The Teachers’ Pensions Regulations 2010

PART 2Pensionable employment

Meaning of “pensionable employment”

5.  In these Regulations a reference to “pensionable employment” includes—

(a)in relation to employment before 1st November 1988, a reference to employment in reckonable service as defined in TSR 1976 or previous provisions;

(b)in relation to employment on or after 1st November 1988 and before 1st September 2010, a reference to pensionable employment as defined in Part B of TPR 1997 or Part B of TSR 1988.

Pensionable employment: general

6.—(1) An employment in a capacity mentioned in Part 1 of Schedule 2 is pensionable employment.

(2) An employment in a capacity mentioned in Part 2 of Schedule 2 is pensionable employment if the person in the employment makes an election under regulation 10 (election for employment to be pensionable) by reason of falling within paragraph (2)(b) of that regulation, in respect of that employment.

(3) An employment in a capacity mentioned in Part 3 of Schedule 2 is pensionable employment if—

(a)the person in the employment makes an election under regulation 10 (election for employment to be pensionable) by reason of falling within paragraph (2)(b) of that regulation, in respect of that employment, and

(b)the person’s employer consents to the election being made.

(4) Where a person who made an election under regulation B1A(4) of TPR 1997 (provision for certain organisers) remains employed as an organiser—

(a)by a local authority, or

(b)by a function provider in connection with the performance of a function or service in respect of which the function provider is accepted in accordance with regulation 14 (accepted function providers)

to undertake the same, or substantially the same, functions as the person was undertaking immediately before the date of the election under either the same contract of employment or a contract of employment which has effect by virtue of regulation 4 of the Transfer of Undertakings (Protection of Employment) Regulations 2006(1), that employment is pensionable employment.

(5) A person who immediately before 1st September 2010 was in employment (“the first employment”) which was pensionable employment under regulation B2 of TPR 1997 (continuing employment) is in pensionable employment while employed—

(a)in the first employment, or

(b)in employment which is in continuation of the first employment.

(6) This regulation is subject to regulation 7 (employment not pensionable: general) and regulation 8 (employment not pensionable: contributions not paid).

Employment not pensionable: general

7.—(1) A person is not in pensionable employment—

(a)before the person has reached the age of 18, or

(b)after the person has reached the age of 75.

(2) An employment is not pensionable employment unless the person (P) in that employment is entitled to be paid—

(a)P’s salary in full, or

(b)where P is on sick leave or on adoption, maternity, parental or paternity leave, not less than half P’s salary, or

(c)statutory adoption, maternity or paternity pay.

(3) A person who makes an election under regulation 9 (election for employment not to be pensionable) is not in pensionable employment while the election has effect.

(4) Where a person with a financial interest in an accepted school is in employment as a teacher in that school, that employment is not pensionable employment.

(5) For the purpose of paragraph (4) a “financial interest” does not include the right to receive a salary.

(6) Where a person who immediately before 1st September 2010 was in part-time employment which was not pensionable by virtue of regulation B1(4) of TPR 1997 continues in the same employment, that employment is not pensionable employment.

(7) But paragraph (6) ceases to apply if the person makes an election under regulation 10 (election for employment to be pensionable) by reason of falling within paragraph (2)(c) of that regulation or enters other employment which is pensionable employment.

(8) Where a person who immediately before 1st September 2010 was in employment which was not pensionable by virtue of regulation B1(5A) of TPR 1997 continues in the same employment, that employment is not pensionable employment.

(9) But paragraph (8) ceases to apply if the person makes an election under regulation 10(1) (election for employment to be pensionable) by reason of falling within paragraph (2)(d) of that regulation or enters pensionable employment.

(10) A person—

(a)who is in part-time employment in a capacity mentioned in Schedule 2,

(b)to whom a teacher’s pension became payable under regulation E4(6) of TSR 1988 on or before 31st March 1997,

(c)to whom the pension remains payable (including a case where the annual rate of the pension has been reduced to zero under these Regulations) because the person does not fall within regulation 68(2), and

(d)who has not reached the age of 60

is not in pensionable employment.

