of the public service pension schemes deals with those were affected by the age discrimination which arose when the schemes were reformed in 2015. The purpose of the remedy is to ensure that members are, as far as possible, in the same tax position they would have been in if the discrimination had not happened.
All eligible members are to be offered a choice, at retirement or death (for beneficiaries), to receive benefits for any remediable service during the remedy period (from 1 April 2015 to 31 March 2022), based on either ‘legacy scheme’ or ‘new scheme’ rules (deferred choice underpin (DCU).
The Guidance can be found here.
The guidance for members covers:
• overview of the public service pensions remedy
• information on Chapter 1 schemes and impacts on members
• information on Chapter 2 schemes and impacts on members
• information on Chapter 3 schemes and impacts on members
• annual allowance
• lifetime allowance
• unauthorised payments
Update 14th September 2023
The NPCC has launched a new website containing information for both active and retired members on Remedy – https://policepensioninfo.co.uk/
Update 25th May 2023
Proposed Public Service Pension Schemes – Rectification of Unlawful Discrimination – Tax Administration Regulations
HMRC has now published the consultation on the second set of draft tax regulations. The document produced by HMRC gives further information on the tax years in scope (known as relevant tax years) and self-assessment returns before 31 January 2024.
Update 24th May 2023
The Police Pension Scheme Advisory Board (SAB), NPCC and Police Staff Associations responses have been submitted.
Please see the following links-
Police Staff Associations response
Update 3rd March 2023
Home Office Public Consultation
Home Office has launched a formal consultation on the amendments to the Police Pension Scheme (England) Regulations 2014 . This is to bring into effect the retrospective second phase of the McCloud/Sargeant remedy.
The consultation will run for twelve weeks and close on the 23 May 2023 and can be accessed on the following link:
Police Pension Scheme retrospective remedy – GOV.UK (www.gov.uk)
The consultation will look at the changes required to implement the retrospective McCloud/Sargeant remedy which includes:
- amending the scheme rules to remove the impact of transitional protection during the remedy period and introducing provisions to allow members to make a choice of which benefits should apply for the period of the remedy,
- retrospective changes to regulations to correct any overpayment or underpayment of pension benefits or member contributions. This includes benefits or contributions paid to or by a member because of their choice and
- other areas where we are considering whether further amendments to the regulations may be needed, beyond those in the published draft Statutory Instrument being consulted on.
NARPO will be making a submission through the UK Police Pensions Consultative Forum and Scheme Advisory Board, of which it is a Member.
Any queries can be directed to ceo@narpo.org
Letters to Members regarding Ill Health Retirement
We are aware that Members on ill health retirement (IHR) pensions and affected by this judgment have received letters from their Force.
This is based on a template produced and circulated to Forces by the NPCC. This is linked to the McCloud and Sargeant Remedy and may raise concerns.
Members in scope of the Remedy who have ill-health retired from PPS 87 since 1 April 2015, will have a choice of benefits for the Remedy Period This means that they could have ill-health retired as active members of the 2015 CARE Scheme which in turn means they would have been assessed under the ill-health provisions of that scheme which has two tiers of benefit.
If they would have met the test for the higher tier benefits under the 2015 CARE Scheme, it is possible that, taking into account factors such as age and length of service, the enhancement under the 2015 CARE Scheme would have been better than that payable under PPS 87 therefore giving a greater overall Ill Health Retirement pension.
The letters are intended to identify retired officers who might potentially benefit, and if appropriate, give them the choice of the better benefit. Consent is being asked to carry out the necessary reassessment using the 2015 CARE Scheme criteria .
This is not a reassessment of pensioner qualification for IHR pension. The reassessment will be carried out using only the evidence available and used in the original assessment and nobody’s pension will be withdrawn or reduced as a result . There is only the likelihood that in a few cases a retired officer will be able to opt to receive a larger pension, if they wish.
NPCC is putting together a template for a certificate for completion by the SMP who carries out the reassessment. This, it is hoped, will help to focus SMPs work in this process i.e. using only the original evidence to reassess against the 2015 CARE Scheme higher tier test, and not considering other aspects of individual cases.
