The National Health Service Pension Scheme, Injury Benefits and Additional Voluntary Contributions (Amendment) Regulations 2011

Amendment of Schedule 2

12.—(1) Schedule 2 (medical and dental practitioners) is amended as follows.

(2) In paragraph 1 (additional definitions used in this schedule), at the end of the definition of “practitioner income”, add “, or as the case may be, paragraph 3(2A)”.

(3) In paragraph 3 (meaning of “pensionable earnings”)—

(a)in sub-paragraph (2A)(1), for paragraph (b), substitute—

“(b)does not include—

(i)charges collected from patients which are not required, by virtue of such directions, to be so set off,

(ii)income received by a practitioner to whom regulation B2 (restrictions on membership), regulation B3 (restriction on further participation in this Section of the scheme) or regulation B4 (opting-out of this Section of the scheme) applies, or

(iii)income received on or after 7th November 2011 by a practitioner in respect of the performance of services under a GDS contract or a PDS agreement to which the practitioner’s employer is not a party.”;

(b)for sub-paragraph (2C)(2), substitute—

“(2C) Where the income of a type 1 dental practitioner includes payments made under a GDS contract or a PDS agreement consisting of all or any of—

(a)monthly seniority payments;

(b)maternity leave, paternity leave, parental leave or adoption leave payments; and

(c)sickness leave payments,

those payments are practitioner income for the purposes of this paragraph (that is, they are pensionable earnings notwithstanding that they are not included in the calculation of the pensionable earnings ceiling for a particular GDS contract or PDS agreement).”.

(4) Paragraph 5A (distribution of pensionable earnings between type 1 dental practitioners employed or engaged by the same GDS or PDS contractor)(3) is omitted.

(5) Paragraph 10 (contributions to this section of the scheme)(4) is amended as follows—

(a)in sub-paragraph (2I)(5)—

(i)for “, which” substitute “on the basis of whichever of the following the host Trust or Board considers the most appropriate in the circumstances”;

(ii)in paragraphs (a) and (b), at the beginning, insert “the amount of the practitioner’s (other than a dentist performer) or non-GP provider’s earnings that”; and

(iii)in paragraph (c)—

(aa)at the beginning, insert “the amount of such earnings that”; and

(bb)after “practitioner’s” insert “(not being a dentist performer)”;

(b)in sub-paragraph (2K)(6)—

(i)in paragraph (a), at the beginning, insert “reconciled or”;

(ii)in paragraph (b), after “required to”, insert “reconcile or”; and

(iii)in sub-paragraph (i) of paragraph (b), insert “reconciled,” before the word “certified” in both places where it occurs;

(c)in sub-paragraph (2L)(7)—

(i)for “, which” substitute “on the basis of whichever of the following the host Trust or Board considers the most appropriate in the circumstances”; and

(ii)in paragraphs (a), (b) and (c), at the beginning, insert “the amount of the performer’s earnings that”.

(6) Paragraph 13 (early retirement pension (employer’s consent)) is omitted.

(7) In paragraph 23 (accounts and actuarial reports)(8), for sub-paragraphs (4) to (12), substitute—

“(4) Within 1 month of the end of each financial year, a host Trust or Board must give to each—

(a)GDS or PDS contractor with which that host Trust or Board is a party to a GDS contract or a PDS agreement, a notice which sets out, in accordance with the host Trust or Board’s records, the amount of the pensionable earnings ceiling and the amount of the pensionable earnings the contractor has paid to every type 1 dental practitioner who has performed services under that contract or agreement during that financial year (“an annual reconciliation notice”); and

(b)type 1 dental practitioner referred to in (a), a notice which sets out the amount of pensionable earnings each practitioner has been paid for that financial year as indicated in the host Trust or Board’s records (“a performer’s notice”).

