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Interpretation of scheme rules

Complaint Topic: Interpretation of scheme rules
Outcome: Upheld
Type: Pension complaint or dispute

Mr A was a retained firefighter and he is now a deferred member of the New Firefighters’ Pension Scheme (England). He complained that the Warwickshire Fire and Rescue Authority (the Authority) was not treating his disturbance, work activity and training attendance payments as pensionable.

The relevant regulations are set out in the Firefighters’ Pension Scheme (England) Order 2006. In short, Part 11 Rule 1 states that pay for work performed in relation to the duties of a firefighter’s role, which is not temporary, should be considered pensionable. Neither party disputed whether the disturbance, work activity and training attendance payments were emoluments for work performed in the duty of Mr A’s role. Instead, the dispute was whether the elements of pay were temporary and therefore not pensionable on that basis. 

Both parties cited case law to support their position, with particular references to Kent & Medway Towns Fire Authority v Farrand[1] and Norman v Cheshire Fire & Rescue Service[2].

Mr A relied on case law to argue that the pay elements in question need only to be paid regularly in order to be pensionable. He then highlighted that his contract required him to regularly carry out duties attracting the relevant pay elements.

The Authority relied on case law to argue that pay must have an element of permanency in order to be pensionable. The Authority added that Mr A’s disturbance, work activity and training attendance pay varied in terms of how much was paid and when. As such, the pay was unpredictable and in this way, it was temporary and not permanent.

The Ombudsman agreed that the pay elements in dispute must be regular to be considered pensionable. However, he did not agree with the Authority that regular must mean predictable in every way rather than simply expected.

The Ombudsman agreed that Mr A’s disturbance, work activity and training attendance payments were not temporary, and as such the Authority was instructed to treat them as pensionable.

 

[1] [2001] OPLR 357

[2] [2011] EWHC 3305 (QB)  

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