(11) Where a person is at the same time—

(a)in full-time pensionable employment, and

(b)in part-time employment in a capacity mentioned in Schedule 2 or in part-time employment which apart from this paragraph is pensionable by virtue of regulation 6(4) or (5),

the part-time employment is not pensionable employment.

(12) In these Regulations “excluded employment” means employment which is not pensionable employment by virtue of—

(a)paragraph (3);

(b)paragraph (6);

(c)paragraph (8).

Employment not pensionable: contributions not paid

8.—(1) This regulation applies where—

(a)the Secretary of State makes a demand under regulation 28(5) (deduction by employers of contributions, etc. from salary, payment in default and interest) in respect of contributions payable under regulation 18 (teachers’ ordinary contributions) (“the demand”),

(b)the whole of the sum so demanded together with interest thereon has not been paid to the Secretary of State by the end of the period of 3 years beginning on the date on which the demand is made,

(c)the Secretary of State decides that this regulation should apply and gives written notice to that effect to the person to whom the demand was given, and

(d)in a case where any amount has been paid to the Secretary of State in part satisfaction of the demand, the Secretary of State repays that amount.

(2) Any period of employment to which the contributions referred to in paragraph (1)(a) relate is not to be treated as a period of pensionable employment.

Election for employment not to be pensionable

9.—(1) A person may make an election under this regulation by giving written notice to the Secretary of State.

(2) An election has effect from the first day of the month after the month in which the notice is given.

(3) But if the notice is given before or within 3 months after the start of employment in a capacity mentioned in Schedule 2, the election has effect from the first day of that employment.

(4) An election ceases to have effect from the date on which an election under regulation 10 (election for employment to be pensionable) has effect.

Election for employment to be pensionable

10.—(1) A person mentioned in paragraph (2) may make an election under this regulation by giving written notice to the Secretary of State.

(2) The persons are—

(a)a person in, or about to enter, employment in a capacity mentioned in Schedule 2 who has previously made an election under regulation 9 (election for employment not to be pensionable);

(b)a person in, or about to enter, employment in a capacity mentioned in Part 2 or 3 of Schedule 2;

(c)a person in part-time employment which is not pensionable by virtue of regulation 7(6);

(d)a person in part- or full-time employment which is not pensionable by virtue of regulation 7(8).

(3) An election has effect from the first day of the month after the month in which the notice is given.

(4) But where the election is made by a person mentioned in paragraph (2)(a) or (b) who gives notice before or within 3 months after the start of employment in a capacity mentioned in Schedule 2, the election has effect from the first day of that employment.

Backdating elections for employment to be pensionable

11.—(1) Where—

(a)an election under regulation 10 (election for employment to be pensionable) is made by a person in employment in a capacity mentioned in Part 2 or 3 of Schedule 2, in non-pensionable part-time employment or in non-pensionable post-retirement employment,

(b)(except where the election is made by a person in non-pensionable post-retirement employment) at the same time as notice of the election is given the person making the election and the person’s employer request that the Secretary of State backdate the election (by making a determination in accordance with paragraph (2)(b) or (4)(b)) and the Secretary of State agrees to do so,

(c)the person making the election and the person’s employer inform the Secretary of State that they agree that contributions in accordance with sub-paragraph (d) be paid, and

(d)the sum mentioned in paragraph (8) together with interest at the standard rate is paid to the Secretary of State,

the person’s relevant employment during the back period is to be treated as pensionable employment.

(2) Where the election is made by a person in employment in a capacity mentioned in Part 2 or 3 of Schedule 2—

(a)“relevant employment” means the employment in respect of which the election is made, and

(b)the “back period” means the period beginning on a date determined by the Secretary of State and ending on the day on which the election has effect.

(3) The date determined for the purpose of paragraph (2)(b) must be such that the back period does not begin before or during any period of the person’s opted-out employment.