(5) Within 3 months of the end of each financial year the GDS or PDS contractor must return the annual reconciliation notice to the host Trust or Board stating—

(a)that the amounts referred to in sub-paragraph (4)(a) are correct or, where either or both of those amounts are incorrectly shown in the notice, the correct figure or figures;

(b)in the case of a type 1 dental practitioner whose earnings, during the period covered by the annual reconciliation notice, are not pensionable because they fall within paragraph 3(2A)(b) of this Schedule, the earnings that would otherwise have been pensionable if that paragraph did not apply;

(c)the amount of any monthly seniority payments, maternity leave payments, paternity leave payments, adoption leave payments, parental leave payments or sickness leave payments paid under the contract or agreement during the financial year;

(d)the amount of pensionable earnings the contractor has paid to each type 1 dental practitioner under the contract or agreement during the financial year;

(e)whether each type 1 dental practitioner who performed services under the contract or agreement referred to in sub-paragraph (4)(a) was given the opportunity to verify the pensionable earnings declared for them in the annual reconciliation notice; and

(f)the name and dentist’s reference number of any type 1 dental practitioner who—

(i)failed to verify; or

(ii)disagrees with,

the amounts declared for them in the annual reconciliation notice and, where paragraph (ii) applies, the reason for the disagreement.

(6) Within 3 months of the end of each financial year, each type 1 dental practitioner who performed services under the contract or agreement referred to in sub-paragraph (4)(a) must return the performers’ notice to the host Trust or Board, stating—

(a)that they were (or were not, as the case may be) in pensionable employment for the period covered by the performer’s notice;

(b)that they were (or were not, as the case may be) directly employed by the contractor referred to in sub-paragraph (4)(a) during the period covered by the performer’s notice;

(c)in the case of a practitioner, who was in pensionable employment during the period covered by the notice, the pensionable earnings they received under the contract or agreement during that period;

(d)in the case of a practitioner whose earnings, during the period covered by the performer’s notice, fell within paragraph 3(2A)(b) of this Schedule, the earnings that would otherwise have been pensionable if that paragraph did not apply;

(e)the amount of any monthly seniority payments, maternity leave payments, paternity leave payments, adoption leave payments, parental leave payments or sickness leave payments received by the practitioner under the contract or agreement during the financial year; and

(f)whether the practitioner and contractor have together verified that any amounts the practitioner has declared in respect of sub-paragraph (6)(c), (d) or (e) are the same as the equivalent amounts declared in the annual reconciliation notice referred to in sub-paragraph (5).

(7) Within 3 months of the end of each financial year, a type 2 dental practitioner must provide the host Trust or Board with whom their employer has entered into a GDS contract or a PDS agreement, with a notice of their pensionable earnings based on—

(a)the payments they have received from their employer for practitioner services provided under that GDS contract or PDS agreement during that financial year; and

(b)the pensionable earnings they have received, as a type 2 dental practitioner, from all other type 2 dental practitioner sources during that financial year.

(8) An employing authority may, in exceptional circumstances, and with the agreement of the Secretary of State, arrange or agree a different time limit for the issue and return of the certificates, notices or statements referred to in sub-paragraphs (2) to (7) and may, if a material particular has changed, accept a replacement.

(9) Subject to sub-paragraph (10), an annual reconciliation notice will be invalid if—

(a)it contains information that the employing authority’s records show is inaccurate or misleading in a material particular;

(b)subject to sub-paragraph (8), it is not received within the specified time limit;

(c)the total of the amounts specified in it in respect of each type 1 dental practitioner that performed services under the contract or agreement referred to in sub-paragraph (4)(a) is greater than the aggregate of the pensionable earnings ceiling referred to in sub-paragraph (4)(a) and the amount referred to in sub-paragraph 5(c);

(d)it is incomplete in any material particular; or

(e)one or more of the practitioners referred to in it did not, for whatever reason, verify the earnings figure the contractor has declared for them.

(10) Where an employing authority has received an annual reconciliation notice which is valid for some or all of the practitioners listed in it, the amounts notified to that employing authority for the financial year to which the notice relates will, subject to sub-paragraphs (16), (17) and (18), be the pensionable earnings for those practitioners.

(11) Where an employing authority has received an annual reconciliation notice which is invalid for some or all of the practitioners listed in it, the pensionable earnings for those practitioners for the financial year to which the notice relates will be—

(a)zero, where the employing authority’s records show that value or the authority is unable to estimate the value of the practitioner’s pensionable earnings; or

(b)the figure that the employing authority estimates will represent that practitioner’s share of the aggregate of the pensionable earnings ceiling referred to in sub-paragraph 4(a) and the amount referred to in sub-paragraph (5)(c) (“the maximum amount”), less the difference between—

(i)that maximum amount, and

(ii)the total of the monthly amounts in respect of which estimated contributions to this Section of the scheme under regulation D1 (contributions by members) were paid on account during the financial year to which the earnings relate,

but if the total mentioned in sub-paragraph (ii) is greater than the maximum amount, then no amount is to be deducted pursuant to this sub-paragraph.

