Pension Update

The findings of the judicial review the Police Superintendents Association launched against the UK Government in relation to changes to public sector pensions was published last week.

The findings of the judicial review the Police Superintendents Association launched against the UK Government in relation to changes to public sector pensions was published last week.

In these proceedings, the association challenged the legality of the consultation on “Public service pension schemes: changes to the transitional arrangements to the 2015 schemes” and the decision announced on 4 February 2021 to close legacy public sector pension schemes, including the police schemes, and move all active members to reformed pension schemes from 1 April 2022.

The judge in the case considered 4 grounds:

 Ground 1: unlawful consultation:

was the consultation undertaken at a time when the relevant proposal was still at a formative stage;

was adequate information provided to consultees to enable them to properly respond to the consultation exercise;

did the decision-maker give conscientious consideration to the consultees’ responses;

Ground 2: breach of Public Sector Equality Duty:

was there a breach of the PSED in relation to the closure decision;

Ground 3: breach of substantive legitimate expectation:

did the representations to the police give rise to an enforceable legitimate expectation

if so, was the Defendant entitled to depart from it in making the closure decision;

Ground 4: error of fact:

in making the closure decision did the Defendant wrongly believe that all members of the affected public sector pension schemes who had received TP would have reached their Normal Pension Age in their respective legacy schemes by 1 April 2022;

if so, was this a material error

 Aspects of Grounds 1 and 2 were upheld, confirming that the consultation was unlawful based on decisions being made in advance of considering responses and that the public sector equality duty was breached. The judge confirmed, “there was a clear breach of the requirement to give conscientious consideration to the consultation responses…..This amounted to clear unfairness” and “the consultation was so unfair as to be unlawful because the material decision was made in advance of [….] considering the consultation responses.”

The full judgement can be accessed here.

 Despite the Judge finding in favour of aspects of Grounds 1 and 2 without also granting relief means the judicial review was dismissed. PFNI have agreed to join with all the other UK Staff Associations in appealing the relief aspect of this judgement. This is required because there is no legislative requirement on Government to ‘right the wrongs’ identified so they can effectively continue to plough on with implementing the proposed pensions draft primary legislation which will close both police pension legacy pension schemes on 31^st March 2022.  At first instance another  judge will have to establish if the appeal has a realistic chance of succeeding before granting permission.

 If the appeal in respect of relief ultimately succeeds this could delay the legacy schemes being closed and could potentially see any pension benefits being accrued under the legacy schemes being extended beyond the 31^st March 2022 which will benefit all affected members.  Despite pensions being a devolved matter, as Stormont has already passed a legislative consent motion to adopt whatever Westminster brings in, it therefore follows that this will apply to Northern Ireland too (much like the McCloud/Sergeant discrimination case did).

 I will ensure an update on this matter is provided in due course.

 LJ Kelly

Secretary

Police Federation for Northern Ireland                                  

T: 02890764200