Agenda item

Report of the Director of Governance & Digital Services (DSFRA/21/11) attached.

(An item taken in accordance with Section 100A(4) of the Local Government Act 1972 during which the press and public were excluded from the meeting).

The Authority considered a report of the Director of Governance & Digital Services (DSFRA21/11) on a proposal for the Authority to address “immediate detriment” cases following the McCloud/Sargeant ruling, in December 2018, that the transitional protections for the Firefighters Pension Scheme (FPS) 2015 were age discriminatory.

A subsequent Employment Appeal Tribunal decision had established an expectation that, in light of the ruling, fire and rescue authorities should seek to remedy “immediate detriment” cases at the earliest opportunity and prior to the government’s ultimate remedy solution, which had been subject to consultation but which would require legislative change and was not anticipated until April 2022 at the earliest.

Both the government and the Local Government Association had issued guidance to fire and rescue authorities but this guidance did not carry legal standing. Additionally, there were still a number of issues (including individual tax liabilities) that were still to be resolved.

Consequently, legal advice had been commissioned on behalf of the Authority on progressing “immediate detriment” cases at the earliest opportunity while mitigating any potential risks to which the Authority might be exposed. This advice (as appended to the report) had informed the proposals in the report.

RESOLVED

(a).     that the Authority notes that the effect of the law is that the original pension protection arrangements were unlawful and discriminatory but Sections 61 and 62 of the Equality Act 2010 have the effect of disapplying any discriminatory provisions in a pension scheme and, as a result of this, in principle all firefighters who belonged to the FPS 1992 immediately before 1 April 2012 and were still members as at 31 March 2015, are protected from transfer to the FPS 2015 until 1 April 2022;

(b).     that the Authority approves that:

                       (i).       any staff still subject to transitional, tapered, protection from transfer into the FPS 2015 under the previous discriminatory protection provisions will no longer be subject to that transitional protection and will not be placed in the FPS 2015 at the end of that period but rather will  remain in the FPS 1992 until 1 April 2022 when the Government will enact new legislation providing for a new public service pensions scheme;

                      (ii).       officers be delegated authority to approve as required any “immediate detriment cases”, as defined by the Home Office Guidance of 21 August 2020, on a case-by-case basis in accordance with the principle that, if chosen by the individual concerned, they may retire (prior to 1 April 2022) on pensions calculated under the FPS 1992 subject to:

                                        1.     There being no continuing and/or unresolved complexities and uncertainties that mean that it would not be practical and/or appropriate to process such cases in that manner at the time; and

                                        2.     Those members entering into settlement agreements protecting the Authority from liability for any future changes to the arrangements that may arise from Government policy or actions and/or in regard to any future liabilities that apply as a result of the transfer back into the FPS 1992;

(c).      that the Authority confirms its awareness of:

                       (i).       the Government’s commitment  to allow  those who were members of the FPS 1992 the choice of having their pension benefits calculated under the FPS 1992 or FPS 2015 until 31 March 2022 for the “remedy period” of 1 April 2015 to 31 March 2022; and

                      (ii).       there being a range of legal complexities and uncertainties that surround giving effect to the above and in regard to treating those wrongly transferred out of the FPS 1992 as if they had always remained in that scheme; and

(d).     that this Authority confirms its commitment both to maintaining a vigilant watch on developments in regard to the above and, subject to those further developments and clarifications, to seeking to comply fully with its legal duties in regard to pension benefits.