(12) In respect of each scheme year, each employing authority and GDS or PDS contractor shall provide the Secretary of State with a statement of estimated pensionable earnings in respect of any—

(a)non-GP provider that is a GMS or PMS practice or an APMS contractor who assists in the provision of NHS services provided by that GMS or PMS practice or APMS contractor;

(b)type 1 medical practitioner who performs medical services as, or on behalf of, the practice or contractor;

(c)type 2 medical practitioner employed by the practice or contractor;

(d)type 1 dental practitioner who performs services under a GDS contract or a PDS agreement, or

(e)type 2 dental practitioner employed or engaged to perform services under a GDS contract or a PDS agreement.

(13) In respect of each scheme year, each employing authority and GDS or PDS contractor shall, in respect of type 2 medical or dental practitioners employed or engaged by the practice or contractor, provide the Secretary of State with an end-of-year statement of—

(a)pensionable earnings;

(b)contributions to this Section of the scheme made under regulation D1 (contributions by members) and the modifications to that regulation referred to in paragraph 10 of this Schedule;

(c)contributions to this Section of the scheme made under regulation D2 (contributions by employing authorities) and the modifications to that regulation referred to in paragraph 10 of this Schedule; and

(d)any pensionable earnings deemed in accordance with regulation P1 (absence because of illness or injury or certain types of leave) and the modifications to that regulation referred to in paragraph 19 of this Schedule.

(14) The Secretary of State shall be provided with—

(a)the statement referred to in sub-paragraph (12) at least 1 month before the beginning of that scheme year;

(b)the statement referred to in sub-paragraph (13) no later than 3 months after the end of that scheme year.

(15) A host Trust or Board shall, for each scheme year and no later than 13 months after the end of each scheme year, forward to the Secretary of State a copy of the records the host Trust or Board maintains in respect of—

(a)all contributions to this Section of the scheme made under paragraph 10 of this Schedule in respect of type 1 medical practitioners and non-GP providers; and

(b)their pensionable earnings.

(16) Subject to sub-paragraphs (17) and (18), if, in respect of a scheme year, a practitioner or non-GP provider has failed to comply with the requirements of whichever of sub-paragraphs (2), (3), (5), (6) or (7) applies to that member, the member’s pensionable earnings for that scheme year shall be zero.

(17) If, in respect of a scheme year, the employing authority of a practitioner or non-GP provider member is in possession of a figure representing all or part of that member’s pensionable earnings for that year, the Secretary of State may treat that figure as the amount of that member’s pensionable earnings for that year where—

(a)that member has failed to comply with the requirements of whichever of sub-paragraphs (2), (3), (5), (6) or (7) applies to them, and

(b)a benefit in respect of that member’s service as a practitioner or non-GP provider is payable to, or in respect of them, under these Regulations.

(18) If, in respect of a scheme year, a practitioner or non-GP provider—

(a)dies without complying with the requirements of whichever of sub-paragraphs (2), (3), (5), (6) or (7) applies to them; or

(b)is, in the opinion of the Secretary of State, unable to look after their own affairs by reason of illness or lack of capacity within the meaning of the Mental Capacity Act 2005,

the Secretary of State may require that practitioner’s or non-GP provider’s personal representatives or person (or persons) duly authorised to act on the member’s behalf to provide the relevant certificate, notice or statement within the period specified in sub-paragraph (19).

(19) The period is—

(a)that referred to in whichever of sub-paragraphs (2), (3), (5), (6) or (7) was or is applicable to them; or

(b)such other period as the Secretary of State permits.

(20) The certificates, notices and statements referred to in this paragraph—

(a)shall be in such form as the Secretary of State shall from time to time require;

(b)may be provided to the Secretary of State in such manner as the Secretary of State may from time to time permit.”.