Principal Civil Service Pension Scheme · CAS-43767-M3K0

CAS-43767-M3K0

Ombudsman’s Determination Applicant Mr Y

Scheme Principal Civil Service Pension Scheme (the Scheme)

Respondents Scottish Prison Service (SPS) The Cabinet Office

Outcome

Complaint summary

Background information, including submissions from the parties and timeline of events The sequence of events is not in dispute, so I have only set out the salient points. I acknowledge there were other exchanges of information between all the parties.

1 CAS-43767-M3K0 “… should you voluntarily move from your current post to any other non- operational post, under the Pension Scheme rules your Reserved Rights will end. In this respect you are now in the same position as any operational member of staff considering moving to a non-operational post.”

“In accordance with rule 2.26 of Section II (1972 section) for the Civil Service Pension Arrangements, employees who left an eligible prison officer role (as detailed within Appendix 5 of these rules), lose their ‘reserved rights’ when they move to a role not listed in Appendix 5.

Until recently SPS understood that a move out of an eligible role resulted in an employee losing their reserved rights on a permanent basis. However, SPS has been advised by Cabinet Office that an employee who has previously had reserved rights status, but who lost that status following a move to a role that was not eligible, has the right to regain this status if they move back to an eligible role.”

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• Roles not in Appendix five could not have RR status.

• His current role was not on the list.

• In December 1999, he had been advised by the Head of Employee Relations that special agreement had been obtained from the Cabinet Office to continue his RR status. This was despite the fact that he was not strictly entitled to it. However, this correspondence advised that, should he voluntarily move from his post to a non- operational post, his RR status would end.

• Subsequently, in 2012, he was successfully interviewed for the role of Special Projects Deputy Area Maintenance. He was issued with non-operational terms and conditions which he accepted. His RR eligibility ended at that point.

• He had been provided with clear guidance in respect of his RR status.

• As many of the roles in Appendix five no longer existed, it was likely that the only roles eligible for RR status relevant to him were the operational roles. He could apply for one of these if he wished to regain his RR status.

• His current role was as a Special Projects Deputy Area Maintenance Manager. He should be allowed to revert to a RR eligible role and draw his lump sum.

• What consultations had taken place with the Trades Union Congress (TUC) when assigning bands to the roles as these had been applied at a later date?

• What evidence was there of the original decision to remove his RR status and the new advice from the Cabinet Office?

• What was the SPS’ understanding in relation to a move away from a RR eligible role leading to a permanent loss of RR status?

• Section 2.26 of the Rules did not say that members who moved away from a RR eligible role lost their RR status. He was not clear where this was stated.

3 CAS-43767-M3K0 • The SPS did not provide accurate information over a protracted period of time in relation to pension options. As a result, staff were denied the opportunity to apply for a RR eligible role.

• He did not dispute that he knew what he was doing when he signed his new contract in August 2012. However, he had assumed that authority had been sought to remove his RR status. There was no evidence that this was the case. It suggested that SPS did it off its own back against the Rules.

• While it could not reinstate his RR status, it would consider, on its merits, any request he made to revert to a RR eligible role.

• Appendix five had not been amended so no consultation with the TUC had been needed.

• It was unable to confirm the source of the original advice which resulted in the removal of his eligibility for RR status. In relation to reverting back to RR eligible roles, the Cabinet Office confirmed the position to SPS in an email dated 1 August 2018.

• It had no record of any historical decision being made in relation to a move away from a RR eligible role leading to a permanent loss of RR status. Any removal of RR status would not have been triggered by it as it did not have the authority to do so.

• A change of role had an impact in terms of how the Rules applied to him.

• He had questioned where it was stated that members who moved away from a RR eligible role lost their RR status. His current role was not included in Appendix five, so his service was not classified as “service as a Prison Officer” in line with rule 2.26. So, rules 2.26 and 2.27 did not apply to him.

• It was initially unaware of the information relating to staff reverting back to RR eligible roles. Impacted individuals were informed when it did become aware, and they were provided with an option to resolve the issue.

• The evidence he had asked for had not been provided, so there was no prior approval for the SPS to alter his terms and conditions.

• The SPS operated a discriminatory promotion process. Non-operational staff had not been made aware of their ability to revert to a RR eligible role.

4 CAS-43767-M3K0 • Any job change had to factor in the associated permanent loss of RR status, something his operational colleagues did not have to factor in. He had been discriminated against. He had not applied for promotions due to this.

• Appendix five must have been amended. In addition, his job merited inclusion in Appendix five.

• The SPS had notified MyCSP that it had changed his role from being eligible for RR to being non-eligible.

• The SPS did not notify him that the ability to regain his RR status existed.

• The only reason not to change the Rules to remove the discrimination was that it would be problematic and only a small, decreasing population of people were impacted.

• The SPS had not been advised that people could revert to a RR eligible role and regain RR status. When it contacted the Cabinet Office, it said that it had only recently become aware that this was the case following legal advice.

• There was no evidence to suggest that the letter of 1 December 1999 included false information. The contents represented what was known by the SPS and the Cabinet Office at the time.