(4) Where the election is made by a person in non-pensionable part-time employment—

(a)“relevant employment” means non-pensionable part-time employment, and

(b)the “back period” means the period beginning on a date determined by the Secretary of State and ending on the day on which the election has effect.

(5) The date determined for the purpose of paragraph (4)(b) must be such that the back period does not begin before or during—

(a)any period of the person’s opted-out employment, or

(b)any period during which the person was employed in relevant employment by an employer who does not join in the request mentioned in paragraph (1)(b) or inform the Secretary of State as mentioned in paragraph (1)(c).

(6) Where the election is made by a person in non-pensionable post-retirement employment—

(a)“relevant employment” means non-pensionable post-retirement employment, and

(b)the “back period” means the period beginning on a date agreed between the person and the person’s employer and ending on the day on which the election has effect.

(7) The date agreed for the purpose of paragraph (6)(b)—

(a)must not be before 1st April 2000, and

(b)must be such that the back period does not begin before or during—

(i)any period of the person’s opted-out employment, or

(ii)any period during which the person was employed in relevant employment by an employer who does not inform the Secretary of State as mentioned in paragraph (1)(c).

(8) The sum is a sum equal to the contributions (due from both the person making the election and the person’s employer or employers) which would have been payable to the Secretary of State if the person’s relevant employment during the back period had been pensionable employment.

(9) Where the election is made by a person with mixed service, the person’s relevant employment during the back period is to be treated for the purpose of these Regulations as occurring after the post-break employment start date.

(10) Where the election is made by a 2007 or later entrant, the person’s relevant employment during the back period is to be treated for the purpose of these Regulations as occurring after 31st December 2006.

(11) In this regulation—

“non-pensionable part-time employment” means employment which is not pensionable by virtue of regulation 7(6);

“non-pensionable post-retirement employment” means employment which is not pensionable by virtue of regulation 7(8);

“opted-out employment” means—

Election for part-time employment before 1st May 1995 to be pensionable

12.—(1) The employer of a person (P) may, by giving written notice to the Secretary of State, elect that a period of P’s employment falling within paragraph (5) is to be pensionable.

(2) The election may relate to—

(a)the whole of the period of employment falling within paragraph (5), or

(b)a part of that period, ending on the day before the original election date, specified in the election.

(3) The election must—

(a)be made with the consent of P,

(b)contain a statement by the employer that—

(i)the employment falls within paragraph (5), and

(ii)the condition in paragraph (6) is satisfied.

(4) The election only has effect if—

(a)it is made before 1st September 2012, and

(b)P had, before 1st September 2010, elected that the period of the employment which fell after the original election date was to be pensionable.

(5) A period of P’s employment falls within this paragraph if it is part-time employment on or after 8th April 1976 and before 1st May 1995—

(a)which was not pensionable employment, and

(b)which would have been pensionable employment if it had been full–time, but

(c)in respect of which P could not have elected (pursuant to regulations under SA 1972) for the employment to be pensionable.

(6) The condition in this paragraph is that the election under this regulation is made during the employment in question or within 6 months after the end of it.

(7) For the purpose of paragraph (6) where P is employed by the same employer on more than one successive contract of employment, the employment with that employer is not treated as having ended until the end of any stable employment relationship between that employer and P.

(8) For the purposes of paragraph (7) in any case where section 26 of the Further and Higher Education Act 1992(2) applies to P, the transferor and the further education corporation are to be treated as the same employer (and where that section applies to P by virtue of an order under section 27 of that Act the transferor further education corporation and the transferee further education corporation are to be treated as the same employer).

(9) In paragraphs (10) to (13) “the necessary payment” is an amount determined by the Secretary of State, after taking advice from the scheme actuary, as representing the employee’s contributions calculated on the basis of the “Public Sector Settlement Model” published by the Employment Tribunals Service in May 2003(3).

(10) An employer making an election is to provide the Secretary of State with such information as the Secretary of State may reasonably require to calculate the necessary payment.