Update 2nd August 2022
TPO publishes its approach to McCloud and Sargeant age discrimination complaints
Update 11th July 2022
Please see the following link to the NPCC Flyer for eligible retired officers
Update 8th March 2022
Please find the link to the Home Office response to the 8-week formal consultation on the regulations to implement prospective remedy in the police pension schemes in England and Wales that closed on 2 January 2022:
Amendments to police pension schemes in England and Wales 2022 – GOV.UK (www.gov.uk)
Please also find a link to the Home Office Prospective Changes Consultation Response Comms Key Messages & Frequently Asked Questions
Update 1st January 2022
NARPO has submitted its response to the Home Office consultation document . The response can be found here
Update 15th December 2021
Press Statement from the Police Superintendents Association (PSA) on the outcome of their Judicial Review and the ruling that the consultation on public services pensions schemes carried out this year was unlawful and that the Government had breached its Public Sector Equality Duty.
The full judgement and the PSA press statement can be viewed here:
Update 29th November 2021
The Home Office has provided an update on the Government’s position on the existing Immediate Detriment guidance
Update 9th November 2021
The Home Office has launched a consultation on amendments to police pension schemes in England and Wales, to enact the first phase of the remedy in the McCloud/Sargeant cases.
The first phase of the remedy is to make changes to the scheme regulations, in line with the Public Service Pensions & Judicial Offices Bill, which will close the legacy pension schemes to future accrual from 31 March 2022 and ensure all members who remain in service from 1 April 2022 do so as members of the reformed scheme. This is intended to ensure future equal treatment going forwards.
This consultation on the Police Pension Scheme seeks responses from interested parties on the amendments to the regulations needed to enact the first phase of the remedy, as set out in the Public Service Pensions and Judicial Offices Bill. The intention is that these come into force on 1 April 2022.
Please also see the following link to FAQ’s
Consultation responses can be sent to Policepensionspublicservicepensionsremedy@homeoffice.gov.uk. The consultation will close at 3pm on the 2nd of January 2022.
Update 13th August 2021
HMT Public Service Pensions and Judicial Offices Bill
The government introduced the Public Service Pensions and Judicial Offices Bill (PSP&JOB) to Parliament on 19 July 2021. This legislates for how the government will remove the discrimination identified by the courts in the way that the 2015 reforms were introduced for some members. In addition, the Bill will reform the pension arrangements and increase the mandatory retirement age for the judiciary, and put judicial pay and allowances on a firmer legal footing.
The Bill will implement changes across all the main public service pension schemes in response to the Court of Appeal judgment in the McCloud and Sargeant cases:
- Eligible members of the main public service pension schemes will have a choice of the benefits they wish to take for the “remedy period” of April 2015 to 31 March 2022.
- From 1 April 2022, when the remedy period ends, all those in service in the main unfunded schemes (i.e. teachers, civil service, firefighters, police, armed forces and NHS) will be members of the reformed pension schemes, ensuring equal treatment from that point on.
- Bespoke measures to implement corresponding changes in the Judicial Pension Schemes (JPS) and Local Government Pension Scheme (LGPS) to reflect their different arrangements.
- Transfer members of the judiciary into a further reformed pension scheme owing to the judges’ unique circumstances of appointment.
- Ensure there are no reductions to member benefits as a result of the 2016 cost control valuations.
The Bill will provide public service workers with greater certainty of their benefit entitlements. It ensures that public servants receive guaranteed pension benefits in a way that ensures that they are affordable and sustainable into the future.
The judicial measures acknowledge the unique constitutional position of the judiciary by updating their pension arrangements to reflect this. This, alongside changes to their judicial mandatory retirement age, will help to ensure our judiciary can continue to meet the demands of the justice system.
The Bill, and other supporting documents, can be found here.
There is also al list of FAQ’s which can be found here
Update 14th June 2021
The Home Office has published updated guidance for police pension schemes.
The updated technical guidance is for processing certain immediate detriment cases as part of the McCloud/Sargeant pensions litigation. It is informal and non-statutory.
The keys issues from this guidance document for retired officers are reproduced below-
Transition members who are already in receipt of a pension
4.3 There are cases (in respect of both ill-health/ordinary retirements) where transition members have already retired and are currently receiving an ill-health/ordinary pension. It is recognised that many of these members’ pensions are lower than they would be if they had instead been members of their legacy pension scheme since April 2015. For example, where a transition member has retired on ordinary grounds below age 55, their benefits accrued under the 2015 Scheme will currently be deferred until their State Pension Age.
