The High Court has ruled that retrospective changes to the LGPS exit credits regime were lawful – and gave some helpful guidance around the new discretion to pay an exit credit.
The consequences of staff being wrongly enrolled into the TPS can be significant for both staff and employers. Local authorities and academies should, therefore, review their staff enrolled in the TPS to ensure that they are all correctly enrolled.
Mr Morris had built up over 23 years of pensionable service with the TPS whilst working for several employers in the maintained, independent and higher-education sectors. In January 2014 he was employed by the London Borough of Camden (LBC) as Head of Secondary School Improvement, where he worked in an advisory capacity to schools across the Borough. He was also required to be a qualified teacher and have experience as a secondary school head teacher or equivalent.
Mr Morris asked to re-join the TPS and was informed that it was LBC's responsibility to assess whether he was eligible. LBC were advised that if Mr Morris was working for LBC and he did not teach, he was not eligible to join the TPS because only those non-teaching staff who had naturally progressed via teaching into school management were eligible.
Mr Morris made a further call to Teachers Pensions who mistakenly advised him that due to a change in the rules he was eligible. This mistake was corrected some 10 days later and he was informed once again that he did not qualify. Mr Morris was unhappy with this and made a complaint under the Internal Dispute Resolution Procedure to Teachers Pensions. Teachers Pensions apologised for the error but confirmed that he was not eligible to join the TPS.
Mr Morris argued that he managed a team of advisers who were members of the TPS and had a similar role to his. He also argued that his position was a senior one, which included an element of teaching and his responsibilities were similar to those of a head teacher. He also suggested that Teachers Pensions had previously allowed him to participate in the TPS during his higher-education roles where the focus of the role was not teaching but other activities.
Teachers Pensions argued that where a post combines both administrative and teaching duties it is the main duties that should determine whether a teacher should be enrolled in the TPS or the Local Government Pension Scheme (LGPS). Head teachers who have no designated teaching role are eligible to remain in the TPS because they are essentially employed on teaching contracts and becoming a head teacher is a natural career progression for a classroom teacher. It is also relevant that if a head teacher steps down to a teaching role within the school, he or she would be eligible for the TPS. However, if Mr Morris had stepped down to a position of lower responsibility, he would not automatically become a classroom teacher again and so would not be eligible.
Teachers Pensions also stated that if there were some LBC staff with non-teaching contracts who were in the TPS, Mr Morris should provide details to Teachers Pensions so that they could be removed from the TPS, enrolled in the LGPS and inter-fund adjustments made to correct their pension petitions.
The Pensions Ombudsman concluded that Mr Morris was not eligible to be in the TPS as the references to “teacher" in the regulations do not simply apply to qualifications but to duties. The Ombudsman found that the incorrect information given to Mr Morris by Teachers Pensions was maladministration but this did not give him a right to join the TPS. Had he suffered financial loss by reasonably relying on that advice, for instance by taking up the post with LBC in reliance on that advice, then he might have been due financial compensation. However, given that he had already joined LBC when the mistaken advice was given, no compensation was due. Given that the mistake was quickly corrected, the Pensions Ombudsman also decided not to award any compensation for distress and inconvenience.
Given the potentially significant complications and upset that might arise if staff have to be removed from the TPS and enrolled in another pension scheme, local authorities, academies and charities participating in the TPS should ensure they have robust systems in place for ensuring that only eligible staff are enrolled. Academies should take particular care as the management structures of Multi-Academy Trusts develop. They should ensure that as teaching staff are promoted, it is still appropriate for them to remain in the TPS. In particular, we understand that Teachers Pensions do not accept that executive head teachers are eligible to remain in the TPS. There are some very limited circumstances in which non-teaching staff can participate in the TPS, but these are limited to certain roles with particular employers.
For advice on setting up appropriate controls on which staff should be enrolled into the TPS or for advice on removing ineligible staff from the TPS, please contact Doug Mullen.
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