(11) Where the necessary payment is made to the Secretary of State in accordance with paragraph (12), the period of part-time employment specified in the election is to be treated as pensionable employment, except where paragraph (14) applies.

(12) The necessary payment is to be made in the manner and at the times specified in arrangements agreed between the Secretary of State and P or, in default of agreement, determined by the Secretary of State.

(13) Arrangements for making the necessary payment may include—

(a)payment of a lump sum or instalments,

(b)deduction of amounts from P’s retirement lump sum,

(c)payment of additional monthly contributions,

(d)reduction of the retirement pension which would otherwise be payable to P, or

(e)deduction of amounts from interest on P’s retirement lump sum or retirement pension.

(14) Where—

(a)the Secretary of State is satisfied (despite the statement by the employer referred to in paragraph (3)(b)) that the employment does not fall within paragraph (5) or that the condition in paragraph (6) is not satisfied, or

(b)the election does not have effect because paragraph (4)(b) does not apply

the election is to be treated as an election by P under regulation 10 (election of employment to be pensionable) and the conditions in paragraph (1)(a) to (c) of regulation 11 (backdating elections for employment to be pensionable) are to be treated as satisfied.

(15) In this regulation “the original election date” means the first date on which P could have elected (pursuant to regulations under SA 1972) that the employment was to be pensionable.

Accepted schools

13.—(1) An establishment is an accepted school if—

(a)immediately before 1st September 2010 it was an accepted school under regulation B3 of TPR 1997, or

(b)the Secretary of State accepts it for the purpose of this regulation by giving its proprietor a written notice specifying the date on which it becomes an accepted school.

(2) An establishment may be accepted only if—

(a)it is an establishment mentioned in paragraph (3),

(b)its proprietor makes a written application to the Secretary of State, and

(c)a guarantee is provided to the Secretary of State.

(3) The establishments are—

(a)an independent school (in England) registered under section 99 of the Education and Skills Act 2008(4) or (in Wales) registered under section 161 of EA 2002;

(b)an establishment providing further education constituted by an amalgamation of establishments which provided such education of which at least one was an accepted school;

(c)a school which is a member of COBISEC and is located in a member State other than the United Kingdom;

(d)the establishment which, when teachers were employed there for the purpose of the Ministry of Defence, was known as Welbeck, the Defence Sixth Form College.

(4) An establishment, if accepted by the Secretary of State, becomes an accepted school from the date agreed between the Secretary of State and its proprietor, which must be the first day of a month after that in which the application under paragraph (2)(b) is made, or, if the establishment is one mentioned in paragraph (3)(b), either the first day of such a month or the date of the amalgamation referred to in that sub-paragraph.

(5) An establishment accepted by the Secretary of State ceases to be an accepted school from the date specified in a written notice given to its proprietor by the Secretary of State.

(6) A notice under paragraph (5) may be given if—

(a)the proprietor of the establishment makes a written application to the Secretary of State,

(b)the proprietor fails to comply with any provision of these Regulations or of TSAVCR 1994,

(c)the establishment ceases to be an establishment mentioned in paragraph (3),

(d)where a guarantee was previously provided to the Secretary of State, either the guarantee lapses, or because of a change in circumstances, the Secretary of State considers that the guarantee is insufficient,

(e)where the proprietor of the establishment is an individual or a number of individuals, that individual or one of those individuals is an undischarged bankrupt or is the subject of a bankruptcy restrictions order or an interim order under Schedule 4A to IA 1986(5), or

(f)where the proprietor of the establishment is a company—

(i)a proposal for a voluntary arrangement has been made or approved in relation to the company under Part 1 of IA 1986,

(ii)an administration application has been made or a notice of intention to appoint an administrator has been filed with the court or an administrator has been appointed for the company under Schedule B1 to IA 1986(6),

(iii)a receiver, manager or administrative receiver has been appointed for the company under Part 3 of IA 1986,

(iv)a winding-up petition has been presented, a winding-up order has been made or a resolution for voluntary winding-up has been passed in relation to the company under Part 4 or 5 of IA 1986, or

(v)notice has been received that the company may be struck off the register of companies or an application to strike it off has been made under Part 31 of CA 2006.