• He had voluntary moved to a post not listed for RR eligibility. He had not been moved without his approval. He had been made aware that he would lose his RR status as a result of this move, and he chose to do this.

• As a result of the move, the SPS had notified MyCSP to remove his RR status.

• The Cabinet Office determined the grades in Appendix five. Any changes would have to take place at a national level with the unions being involved.

• The letter of 1 December 1999 warned him that he would lose his RR status if he moved to another non-operational post.

5 CAS-43767-M3K0 • The Rules did not stipulate that the loss of RR status was permanent. The rights could be regained by moving to a qualifying role before attaining age 55. It acknowledged that he was not initially informed of this.

• It did not uphold his discrimination claim as he had been put in the same position as any operational member of staff.

• It upheld the part of his complaint relating to the fact that the SPS was not aware that RR status could be regained. However, this had been remedied through the publication of the Notice.

• His complaint related to him not having all the information prior to moving to a role that did not qualify for RR. Had he had all the information, his career path would have been very different.

• He met the criteria to be able to move to a role that qualified for RR status and retire at age 55. However, he was not told that this was the case until after his 55th birthday. This option had been taken from him.

• In September 2012, he voluntarily moved to a role that he knew was not eligible for RR. There was no certainty that he would have transferred back to a RR eligible role nor that his career would have taken a different course had he been notified of all the facts earlier. If he had always intended to retire at age 55, it was not persuaded that he would have made the move at age 50 which resulted in him losing his RR status.

• While he had said that, between 1997 and 2019, the SPS had failed to inform him of his rights, it was not in a position to do so. It published the Notice and wrote to him when it became aware of the correct position.

• The Cabinet Office said that the Rules had never excluded people who were in a RR eligible role but had an earlier period of service which was not eligible for RR. RR rights could be regained if the individual returned to a RR eligible role before they reached age 55. He was not informed of this until 17 January 2019, at which point he was over age 55.

• He was misled by the SPS and this had determined which career path he had to take. It had limited potential promotions and increases in pay. He missed the potential of being promoted to governor level, with an earnings potential of £73,365 per annum.

6 CAS-43767-M3K0 • Due to the threat of losing his RR status, he did not move to a new role until 2012 when his personal circumstances changed. After this promotion he was informed that his RR status would be removed permanently. If he had known that he could have regained his RR status, he would have applied for promotions long before 2012. He would have then reverted back to a RR eligible role prior to retiring at age 55.

• The SPS should admit he has been disadvantaged. He would like his RR status reinstated and to be given the opportunity to retire without reduction for early payment. In addition, he would like compensation for the distress and inconvenience caused to him and his family.

• The stage one IDRP response of 15 November 2019 upheld the part of his complaint relating to the SPS not being aware that RR status could be regained. So, this current complaint should be upheld.

“Had Mr [Y] applied, and been successful, for a role that qualified for reserved rights, he would have been eligible for early retiral in line with this pension scheme and the rules associated with reserved rights status, which would have taken into account his accrued service. This was equally the case if he moved before he was 55, in January 2019 and, further, if he moves today.”

Adjudicator’s Opinion

• On 1 December 1999, Mr Y was first notified that, should he voluntarily move to another non-operational post, his entitlement to RR would end. It was then not until 17 January 2019 that he was notified that he could regain his right to RR if he subsequently moved back to a RR eligible role.

• The Adjudicator noted that the information that Mr Y was provided with in December 1999, would have been something that he would have taken into account when considering a change of role. He had been made aware that a voluntary move to another non-operational role would result in his right to RR ending. However, in the Adjudicator’s view, at no point was he told that this would be permanent.

• The letter Mr Y was sent in December 1999 provided a contact who was available to answer any questions that he had. The scenario of moving to another non- operational role and then moving back to a RR eligible role in the future was not covered in the letter. In the Adjudicator’s opinion, it would have been possible for Mr Y to investigate this further with the named contact.

7 CAS-43767-M3K0 • Furthermore, Mr Y made the decision to voluntarily move to a role that he knew was not eligible for RR in September 2012. He could have sought clarification at the time on what would have happened should he have chosen to move back to a RR eligible role in the future, but he chose not to do so.

• The Adjudicator noted that, in both December 1999 and September 2012, the SPS believed that a move back to a RR eligible role would not have resulted in the restoration of RR status. So, there is no certainty that, had Mr Y asked the question concerning the impact of a move back to a RR eligible role, he would have received a correct answer. However, it is possible that, having raised this point, more investigation would have been undertaken by the SPS and a correct answer supplied.

• In its letter of 17 January 2019 and the Notice, the SPS provided greater clarity on this point. The letter acknowledged the fact that each individual’s circumstances were unique, and that it had been unable to provide tailored advice about Mr Y’s circumstances in the letter. However, it provided a contact who he could discuss his individual circumstances with. Furthermore, the Notice referred to the fact that, under RR, the earliest age that a pension could be drawn without reduction was 55.

• Mr Y said that he would have liked to have been given the opportunity to retire without reduction for early payment. From the use of the word “earliest” in the Notice and the SPS’ response of 21 January 2022, which was shared with Mr Y on 29 January 2022, the Adjudicator took the view that Mr Y still had options in this respect. The Adjudicator recommended that he discussed this with his contact at the SPS.