4.4 These cases are likely to be more complex to resolve, and at this stage it is not clear that cases where an individual has already retired can consistently be processed under current legislation without adverse impacts. Even for cases that do not need legislative change, schemes and in some cases individuals will require further guidance or information to be provided on how the detail of cases should be processed, and on interpretation of existing rules where these do not provide immediate clarity, given the complexity and novelty of this situation. This material needs to be worked through in some detail, to ensure that – as far as possible – individuals whose cases are processed under section 61 receive the same, or as close as possible, treatment as those being processed once new legislation is in place. Work in this area is ongoing. Police forces may be able to process these cases once outstanding points have been resolved. However, providing a full remedy in these cases may not be possible until legislation has been implemented.
Update 4th February 2021
HMT – Public service pension schemes consultation outcome
HM Treasury has published the public service pension schemes consultation outcome, which sought views on proposals relating to the 2015 public service pension scheme reforms. Please see a summary of key points below:
- In December 2018, the Court of Appeal identified discrimination in the policy of transitional protection that was part of the 2015 reforms to public service pension schemes. This consultation sets out the government’s proposals for addressing this discrimination along with the government’s plans for the future.
- The Government received 3,144 responses, from members of the public and organisations including employers, administrators, financial advisers and member representative bodies.
- The Government has concluded it is proceeding with the deferred choice underpin. This will mean all eligible members are members of their legacy scheme for the period between 1 April 2015 and 31 March 2022, known as the remedy period.
- Eligible members retiring after implementation will get a choice of whether to take legacy or reformed scheme benefits for the remedy period when their pension benefits become payable.
- Where affected reformed scheme members retire before implementation, a choice between benefits will be offered. For those already in receipt of pension benefits, it may be after legislative changes are in place.
- The Government confirmed that public servants who continue in service from 1 April 2022 onwards, will be members of the reformed scheme, as legacy schemes will close after 31 March 2022.
- The cost control element of the 2016 valuations and changes to employer contribution rates following the 2020 valuations, has meant ceiling breaches that occur from the completion of the 2016 valuations will not be implemented, while floor breaches will be honoured.
- Additionally, any changes to employer contribution rates resulting from the 2020 valuations will be delayed from April 2023 to April 2024.
Alongside the consultation response, the government also published an updated Equality Impact Assessment which provides analysis of any potential impacts on those with protected characteristics as a result of the policies, together with a leaflet providing a high-level summary of the government’s policies and who is affected by them. Furthermore, the government gave an update on the Cost Control Mechanism and the 2020 valuations noting, among other things, that any changes to employer contribution rates resulting from the 2020 valuations will be delayed from April 2023 to April 2024.
The government intends to introduce new primary legislation when parliamentary time allows, in order to ensure that the discriminatory features relating to the remedy period and the transition to the reformed schemes are removed from the scheme rules with effect from 1 April 2022. Furthermore, any necessary amendments required to scheme regulations in order to implement the policies will be subject to further consultation on a scheme-by-scheme basis.
Update 18th September 2020
Government publishes guidance for Police Pension Scheme members on public service pension schemes consultation
The Home Office has published guidance for members of the Police Pension Scheme on the public service pension schemes consultation, which was launched on 16 July 2020, concerning proposals to remove the age discrimination identified in the policy of transitional protection that was part of the 2015 reforms to public service pension schemes.
Among other things, the guidance provides information on the purpose of the consultation, details concerning those affected/in scope of the consultation proposals, why members who joined after 31 March 2020 are not in scope, why the government is asking members to make the choice between the different sets of pension benefits, how the proposals address future pension provision and affect those who have retired or will retire before 2022, post consultation steps, and the cost control mechanism.
The guidance also reveals that the claims against the Police Pension Scheme (known as the Aarons case) have been conceded by the government and remedy hearings are underway. The consultation will progress in parallel with the remedy decided by the tribunals in the Aarons case.
Update 16th July 2020
Following the Court of Appeal judgment in December 2018 in the McCloud/Sargeant case ([2018] EWCA Civ 2844) that transitional protection in the judges’ and firefighters’ pension schemes gave rise to unlawful age discrimination, the government has now published a consultation which sets out its proposals for addressing this discrimination (which was part of the 2015 reforms to public service pension schemes), along with its plans for the future, in the schemes covering the NHS, teachers, the civil service, firefighters, police and armed forces (the judicial and local government pension schemes, as well as public service schemes in Northern Ireland, are being consulted on separately). The consultation closes on 11 October 2020.