(7) The proprietor of an accepted school must immediately give written notice to the Secretary of State of any change in proprietor or upon the occurrence of any of the events mentioned in paragraph (6)(e) or (f).

(8) In this regulation “guarantee” means a bond, guarantee or indemnity in a form and amount, and provided by a person, approved by the Secretary of State in respect of sums due, under these Regulations and TSAVCR 1994, from the proprietor and from any other person by whom teachers are employed at the establishment.

Accepted function providers

14.—(1) A function provider is accepted pursuant to this regulation in respect of a function or service if the Secretary of State gives it a written notice specifying—

(a)that function or service, and the local authority to which the function or service relates, and

(b)the date on which it becomes accepted in respect of that function or service, which must be a date agreed between the Secretary of State and the function provider.

(2) A function provider may be accepted only if—

(a)it makes a written application to the Secretary of State specifying the function or service in respect of which it wishes to be accepted, and

(b)a guarantee is provided to the Secretary of State.

(3) The functions or services in respect of which a function provider may be accepted are—

(a)a function which it performs on behalf of a local authority in accordance with a direction under section 497A(4) of EA 1996;

(b)an education function of a local authority which it is nominated to exercise under section 497A(4A)(7) of EA 1996 or section 15(6) of the Local Government Act 1999(8);

(c)a service which it provides or makes available under a best value arrangement for the purposes of, or in connection with, the exercise of an education function of a local authority.

(4) A function provider who immediately before 1st September 2010 was accepted under regulation B3A of TPR 1997(9) in respect of a function or service is treated as accepted pursuant to this regulation in respect of that function or service.

(5) A function provider accepted in accordance with this regulation ceases to be so accepted in respect of such functions and services, and from such date, as the Secretary of State may specify in a written notice given to the function provider by the Secretary of State.

(6) A notice under paragraph (5) may be given if—

(a)the function provider makes a written application to the Secretary of State,

(b)the function provider fails to comply with any provision of these Regulations or TSAVCR 1994,

(c)where a guarantee was previously provided to the Secretary of State, either the guarantee lapses or because of a change in circumstances the Secretary of State considers that the guarantee is insufficient,

(d)a proposal for a voluntary arrangement has been made or approved in relation to the function provider under Part 1 of IA 1986,

(e)an administration application has been made, a notice of intention to appoint an administrator has been filed with the court or an administrator has been appointed for the function provider under Schedule B1 to IA 1986,

(f)a receiver, manager or administrative receiver has been appointed for the function provider under Part 3 of IA 1986,

(g)a winding-up petition has been presented, a winding-up order has been made or a resolution for voluntary winding-up has been passed in relation to the function provider under Part 4 or 5 of IA 1986, or

(h)notice has been received that the function provider may be struck off the register of companies or an application to strike it off has been made under Part 31 of CA 2006.

(7) A function provider accepted in accordance with this regulation must give written notice to the Secretary of immediately upon the occurrence of any of the events mentioned in paragraph (6)(d) to (h).

(8) In these regulations “function provider” means a body corporate other than a local authority which—

(a)is specified in a direction under section 497A(4) of EA 1996,

(b)is nominated under section 497A(4A) of EA 1996 or section 15 of the Local Government Act 1999, or

(c)provides or makes available services under a best value arrangement.

(9) In this regulation—

“best value arrangement” means a contract or other arrangement made with a local authority for the provision of, or the making available of, services for the purposes of, or in connection with, the exercise of an education function of that local authority;

“guarantee” means a bond, guarantee or indemnity in a form and amount, and provided by a person, approved by the Secretary of State in respect of sums due from the function provider under these Regulations and TSAVCR 1994.