• Mr Y said that, when compared to his colleagues in operational roles, he has been discriminated against when applying for new roles. In the Adjudicator’s opinion this was not the case. In the letter of 1 December 1999, Mr Y was told that his role had been re-designated as non-operational. He was also told that, while no longer strictly entitled to RR status, the Cabinet Office had agreed to allow his RR rights to continue. So, he had been put in the same position as his operational colleagues who had a right to RR. Both would lose their RR status on moving to a non-operational role and both would retain their RR status on moving to an operational role.

• In summary, it was the Adjudicator’s view that Mr Y had a number of opportunities to request information on how RR worked in his own specific circumstances. The Adjudicator had seen no evidence that he chose to do this. In the Adjudicator’s opinion, it would have been unreasonable to hold the SPS or the Cabinet Office at fault in this respect. Additionally, the Adjudicator had seen no evidence that Mr Y was provided with incorrect information. In his view, no maladministration had taken place on the part of either the SPS or the Cabinet Office.

8 CAS-43767-M3K0 Mr Y did not accept the Adjudicator’s Opinion and the complaint was passed to me to consider.

Mr Y provided his further comments which do not change the outcome. In summary, he said:-

• The SPS informed him that his RR status would be lost if he moved to a non- operational role. He had no reason to question this.

• The fact that the SPS did not provide him with any information on what would happen to his RR status should he have moved back to a RR eligible role was its responsibility. It was not his responsibility to ask for this information.

• If he had been given all the facts regarding the removal and reinstatement of RR then he would have been in control of his future. He would have sought promotion and reverted back to an operational role prior to 2017 and then retired at age 55. He now has to work until age 60.

• He was being led by an employer which he thought had his best interests at heart. However, it was using him as a cost cutting opportunity.

• The SPS wrote to him to apologise in 2019. It openly said that it was its fault and the Cabinet Office confirmed that the correct information had always been available to the SPS.

I note the additional points raised by Mr Y, but I agree with the Adjudicator’s Opinion.

Ombudsman’s decision

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Anthony Arter

Pensions Ombudsman 28 April 2022

10 CAS-43767-M3K0 Appendix Extracts from the rules – Principal Civil Service Pension Scheme Section II (The 1972 Section)

“Prison Officers

2.26 “Service as a prison officer” means service as a civil servant serving in an institution to which the Prison Act 1952 or the Prisons (Scotland) Act 1952 applies, in one of the grades or pay bands listed in Appendix 5.

2.27 For prison officers with service as a prison officer who were in post on 30 September 1987, the pension age is 55 (but see rule 3.12); and after 20 years of actual service as a prison officer (including service that reckons under this scheme because of rule 2.17 or 2.17a and which preceded or interrupted service as a prison officer) further service reckons (subject to the maximum limits laid down in rules 2.3 and 3.31) at double its length, and will so reckon for the purposes of any payment under rule 3.2, or rule 3.32a or, subject to the provisions of rules 2.2 or 2A.5 of the Compensation Scheme, rules 2.1, 2A.4, 3.1 or 3A.4 of the Compensation Scheme. This is subject to rule 7.13.”

“Appendix 5

Prison Officer Grades

(Rule 2.26)

Subject to the notes below, rules 2.26 and 2.27 apply to service as a prison officer in one of the following grades or pay bands:

England and Wales Scotland

Chief Officer I/Grade IV/Governor 4 Chief Prison Officer 1&2/Grades IV&V/pay band G

Chief Officer II/Grade V/Governor 5 Principal Prison Officer/Grade VI/pay band F

Principal Prison Officer/Grade VI/Principal Senior Prison Officer/Grade VII/pay band E Officer

Senior Prison Officer/Grade VII/Senior Prison Officer/Grade VIII/pay bands D or C Officer

Prison Officer/Grade VIII/Officer Senior Foreman of Works

Senior Foreman of Works Foreman of Works

11 CAS-43767-M3K0 Foreman of Works Engineer Officer

Engineer Chief Clerk Officer

House Matron/Grade VI/Principal Officer Principal Clerk Officer

Pharmacist Clerk Officer

Principal Nursing Sister Borstal Matron

Nursing Sister Nursing Sister

Temporary Officer/Grade VIIIA (who joined before 12.12.82)

Prison Auxiliary (who joined as a Temporary Officer before 18.1.74)

service in an operational capacity in Grade 3

service in an operational capacity in Grade 2 band B or C

service in an operational capacity as Manager E, F, or G

service in a non-operational capacity as a Manager G if appointed in that capacity before 1 January 2007

Note 1. Persons in service as Governor IV, Assistant Governor and Assistant Governor (Trainee) who are, or have been regraded Grade IV or V on or before 30 September 1987 and subsequently graded Governor 4 or 5 are excluded.

Note 2. Persons in service as Prison Officer, who have been recruited through the open competition for governor grades but who have been required by their terms and conditions of service to serve 1 year as a Prison Officer before being regraded Grade V, are excluded.”

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