Dear Brother/Sister,
Home Office Guidance On Treatment Of Immediate Detriment Cases
The Home office has, at the request of the Fire Brigades Union and the Firefighters’ Pensions (England) Scheme Advisory Board, provided the attached informal guidance to Fire and Rescue Authorities (FRAs) in England on processing ‘immediate detriment’ cases. This informal advice is provided by the Home Office in advance of legislating to remove the age discrimination as found in the McCloud/Sargeant Employment Tribunal litigation.
This informal advice does not deal with those members who have already retired and who have suffered immediate detriment.
The guidance applies only to unprotected and taper protected members of the reformed schemes. The guidance does not apply to protected scheme members, whose benefits will be received from the legacy scheme.
FRAs have the power to calculate and pay pension entitlements for these members under their legacy schemes, through the application of section 61 of the Equality Act 2010. That provision means that these individuals have the right to be treated as though they have been in service in their legacy scheme since April 2015.
The guidance details at section 3 how those immediate detriment cases defined above should be dealt with.
3.0 What are ‘Immediate Detriment’ cases?
3.1 This guidance aims to deal with cases where the benefits are not yet in payment as these are less complicated to deal with (compared to where benefits are already in payment).
3.2 For the purposes of this guidance, the term ‘immediate detriment’ applies only to individuals who were members or eligible to be members of a legacy scheme immediately prior to 1 April 2012, and have a period of service after 31 March 2015 during which they were members of a legacy or reformed scheme, where those periods of service are continuous including those with a qualifying break in service of less than 5 years (this is irrespective of whether they have submitted a legal claim or not)and who:
- become eligible to retire (for any reason, including ill health) and draw their pension and want to have all their benefits paid from their legacy scheme (i.e. do not accept 2015 scheme benefits); OR
- do not qualify for lower-tier (and therefore higher-tier) ill-health pension under the single pot Ill-Health Retirement (IHR) arrangement, and are therefore left without a pension in payment BUT would be eligible under the IHR arrangements in their legacy scheme.
3.3 Any scheme members that fall within either of the two categories above can have their pensions calculated and put into payment. As set out above, FRAs have the power to calculate and pay pension entitlements for these members under their legacy schemes, through the application of section 61 of the Equality Act 2010. That provision means that these individuals have the right to be treated as though they have been in service in their legacy scheme since April 2015, if that is what they want and they inform the scheme of this.
Members meeting the criteria set out in 3.2 should be offered the opportunity to take all their pension benefits accrued during the remedy period under their legacy pension scheme, rather than under the 2015 Scheme.
In order to provide members this choice, FRAs will need to present two sets of pension entitlement quotes to each qualifying scheme member. Each quote must set out the pension benefits that the member would receive under each choice, to include: recurring annual pension (before and after commutation), commutation retirement lump sum entitlement, employee contributions owed/refunds due etc.
It is important to note that this guidance was issued by the Home Office, there are areas of the guidance that the Fire Brigades Union do not agree with. We will continue with our legal action in relation to the High Court test cases for retired members who have suffered immediate detriment.
What is clear is that the guidance to FRAs states that those members due to retire should be able to do so on their legacy scheme if that is their choice.
The guidance was prepared by the Home Office in consultation with the Treasury, and is designed to apply to the English firefighters’ schemes. However, the scheme provisions of the Wales, Scotland, Northern Ireland and English schemes are substantively identical, as are the issues surrounding the processing of immediate detriment claims.
Yours in unity,
MARK ROWE
National Officer