The government has also published an accompanying Equality Impact Assessment and a leaflet which sets out a summary of the proposals.
The government proposes to introduce legislation: (i) to make changes to the schemes to remove the discrimination identified by the courts for the period 1 April 2015 to 31 March 2022 (the remedy period); and (ii) to address future service beyond the remedy period.
Rather than just returning all members to the legacy schemes, the government wants to ensure that people who are better off in the reformed schemes (based on a career average rather than final salary design) can choose to keep those benefits, and also that those who were closest to retirement age, and so were prevented from moving to the reformed schemes, will now have that choice.
The consultation explains how the government’s two proposed options for removing the discrimination between scheme members would work. Under either option, the government would give eligible members a choice of which set of scheme benefits is better for them for the remedy period. The consultation also sets out proposals for moving all active members into the 2015 reformed schemes after this period, regardless of when they joined, therefore providing equality of treatment.
Alongside the public consultation, the government has also published a separate update announcing: (i) that the pause of the cost control mechanism will be lifted and the cost control element of the 2016 valuations process will be completed; and (ii) that the costs of addressing the age discrimination identified in the McCloud judgment will be included in this process.
Update 25th April 2020
The Fire Brigades Union (FBU), along with three other unions (POA, PCS, and GMB), has filed court proceedings over the government’s withholding of improved pension benefits from hundreds of firefighters and hundreds of thousands of public service workers.
Please see update
Update 25th March 2020
Since February 2020, relevant pension schemes have been conducting technical discussions with member and employer representatives to seek initial views on the government’s high-level proposals for removing the discrimination. The government is considering the initial views of stakeholders and continuing to work through the details of the technical design elements of the proposals. Detailed proposals will be published later in the year and will be subject to public consultation.
The government reiterates in the written statement that members of public service pension schemes with relevant service will not need to make a claim in order for the eventual changes to apply to them. The proposals the government is considering would allow relevant members to make a choice as to whether they accrued service in the legacy or reformed schemes for periods of relevant service, depending on what is better for them. The government will provide more detail later in the year, but if an individual’s pension circumstances change as a result, the government may also need to consider whether previous tax years back to 2015–16 should be re-opened in relation to their pension. The government will also set out its proposal to remove the discrimination for future service in the forthcoming consultation.
Alongside its proposals for addressing discrimination, the government will also provide an update on the cost control mechanism in public service pension schemes, which was paused in January 2019 due to uncertainty about benefit entitlements arising from the McCloud judgment.
Update 21st February 2020
The government has said that it is committed to addressing the age discrimination identified in the McCloud case in all public service pension schemes, while ensuring all members can keep their accrued benefits, and that schemes are currently discussing high-level proposals to achieve this with employer and member representatives in order to inform a full public consultation.
The government adds that Employment Tribunals are considering the remedy for claimants in the various cases and that the cost control mechanism remains paused while these processes are underway as the value of pension schemes to members cannot be assessed with certainty.
Update 28th October 2019
A Police Pensions Case Management hearing took place on Monday 28 October 2019.
The below is from CC Matt Jukes, the NPCC Lead on Pay and Conditions:
“Talking to officers every day, it’s clear that you deserve as much clarity as possible around your conditions of service, including pensions and that this has been a difficult issue for colleagues. As employers, Chief Constables have been unable to resolve this in isolation whilst the wider challenge to pension reform has been ongoing. Monday’s hearing and the declaration agreed by the Tribunal have moved us on, which is very welcome.
The attached Home Office factsheet summarises the hearing and how claimants with relevant service will be treated as qualifying for full protection and having remained in their earlier pension schemes. It also provides an overview of Government’s plans to remove the difference in treatment for non-claimants. This will give greater certainty to officers regarding their pension entitlement. The Government has been clear in its assessment that the reasons for the 2015 still stand and that for the long-term, public sector pensions need to be sustainable and affordable.
The remedy to this challenge – dealing with thousands of individual officers affected and the specific claims – will generate additional costs. We have made submissions to Ministers regarding the need to ensure that police resources are protected from the impact of these costs.
We will now be working through the detailed impact of the declaration and it will be some time before all the answers for individuals will be available. That will involve the Police Pension Schemes Advisory Board, where we come together with the Home Office to consult with Staff Associations. NPCC leads and the Home Office are also working hard with forces to get further information to officers affected as soon as possible.”